5th Cir. Pattern Jury Instr. (Criminal) 2.18

The defendant has raised the affirmative defense of withdrawal from the conspiracy.

A member of a conspiracy remains in the conspiracy unless he [she] can show that at some

point he [she] completely withdrew from the conspiracy. A partial or temporary withdrawal is not

sufficient. The defense of withdrawal requires the defendant to make a substantial showing that he

[she] took some affirmative step to terminate or abandon his [her] participation in the conspiracy.

In other words, the defendant must demonstrate some type of affirmative action that disavowed or

defeated the purpose of the conspiracy. This would include, for example, voluntarily going to the

police or other law enforcement officials and telling them about the plan; telling the other

conspirators that he [she] did not want to have anything more to do with it; or any other affirmative

acts that were inconsistent with the object of the conspiracy and communicated in a way reasonably

likely to reach the other members. Merely doing nothing or just avoiding contact with other

members is not enough.

The defendant has the burden of proving withdrawal from the conspiracy by a

preponderance of the evidence. To prove something by a preponderance of the evidence means to

prove that it is more likely so than not so. This is a lesser burden of proof than to prove something

beyond a reasonable doubt. “Preponderance of the evidence” is determined by considering all the

evidence and deciding what evidence is more convincing. You should consider the relevant

testimony of all witnesses, regardless of who may have called them, and all the relevant exhibits

received in evidence, regardless of who may have produced them. If the evidence appears to be

equally balanced, or if you cannot say upon which side it weighs more heavily, you must resolve

this question against the defendant.

The fact that the defendant has raised this defense, however, does not relieve the

government of its initial burden of proving beyond a reasonable doubt that there was an unlawful

agreement and that the defendant knowingly and voluntarily joined it.