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8.18 Illegal Gratuity to Witness

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8.18 ILLEGAL GRATUITY TO WITNESS (18 U.S.C. § 201(c)(2))

The defendant is charged in [Count _______ of] the indictment with [giving] [offering] [promising] an illegal gratuity in violation of Section 201(c)(2) of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove beyond a reasonable doubt that the defendant [gave] [offered] [promised] something of value, [specify the thing of value], to [name of witness] [for testimony to be given under oath by [him] [her] in [specify proceeding]] [because of testimony given under oath by [name of witness] at/in [specify proceeding]] [for being absent from [specify proceeding] so that [he] [she] could not testify as a witness].

Comment

It is recommended that the instruction specifically describe the thing of value just as it is described in the indictment to avoid a variance. United States v. Choy, 309 F.3d 602, 607 (9th Cir.2002).

See Comment to Instruction 8.16 (Illegal Gratuity to Public Official).

Section 201(c)(2) does not prohibit the government from paying fees, housing, expenses, and cash rewards to a cooperating witness so long as the payment does not recompense any corruption of the truth of testimony. United States v. Ihnatenko, 482 F.3d 1097, 1100 (9th Cir.), cert. denied, 552 U.S. 904 (2007). Section 201(c)(2) also does not prohibit the government from providing immigration benefits or leniency, immunity from prosecution, or leniency to a cooperating witness. See United States v. Feng, 277 F.3d 1151, 1154 (9th Cir.2002) (immigration benefits); United States v. Smith, 196 F.3d 1034, 1038–40 (9th Cir.1999) (immunity); United States v. Mattarolo, 209 F.3d 1153, 1160 (9th Cir.2000) (leniency).

Depending on the facts in evidence, it may be appropriate to amend this instruction with language requiring specific jury unanimity (e.g., "with all of you agreeing as to what the defendant" intended the witness to do in return for the gratuity"). See Instruction 7.9 (Specific Issue Unanimity).