6th Cir. Pattern Crim. Jury Instr. 3.11B

(1) One of the defendants, _______, has raised the defense that he withdrew from the conspiracy before the crime of _______ was committed. Withdrawal can be a defense to a crime committed after the withdrawal. But _______ has the burden of proving to you that he did in fact withdraw.

(2) To prove this defense, _______ must prove each and every one of the following things:

(A) First, that he completely withdrew from the conspiracy. A partial or temporary withdrawal is not sufficient.

(B) Second, that he took some affirmative step to renounce or defeat the purpose of the conspiracy. An affirmative step would include an act that is inconsistent with the purpose of the conspiracy and is communicated in a way that is reasonably likely to reach the other members. But some affirmative step is required. Just doing nothing, or just avoiding the other members, would not be enough.

(C) Third, that he withdrew before the crime of _______ was committed. Once that crime was committed, any withdrawal after that point would not be a defense.

(3) If _______ proves these three factors by a preponderance of the evidence, then you must find him not guilty. Preponderance of the evidence is defined as “more likely than not.” In other words, the defendant must convince you that the three factors are more likely true than not true.

(4) Withdrawal is not a defense to the conspiracy charge itself. But the fact that _______ has raised this defense does not relieve the government of proving that there was an agreement, that he knowingly and voluntarily joined it, that an overt act was committed, that the crime of _______ was committed to help advance the conspiracy and that this crime was within the reasonably foreseeable scope of the unlawful project. Those are still things that the government must prove in order for you to find _______ guilty of _______.

Use Note

This instruction should be used when the evidence shows that any withdrawal came after an overt act was committed, and withdrawal has been raised as a defense to a substantive offense committed by another member of the conspiracy.