3d Cir. Model Jury Instr. (Criminal) 7.04

Co-conspirators

(Name) has argued that (he) (she) is not guilty of (state offense), which was

allegedly committed by (his) (her) co-conspirator, because (name) withdrew from the

conspiracy before the co-conspirator committed that offense. If you find, based on

the evidence, that (name) withdrew from the conspiracy before (his) (her)

co-conspirator committed (state offense), then you must find (name) not guilty of that

offense.

In order to withdraw from the conspiracy, (name) must have taken some clear,

definite and affirmative action to terminate (his) (her) participation, to abandon the

illegal objective, and to disassociate (himself) (herself) from the agreement.

Withdrawal requires proof that (name) changed (his) (her) intent about participating

in the agreement. If the evidence only shows that (name) stopped activities in

furtherance of the conspiracy, or stopped cooperating with the conspiracy, or merely

was inactive for a period of time, that is not enough to find that (name) withdrew

from the conspiracy.

(Name) has the burden of proving by a preponderance of the evidence that [he]

[she] withdrew from the conspiracy before a co-conspirator committed the offense(s)

charged in the indictment. Preponderance of the evidence is a lower standard than

proof beyond a reasonable doubt. To prove something by a preponderance of the

evidence means to prove that it is more likely true than not true. If you put the

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credible evidence that is favorable to (name) and the credible evidence that is

favorable to the government on opposite sides of a scale, the scale would have to tip

somewhat on (name’s) side in order for you to find that (name) is not guilty because of

withdrawal before a co-conspirator committed the offense(s) charged in the

indictment. However, if the scale tips in favor of the government, or if the credible

evidence appears to be equally balanced, or if you cannot say on which side the

credible evidence is heavier, then you must decide that (name) has not proved the

defense of withdrawal before commission of the offense(s) charged by a

preponderance of the evidence. In making this determination, you should consider

all of the evidence presented during the trial, regardless of who offered it. You

should evaluate the evidence and its credibility according to the instructions I gave

you earlier.

You should also remember that the fact that (name) raised this defense does

not relieve the government of the burden of proving all the elements of the offense(s)

charged beyond a reasonable doubt.