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] [informant] who secretly intended to frustrate the conspiracy.

Comment

A defendant who conspires only with a government agent is not guilty of conspiracy;

however, a conspiracy conviction is permitted if at least one co-conspirator is not a government

agent. United States v. Barragan, 871 F.3d 689, 710-11 (9th Cir. 2017); see also Sears v. United States, 343 F.2d 139, 142 (5th Cir. 1965) ("there can be no indictable conspiracy with a government informer who secretly intends to frustrate the conspiracy"); Instruction 8.26 (Conspiracy—Sears Charge).

Approved 12/2017