Thursday, May 2, 2019

Sixth Circuit Approves "Slight Connection" Conspiracy Instruction (5/2/19)

 In United States v. Daneshvar, 2019 U.S. App. LEXIS 12773 (6th Cir. 2019) (unpublished), here, involving healthcare fraud, Daneshvar complained about the following jury instruction (emphasis supplied by JAT):
If you are convinced there was a criminal agreement, then you must decide whether the government has proved that the defendant knowingly and voluntarily joined that agreement. To convict the defendant, the government must prove that he knew the conspiracy's main purpose, that he voluntarily joined it intending to help or achieve its goals.
This does not require proof that the defendant knew everything about the conspiracy or everyone else involved or that he was a member of it from the very beginning. Nor does it require proof that the defendant played a major role in the conspiracy or that his connection to it was substantial. A slight role or connection may be enough.
As I note at the bottom of this blog, the bold-faced language, although a variation of one often used in the past, is now disfavored.  That was the complaint that Daneshvar raised.  Here is the Court's discussion:
This instruction is identical to the Sixth Circuit Pattern Jury Instruction 3.03. Daneshvar  argues that we "should take this opportunity to disavow the jury instruction" (Appellant Br. at 40), and in doing so, he makes the same argument as in United States v. Mahbub, 818 F.3d 213, 230 (6th Cir. 2016), where the defendant contended that the jury instruction lowers the burden of proof.  
In Mahbub, we held:  
[The defendant's] contention lacks merit. The instruction states, and the district court read, "[a] slight role or connection may be enough" to link a defendant to a conspiracy, which is an accurate legal proposition. See United States v. Price, 258 F.3d 539, 544 (6th Cir. 2001) ("The connection of the defendant to the conspiracy need only be slight, if there is sufficient evidence to establish that connection beyond a reasonable doubt."); United States v. Betancourt, 838 F.2d 168, 174 (6th Cir. 1988) ("The existence of a connection to the conspiracy must be shown beyond a reasonable doubt, but the importance of the connection need not be great."). To the extent that the disputed language lowers the burden of proof to support a conviction, we note that "no single provision of the jury instruction can be read in isolation;" instead, "the charge must be considered as a whole." United States v.Horton, 847 F.2d 313, 322 (6th Cir. 1988).
Id. We determined that "the district court made it abundantly clear that the reasonable-doubt standard applied in determining whether [the defendant] should be found guilty of criminal conspiracy" by using the phrase "beyond a reasonable doubt" in the jury instructions. Id.  
Daneshvar argues that unlike in Mahbub, "the rest of the jury instructions in this case combined to relieve the government of its high standard of proof and replace it with speculation and probabilities." (Appellant Br. at 39.) We do not find that Daneshvar's argument has merit, let alone establishes that the district court committed plain error. As in Mahbub, the district court here repeatedly used the reasonable-doubt standard. Before beginning the conspiracy section, the court stated: "A conspiracy is a kind of criminal partnership. For you to find the defendant guilty of the conspiracy charge, the government must prove each and every one of the following elements beyond a reasonable doubt . . . ." (Trial Tr. Vol. 8, R. 121, Page ID # 1816.) Again, the court stated, "You must be convinced that the government has proved all of these elements beyond a reasonable doubt in order to find the defendant guilty of the conspiracy charge." (Id. at Page ID # 1817.) 
Although Daneshvar points out that other circuits do not use the phrase "slight evidence," our circuit continues to do so, so long as, considering the jury instructions as a whole, the instructions do not lower the burden of proof. See Mahbub, 818 F.3d at 230; see also United States v. Price, 258 F.3d 539, 544 (6th Cir. 2001)("The connection of the defendant to the conspiracy need only be slight, if there is sufficient evidence to establish that connection beyond a reasonable doubt."). Upon reviewing the jury instructions as a whole, including the district court's repeated use of the reasonable-doubt standard, we find that the instructions did not lower the burden of proof. Thus, we find no error in the use of the conspiracy jury instruction.
JAT Comments:

1.  This is not the same as the "slight evidence" instruction, now disfavored, but it is close enough and implicates the same concern of lowering the beyond a reasonable doubt burden of proof.  Here is the discussion from Michael Saltzman and Leslie Book, IRS Practice and Procedure (Thomsen Reuters 2015) (online edition) (I am the principal draftsman of this Chapter 12):
Chapter 12: Criminal Penalties and the Investigation Function
¶ 12.03 Title 18 Crimes
¶ 12.03[1] Conspiracy (18 USC § 371)
¶ 12.03[1][c] Discussion
¶ 12.03[1][c][ii] The agreement. 
The government has to prove beyond a reasonable doubt that the defendant actually entered the conspiratorial agreement and participated in the conspiracy. Yet, the notion earlier crept into the law that “[o]nce a conspiracy is shown, only slight evidence is needed to link another defendant with it.” n243 Other formulations of that notion were that only a “slight connection” between the defendant and the conspiracy need be shown or that evidence of the connection need “not [be] overwhelming evidence.” The notion obscures the fundamental requirement that the government must prove the defendant's guilt beyond a reasonable doubt and thus must prove the defendant's entry into the agreement and participation in the conspiracy beyond a reasonable doubt. Accordingly, such notions are now disfavored. n244
   n243 United States v. Huezo, 546 F3d 174, 184–185 (2d Cir. 2009) (Newman, concurring), cert. denied, 558 US 936 (2009) , citing United States v. Marrakesh, 486 F2d 918, 921 (2d Cir. 1973) .
   n244 United States v. Huezo, 546 F3d 174, 180 n. 2 (2d Cir. 2009), cert. denied, 558 US 936 (2009) (strongly condemning such slight evidence notions). The Second Circuit makes this succinct and clear holding, surprisingly, in a footnote in the opinion. The footnote does note that, prior to publishing the opinion, the panel took the very unusual step of circulating the then draft opinion to all the judges of the Second Circuit because of that holding; the conclusion is inescapable that the consensus on the entire Second Circuit is consistent with that holding. Judge Newman's concurring opinion with which the majority expressly agreed — and presumably the entire Circuit agreed — is also worth attention.
   Notwithstanding, CTM 23.05[2] (2012 ed.), Proof of Membership, provides the following: “Although the government must prove that a defendant was a member of a conspiracy, this requirement may be satisfied by a showing of even a 'slight connection' to the conspiracy, so long as the connection is proven beyond a reasonable doubt.” If “slight” as a modifier is used, perhaps the addition of proof beyond a reasonable doubt somehow cures or mitigates the problem, but we doubt it.

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