8.144 TRAVEL ACT—INTERSTATE OR FOREIGN TRAVEL IN AID OF RACKETEERING ENTERPRISE (18 U.S.C. § 1952(a)(3))
The defendant is charged in [Count _______ of] the indictment with violating Section 1952(a)(3) of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant [traveled in interstate or foreign commerce] [used the mail] [[used [specify facility] in interstate or foreign commerce]] with the intent to [promote, manage, establish, or carry on] [facilitate the promotion, management, establishment, or carrying on of] [specify unlawful activity];[and]
Second, after doing so the defendant [[performed [specify act]] [[attempted to perform [specify act]][.] [; and]
[Third, the defendant did something that was a substantial step toward committing the crime.
Mere preparation is not a substantial step toward committing the crime. To constitute a substantial step, a defendant’s act or actions must demonstrate that the crime will take place unless interrupted by independent circumstances.]
The bracketed language stating a third element applies only when the charge is an attempt. Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime. United States v. Hofus, 598 F.3d 1171, 1176 (9th Cir.2010).
In United States v. Nader, 542 F.3d 713, 722 (9th Cir.2008), cert. denied, 129 S. Ct. 1984 (2009), the Ninth Circuit held that telephone calls that were entirely intrastate in nature and were made on a facility in interstate commerce, were adequate to support the conviction.