8.26 CONSPIRACY—SEARS CHARGE
Before being convicted of conspiracy, an individual must conspire with at least one co–conspirator. There can be no conspiracy when the only person with whom the defendant allegedly conspired was a government [agent] [informer] who secretly intended to frustrate the conspiracy.
This instruction is based upon Sears v. United States, 343 F.2d 139, 142 (5th Cir.1965), which held that "there can be no indictable conspiracy with a government informer who secretly intends to frustrate the conspiracy." This rule has been adopted in the Ninth Circuit. United States v. Romero, 282 F.3d 683, 689 (9th Cir.2002) (citing earlier cases).