Fill and Sign the United States V Reed Petitionosgdepartment of Justice Form

11.4 Withdrawal From Conspiracy (For Use With General Conspiracy Charge) 18 USC §371 As you have been instructed, a conspiracy, like the one charged in this case, does not become a crime until two things have occurred: first , the making of the agreement ; and, second, the performance of some "overt act" by one of the conspirators. So, if a Defendant enters into a conspiracy agreement but later has a change of mind and withdraws from that agreement before anyone has committed an "overt act," as previously defined, then the crime was not complete at that time and the Defendant who withdrew cannot be convicted - - the Defendant would not be guilty of the alleged conspiracy offense. However, in order for you to decide that a Defendant withdrew from a conspiracy you must find that the Defendant took affirmative action to disavow or defeat the purpose of the conspiracy; and, as just explained, the Defendant must have taken such action before any member of t he scheme had committed any "overt act." ANNOTATIONS AND COMMENTSUnited States v. Jimenez, 62 2 F.2d 753 (5t h Cir. 198 0), approved an instruction in substantially the same form. Unit ed States v. Heathington, 5 45 F.2d 97 2 (5th Cir. 1 977), withdrawal, to constitute a defense, must come before the completion or consummation of the offense through the commission of an overtact. It appears, therefore, that an instruction on withdrawal is never appropriate under a conspiracy statute that does not require proof of an overt act (such as 21 USC § 846, 955c and 9 63). See United States v. Nicoll, 664 F.2d 1308 (5th Cir. Unit B, 1982). See Offense Instruct ion 75, infra. Withdrawal is an affirmative defense. The defendant must prove "that he undertook affirmative steps, inconsistent with the objects of the conspiracy, to disavow or to defeat the conspiratorial objectives, and either communicated those acts in a manner reasonably calculated to reach his co-conspirators or disclosed the illegal scheme to law enforcement authorities." United States v. Firestone, 816 F.2d 583, 589 (11th Cir.), cert. denied, 484 U.S. 948, 108 S.Ct. 3 38, 9 8 L.Ed.2d 365 (1987). Neither arrest nor incarceration during t he time frame of the conspiracy automatically triggers withdrawal from a conspiracy. United States v. Gonzalez, 940 F.2d 1413, 1427 (11th Cir. 1991).