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Case 1:20-cr-00330-PAE Document 410-1 Filed 11/04/21 Counts One, Three and Five: Conspiracy to Violate Federal Law — The Elements To prove the defendantMs. Maxwell guilty of the crime of conspiracy, the Government must prove each of the following four elements beyond a reasonable doubt: First, that two or more persons entered the unlawful agreement charged in the particular count of the Indictment; Second, that the-defendentMs. Maxwell knowingly and willfully became a member of that conspiracy: Third, that one of the members of the conspiracy knowingly committed at least one lof the overt acts +n-furtheranee ofthe eonspiraeycharged in the particular count of the Indictment: and- Fourth, that the overt act which you find to have been committed was committed to further some objective of thethat conspiracy. Each of these elements must be satisfied beyond a reasonable doubt. Now let us separately consider each of these elements. Adapted from Sand, et al., Modern Federal Jury Instructions, Instr. 19-3; the charge of the Hon. Kimba M. Wood in United States v. Almonte, 16 Cr. 670 (KMW): and the charge of the Hon. Denise L. Cote in United States v. Purcell, 18 Cr. 081 (DLC). 46 Page 46 of 93 Commented [CE63]: The modified language and the additional element are consistent with Sand and the Court's recent instructions on this issue See Sand, Instr 19-3; United States v. Pizarro, 17 Cr 151 (AJN) Commented [RA(64R63]: GOVERNMENT RESPONSE: The Goverment needs to prove that a member of the conspiracy committed an overt act. but it need not be an overt act charged in the Indictment See, e.g, United States v. Salonese, 352 F 3d 609, 619 (2d Cir 2003) (describing “the well-established rule of this and other circuits that the overt act element of a conspiracy charge may be satisfied by an overt act that is not specified in the indictment, at least so long there is no prejudice to the defendant”) Accordingly. it is not an element of the offense that the defendant knowingly committed “at least one of the overt acts charged in the particular count of the Indictment ” DOJ-OGR-00006112