How have instructions been interpreted in the context of multiple conspiracies?

The requested instructions, as phrased, were not accurate statements of law. Instruction No. 20 was defective because the existence of other conspiracies would not preclude the jury from finding that defendants were involved in the overall conspiracy charged in the indictment. United States v. Perry, 550 F.2d 524, 533 (9th Cir. 1977) ("the jury could find that there were several different agreements involving the defendants, all of which would then connect the defendants to the general overall conspiracy as charged in the indictment"). Instruction No. 21 was incomplete. It is axiomatic that if the evidence did not show "the single alleged conspiracy in the Indictment," then appellants could not be convicted of that particular conspiracy. But this does not imply that appellants could not be convicted of any conspiracy under the indictment because of a variance between the indictment's allegations and the evidence. In United States v. Griffin, 464 F.2d 1352 (9th Cir. 1972), we held that defendants charged with participation in a single conspiracy could be convicted of separate conspiracies, if the jury was cautioned not to consider evidence admitted against members of other conspiracies in considering the guilt of individual defendants.

The trial judge properly refused appellants' instructions, but he should not have ignored the possibility that the jury could have found multiple conspiracies. If it is possible under the evidence for the jury to find that multiple conspiracies existed, then the court should instruct the jury on the issue. United States v. Perry, 550 F.2d 524, 533 (9th Cir. 1977). When the possibility of a variance between the indictment and the trial proof appears, the jury should also be given a limiting instruction about the procedure for considering evidence of multiple conspiracies. United States v. Griffin, 464 F.2d 1352, 1357 (9th Cir. 1972); United States v. Varelli, 407 F.2d 735, 746 (7th Cir. 1969). The evidence here was sufficient to support the jury's finding that a single conspiracy had occurred; but it was also sufficient to warrant a jury instruction on the possibility of finding multiple conspiracies. ⁴ Based on the evidence produced at trial, the jury could have found that multiple conspiracies had taken place, rather than the single conspiracy charged in the indictment. Thus the trial judge should have instructed the jury on the multiple conspiracy issue.