Introductory Comment
As noted in the Introduction, this Manual is not intended to supply a set of universally applicable pattern instructions or to provide authoritative statements of law. The model instructions in the following sections are intended principally to set forth the elements of the offense in plain language consistent with the applicable statute. It is expected that judges will modify these models to adapt them to the facts and circumstances of the case before them and to take into account what is and is not in issue in the case. It may also be appropriate to supplement these instructions with some additional explanatory instructions addressed to particular evidence or contentions in the case. The model instructions, besides supplying text and form for the basic instruction on the elements, should be helpful in drafting or modifying other needed instructions in plain language and in a form conducive to maximum comprehension.
8.0A MISPRISION OF FELONY
(18 U.S.C. § 4)
The defendant is charged in [Count ______ of] the indictment with misprision of felony in violation of Section 4 of Title 18 of the United States Code. In order for the defendant to be found guilty of that crime, the government must prove each of the following elements beyond a reasonable doubt:
First, a federal felony was committed, as charged in [Count ______ of] the indictment;
Second, the defendant had knowledge of the commission of that felony;
Third, the defendant had knowledge that the conduct was a federal felony;
Fourth, the defendant failed to notify a federal authority as soon as possible; and
Fifth, the defendant did an affirmative act, as alleged, to conceal the crime.
A felony is a crime punishable by a term of imprisonment of more than one year.
Mere failure to report a federal felony is not a crime. The defendant must also commit some affirmative act designed to conceal the fact that a federal felony has been committed.
Comment
See United States v. Olson, 856 F.3d 1216 (9th Cir. 2017).
Approved 4/2019
8.1 ARSON OR ATTEMPTED ARSON
(18 U.S.C. § 81)
The defendant is charged in [Count _______ of] the indictment with [attempted] arson in violation of Section 81 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 [[intentionally set fire to or burned] [intended to set fire to or burn]] [specify building];
Second, [specify building] was located on [specify place of federal jurisdiction]; [and]
Third, the defendant acted wrongfully and without justification[.] [; and]
[Fourth, the defendant did something that was a substantial step toward committing the crime and that strongly corroborated the defendant’s intent to commit 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 unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of the crime.]
[If you decide that the defendant is guilty, you must then decide whether the government has proved beyond a reasonable doubt that [the building was regularly used by people as a place in which to live and sleep] [a person’s life was placed in jeopardy].]
Comment
If the charge is conspiracy to commit the crime, use Instruction 8.2 (Conspiracy to Commit Arson).
As to the second element of the instruction regarding federal jurisdiction, "special maritime and territorial jurisdiction of the United States" is defined in 18 U.S.C. § 7. While federal jurisdiction over the place may be determined as a matter of law, the locus of the offense within that place is an issue for the jury. United States v. Gipe, 672 F.2d 777, 779 (9th Cir. 1982).
The bracketed language stating an additional element applies only when the charge is an attempt. In attempt cases, "[t]o constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances." United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (internal quotations omitted).
The "strongly corroborated" language in this instruction is taken from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) ("A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent") and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).
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).
"[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime." United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).
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8.2 CONSPIRACY TO COMMIT ARSON
(18 U.S.C. § 81)
The defendant is charged in [Count _______ of] the indictment with conspiracy to commit arson in violation of Section 81 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, beginning on or about [date], and ending on or about [date], there was an agreement between two or more persons to commit arson; and
Second, the defendant became a member of the conspiracy knowing of its object and intending to help accomplish it.
As used in this instruction "arson" is the intentional setting of a fire to or burning [specify building] located on [specify place of federal jurisdiction], which is wrongful and without justification.
A conspiracy is a kind of criminal partnership—an agreement of two or more persons to commit one or more crimes. The crime of conspiracy is the agreement to do something unlawful; it does not matter whether the crime agreed upon was committed.
For a conspiracy to have existed, it is not necessary that the conspirators made a formal agreement or that they agreed on every detail of the conspiracy. It is not enough, however, that they simply met, discussed matters of common interest, acted in similar ways, or perhaps helped one another. You must find that there was a plan to commit arson.
One becomes a member of a conspiracy by willfully participating in the unlawful plan with the intent to advance or further some object or purpose of the conspiracy, even though the person does not have full knowledge of all the details of the conspiracy. Furthermore, one who willfully joins an existing conspiracy is as responsible for it as the originators. On the other hand, one who has no knowledge of a conspiracy, but happens to act in a way which furthers some object or purpose of the conspiracy, does not thereby become a conspirator. Similarly, a person does not become a conspirator merely by associating with one or more persons who are conspirators, nor merely by knowing that a conspiracy exists.
[If you decide that the defendant is guilty, you must then decide whether the government has proved beyond a reasonable doubt that [the building was regularly used by people as a place in which to live and sleep] [a person’s life was placed in jeopardy].]
Comment
"Special maritime and territorial jurisdiction of the United States" is defined in 18 U.S.C. § 7. While federal jurisdiction over the place may be determined as a matter of law, the locus of the offense within that place is an issue for the jury. United States v. Gipe, 672 F.2d 777, 779 (9th Cir.1982).
See Comment to Instruction 8.20 (Conspiracy). Because 18 U.S.C. § 81 does not expressly require proof of an overt act, the third element of Instruction 8.20 (overt act) is not included in this instruction. United States v. Shabani, 513 U.S. 10, 15-17 (1994) (holding that under "the plain language of the statute and settled interpretive principles," proof of an overt act is not necessary for violation of drug conspiracy statute, 21 U.S.C. § 846). See also United States v. Montgomery, 150 F.3d 983, 997-98 (9th Cir.1998) (recognizing that reasoning in Shabani obviates need for proof of an overt act in furtherance of conspiracy under 21 U.S.C. § 963).
8.3 ASSAULT ON FEDERAL OFFICER OR EMPLOYEE
(18 U.S.C. § 111(a))
The defendant is charged in [Count _______ of] the indictment with assault on a federal officer in violation of Section 111(a) 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 forcibly assaulted [name of federal officer or employee]; [and]
Second, the defendant did so while [name of federal officer or employee] was engaged in, or on account of [his] [her] official duties[.] [; and]
[Third, the defendant [made physical contact] [acted with the intent to commit another felony].]
There is a forcible assault when one person intentionally strikes another, or willfully attempts to inflict injury on another, or intentionally threatens another coupled with an apparent ability to inflict injury on another which causes a reasonable apprehension of immediate bodily harm.
Comment
When the crime is charged under the enhanced penalty provisions of 18 U.S.C. § 111(b), use Instruction 8.4 (Assault on Federal Officer [With a Deadly or Dangerous Weapon] [Which Inflicts Bodily Injury]).
See 18 U.S.C. § 1114 for the definition of federal officer or employee referenced in 18 U.S.C. § 111.
The third element is to be used only when the charge is a felony. A felony charge requires actual physical contact or action with the intent to commit another felony.
A reasonable apprehension of immediate bodily harm is determined with reference to a reasonable person aware of the circumstances known to the victim, not with reference to all circumstances, including circumstances unknown to the victim. United States v. Acosta-Sierra,
690 F.3d 1111, 1121 (9th Cir. 2012).
The statutory language states that the crime can be committed by one who "forcibly assaults, resists, opposes, impedes, intimidates or interferes," but the Ninth Circuit has held that regardless of the circumstances, "convictions under [(111(a)] require at least some form of assault." United States v. Chapman, 528 F.3d 1215, 1221 (9th Cir. 2008). Similarly, the court has held that a proper instruction may not reduce the concept of force or threatened force to the mere appearance of physical intimidation. United States v. Harrison, 585 F.3d 1155, 1160 (9th Cir. 2009).
There is no requirement that an assailant be aware that the victim is a federal officer. United States v. Feola, 420 U.S. 671, 684 (1975);see also United States v. Mobley, 803 F.3d 1105, 1109 (9th Cir. 2015) (citing Feola and holding that defendant’s lack of knowledge as to victim’s status as federal officer was "irrelevant to establishing the wrongfulness of the defendant’s conduct" in prosecution for assault of federal officer). If the defendant denies knowledge that the person assaulted was a federal officer and claims to have acted in self-defense, Instruction 8.5 (Assault on Federal Officer or Employee—Defenses) should be used.
Violation of § 111 is a general intent crime in this circuit. United States v. Jim, 865 F.2d 211, 215 (9th Cir. 1989). Among other things, this means that voluntary intoxication is not a defense. Id.
For an instruction defining "official duties," see United States v. Ornelas, 906 F.3d 1138, 1149 (9th Cir. 2018) (upholding an "official duties" instruction providing that: "the test" for determining whether an officer is "[e]ngaged in the performance of official duties" is "whether the officer is acting within the scope of his employment, that is, whether the officer’s actions fall within his agency’s overall mission, in contrast to engaging in a personal frolic of his own"); see also United States v. Juvenile Female, 566 F.3d 943, 950 (9th Cir. 2009) (describing official duties test as "whether [the officer] is acting within the scope of what he is employed to do, as distinguished from engaging in a personal frolic of his own").
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8.4 ASSAULT ON FEDERAL OFFICER OR EMPLOYEE
[WITH A DEADLY OR DANGEROUS WEAPON]
[WHICH INFLICTS BODILY INJURY]
(18 U.S.C. § 111(b))
The defendant is charged in [Count _______ of] the indictment with assault on a federal officer in violation of Section 111(b) 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 forcibly assaulted [name of federal officer or employee];
Second, the defendant did so while [name of federal officer or employee] was engaged in, or on account of [his] [her] official duties; and
Third, the defendant [used a deadly or dangerous weapon] [inflicted bodily injury].
There is a forcible assault when one person intentionally strikes another, or willfully attempts to inflict injury on another, or intentionally threatens another coupled with an apparent ability to inflict injury on another which causes a reasonable apprehension of immediate bodily harm.
[A [specify weapon] is a deadly or dangerous weapon if it is used in a way that is capable of causing death or serious bodily injury.]
Comment
See 18 U.S.C. § 1114 for the definition of federal officer or employee referenced in 18 U.S.C. § 111.
The statutory language states that the crime can be committed by one who “forcibly assaults, resists, opposes, impedes, intimidates or interferes,” but the Ninth Circuit has held that regardless of the circumstances, “convictions under [111(a)] require at least some form of assault.” United States v. Chapman, 528 F.3d 1215, 1221 (9th Cir. 2008).
There is no requirement that an assailant be aware that the victim is a federal officer. United States v. Feola, 420 U.S. 671, 684 (1975); see also United States v. Mobley, 803 F.3d 1105, 1109 (9th Cir. 2015) (citing Feola and holding that defendant’s lack of knowledge as to victim’s status as federal officer was “irrelevant to establishing the wrongfulness of the defendant’s conduct” in prosecution for assault of federal officer). If the defendant denies knowledge that the person assaulted was a federal officer and claims to have acted in self-defense, Instruction 8.5 (Assault on Federal Officer or Employee—Defenses) should be used.
A reasonable apprehension of immediate bodily harm is determined with reference to a reasonable person aware of the circumstances known to the victim, not with reference to all circumstances, including circumstances unknown to the victim. United States v. Acosta-Sierra, 690 F.3d 1111, 1121 (9th Cir. 2012).
Violation of § 111 is a general intent crime in this circuit. United States v. Jim, 865 F.2d 211, 215 (9th Cir. 1989). Among other things, this means that voluntary intoxication is not a defense, id., and that § 111(b) does not require an intent to cause the bodily injury. United States v. Garcia-Camacho, 122 F.3d 1265, 1269 (9th Cir. 1997).
For an instruction defining “official duties,” see United States v. Ornelas, 906 F.3d 1138, 1149 (9th Cir. 2018) (upholding an “official duties” instruction providing that: “the test” for determining whether an officer is “[e]ngaged in the performance of official duties” is “whether the officer is acting within the scope of his employment, that is, whether the officer’s actions fall within his agency’s overall mission, in contrast to engaging in a personal frolic of his own”); see also United States v. Juvenile Female, 566 F.3d 943, 950 (9th Cir. 2009) (describing official duties test as “whether [the officer] is acting within the scope of what he is employed to do, as distinguished from engaging in a personal frolic of his own”)
Approved 4/2019
8.5 ASSAULT ON FEDERAL OFFICER OR EMPLOYEE—DEFENSES
The defendant asserts that [he] [she] acted in self-defense. It is a defense to the charge if (1) the defendant did not know that [name of federal officer or employee] was a federal [officer] [employee], (2) the defendant reasonably believed that use of force was necessary to defend oneself against an immediate use of unlawful force, and (3) the defendant used no more force than appeared reasonably necessary in the circumstances.
Force which is likely to cause death or great bodily harm is justified in self-defense only if a person reasonably believes that such force is necessary to prevent death or great bodily harm.
In addition to proving all the elements of the crime beyond a reasonable doubt, the government must also prove beyond a reasonable doubt either (1) that the defendant knew that [name of federal officer or employee] was a federal [officer] [employee] or (2) that the defendant did not reasonably believe force was necessary to defend against an immediate use of unlawful force or (3) that the defendant used more force than appeared reasonably necessary in the circumstances.
Comment
In United States v. Feola, 420 U.S. 671, 684 (1975), the Supreme Court held that there is no "requirement that an assailant be aware that his victim is a federal officer" but went on to point out that there could be circumstances where ignorance of the official status of the person assaulted might justify a defendant acting in self-defense. "The jury charge in such a case, therefore, should include (1) an explanation of the essential elements of a claim of self-defense, and (2) an instruction informing the jury that the defendant cannot be convicted unless the government proves, beyond a reasonable doubt, either (a) that the defendant knew that the victim was a federal agent, or (b) that the defendant's use of deadly force would not have qualified as self-defense even if the agent had, in fact, been a private citizen." United States v. Alvarez, 755 F.2d 830, 847 (11th Cir.1985) (emphasis in original).
In United States v. Span, 970 F.2d 573 (9th Cir.1992), the Ninth Circuit upheld this instruction. The court cautioned, however, that "the model instruction would be inappropriate in a case where a defendant's theory of the case is self-defense against the use of excessive force by a federal law enforcement officer." Id. at 577 (emphasis in original). In such a case, the instruction must be modified appropriately.
8.6 ASSAULT WITH INTENT TO COMMIT MURDER OR OTHER FELONY
(18 U.S.C. §§ 113(a)(1) and (2))
The defendant is charged in [Count _______ of] the indictment with assault with intent to commit [specify felony] in violation of Section 113(a)[(1)][(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 each of the following elements beyond a reasonable doubt:
First, the defendant assaulted [name of victim] by intentionally [[striking] [wounding]] [[him] [her]] [using a display of force that reasonably caused [him] [her] to fear immediate bodily harm];
Second, the defendant did so with the intent to commit [specify felony]; and
Third, the assault took place on [specify place of federal jurisdiction].
Comment
Assaults proscribed by 18 U.S.C. § 113 are those committed "within the special maritime and territorial jurisdiction of the United States." See 18 U.S.C. § 7 for the definition of "special maritime and territorial jurisdiction of the United States."
When the assault consists of a display of force, it must actually cause reasonable apprehension of immediate bodily harm; fear is a necessary element. United States v. Skeet, 665 F.2d 983, 986 n.1 (9th Cir.1982).
Assault with intent to commit murder is a specific intent crime. United States v. Jones, 681 F.2d 610, 611 (9th Cir.1982).
Approved 9/2016
8.7 ASSAULT WITH DANGEROUS WEAPON
(18 U.S.C. § 113(a)(3))
The defendant is charged in [Count _______ of] the indictment with assault with a dangerous weapon in violation of Section 113(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 assaulted [name of victim] by intentionally [[striking] [wounding]] [[him] [her]] [using a display of force that reasonably caused [him] [her] to fear immediate bodily harm];
Second, the defendant acted with the intent to do bodily harm to [name of victim];
Third, the defendant used a dangerous weapon; and
Fourth, the assault took place on [specify place of federal jurisdiction].
[A [specify weapon] is a dangerous weapon if it is used in a way that is capable of causing death or serious bodily injury.]
Comment
See Comment to Instruction 8.4 (Assault on Federal Officer or Employee [With a Deadly or Dangerous Weapon] [Which Inflicts Bodily Injury]).
See United States v. Smith, 561 F.3d 934, 938-40 (9th Cir.2009) (en banc) (discussing prior version of jury instruction).
The use of bare hands only to perpetrate an assault did not constitute use of a "dangerous weapon" and therefore could not support a conviction under 18 U.S.C. § 113(a)(3). United States v. Rocha, 598 F.3d 1144, 1153-58 (9th Cir.2010).
The statutory definition of assault with a dangerous weapon, 18 U.S.C. § 113(a)(3), includes "without just cause or excuse." However, the existence of "just cause or excuse" is an affirmative defense, and the government does not have the burden of pleading or proving its absence. United States v. Guilbert, 692 F.2d 1340, 1343 (11th Cir.1982).
8.7A ASSAULT BY STRIKING OR WOUNDING
(18 U.S.C § 113(a)(4))
The defendant is charged in [Count _______ of] the information with assault with a dangerous weapon in violation of Section 113(a)(4) 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 assaulted [name of victim] by intentionally [[striking] [wounding]] [[him]] [her]];
Second, the assault took place on [specify place of federal jurisdiction]
Comment
See United States v. Pierre, 254 F.3d 872, 875 (9th Cir. 2001) (holding that assault by striking, beating, or wounding is not lesser included offense of assault with dangerous weapon).
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8.8 SIMPLE ASSAULT OF PERSON UNDER AGE 16
(18 U.S.C. § 113(a)(5))
The defendant is charged in [Count _______ of] the indictment with assaulting a person who has not attained the age of 16 years in violation of Section 113(a)(5) 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 assaulted [name of victim] by intentionally using a display of force that reasonably caused [him] [her] to fear immediate bodily harm;
Second, [name of victim] was under the age of 16 years at the time of the assault; and
Third, the assault took place on [specify place of federal jurisdiction].
Comment
When the assault consists of a display of force, it must actually cause reasonable apprehension of immediate bodily harm; fear is a necessary element. United States v. Skeet, 665 F.2d 983, 986 n.1 (9th Cir.1982)
8.9 ASSAULT RESULTING IN SERIOUS BODILY INJURY
(18 U.S.C. § 113(a)(6))
The defendant is charged in [Count _______ of] the indictment with assault resulting in serious bodily injury in violation of Section 113(a)(6) 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 assaulted [name of victim] by intentionally [[striking] [wounding]] [him] [her];
Second, as a result, [name of victim ] suffered serious bodily injury; and
Third, the assault took place on [specify place of federal jurisdiction].
"Serious bodily injury" means bodily injury that involves (1) a substantial risk of death; (2) extreme physical pain; (3) protracted and obvious disfigurement; or (4) protracted loss or impairment of the function of a body part, organ, or mental faculty.
Comment
See Comment to Instruction 8.3 (Assault on Federal Officer or Employee) concerning general intent.
The definition of "serious bodily injury" in the last paragraph of the instruction is the statutory definition in 18 U.S.C. §§ 113(b)(2) and 1365(h)(3).
Proof of battery supports conviction of assault. United States v. Lewellyn, 481 F.3d 695, 697 (9th Cir.), cert. denied, 552 U.S. 864 (2007).
At common law, criminal battery is shown if the defendant’s conduct is reckless. United States v. Loera, 923 F.2d 725, 728 (9th Cir.1991). A defendant can be convicted of assault resulting in serious bodily injury if a battery is proved.
8.10 ASSAULT OF PERSON UNDER AGE 16 RESULTING IN SUBSTANTIAL BODILY INJURY
(18 U.S.C. § 113(a)(7))
The defendant is charged in [Count _______ of] the indictment with assaulting a person who has not attained the age of 16 years resulting in substantial bodily injury in violation of Section 113(a)(7) 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 assaulted [name of victim] by intentionally [[striking] [wounding]] [him] [her];
Second, as a result, [name of victim] suffered substantial bodily injury;
Third, [name of victim] was under the age of 16 years at the time of the assault; and
Fourth, the assault took place on [specify place of federal jurisdiction].
"Substantial bodily injury" means a temporary but substantial disfigurement, or a temporary but substantial loss or impairment of the function of any bodily member, organ or mental faculty.
Comment
The definition of "substantial bodily injury" in the last paragraph of the instruction is the definition given in18 U.S.C. § 113(b)(1).
8.10A ASSAULT BY STRANGULATION OR SUFFOCATION
(18 U.S.C. § 113(a)(8))
The defendant is charged in [Count _______ of] the indictment with assault by strangulation in violation of Section 113(a)(8) 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 assaulted a [spouse] [intimate partner][, or] [dating partner] by [strangling] [suffocating] [, or] [attempting to [strangle] [or] [suffocate]] [him/her]; and
Second, the assault took place on [specify place of federal jurisdiction].
["Spouse"] ["intimate partner"] [or] ["dating partner"] includes any of the following:
(1) a spouse or former spouse of the defendant; or
(2) a person who shares a child in common with the defendant; or
(3) a person who cohabits or has cohabited as a spouse with the defendant; or
(4) a person who is or has been in a social relationship of a romantic or intimate nature with the defendant; or
(5) [insert definition of person similarly situated to a spouse who is protected by the domestic or family violence laws of the state or tribal jurisdiction in which the injury occurred or where the victim resides].
["Intimate partner" [also] means a person who is or has been in a social relationship of a romantic or intimate nature with the defendant. You may determine whether such a relationship existed by considering (a) the length of the relationship, (b) the type of relationship, and (c) the frequency of interaction between the defendant and [name of victim].]
["Dating partner" means a person who is or has been in a social relationship of a romantic or intimate nature with the defendant. You may determine whether such a relationship existed by considering (a) the length of the relationship, (b) the type of relationship, and (c) the frequency of interaction between the defendant and [name of victim].]
["Strangling" means intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of a person by applying pressure to the throat or neck.]
["Suffocating" means intentionally, knowingly, or recklessly impeding the normal breathing of a person by covering the mouth of the person, the nose of the person, or both, regardless of whether that conduct results in any visible injury or whether there is any intent to kill or protractedly injure the victim.]
The government is not required to prove that the defendant intended to kill the victim or cause [him/her] to suffer prolonged injury. It also is not required to prove that the victim suffered any visible injury.
Comment
The definitions of "strangling" and "suffocating" in the instruction are the statutory definitions in 18 U.S.C. §§ 113(b)(4) and 113(b)(5).
The definitions of "spouse," "intimate partner," and "dating partner" are the statutory definitions in 18 U.S.C. § 2266, which is incorporated into 18 U.S.C. § 113(b)(3).
Assault by strangulation is a general intent crime. United States v. Lamott, 831 F.3d 1153, 1154 (9th Cir. 2016).
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8.10B ASSAULT OF SPOUSE, INTIMATE PARTNER, OR DATING PARTNER
(18 U.S.C. § 113(a)(7))
The defendant is charged in [Count _______ of] the indictment with assaulting a [[spouse] [intimate partner] [or] [dating partner]] resulting in substantial bodily injury in violation of Section 113(a)(7) 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 assaulted [name of victim] by intentionally [[striking] [wounding]] [[him] [her]];
Second, as a result, [name of victim] suffered substantial bodily injury;
Third, [name of victim] was a [[spouse] [intimate partner] [or] [dating partner]] of the defendant; and
Fourth, the assault took place on [specify place of federal jurisdiction].
[["Spouse"] ["Intimate partner"] ["dating partner"]] includes any of the following:
(1) a spouse or former spouse of the defendant; or
(2) a person who shares a child in common with the defendant; or
(3) a person who cohabits or has cohabited as a spouse with the defendant; or
(4) a person who is or has been in a social relationship of a romantic or
intimate nature with the defendant; or
(5) [insert definition of person similarly situated to a spouse who is protected by the domestic or family violence laws of the state or tribal jurisdiction in which the injury occurred or where the victim resides].
["Intimate partner" [also] means a person who is or has been in a social relationship of a romantic or intimate nature with the defendant. You may determine whether such a relationship existed by considering (a) the length of the relationship, (b) the type of relationship, and (c) the frequency of interaction between the defendant and [name of victim].]
["Dating partner" means a person who is or has been in a social relationship of a romantic or intimate nature with the defendant. You may determine whether such a relationship existed by considering (a) the length of the relationship, (b) the type of relationship, and (c) the frequency of interaction between the defendant and [name of victim].]
Comment
The definitions of "spouse," "intimate partner," and "dating partner" are the statutory definitions in 18 U.S.C. § 2266, which is incorporated into 18 U.S.C. § 113(b)(3).
Approved 4/2019
8.11 BANKRUPTCY FRAUD–SCHEME OR ARTIFICE TO DEFRAUD
(18 U.S.C. § 157)
The defendant is charged in [Count _______ of ] the indictment with bankruptcy fraud in violation of Section 157 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 devised or intended to devise a scheme or plan to defraud;
Second, the defendant acted with the intent to defraud;
Third, the defendant’s act was material; that is, it had a natural tendency to influence, or was capable of influencing the acts of an identifiable person, entity, or group; and
Fourth, the defendant [filed a petition] [filed a document in a proceeding] [made a false or fraudulent representation, claim or promise concerning or in relation to a proceeding] under a Title 11 bankruptcy proceeding to carry out or attempt to carry out an essential part of the scheme.
It does not matter whether the document, representation, claim or promise was itself false or deceptive so long as the bankruptcy proceeding was used as a part of the scheme or plan to defraud, nor does it matter whether the scheme or plan was successful or that any money or property was obtained.
Comment
Unlike the historic bankruptcy crimes described in 18 U.S.C. § 152, bankruptcy fraud under § 157 concerns a fraudulent scheme outside the bankruptcy which uses the bankruptcy as a means of executing or concealing the fraud or artifice. United States v. Milwitt, 475 F.3d 1150, 1155-56 (9th Cir. 2007) (bankruptcy fraud requires a specific intent to defraud an identifiable victim or class of victims of the identified fraudulent scheme.)
This statute is modeled after the mail and wire fraud statutes and therefore requires a specific intent to defraud and deceive. Id. (citing United States v. Bonallo, 858 F.2d 1427, 1433 (9th Cir.1988)); see also United States v. Miller, 953 F.3d 1095, 1103 (9th Cir. 2020) (holding that wire fraud requires the intent to “deceive and cheat—in other words, to deprive the victim of money or property by means of deception.”) (emphasis in original).
Approved 9/2020
8.11A OFFICIAL ACT— DEFINED
(18 U.S.C. § 201(a)(3))
“Official act” means any decision or action on a [question] [matter] [cause] [suit] [proceeding] [controversy] involving the formal exercise of governmental power. The [question] [matter] [cause] [suit] [proceeding] [controversy] must be pending, or be able by law to be brought, before a public official, and the [question] [matter] [cause] [suit] [proceeding] [controversy] must be something specific and focused, rather than a broad policy objective.
[The official’s decision or action may include using [his][her] official position to exert pressure on another official to perform an official act, or to advise another official, knowing or intending that such advice will form the basis for an official act by another official. The bribe recipient need not be the final decisionmaker.]
The government does not need to prove that the defendant ever actually intended to perform an official act or that the defendant ever did, in fact, perform an official act, provided that [he] [she] agreed to do so.
[Merely arranging a meeting, hosting an event, or giving a speech, do not qualify as the taking of a specific action.]
Comment
This instruction is based on 18 U.S.C. § 201(a)(3) as construed in McDonnell v. United States, 136 S. Ct. 2355 (2016).
The question or matter at issue need not currently be pending or capable of being brought before a public official. United States v. Kimbrew, 944 F.3d 810 (9th Cir. 2019).
When using this instruction with Model Instruction 8.143 (Hobbs Act—Extortion or Attempted Extortion Under Color of Official Right), change the term “official act” to “official action.”
Approved 5/2020
8.12 BRIBERY OF FEDERAL PUBLIC OFFICIAL
(18 U.S.C. § 201(b)(1))
The defendant is charged in [Count _______ of] the indictment with bribing a public official in violation of Section 201(b)(1) 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 [gave] [offered] [promised] something of value, [specify the thing of value], to [name of federal public official]; and
Second, the defendant acted corruptly, that is, with the intent to [influence an official act by the [name of federal public official]] [influence the [name of federal public official] to commit or allow a fraud on the United States] [induce the [name of federal public official] to do or to omit to do an act in violation of [his] [her] lawful duty][.] [; and]
[Third, [name of federal public official] was a federal public official.]
Comment
The crime of bribery requires "corrupt intent," a higher degree of intent than is required under the provision outlawing gratuities to public officials. United States v. Hsieh Hui Mei Chen, 754 F.2d 817, 822 (9th Cir. 1985). Under § 201(b)(1), the term "corruptly" refers to the
defendant’s intent to influence an official act. See United States v. Leyva, 282 F.3d 623, 626 (9th Cir. 2002) (citation omitted).
The "thing of value" given, offered, or promised to a public official is an element of the bribery charge. 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). But see United States v. Renzi, 769 F.3d 731, 744-45 (9th Cir. 2014) (holding that a "recommendation is just that—a recommendation. Neither the pattern jury instruction nor any controlling precedent requires the district court to identify the thing of value, especially where variance from the indictment is not at issue"). Where the defense asserts that the thing given, offered, or promised had no value, the jury must be asked to determine whether it had value. Id. at 744.
If there is any question in the case about the "official" character of the action sought by the defendant, give Instruction 8.11A (Official Act—Defined). "Public official" is defined in 18 U.S.C. § 201(a)(1); § 201(b)(1) also applies to a person selected to be a public official. Actual power to do what defendant wants is not an element. "[A] person may be convicted of bribery even though the action requested is not within the official’s power to perform." Chen, 754 F.2d at 825.
Omit the bracketed third element of this instruction when the recipient’s status as a federal public official is not in dispute. 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 public official to do in return for the bribe"). See Instruction 7.9 (Specific Issue Unanimity).
Approved 12/2019
8.13 RECEIVING BRIBE BY PUBLIC OFFICIAL
(18 U.S.C. § 201(b)(2))
The defendant is charged in [Count _______ of] the indictment with [soliciting] [receiving] [or] [agreeing to receive] a bribe in violation of Section 201(b)(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 each of the following elements beyond a reasonable doubt:
First, the defendant was a public official;
Second, the defendant [demanded] [sought] [received] [accepted] [agreed to receive or accept] something of value, [specify the thing of value], in return for [being influenced in the performance of an official act] [being influenced to commit or allow a fraud on the United States] [being induced to do or not to do an act in violation of defendant’s official duty]; and
Third, the defendant acted corruptly, that is, intending to be influenced [in the performance of an official act] [to commit or allow a fraud on the United States] [to do or to omit to do an act in violation of the defendant’s official duty]. A public official acts “corruptly” when he or she accepts or receives, or agrees to accept or receive, a thing of value, in return for being influenced with the intent that, in exchange for the thing of value, some act would be influenced.
Comment
“Public official” is defined in 18 U.S.C. § 201(a)(1); § 201(b)(2) also applies to a person selected to be a public official. See also Comment to Instruction 8.12 (Bribery of Public Official). The plain language of 18 U.S.C. § 201(b)(2)(B) requires only that the public official accept a thing of value in exchange for perpetrating a fraud; therefore the use of an official position is not an element of the offense under § 201(b)(2)(B). United States v. Leyva, 282 F.3d 623, 625-26 (9th Cir. 2002).
It is recommended that the instruction specifically describe the thing of value just as described in the indictment to avoid a variance. See Comment to Instruction 8.12 (Bribery of Public Official).
If there is any question in the case about the “official” character of the action sought by the defendant, give Instruction 8.11A (Official Act—Defined).
A public official is not required to actually make a decision or take an action in order to perform an “official act;” it is enough that the official agrees to do so. The agreement need not be explicit; the public official need not specify the means that he will use to perform his end of the bargain. McDonnel v. United States, 136 S. Ct. 2355, 2370-71 (2016).
It is immaterial whether the public official who receives a thing of value ever intended to follow through with his or her end of the bargain; all that is necessary is that he or she agreed to perform the official act. The offense is complete at the moment of agreement—liability does not depend on the outcome of any follow-through. United States v. Kimbrew, 944 F.3d 810 (9th Cir. 2019).
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 public official intended to do in return for the bribe”). See Instruction 7.9 (Specific Issue Unanimity).
Approved 5/2020
8.14 BRIBERY OF WITNESS
(18 U.S.C. § 201(b)(3))
The defendant is charged in [Count _______ of] the indictment with bribery of a witness in violation of Section 201(b)(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, [name of witness] was to be a witness under oath at a [specify proceeding];
Second, the defendant [gave] [offered] [promised] something of value, [specify the thing of value], to [name of witness]; and
Third, the defendant acted corruptly, that is, with the intent to influence [[the testimony of [name of witness]] [[name of witness] to be absent from the proceeding].
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. See Comment to Instruction 8.12 (Bribery of Public Official).
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 bribe"). See Instruction 7.9 (Specific Issue Unanimity).
Approved 4/2019
8.15 RECEIVING BRIBE BY WITNESS
(18 U.S.C. § 201(b)(4))
The defendant is charged in [Count _______ of] the indictment with soliciting a bribe in violation of Section 201(b)(4) 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 was to be a witness under oath at a [specify proceeding];
Second, the defendant [solicited] [received] [agreed to receive] something of value, [specify the thing of value], in return for being [influenced in the defendant’s testimony] [absent from the proceeding]; and
Third, the defendant acted corruptly, that is, in return for [being influenced in [his] [her] testimony] [absenting [himself] [herself] from the proceeding].
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. See Comment to Instruction 8.12 (Bribery of Public Official).
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 witness intended to do in return for the bribe"). See Instruction 7.9 (Specific Issue Unanimity).
Approved 4/2019
8.16 ILLEGAL GRATUITY TO PUBLIC OFFICIAL
(18 U.S.C. § 201(c)(1)(A))
The defendant is charged in [Count _______ of] the indictment with [giving] [offering] [or] [promising] an illegal gratuity in violation of Section 201(c)(1)(A) 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, that the defendant [gave] [offered] [promised] something of value, [specify the thing of value] to a [specify public official]; and
Second, the defendant acted for or because of an official act performed or to be performed by the [specify public official].
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. See Comment to Instruction 8.12 (Bribery of Public Official).
To establish a violation of 18 U.S.C. § 201(c)(1)(A), the government must prove a link between a thing of value conferred upon a public official and a specific "official act" for or because of which it was given. United States v. Sun-Diamond Growers of California, 526 U.S. 398, 414 (1999).
If there is any question in the case about the "official" character of the action sought by the defendant, give Instruction 8.11A (Official Act—Defined).
The distinguishing features of the crimes of "bribery" and "illegal gratuity" are their intent elements. Bribery requires intent "to influence" an official act or "to be influenced" in an official act, while illegal gratuity requires only that the gratuity be given or accepted "for or because of" a specific official act. Bribery requires a specific intent to give or receive something of value in exchange for an official act. An illegal gratuity may constitute a reward for some future act the public official will take (and may already have determined to take) or for an act already taken. Sun-Diamond Growers, 526 U.S.at 404–05. The gratuity offenses are lesser included offenses of the parallel bribery offenses. See United States v. Crutchfield, 547 F.2d 496, 500 (9th Cir. 1977); United States v. Brewster, 506 F.2d 62, 71–72 (D.C. Cir. 1974).
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 public official to do in return for the gratuity"). See Instruction 7.9 (Specific Issue Unanimity).
Approved 4/2019
8.17 RECEIVING ILLEGAL GRATUITY BY PUBLIC OFFICIAL
(18 U.S.C. § 201(c)(1)(B))
The defendant is charged in [Count _______ of] the indictment with [soliciting] [receiving] [agreeing to receive] an illegal gratuity in violation of Section 201(c)(1)(B) 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 was [specify public official]; and
Second, the defendant [[solicited] [received] [agreed to receive]] something of value, [specify the thing of value], personally for or because of an official act [performed] [to be performed] by the defendant.
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. See Comment to Instruction 8.12 (Bribery of Public Official).
See Comment to Instruction 8.16 (Illegal Gratuity to Public Official).
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 public official intended to do in return for the gratuity"). See Instruction 7.9 (Specific Issue Unanimity).
"Public official" is defined in 18 U.S.C. § 201(a)(1); § 201(c)(1)(B) also applies to a former public official and a person selected to be a public official.
If there is any question in the case about the "official" character of the action sought by the defendant, give Instruction 8.11A (Official Act—Defined).
Approved 4/2019
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. See Comment to Instruction 8.12 (Bribery of Public Official).
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).
Approved 4/2019
8.19 RECEIVING ILLEGAL GRATUITY BY WITNESS
(18 U.S.C. § 201(c)(3))
The defendant is charged in [Count _______ of] the indictment with [soliciting] [receiving] [agreeing to receive] an illegal gratuity in violation of Section 201(c)(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 beyond a reasonable doubt that the defendant [solicited] [received] [agreed to receive]
something of value, [specify the thing of value], [for testimony to be given under oath by the defendant as a witness in [specify proceeding]] [because of testimony given under oath by the defendant as a witness at/in [specify proceeding]] [for being absent from [specify proceeding] so that the defendant could not testify as a witness].
Comment
See Comment to Instructions 8.12 (Bribery of Public Official), 8.16 (Illegal Gratuity to Public Official), and 8.18 (Illegal Gratuity to Witness).
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 witness intended to do in return for the gratuity"). See Instruction 7.9 (Specific Issue Unanimity).
8.20 CONSPIRACY—ELEMENTS
The defendant is charged in [Count _______ of] the indictment with conspiring to _______ in violation of Section _______ of Title ___ 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, beginning on or about [date], and ending on or about [date], there was an agreement between two or more persons to commit at least one crime as charged in the indictment; [and]
Second, the defendant became a member of the conspiracy knowing of at least one of its objects and intending to help accomplish it[.] [; and]
[Third, one of the members of the conspiracy performed at least one overt act [on or after [date]]for the purpose of carrying out the conspiracy.]
A conspiracy is a kind of criminal partnership—an agreement of two or more persons to commit one or more crimes. The crime of conspiracy is the agreement to do something unlawful; it does not matter whether the crime agreed upon was committed.
For a conspiracy to have existed, it is not necessary that the conspirators made a formal agreement or that they agreed on every detail of the conspiracy. It is not enough, however, that they simply met, discussed matters of common interest, acted in similar ways, or perhaps helped one another. You must find that there was a plan to commit at least one of the crimes alleged in the indictment as an object of the conspiracy with all of you agreeing as to the particular crime which the conspirators agreed to commit.
One becomes a member of a conspiracy by willfully participating in the unlawful plan with the intent to advance or further some object or purpose of the conspiracy, even though the person does not have full knowledge of all the details of the conspiracy. Furthermore, one who willfully joins an existing conspiracy is as responsible for it as the originators. On the other hand, one who has no knowledge of a conspiracy, but happens to act in a way which furthers some object or purpose of the conspiracy, does not thereby become a conspirator. Similarly, a person does not become a conspirator merely by associating with one or more persons who are conspirators, nor merely by knowing that a conspiracy exists.
[An overt act does not itself have to be unlawful. A lawful act may be an element of a conspiracy if it was done for the purpose of carrying out the conspiracy. The government is not required to prove that the defendant personally did one of the overt acts.]
Comment
When the charged offense is conspiracy to defraud the United States (or any agency thereof) under the "defraud clause" of 18 U.S.C. § 371, use Instruction 8.21 (Conspiracy to Defraud the United States) in place of this general conspiracy instruction.
"To prove a conspiracy under 18 U.S.C. § 371, the government must establish: (1) an agreement to engage in criminal activity, (2) one or more overt acts taken to implement the agreement, and (3) the requisite intent to commit the substantive crime." United States v. Kaplan, 836 F.3d 1199, 1212 (9th Cir. 2016) (citation and internal quotation marks omitted). "The agreement need not be explicit; it is sufficient if the conspirators knew or had reason to know of the scope of the conspiracy and that their own benefits depended on the success of the venture." United States v. Montgomery, 384 F.3d 1050, 1062 (9th Cir. 2004) (citing United States v. Romero, 282 F.3d 683, 687 (9th Cir. 2002)). A conspiracy may exist even if some members of the conspiracy cannot complete the offense, so long as the object of the conspiracy is that at least one conspirator complete the offense. Ocasio v. United States, 136 S.Ct. 1423, 1429-32 (2016).
With respect to the first element in this instruction, if other jury instructions do not set out the elements of the crimes alleged to be objects of the conspiracy, the elements must be included in this or an accompanying instruction. United States v. Alghazouli, 517 F.3d 1179, 1189 (9th Cir. 2008). Nevertheless, conspiracy to commit a crime "does not require completion of the intended underlying offense." United States v. Iribe, 564 F.3d 1155, 1160–61 (9th Cir. 2009).
To prove an agreement to commit a crime, it is not sufficient for the government to prove that the defendant committed the crime in question. It must prove that the defendant agreed with at least one other person to commit that crime. United States v. Loveland, 825 F.3d 555 (9th Cir. 2016). 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 Instruction 8.26 (Conspiracy—Sears Charge). "An agreement to commit a crime can be explicit or tacit, and can be proved by direct or circumstantial evidence, including inferences from circumstantial evidence." Kaplan, 836 F.3d at 1212 (quotation marks and citation omitted). See also United States v. Gonzalez, 906 F.3d 784, 792 (9th Cir. 2018) (noting that tacit agreement is sufficient for conspiracy conviction).
Use the third element in this instruction only if the applicable statute requires proof of an overt act, e.g., 18 U.S.C. § 371 (first clause) or 18 U.S.C. § 1511(a) (conspiracy to obstruct state or local law enforcement), but omit the third element when the applicable statute does not require proof of an overt act. See Whitfield v. United States, 543 U.S. 209, 212-15 (2005) (proof of overt act not necessary for conspiracy to commit money laundering); United States v. Shabani, 513 U.S. 10, 15-16 (1994) (proof of overt act not necessary for conspiracy to violate drug statutes); Gonzalez, 906 F.3d at 792 (noting that proof of overt act is not necessary for conspiracy to violate civil rights).
As long as jurors agree that the government has proven each element of a conspiracy, they need not unanimously agree on the particular overt act that was committed in furtherance of the agreed-upon conspiracy. See United States v. Gonzalez, 786 F.3d 714, 718-19 (9th Cir. 2015) (rejecting defendant’s argument that district court erred in failing to instruct jury that it must unanimously agree on which acts constituted conspiracy to murder underlying a VICAR charge).
When there is evidence that an overt act occurred outside the applicable limitations period, include the bracketed material within the third element. See United States v. Fuchs, 218 F.3d 957, 961-62 (9th Cir. 2000) (plain error not to require jury to find that overt act occurred within statute of limitations).
See Instruction 7.9 (Specific Issue Unanimity). When the evidence establishes multiple conspiracies, failure to give a specific unanimity instruction may be plain error and the court may have a duty to sua sponte give the instruction requiring the jurors to unanimously agree on which conspiracy the defendant participated in. United States v. Lapier, 796 F.3d 1090 (9th Cir. 2015) (failure to give specific unanimity instruction was plain error because half of jury could have found defendant guilty of joining one conspiracy while other half of jury could have found defendant guilty of joining second, completely independent conspiracy).
The Supreme Court has held that "[a] conspiracy does not automatically terminate simply because the Government, unbeknownst to some of the conspirators, has ‘defeated’ the conspiracy’s ‘object’." United States v. Jimenez Recio, 537 U.S. 270, 274 (2003).
When the charged offense is a drug conspiracy under 21 U.S.C. § 846, use Instruction 9.19A (Buyer-Seller Relationship) in place of this general conspiracy instruction. Instruction 9.19A (Buyer-Seller Relationship) may be modified for non-drug conspiracies.
Approved 1/2019
8.21 CONSPIRACY TO DEFRAUD THE UNITED STATES
(18 U.S.C. § 371 "Defraud Clause")
The defendant is charged in [Count ______ of] the indictment with conspiring to defraud the United States by obstructing the lawful functions of [specify government agency] by deceitful or dishonest means in violation of Section 371 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, beginning on or about [date], and ending on or about [date], there was an agreement between two or more persons to defraud the United States by obstructing the lawful functions of [specify government agency] by deceitful or dishonest means as charged in the indictment;
Second, the defendant became a member of the conspiracy knowing of at least one of its objects and intending to help accomplish it; and
Third, one of the members of the conspiracy performed at least one overt act [on or after [date]]for the purpose of carrying out the conspiracy, with all of you agreeing on a particular overt act that you find was committed.
An agreement to defraud is an agreement to deceive or cheat.
A conspiracy is a kind of criminal partnership—an agreement of two or more persons to commit one or more crimes. The crime of conspiracy is the agreement to do something unlawful; it does not matter whether the crime agreed upon was committed.
For a conspiracy to have existed, it is not necessary that the conspirators made a formal agreement or that they agreed on every detail of the conspiracy. It is not enough, however, that they simply met, discussed matters of common interest, acted in similar ways, or perhaps helped one another. You must find that there was a plan to commit at least one of the crimes alleged in the indictment as an object of the conspiracy with all of you agreeing as to the particular crime which the conspirators agreed to commit.
One becomes a member of a conspiracy by willfully participating in the unlawful plan with the intent to advance or further some object or purpose of the conspiracy, even though the person does not have full knowledge of all the details of the conspiracy. Furthermore, one who willfully joins an existing conspiracy is as responsible for it as the originators. On the other hand, one who has no knowledge of a conspiracy, but happens to act in a way which furthers some object or purpose of the conspiracy, does not thereby become a conspirator. Similarly, a person does not become a conspirator merely by associating with one or more persons who are conspirators, nor merely by knowing that a conspiracy exists.
An overt act does not itself have to be unlawful. A lawful act may be an element of a conspiracy if it was done for the purpose of carrying out the conspiracy. The government is not required to prove that the defendant personally did one of the overt acts.
Comment
Use this instruction when the charged offense is conspiracy to defraud the United States under the "defraud clause" of 18 U.S.C. § 371; otherwise use Instruction 8.20 (Conspiracy– Elements).
In United States v. Caldwell, 989 F.2d 1056 (9th Cir.1993), the Ninth Circuit held that defrauding the government under 18 U.S.C. § 371 "means obstructing the operation of any government agency by any ‘deceit, craft or trickery, or at least by means that are dishonest."’ Id. at 1058-59. Thus, an instruction that permitted conviction if a defendant merely agreed to defraud the United States by obstructing the Internal Revenue Service in ascertaining and collecting taxes, but did not require proof of deceit or dishonesty, was insufficient and required reversal. To "convict someone under the ‘defraud clause’ of 18 U.S.C. § 371, the government need only show (1) he entered into an agreement (2) to obstruct a lawful function of the government (3) by deceitful or dishonest means and (4) at least one overt act in furtherance of the conspiracy." Id.; accord United States v. Rodman, 776 F.3d 638, 642 (9th Cir.2015). Moreover, the conspiracy "need not aim to deprive the government of property," and neither "the conspiracy’s goal nor the means used to achieve it" need to be illegal. Caldwell, 989 F.2d at 1058-59.
In United States v. Miller, the Ninth Circuit held that intent to defraud for purposes of wire fraud (18 U.S.C. § 1343) and mail fraud (18 U.S.C. § 1341) requires the intent to both “deceive and cheat – in other words, to deprive the victim of money or property by means of deception.” 953 F.3d 1095, 1103 (9th Cir. 2020) (emphasis in original).
If the evidence supports an argument the defendant did not act with the requisite intent to defraud because of a good faith misunderstanding about the requirements of law, consider modifying the fifth paragraph of the instruction as follows:
An agreement to defraud is an agreement to deceive or to cheat, but one who acts on an honest and good faith misunderstanding as to the requirements of the law does not act with an intent to defraud simply because [his] [her] understanding of the law is wrong or even irrational. Nevertheless, merely disagreeing with the law does not constitute a good faith misunderstanding of the law because all persons have a duty to obey the law whether or not they agree with it.
This language is derived by analogy to cases recognizing a "good faith" defense when the government must prove a defendant "willfully" violated tax laws. See Instruction 9.42 ("Willfully" Defined) for violations of 26 U.S.C. §§ 201, 7203, 7206, and 7207; but see United States v. Hickey, 580 F. 3d 922, 931 (9th Cir.2009) (no good faith instruction needed when jury properly instructed on intent to defraud).
Approved 9/2020
8.22 MULTIPLE CONSPIRACIES
You must decide whether the conspiracy charged in the indictment existed, and, if it did, who at least some of its members were. If you find that the conspiracy charged did not exist, then you must return a not guilty verdict, even though you may find that some other conspiracy existed. Similarly, if you find that any defendant was not a member of the charged conspiracy, then you must find that defendant not guilty, even though that defendant may have been a member of some other conspiracy.
Comment
Use this instruction when the indictment charges a single conspiracy and the evidence indicates two or more possible conspiracies. See United States v. Perry, 550 F.2d 524, 533 (9th Cir. 1997).
This instruction obviates the need for further instructions on multiple conspiracies. United States v. Si, 343 F.3d 1116, 1126-27 (9th Cir. 2003). Given in combination with a proper conspiracy instruction, this instruction is adequate to cover a multiple conspiracy defense. United States v. Bauer, 84 F.3d 1549, 1560-61 (9th Cir. 1996); United States v. Job, 851 F.3d 889, 905 (9th Cir. 2017).
See United States v. Singh, ___ F.3d ___, 2019 WL 2135166, at *14 (9th Cir. May 16, 2019) (approving multiple conspiracy instruction that reflected defendant’s theory of case).
Approved 6/2019
8.23 CONSPIRACY—KNOWLEDGE OF AND
ASSOCIATION WITH OTHER CONSPIRATORS
A conspiracy may continue for a long period of time and may include the performance of many transactions. It is not necessary that all members of the conspiracy join it at the same time, and one may become a member of a conspiracy without full knowledge of all the details of the unlawful scheme or the names, identities, or locations of all of the other members.
Even though a defendant did not directly conspire with [the other defendant] [or] [other conspirators] in the overall scheme, the defendant has, in effect, agreed to participate in the conspiracy if the government proves each of the following beyond a reasonable doubt:
First, that the defendant directly conspired with one or more conspirators to carry out at least one of the objects of the conspiracy;
Second, that the defendant knew or had reason to know that other conspirators were involved with those with whom the defendant directly conspired; and
Third, that the defendant had reason to believe that whatever benefits the defendant might get from the conspiracy were probably dependent upon the success of the entire venture.
It is not a defense that a person’s participation in a conspiracy was minor or for a short period of time.
Comment
A person may be a member of a conspiracy even though the person does not know all of the purposes of or participants in the conspiracy. United States v. Escalante, 637 F.2d 1197, 1200 (9th Cir. 1980); United States v. Kearney, 560 F.2d 1358, 1362 (9th Cir. 1977).
A single conspiracy can be established even though it took place during a long period of time during which new members joined and old members dropped out. United States v. Green, 523 F.2d 229, 233 (2d Cir. 1975). See also United States v. Perry, 550 F.2d 524, 528 (9th Cir. 1997) (holding that the law of conspiracy does not require the government "to prove that all of the defendants met together at the same time and ratified the illegal scheme"); United States v. Thomas, 586 F.2d 123, 132 (9th Cir. 1978) (holding that proof that the defendant "knew he was plotting in concert with others to violate the law was sufficient to raise the necessary inference that he joined in the overall agreement").
To prove a conspiracy "the evidence must show that ‘each defendant knew, or had reason to know, that his benefits were probably dependent on the success of the entire operation.’" United States v. Duran, 189 F.3d 1071, 1080 (9th Cir. 1999) (quoting United States v. Kearney, 560 F.2d 1358, 1362 (9th Cir. 1977)).
Approved 4/2019
8.24 WITHDRAWAL FROM CONSPIRACY
Once a person becomes a member of a conspiracy, that person remains a member until that person withdraws from it. One may withdraw by doing acts which are inconsistent with the purpose of the conspiracy and by making reasonable efforts to tell the co-conspirators about those acts. You may consider any definite, positive step that shows that the conspirator is no longer a member of the conspiracy to be evidence of withdrawal.
If you find that the government has proved beyond a reasonable doubt each element of a conspiracy and that the defendant was a member of the conspiracy, the burden is on the defendant to prove by a preponderance of the evidence that [he] [she] withdrew from the conspiracy before the overt act—on which you all agreed—was committed by some member of the conspiracy. A preponderance of the evidence means that you must be persuaded that the things the defendant seeks to prove are more probably true than not true. This is a lesser burden of proof than the government’s burden to prove beyond a reasonable doubt each element of the conspiracy and that the defendant was a member of the conspiracy.
If you find that the defendant withdrew from the conspiracy, you must find the defendant not guilty of [specify crime charged].
Comment
This instruction has been modified to place the burden on the defendant to prove by a preponderance of the evidence his or her withdrawal from the conspiracy. The earlier version of the instruction placed the burden on the government to prove that the defendant did not withdraw from the conspiracy before the overt act was committed by some member of the conspiracy. In Smith v. United States, 568 U.S. 106 (2013), the Court held that "establishing individual withdrawal was a burden that rested firmly on the defendant regardless of when the purported withdrawal took place." Id. at 110.
Use this instruction only when the conspiracy charged in the indictment requires proof of an overt act. If the statute of limitations is a defense to a conspiracy requiring proof of an overt act, the instruction should be modified to require the defendant to prove withdrawal before the limitations period begins. Id. at 107 ("A defendant who withdraws outside the relevant statute-of-limitations period has a complete defense to prosecution.").
Approved 4/2019
8.25 CONSPIRACY—LIABILITY FOR SUBSTANTIVE OFFENSE COMMITTED
BY CO-CONSPIRATOR (PINKERTON CHARGE)
Each member of the conspiracy is responsible for the actions of the other conspirators performed during the course and in furtherance of the conspiracy. If one member of a conspiracy commits a crime in furtherance of a conspiracy, the other members have also, under the law, committed that crime.
Therefore, you may find the defendant guilty of [specify crime] as charged in Count _______ of the indictment if the government has proved each of the following elements beyond a reasonable doubt:
First, a person named in Count _______ of the indictment committed the crime of [specify crime] as alleged in that count;
Second, the person was a member of the conspiracy charged in Count _______ of the indictment;
Third, the person committed the crime of [specify crime] in furtherance of the conspiracy;
Fourth, the defendant was a member of the same conspiracy at the time the offense charged in Count _______ was committed; and
Fifth, the offense fell within the scope of the unlawful agreement and could reasonably have been foreseen to be a necessary or natural consequence of the unlawful agreement.
Comment
The Pinkerton charge derives its name from Pinkerton v. United States, 328 U.S. 640 (1946), which held that a defendant could be held liable for a substantive offense committed by a co-conspirator as long as the offense occurred within the course of the conspiracy, was within the scope of the agreement, and could reasonably have been foreseen as a necessary or natural consequence of the unlawful agreement. United States v. Alvarez-Valenzuela, 231 F3d 1198, 1202 (9th Cir. 2000); United States v. Henry, 984 F.3d 1343, 1355-1356 (9th Cir. 2021).
When this instruction is appropriate, it should be given in addition to Instruction 8.20 (Conspiracy—Elements).
This Instruction is based upon United States v. Alvarez-Valenzuela, 231 F.3d at 1202-03, in which the Ninth Circuit approved of the 1997 version of Instruction 8.5.5 (Conspiracy—Pinkerton Charge), and United States v. Montgomery, 150 F.3d 983, 996-97 (Cir. 1998). See also United States v. Gonzalez, 996 F.3d 784, 791-92 (9th Cir. 2018); United States v. Gadson, 763 F.3d 1189, 1216-17 (9th Cir. 2014).
This instruction was found adequate in which three separate conspiracies were charged. See United States v. Moran, 493 F.3d 1002, 1009-10 (9th Cir. 2007). However, given the potential for ambiguity where more than one conspiracy is charged, the court should consider giving separate Pinkerton instructions for each conspiracy charged.
Approved 3/2021
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
8.27 COUNTERFEITING (18 U.S.C. § 471)
The defendant is charged in [Count _______ of] the indictment with counterfeiting in violation of Section 471 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 [[falsely made] [forged] [counterfeited] [altered]] [specify obligation or security of United States]; and
Second, the defendant acted with intent to defraud.
To be counterfeit, [specify item] must have a likeness or resemblance to the genuine [specify obligation or security of United States].
Comment
For a definition of "intent to defraud," see Instruction 3.16 (Intent to Defraud—Defined).
See United States v. Johnson, 434 F.2d 827, 829 (9th Cir.1970), regarding the requirement for likeness or resemblance to the genuine obligation or security.
8.28 PASSING OR ATTEMPTING TO PASS
COUNTERFEIT OBLIGATIONS
(18 U.S.C. § 472)
The defendant is charged in [Count _______ of] the indictment with [[passing] [uttering] [publishing] [selling]] [[attempting to [pass] [utter] [publish] [sell]] a counterfeit obligation in violation of Section 472 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 [[passed] [uttered] [published] [sold]] [[attempted to [pass] [utter] [publish] [sell]] a [[falsely made] [forged] [counterfeit] [altered]] [specify obligation or security of United States];
Second, the defendant knew that the [specify obligation or security of United States] was [falsely made] [forged] [counterfeited] [altered]; [and]
Third, the defendant acted with the intent to defraud[.] [; and]
[Fourth, the defendant did something that was a substantial step toward committing the crime and that strongly corroborated the defendant’s intent to commit 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 unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.]
To be counterfeit, a bill must have a likeness or resemblance to the genuine [specify obligation or security of United States].
Comment
For a definition of "intent to defraud," see Instruction 3.16 (Intent to Defraud—Defined).
An utterance has been described as tantamount to an offer. United States v. Chang, 207 F.3d 1169, 1174 (9th Cir. 2000).
The bracketed language stating an additional element applies only when the charge is an attempt. In attempt cases, "[t]o constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances." United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (internal quotations omitted).
The "strongly corroborated" language in this instruction is taken from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) ("A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent") and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).
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).
"[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime." United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).
Approved 4/2019
8.29 CONNECTING PARTS OF GENUINE INSTRUMENTS
(18 U.S.C. § 484)
The defendant is charged in [Count _______ of] the indictment with connecting parts of two or more [specify genuine instrument] in violation of Section 484 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 connected together parts of two or more [specify genuine instrument] issued under the authority of [specify issuer]; and
Second, the defendant did so with the intent to defraud.
Comment
For a definition of "intent to defraud," see Instruction 3.16 (Intent to Defraud—Defined).
8.30 FALSELY MAKING, ALTERING, FORGING OR COUNTERFEITING
A WRITING TO OBTAIN MONEY FROM UNITED STATES
(18 U.S.C. § 495)
The defendant is charged in [Count _______ of] the indictment with falsely making, altering, forging, or counterfeiting [specify writing] in violation of Section 495 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 [falsely made] [altered] [forged] [counterfeited] [specify writing]; and
Second, the defendant did so for the purpose [of obtaining or receiving] [enabling another person to obtain or receive] money from [the United States] [an officer of the United States] [an agent of the United States].
8.31 UTTERING OR PUBLISHING FALSE WRITING
(18 U.S.C. § 495)
The defendant is charged in [Count _______ of] the indictment with [uttering] [publishing] as true a false writing with the intent to defraud the United States in violation of Section 495 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 [uttered] [published] as true a [falsely made] [altered] [forged] [counterfeit] [specify writing];
Second, the defendant knew that the [specify writing] was [falsely made] [altered] [forged] [counterfeited]; and
Third, the defendant acted with the intent to defraud the United States.
Comment
For a definition of "intent to defraud," see Instruction 3.16 (Intent to Defraud—Defined).
An utterance has been described as tantamount to an offer. United States v. Chang, 207 F.3d 1169, 1174 (9th Cir.2000).
8.32 TRANSMITTING OR PRESENTING FALSE WRITING TO DEFRAUD UNITED STATES
(18 U.S.C. § 495)
The defendant is charged in [Count ___ of] the indictment with [transmitting] [presenting] a false writing in support of or in relation to an account or claim with intent to defraud the United States. 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 [transmitted] [presented] a [falsely made] [altered] [forged] [counterfeit] [specify writing] to an [office] [officer] of the United States;
Second, the defendant knew that the [specify writing] was [falsely made] [altered] [forged] [counterfeit];
Third, the [specify writing] was [transmitted] [presented] in support of [specify account or claim];
Fourth, the defendant acted with intent to defraud the United States; and
Fifth, the [specify writing] was material to action on the [specify account or claim]; that is, the [specify writing] had a natural tendency to influence, or was capable of influencing, action on the [specify account or claim].
Comment
For a definition of "intent to defraud," see Instruction 3.16 (Intent to Defraud—Defined).
In Neder v. United States, 527 U.S. 1, 22-23 (1999), the Court explained that materiality is a necessary aspect of the legal concept of fraud which is incorporated into criminal statutes concerning fraud unless the statute says otherwise (holding materiality of falsehood must be proved in prosecution under bank, mail and wire fraud statutes). The common law test for materiality in the false statement statutes, as reflected in the fifth element of this instruction, is the preferred formulation. United States v. Peterson, 538 F.3d 1064, 1072 (9th Cir.2008).
8.33 FORGING ENDORSEMENT ON TREASURY CHECK, BOND OR SECURITY OF UNITED STATES
(18 U.S.C. § 510(a)(1))
The defendant is charged in [Count ___ of] the indictment with forging or falsely making [an endorsement] [a signature] on a Treasury [check] [bond] [security] of the United States in violation of Section 510 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 falsely made or forged [an endorsement] [a signature] on a Treasury [check] [bond] [security] of the United States; and
Second, the defendant did so with intent to defraud.
Comment
For a definition of "intent to defraud," see Instruction 3.16 (Intent to Defraud—Defined).
8.34 PASSING OR ATTEMPTING TO PASS
FORGED ENDORSEMENT ON TREASURY CHECK, BOND OR
SECURITY OF UNITED STATES
(18 U.S.C. § 510(a)(2))
The defendant is charged in [Count _______ of] the indictment with [passing] [uttering] [publishing] [[attempting to [pass] [utter] [publish]] a Treasury [check] [bond] [security] of the United States in violation of Section 510 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 [passed] [uttered] [published] [[attempted to [pass] [utter] [publish]] a Treasury [check] [bond] [security] of the United States which bore a falsely made or forged [endorsement] [signature]; [and]
Second, the defendant did so with intent to defraud[.] [; and]
[Third, the defendant did something that was a substantial step toward committing the crime and that strongly corroborated the defendant’s intent to commit 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 unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.]
Comment
For a definition of "intent to defraud," see Instruction 3.16 (Intent to Defraud—Defined).
An utterance has been described as tantamount to an offer. United States v. Chang, 207 F.3d 1169, 1174 (9th Cir. 2000).
The bracketed language stating an additional element applies only when the charge is an attempt. In attempt cases, "[t]o constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances." United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (internal quotations omitted).
The "strongly corroborated" language in this instruction is taken from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) ("A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent") and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).
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).
"[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime." United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).
Approved 4/2019
8.35 SMUGGLING OR ATTEMPTING TO SMUGGLE GOODS
(18 U.S.C. § 545)
The defendant is charged in [Count _______ of] the indictment with [smuggling] [attempting to smuggle] in violation of Section 545 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 knowingly [smuggled] [attempted to smuggle] merchandise into the United States without declaring the merchandise for invoicing as required by United States Customs law;
Second, the defendant knew that the merchandise was of a type that should have been declared; [and]
Third, the defendant acted willfully with intent to defraud the United States[.] [; and]
[Fourth, the defendant did something that was a substantial step toward committing the crime and that strongly corroborated the defendant’s intent to commit 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 unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.]
Comment
See Comment in 5.5 (Willfully).
This instruction may be used when the defendant is charged with the crime of smuggling goods or attempting to smuggle goods. The bracketed fourth element should be used when defendant is charged with an attempt to smuggle goods.
This instruction relates to the first clause of the first paragraph of 18 U.S.C. § 545. If the charge is based on the second clause of the first paragraph, use Instruction 8.36 (Passing False Papers Through Customhouse). Instructions 8.37 (Importing Merchandise Illegally) and 8.38 (Receiving, Concealing, Buying or Selling Smuggled Merchandise) concern violations of the second paragraph of § 545.
See United States v. Garcia-Paz, 282 F.3d 1212, 1214-15 (9th Cir. 2002) (court properly instructed jury that marijuana constitutes "merchandise" for purposes of 18 U.S.C. § 545).
The bracketed language stating an additional element applies only when the charge is an attempt. In attempt cases, "[t]o constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances." United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (internal quotations omitted).
The "strongly corroborated" language in this instruction is taken from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) ("A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent") and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).
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).
"[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime." United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).
Approved 4/2019
8.35A SMUGGLING OR ATTEMPTING TO SMUGGLE
GOODS FROM THE UNITED STATES
(18 U.S.C. § 554)
The defendant is charged in [Count ___ ] of the indictment with [smuggling] [attempting to smuggle] merchandise from the United States in violation of Section 554 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 [knowingly] [fraudulently] [exported] [sent] [attempted to export] [attempted to send] from the United States merchandise [or received, concealed, bought, sold or in any manner facilitated the transportation, concealment, or sale of such merchandise prior to exportation, knowing the same to be intended for exportation]; and
Second, the [exportation] [sending] was contrary to [describe applicable United States law(s) or regulation(s)]; and
Third, the defendant knew the [exportation] [sending] was contrary to law or regulation[.]; [and]
[Fourth, the defendant did something that was a substantial step toward committing the crime and that strongly corroborated the defendant’s intent to commit 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 unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.]
"Merchandise" means objects, items, goods, and wares of every description.
Comment
This instruction may be used when the defendant is charged under 18 U.S.C. § 554 with the crime of smuggling or attempting to smuggle goods from the United States. The bracketed fourth element should be used when the defendant is charged with an attempt to smuggle goods from the United States. See Comment to Instruction 8.35 (Smuggling Goods).
To convict under 18 U.S.C. § 554, the government need only prove the defendant knew he or she was exporting merchandise that was unlawful to export, not that the defendant knew the nature of the merchandise. United States v. Rivero, 889 F.3d 618, 621-22 (9th Cir. 2018).
18 U.S.C. § 554 references "any merchandise, article, or object." The definition of "merchandise" is found in 19 U.S.C. § 1401(c). See United States v. Garcia-Paz, 282 F.3d 1212, 1214 (9th Cir. 2002) (defining "merchandise" as "goods, wares and chattels of every description").
The bracketed language stating an additional element applies only when the charge is an attempt. In attempt cases, "[t]o constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances." United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (internal quotations omitted).
The "strongly corroborated" language in this instruction is taken from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) ("A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent") and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).
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).
"[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime." United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).
Approved 4/2019
8.36 PASSING OR ATTEMPTING TO PASS
FALSE PAPERS THROUGH CUSTOMHOUSE
(18 U.S.C. § 545)
The defendant is charged in [Count _______ of] the indictment with [passing] [attempting to pass] a [[false] [forged] [fraudulent]] [specify writing] in violation of Section 545 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 knowingly [[passed] [attempted to pass]] [specify writing] through a customhouse of the United States;
Second, the defendant knew that the [specify writing] was [false] [forged] [fraudulent];
Third, the defendant acted willfully with intent to defraud the United States; [and]
Fourth, the [specify writing] had a natural tendency to influence, or was capable of influencing, action by the United States[.] [; and]
[Fifth, the defendant did something that was a substantial step toward committing the crime and that strongly corroborated the defendant’s intent to commit 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 unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.]
Comment
See Comment in 5.5 (Willfully).
This instruction may be used when the defendant is charged with the crime of passing false papers through a customhouse. The bracketed fifth element should be used when defendant is charged with an attempt to do so. For an attempt to commit the crime, jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of the crime. United States v. Hofus, 598 F.3d 1171, 1176 (9th Cir. 2010).
This instruction relates to the second clause of the first paragraph of 18 U.S.C. § 545. If the charge is based on the first clause of the first paragraph, use Instruction 8.35 (Smuggling Goods). Instructions 8.37 (Importing Merchandise Illegally) and 8.38 (Receiving, Concealing, Buying or Selling Smuggled Merchandise) concern violations of the second paragraph of § 545.
In Neder v. United States, 527 U.S. 1 (1999), the Court explained that materiality is a necessary aspect of the legal concept of fraud which is incorporated into criminal statutes concerning fraud unless the statute says otherwise. Id. at 22-23 (holding materiality of falsehood must be proved in prosecution under bank, mail and wire fraud statutes). The common law test for materiality in the false statement statutes, as reflected in the third element of this instruction, is the preferred formulation. United States v. Peterson, 538 F.3d 1064, 1072 (9th Cir. 2008).
The bracketed language stating an additional element applies only when the charge is an attempt. In attempt cases, "[t]o constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances." United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (internal quotations omitted).
The "strongly corroborated" language in this instruction is taken from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) ("A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent") and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).
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).
"[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime." United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).
Approved 4/2019
8.37 IMPORTING MERCHANDISE ILLEGALLY
(18 U.S.C. § 545)
The defendant is charged in [Count _______ of] the indictment with [[fraudulently] [knowingly]] [[importing] [bringing]] into the United States merchandise in violation of Section 545 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 [[fraudulently] [knowingly]] [[imported] [brought]] merchandise into the United States contrary to [specify law].
Comment
This instruction deals with the first clause of the second paragraph of 18 U.S.C. § 545. If the charge is a violation of the second clause of the second paragraph, use Instruction 8.38 (Receiving, Concealing, Buying or Selling Smuggled Merchandise). Instructions 8.35 (Smuggling Goods) and 8.36 (Passing False Papers Through Customhouse) deal with violations of the first paragraph of § 545.
The term "law" in § 545 includes a regulation as well as a statute, but only when there is a statute which specifies that a violation of the regulation is a crime. United States v. Alghazouli, 517 F.3d 1179, 1183 (9th Cir. 2008), cert. denied, 129 S. Ct. 237 (2008).
See United States v. Garcia-Paz, 282 F.3d 1212, 1214-15 (9th Cir. 2002) (court properly instructed jury that marijuana constitutes "merchandise" for purposes of 18 U.S.C. § 545).
8.38 RECEIVING, CONCEALING, BUYING OR SELLING SMUGGLED MERCHANDISE
(18 U.S.C. § 545)
The defendant is charged in [Count _______ of] the indictment with [[receiving] [concealing] [buying] [selling]] [[facilitating [the transportation] [concealment] [sale] of]] smuggled merchandise in violation of Section 545 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, merchandise had been brought into the United States contrary to [specify law]; and
Second, the defendant [[received] [concealed] [bought] [sold]] [[facilitated the [transportation] [concealment] [sale] of]] the merchandise knowing that it had been brought into the United States contrary to law.
Comment
This instruction relates to the second clause of the second paragraph of 18 U.S.C. § 545. If the charge is a violation of the first clause of the second paragraph, use Instruction 8.37 (Importing Merchandise Illegally). Instructions 8.35 (Smuggling Goods) and 8.36 (Passing False Papers Through Customhouse) deal with violations of the first paragraph of § 545.
The term "law" in § 545 includes a regulation as well as a statute, but only when there is a statute which specifies that a violation of the regulation is a crime. United States v. Alghazouli, 517 F.3d 1179, 1183 (9th Cir.), cert. denied, 129 S. Ct. 237 (2008).
See United States v. Garcia-Paz, 282 F.3d 1212, 1214-15 (9th Cir.2002) (court properly instructed jury that marijuana constitutes "merchandise" for purposes of 18 U.S.C. § 545).
8.39 THEFT OF GOVERNMENT MONEY OR PROPERTY
(18 U.S.C. § 641)
The defendant is charged in [Count _______ of] the indictment with theft of government [money] [property] in violation of Section 641 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 knowingly [[embezzled] [stole] [converted to defendant’s use] [converted to the use of another]] [money] [property of value] with the intention of depriving the owner of the use or benefit of the [money] [property];
Second, the [money] [property] belonged to the United States; and
Third, the value of the [money] [property] was more than $1,000.
Comment
This instruction deals with the first paragraph of 18 U.S.C. § 641. Instruction 8.40 (Receiving Stolen Government Money or Property) deals with the second paragraph of § 641.
Theft of money or property having a value of $1,000 or less is a misdemeanor. 18 U.S.C. § 641. If the crime charged is a misdemeanor, the third element of this instruction should be omitted.
Knowledge that stolen property belonged to the United States is not an element of the offense. Baker v. United States, 429 F.2d 1278, 1279 (9th Cir. 1970).
See United States v. Campbell, 42 F.3d 1199, 1205 (9th Cir. 1994) (government must prove that defendant stole property with the intention of depriving the owner of the use or benefit of the property).
In order to qualify as property of the United States, "the United States ‘must have "title to, possession of, or control over" the funds involved.’" United States v. Kranovich, 401 F.3d 1107, 113 (9th Cir. 2005) (quoting United States v. Faust, 850 F.2d 575, 579 (9th Cir. 1988)). Property belongs to the United States for the purposes of § 641 even if it is in the possession of a third party or commingled with a third party’s funds so long as the government exercises "supervision and control of the funds and their ultimate use." Id. at 1113-14 (citation omitted); see also United States v. Von Stephens, 774 F.2d 1411, 1413 (9th Cir. 1985) (per curiam).
Approved 9/2018
8.40 RECEIVING STOLEN GOVERNMENT MONEY OR PROPERTY
(18 U.S.C. § 641)
The defendant is charged in [Count _______ of] the indictment with [[receiving] [concealing] [retaining]] [[embezzled] [stolen] [converted]] government [money] [property] in violation of Section 641 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 knowingly [[received] [concealed] [retained]] [[money] [property of value]];
Second, the [money] [property] belonged to the United States;
Third, the defendant knew that the [money] [property] had been [embezzled] [stolen] [converted];
Fourth, the defendant intended to convert the [money] [property] to [his] [her] own use or gain; and
Fifth, the value of the [money] [property] was more than $1,000.
Comment
See Comment to Instruction 8.39 (Theft of Government Money or Property).
Approved 7/2011
8.41 THEFT, EMBEZZLEMENT OR MISAPPLICATION OF BANK FUNDS
(18 U.S.C. § 656)
The defendant is charged in [Count _______ of] the indictment with [theft] [embezzlement] [misapplication] of bank funds in violation of Section 656 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 was a [specify position held] of the [specify financial institution];
Second, the defendant knowingly and willfully [stole] [embezzled] [misapplied] funds or credits belonging to the bank or entrusted to its care in excess of $1,000;
Third, the defendant acted with the intent to injure or defraud the [specify financial institution];
Fourth, the [specify financial institution] was [specify Section 656 status]; and
Fifth, the amount of money taken was more than $1,000.
The fact that the defendant may have intended to repay the funds at the time they were taken is not a defense.
Comment
Although not found in the statute, "intent to injure or defraud" has been held to be an essential element of the crime. United States v. Stozek, 783 F.2d 891, 893 (9th Cir.1986). "Intent to defraud may be inferred from a defendant’s reckless disregard of the bank’s interests." United States v. Castro, 887 F.2d 994 (9th Cir.1989) (citing Stozek, 783 F.2d at 893).
If the crime charged is a misdemeanor, the fifth element of this instruction should be omitted.
8.42 EMBEZZLEMENT OR MISAPPLICATION BY OFFICER OR EMPLOYEE
OF LENDING, CREDIT OR INSURANCE INSTITUTION
(18 U.S.C. § 657)
Comment
The Committee recommends that when a defendant is accused of embezzlement or willful misapplication in violation of 18 U.S.C. § 657, Instruction 8.41 (Theft, Embezzlement or Misapplication of Bank Funds) should be used with appropriate modifications. Section 656 and Section 657 contain the same elements. United States v. Musacchio, 968 F.2d 782, 787 n.6 (9th Cir. 1991).
See United States v. Bennett, 621 F.3d 1131, 1138 (9th Cir. 2010) (interpreting "financial institution" under 18 U.S.C. § 1344 to exclude wholly owned subsidiary of financial institution and criticizing United States v. Cartwright, 632 F.2d 1290 (5th Cir. 1980), which held that "a subsidiary’s assets ‘belonged to’ a parent corporation for purposes of 18 U.S.C. § 657").
Approved 9/2018
8.43 THEFT FROM INTERSTATE OR FOREIGN SHIPMENT
(18 U.S.C. § 659)
The defendant is charged in [Count _______ of] the indictment with theft from [an interstate] [a foreign] shipment in violation of Section 659 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 stole the property described in the indictment from a shipment in [interstate] [foreign] commerce; [and]
Second, the defendant did so with the intent to convert the property to [his] [her] own use[.] [; and]
[Third, the property had a value of $1,000 or more.]
Property is moving as or is [a part of] a shipment in [interstate] [foreign] commerce if the point of origin is in one [state] [country] and the destination is another [state] [country]. Property is moving as [an interstate] [a foreign] shipment at all points between the point of origin and the final destination, regardless of any temporary stop while awaiting transshipment or otherwise.
Comment
This instruction deals with theft from a shipment in interstate or foreign commerce subject to the first paragraph of 18 U.S.C. § 659. If the charge under the first paragraph of § 659 is based on conduct other than theft, modify the instruction accordingly.
If the charge alleges that the value of the property was $1,000 or more, use the third element; otherwise it should be omitted.
8.44 ESCAPE FROM CUSTODY
(18 U.S.C. § 751(a))
The defendant is charged in [Count _______ of] the indictment with escape from custody in violation of Section 751(a) 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 was in the custody of [specify custodian];
Second, the defendant was in custody by virtue of [specify reason for or type of custody]; and
Third, the defendant knowingly and voluntarily left custody without permission.
Comment
An intent to avoid confinement is not an element of escape. United States v. Bailey, 444 U.S. 394, 408 (1980).
Section 751(a) provides a maximum punishment of one year in prison for certain types of custody, such as custody imposed by virtue of an arrest for a misdemeanor, and a maximum punishment of five years in prison for other types of custody, such as custody imposed by virtue of a felony arrest. It is therefore necessary to include the type of custody in the instruction. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (holding that other than fact of prior conviction, any fact which increases statutory maximum must be submitted to jury).
For cases considering what constitutes federal custody under 18 U.S.C. § 751(a), see United States v. Brown, 875 F.3d 1235, 1239 (9th Cir. 2017) (holding that federal inmate in state custody under writ of habeas corpus ad prosequendum was in federal custody); United States v. Burke, 694 F.3d 1062, 1064-65 (9th Cir. 2012) (holding that defendant who resided at residential reentry center under supervised release was not in federal custody).
Approved 9/2018
8.45 ATTEMPTED ESCAPE
(18 U.S.C. § 751(a))
The defendant is charged in [Count _______ of] the indictment with attempted escape in violation of Section 751(a) 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 was in the custody of [specify custodian];
Second, the defendant was in custody by virtue of [specify reason for or type of custody];
Third, the defendant intended to escape from custody; and
Fourth, the defendant did something that was a substantial step toward escaping from custody and that strongly corroborated the defendant’s intent to commit that crime.
Mere preparation is not a substantial step toward committing the crime. To constitute a substantial step, a defendant’s act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.
Comment
See Comment to Instruction 8.44 (Escape from Custody).
"To constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances." United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (internal quotations omitted).
The "strongly corroborated" language in this instruction is taken from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) ("A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent") and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).
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).
"[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime." United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).
Approved 4/2019
8.46 ASSISTING ESCAPE
(18 U.S.C. § 752(a))
The defendant is charged in [Count _______ of] the indictment with assisting escape in violation of Section 752(a) 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, [name of escapee] was in the custody of [specify custodian] by virtue of [specify reason for or type of custody];
Second, [name of escapee] [[left] [attempted to leave]] [his] [her] custody, without permission;
Third, the defendant knew that [name of escapee] did not have permission to leave; and
Fourth, the defendant assisted [name of escapee] in [leaving] [attempting to leave].
Comment
Section 752(a) provides a maximum punishment of one year in prison for certain types of custody, such as custody imposed by virtue of an arrest for a misdemeanor, and a maximum punishment of five years in prison for other types of custody, such as custody imposed by virtue of a felony arrest. It is therefore necessary to include the type of custody in the instruction. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (other than prior conviction, any fact which increases statutory maximum must be submitted to jury).
8.47 THREATS AGAINST THE PRESIDENT
(18 U.S.C. § 871)
Comment
The Committee has withdrawn the previously adopted and published jury instruction for violations of 18 U.S.C. § 871, (threats against the president). In reversing a defendant’s conviction for violating 18 U.S.C. § 875(c) (transmitting in interstate or foreign commerce any communication containing a threat to kidnap any person or injure any person), the Supreme Court has held that the mens rea of a crime involved in communicating a threat is established through proof that the defendant makes a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat. Elonis v. United States, 135 S. Ct. 2001 (2015). Elonis rejected the rule applied in the Ninth Circuit that "[w]hether a particular statement may properly be considered to be a threat is governed by an objective standard—whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault." United States v. Keyser, 704 F.3d 631, 638 (9th Cir. 2012) (quoting United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir. 1990)). The withdrawn instruction incorporated an element that also used an objective standard when viewing whether the communication was a threat. While this crime is not identical in its elements to the more general crime under 18 U.S.C. § 875(c), a court may want to consider whether the legal analysis regarding the mens rea element in Elonis applies to the more specific crime of threats against the President.
See also United States v. Bagdasarian, 652 F.3d 1113, 1122-23 (9th Cir. 2011) (reversing conviction under 18 U.S.C. § 879(a)(3), criminalizing threats against major presidential candidates, when defendant’s statements were "predictive" and "exhortatory" but did not indicate speaker’s own intention to threaten then-candidate Obama).
Approved 9/2018
8.47A MAILING THREATENING COMMUNICATIONS—THREATS TO KIDNAP OR INJURE
(18 U.S.C. § 876(c))
The defendant is charged in [Count _______ ] of the indictment with mailing threatening communications in violation of Section 876(c) of Title 18 of the United States Code. 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 knowingly [mailed] [arranged to have mailed] a [letter] [insert other form of communication] addressed to [insert name or title of natural person] containing a threat to [kidnap] [injure] any person; and
Second, the defendant intended to communicate a threat by such [insert form of communication].
The government need not prove that the defendant intended to carry out the threat.
Comment
This instruction is based on United States v. Keyser, 704 F.3d 631 (9th Cir.2012), United States v. Havelock, 664 F.3d 1284 (9th Cir. 2012), United States v. King, 122 F.3d 808 (9th Cir.1997), United States v. Twine, 853 F.2d 676 (9th Cir. 1988), and United States v. Sirhan, 504 F.2d 818, 820 (9th Cir.1974). While the Ninth Circuit has not offered comprehensive guidance concerning the requirements for conviction under 18 U.S.C. § 876, these cases are instructive.
Under 18 U.S.C. § 876, the threatening communications must be addressed to a natural person. Havelock, 664 F.3d at 1286. "[I]n order to determine whom a threatening communication is ‘addressed to,’ a court may consult the directions on the outside of the envelope or the packaging, the salutation line, if any, and the contents of the communication." Id. at 1296. A general title such as "manager" is sufficient to meet this requirement. Keyser, 704 F.3d at 641.
There are two specific intent elements in 18 U.S.C. § 876. The defendant must have both "knowingly" transmitted the communication and subjectively intended to threaten. Twine, 853 F.2d at 680; Keyser, 704 F.3d at 638 ("In order to be subject to criminal liability for a threat, the speaker must subjectively intend to threaten."). United States v. Bachmeier clarifies that “subjective intent to threaten is the required mental state [under section 876], not . . . mere ‘knowledge that the communication would be viewed as a threat.” 8 F.4th 1059, 1062 (9th Cir. 2021) (emphasis added). However, the defendant need not have expected the threats to gain him a benefit, or have had the intent or ability to actually carry out the threat. Planned Parenthood of the Columbia/Williamette, Inc. v. Am. Coalition of Life Activists, 290 F.3d 1058, 1076 n.9 (9th Cir.2002); King, 122 F.3d at 809.
Approved 9/2021
8.47B TRANSMITTING A COMMUNICATION CONTAINING A THREAT TO KIDNAP OR INJURE
(18 U.S.C. § 875(c))
The defendant is charged in [Count _______ ] of the indictment with transmitting in [interstate commerce] [foreign commerce] a threatening communication to a person in violation of Section 875(c) 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 knowingly transmitted in [interstate commerce] [foreign commerce] a [insert form of communication] containing a threat to [kidnap] [injure] [insert name or title of natural person].
Second, such [insert form of communication] was transmitted for the purpose of issuing a threat, or with knowledge that the [insert form of communication] would be viewed as a threat.
The government need not prove that the defendant intended to carry out the threat.
Comment
Whether a particular statement may be considered a threat is not governed by an objective standard. The mens rea of the crime involved in communicating a threat is established through proof that a defendant makes a communication for the purpose of issuing a threat,or with knowledge that the communication will be viewed as a threat. See Elonis v. United States, 135 S.Ct. 2001 (2015) (involving violation of 18 U.S.C. § 875(c), transmitting in interstate or foreign commerce any threat to kidnap any person or threat to injure the person of another).
Approved 9/2015
8.48 EXTORTIONATE CREDIT TRANSACTIONS
(18 U.S.C. § 892)
The defendant is charged in [Count _______ of] the indictment with making an extortionate extension of credit in violation of Section 892 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 knowingly extended credit to [name of debtor]; and
Second, at the time the credit was extended, the defendant as a creditor and [name of debtor] as a debtor both understood that delay or failure in making repayment could result in the use of violence or other criminal means to harm the person, reputation, or property of some person.
8.49 FALSE IMPERSONATION OF CITIZEN OF UNITED STATES
(18 U.S.C. § 911)
The defendant is charged in [Count _______ of] the indictment with misrepresenting [himself] [herself] to be a citizen of the United States. 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 directly and falsely represented [himself] [herself] to be a citizen of the United States;
Second, the defendant was not a citizen of the United States at that time;
Third, the defendant made such false representation willfully, that is, the misrepresentation was voluntarily and deliberately made; and
Fourth, the false representation was made to someone who had good reason to make inquiry into defendant’s citizenship status.
Comment
In United States v. Anguiano-Morfin, 713 F.3d 1208 (9th Cir.2013), the Ninth Circuit explained that, when a defendant charged with falsely impersonating a United States citizen relies on the defense that he genuinely believed that he was a United States citizen, the "best course" is to instruct the jury that the government must prove beyond a reasonable doubt that the defendant knew that his claim to United States citizenship was false, and that a "reasonable doubt as to whether the defendant knew his claim to United States citizenship was false" must result in an acquittal. Id. at 1210. The Ninth Circuit explained that in such cases the jury instructions should make clear that the defendant’s subjective belief is the dispositive issue. Id.
In United States v. Karaouni, 379 F.3d 1139, 1144 (9th Cir.2004), the Ninth Circuit held that the representation must be "direct" and that a statement from which United States citizenship could be inferred is insufficient. "Willfully" requires proof "that the misrepresentation was deliberate and voluntary." Id. at 1142. The fourth element is required by Ninth Circuit case law limiting the reach of the statute to avoid First Amendment overbreadth issues. Id. at 1142 n.7.
Approved 7/2013
8.50 FALSE IMPERSONATION OF FEDERAL OFFICER OR EMPLOYEE
(18 U.S.C. § 912)
The defendant is charged in [Count ______ of] the indictment with fraud while impersonating a federal officer or employee in violation of Section 912 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 falsely pretended to be an [officer] [employee] acting under the authority of [the United States] [specify federal department, agency or officer]; and
Second, the defendant [acted as such] [in such pretended character demanded or obtained [specify thing of value]].
Comment
Two options are afforded for the second element because 18 U.S.C. § 912 states two offenses. It has been held to be duplicitous to charge both falsely acting as a federal officer and demanding or obtaining money while falsely acting as a federal officer in a single count. United States v. Aguilar, 756 F.2d 1418, 1422 (9th Cir.1985).
8.51 FIREARMS
Comment
Definitions of many of the terms used in the firearms statutes are found in 18 U.S.C. § 921 and 26 U.S.C. § 5845. The Committee recommends that definitional instructions be used sparingly. Many of the terms defined are of common significance and really require no definition. Some examples are "pistol," "rifle," "importer," and "manufacturer." While jurors will readily recognize that one who is engaged in the business of buying and selling firearms is a dealer, they probably do not know that one engaged in the business of repairing firearms is also a dealer, 18 U.S.C. § 921(a)(11)(B), and in that case a definition would be necessary.
The most effective way to avoid definitions relating to firearms is to use the most specific designation available. For example, assume that a defendant is being tried for transporting a rocket having a propellant charge of more than four ounces in violation of 18 U.S.C. § 922(a)(4). Examples of the ways the judge might instruct the jury on one of the elements are as follows:
(1) "The defendant transported a firearm." It will then be necessary to have an additional instruction that a rocket having a propellant charge of more than four ounces is a firearm. See 18 U.S.C. § 921(a)(3)(D) (defining "firearm" as including "destructive device") and 18 U.S.C. § 921(a)(4)(A)(iii) (defining "destructive device" as including a "rocket having a propellant charge of more than four ounces); or
(2) "The defendant transported a destructive device." Even here, it will then be necessary to instruct that a rocket having a propellant charge of more than four ounces is a destructive device. Id.; or
(3) "The defendant transported a rocket having a propellant charge of more than four ounces." Using the third alternative, no additional instruction is necessary.
8.52 FIREARMS—FUGITIVE FROM JUSTICE DEFINED
(18 U.S.C. § 921(a)(15))
A fugitive from justice is a person who has fled from any state to avoid prosecution for a crime or to avoid giving testimony in any criminal proceeding.
Comment
This instruction is appropriate when a firearms offense involves a fugitive from justice. See 18 U.S.C. § 922(d)(2) and (g)(2).
8.53 FIREARMS—DEALING, IMPORTING OR MANUFACTURING WITHOUT LICENSE
(18 U.S.C. § 922(a)(1)(A) and (B))
The defendant is charged in [Count _______ of] the indictment with [dealing] [importing] [manufacturing] firearms without a license, in violation of Section 922(a)(1) of Title 18 of the United States Code. 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 was willfully engaged in the business of [dealing in] [importing] [manufacturing] firearms within the dates specified in the indictment; and
Second, the defendant did not then have a license as a firearms [dealer] [importer] [manufacturer].
Comment
The government must prove beyond a reasonable doubt that the defendant engaged in a greater degree of activity than the occasional sale of a hobbyist or collector, and that the defendant devoted time, attention and labor to selling firearms as a trade or business with the intent of making profits through the repeated purchase and sale of firearms. See United States v. King, 735 F.3d 1098, 1106 (9th Cir.2013) (citing Instruction 8.53). For a person to engage in the business of dealing in firearms, it is not necessary to prove an actual sale of firearms. Id. at 1107 n.8.
Willfully, as used in this statute, requires proof that the defendant knew that his or her conduct was unlawful, but does not require proof that the defendant knew of the federal licensing requirement. Bryan v. United States, 524 U.S. 184, 198-99 (1998).
Approved 5/2020
8.54 FIREARMS—SHIPMENT OR TRANSPORTATION TO A PERSON NOT LICENSED
AS A DEALER, IMPORTER, MANUFACTURER OR COLLECTOR
(18 U.S.C. § 922(a)(2))
The defendant is charged in [Count _______ of] the indictment with the [shipment] [transportation] of a firearm to a person not licensed as a [dealer] [importer] [manufacturer] [collector] of firearms, in violation of Section 922(a)(2) of Title 18 of the United States Code. 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 was a licensed firearms [dealer] [importer] [manufacturer] [collector];
Second, the defendant willfully [shipped] [transported] a [specify firearm] [[from one state to another] [between a foreign nation and the United States]]; and
Third, the defendant [shipped] [transported] the [specify firearm] to a person who was not licensed as a firearms [dealer] [importer] [manufacturer] [collector].
Comment
See Comment to Instruction 8.49 (False Impersonation of Citizen of United States).
While § 922(a)(2) also prohibits shipment or transportation of a firearm to a person not licensed as a firearms collector, a firearms collector’s license authorizes transactions only in curio and relic firearms. See 18 U.S.C. § 923(b); 27 C.F.R. §§ 478.41(c) and (d), 478.50 and 478.93. Moreover, the prohibition in § 922(a)(2) does not apply to returning a firearm or replacing a firearm of the same kind or type to a person from whom it was received. It also does not prohibit depositing a firearm for conveyance in the mails to any officer, employee, agent, or watchman who is authorized to receive such firearms for use in connection with that person’s official duty. See 18 U.S.C. § 922(a)(2)(A) and (B).
Approved 5/2020
8.55 FIREARMS—TRANSPORTING OR RECEIVING IN STATE OF RESIDENCE
(18 U.S.C. § 922(a)(3))
The defendant is charged in [Count _______ of] the indictment with [transporting] [receiving] a firearm [into] [in] the state of his residence in violation of Section 922(a)(3) of Title 18 of the United States Code. 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 was not licensed as a firearms [dealer] [importer] [manufacturer] [collector]; and
Second, the defendant willfully [transported into] [received in] the state in which the defendant resided a [specify firearm] that the defendant purchased or otherwise obtained outside that state.
A person acts "willfully" if [he][she] acts knowingly and purposely and with the intent to do something that the law forbids. Willfulness can be proved by direct evidence or by circumstantial evidence.
Comment
See Comment to Instruction 8.51 (Firearms), Comment to Instruction 8.54 (Shipment or Transportation to a Person Not Licensed as a Dealer, Importer, Manufacturer or Collector), and Instruction 5.5 (Willfully). See also exceptions at 18 U.S.C. § 922(a)(3).
The government is not required to prove that a defendant knew that transporting or receiving firearms into his state of residence violated a specific legal duty or particular law, but the government is required to prove that the defendant acted willfully in committing the charged conduct. United States v. Hernandez, 859 F.3d 817, 822-23 (9th Cir. 2017). See United States v. Schaefer, 13 F.4th 875, 893-95 (9th Cir. 2021) (explaining “destructive device” as that term is used in both 18 U.S.C. § 921(a)(4) and 26 U.S.C. § 5845(f)).
Approved 12/2021
8.56 FIREARMS—UNLAWFUL TRANSPORTATION OF DESTRUCTIVE DEVICE, MACHINE GUN,
SHORT–BARRELED SHOTGUN OR SHORT–BARRELED RIFLE
(18 U.S.C. § 922(a)(4))
The defendant is charged in [Count _______ of] the indictment with the unlawful transportation of a [destructive device] [machine gun] [short-barreled shotgun] [short-barreled rifle] in violation of Section 922(a)(4) of Title 18 of the United States Code. 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 was not licensed as a firearms [dealer] [importer] [manufacturer] [collector];
Second, the defendant knowingly transported a [specify destructive device or firearm] [[from one state to another] [between a foreign nation and the United States]]; and
Third, that the defendant did so without specific authorization by the Attorney General of the United States.
Comment
See Comment in 8.51 (Firearms) and Comment to Instruction 8.54 (Shipment or Transportation to a Person Not Licensed as a Dealer, Importer, Manufacturer or Collector).
The term "destructive device" is defined in 18 U.S.C. § 921(a)(4)(A)-(C) as:
(A) any explosive, incendiary, or poison gas (i) bomb, (ii) grenade, (iii) rocket having a propellant charge of more than four ounces, (iv) missile having an explosive or incendiary charge of more than one-quarter ounce, (v) mine, or (vi) device similar to any of the devices described in the preceding clauses;
(B) any type of weapon (other than a shotgun or a shotgun shell which the Attorney General finds is generally recognized as particularly suitable for sporting purposes) by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, and which has any barrel with a bore of more than one-half inch in diameter; and
(C) any combination of parts either designed or intended for use in converting any device into any destructive device described in subparagraph (A) or (B) and from which a destructive device may be readily assembled.
26 U.S.C. § 5845(b) provides the definition of “machine gun.” United States v. Kuzma, 967 F.3d 959, 967 (9th Cir. 2020). “[A] weapon is ‘designed to shoot’ automatically if it has a specific configuration of objective structural features that, in the absence of any minor defect, would give the weapon the capacity to shoot automatically.” Id. at 969-70.
Approved 12/2020
8.57 FIREARMS—UNLAWFUL DISPOSITION BY UNLICENSED DEALER
(18 U.S.C. § 922(a)(5))
The defendant is charged in [Count _______ of] the indictment with the unlawful disposition of a firearm in violation of Section 922(a)(5) of Title 18 of the United States Code. 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 willfully [sold] [traded] [gave] [transported] [delivered] [transferred] a [specify firearm] to [name of unlicensed dealer];
Second, neither the defendant nor [name of unlicensed dealer] was licensed as a firearm [dealer] [importer] [manufacturer] [collector]; and
Third, the defendant knew or had reasonable cause to believe that [name of unlicensed dealer] was not a resident of the same state in which the defendant resided.
Comment
See Comment in 8.51 (Firearms) and Comment to Instruction 8.54 (Shipment or Transportation to a Person Not Licensed as a Dealer, Importer, Manufacturer or Collector).
Approved 5/2020
8.58 FIREARMS—FALSE STATEMENT OR IDENTIFICATION IN
ACQUISITION OR ATTEMPTED ACQUISITION
(18 U.S.C. § 922(a)(6))
The defendant is charged in [Count _______ of] the indictment with [making a false statement] [giving false identification] in [[acquiring] [attempting to acquire]] [specify firearm] in violation of Section 922(a)(6) of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, [specify seller] was a licensed firearms [dealer] [importer] [manufacturer] [collector];
Second, in connection with [acquiring] [attempting to acquire] a [specify firearm] from [specify seller], the defendant [made a false statement] [furnished or exhibited false identification];
Third, the defendant knew the [statement] [identification] was false; and
Fourth, the false [statement] [identification] was material; that is, the false [statement] [identification] had a natural tendency to influence, or was capable of influencing [specify seller] into believing that the [specify firearm] could be lawfully sold to the defendant.
Comment
As to the fourth element of this instruction, the identity of the "actual" buyer is material to the lawfulness of the sale of a firearm. A "straw" buyer’s false indication on ATF gun sales Form 4473 that he is the "actual" buyer is material, even if the true buyer was legally eligible to own the firearm. Abramski v. United States, 134 S. Ct. 2259, 2273 (2014).
Approved 5/2020
8.59 FIREARMS—UNLAWFUL SALE OR DELIVERY
(18 U.S.C. § 922(b)(1)–(3))
The defendant is charged in [Count _______ of] the indictment with unlawfully [selling] [delivering] a firearm in violation of Section 922(b)[(1)][(2)][(3)] of Title 18 of the United States Code. 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 was licensed as a firearms [dealer] [importer] [manufacturer] [collector];
Second, the defendant willfully [[sold] [delivered]] [specify firearm] to [specify unauthorized purchaser]; and
Third, the defendant knew or had reasonable cause to believe that [[specify unauthorized purchaser] was less than eighteen years of age]] [[purchase or possession of the firearm by [specify unauthorized purchaser] would be in violation of [applicable state law or published ordinance]] [[specify unauthorized purchaser] did not reside in the same state in which the defendant’s place of business was located]].
Comment
See Comment in 8.51 (Firearms).
If ammunition is for or the firearm is a shotgun or rifle, it is unlawful to sell or deliver it to a person the licensee knows or has reason to believe is under 18; the minimum age is 21 if the ammunition is for or the firearm is a shotgun or rifle. 18 U.S.C. § 922(b)(1).
Section 922(b)(3) has been interpreted to mean that a dealer licensed in one state, who attends a gun show in another state, may display and possess guns, negotiate price, and receive money for guns as long as the transfer of the firearm is through a licensee of the state in which the gun show is located who fills out the appropriate forms. United States v. Ogles, 406 F.3d 586, 590 (9th Cir.2005), adopted by 440 F.3d 1095, 1099 (9th Cir. 2006) (en banc).
Approved 5/2020
8.60 FIREARMS—UNLAWFUL SALE OR DELIVERY WITHOUT SPECIFIC AUTHORITY
(18 U.S.C. § 922(b)(4))
The defendant is charged in [Count _______ of] the indictment with [selling] [delivering] a [destructive device] [machine gun] [short-barreled shotgun] [short-barreled rifle] without specific authority in violation of Section 922(b)(4) of Title 18 of the United States Code. 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 was licensed as a firearms [dealer] [importer] [manufacturer] [collector];
Second, the defendant willfully [[sold] [delivered]] [specify destructive device or firearm] to [name of purchaser]; and
Third, the defendant did so without specific authorization by the Attorney General of the United States.
Comment
See Comment in 8.51 (Firearms).
The term "destructive device" is defined in 18 U.S.C. § 921(a)(4)(A)-(C) as:
(A) any explosive, incendiary, or poison gas (i) bomb, (ii) grenade, (iii) rocket having a propellant charge of more than four ounces, (iv) missile having an explosive or incendiary charge of more than one-quarter ounce, (v) mine, or (vi) device similar to any of the devices described in the preceding clauses;
(B) any type of weapon (other than a shotgun or a shotgun shell which the Attorney General finds is generally recognized as particularly suitable for sporting purposes) by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, and which has any barrel with a bore of more than one-half inch in diameter; and
(C) any combination of parts either designed or intended for use in converting any device into any destructive device described in subparagraph (A) or (B) and from which a destructive device may be readily assembled.
See United States v. Schaefer, 13 F.4th 875, 893-95 (9th Cir. 2021) (explaining “destructive device” as that term is used in both 18 U.S.C. § 921(a)(4) and 26 U.S.C. § 5845(f)).
Approved 12/2021
8.61 FIREARMS—UNLAWFUL SALE
(18 U.S.C. § 922(d))
The defendant is charged in [Count _______ of] the indictment with selling [a firearm] [ammunition] in violation of Section 922(d) of Title 18 of the United States Code. 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 knowingly sold [specify firearm] [specify ammunition] to [name of unauthorized purchaser]; and
Second, the defendant knew or had reasonable cause to believe that [name of unauthorized purchaser] was [specify applicable prohibited status from 18 U.S.C. § 922(d)(1)-(9)].
Comment
See Comment in 8.51 (Firearms).
Section 922(d) makes it unlawful "to sell or otherwise dispose" of a firearm or ammunition. The instruction is written only in terms of a sale. If the facts are that the defendant "otherwise disposed" of the firearm or ammunition (for example, by gift or trade), the instruction should be modified accordingly.
Section 922(d)(1) makes it unlawful to sell or otherwise dispose of a firearm to a person who "is under indictment for, or has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year." The Committee recommends that the specific crime be stated in the instruction. Cf. Comment to Instruction 8.65 (Firearms—Unlawful Possession—Convicted Felon). Whether a particular crime is punishable by imprisonment for a term exceeding one year is a matter of law.
For a definition of "fugitive from justice," see Instruction 8.52 (Firearms—Fugitive From Justice Defined).
Approved 5/2020
8.62 FIREARMS—DELIVERY TO CARRIER WITHOUT WRITTEN NOTICE
(18 U.S.C. § 922(e))
The defendant is charged in [Count _______ of] the indictment with delivery of a firearm to a carrier without written notice in violation of Section 922(e) of Title 18 of the United States Code. 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 knowingly [delivered] [caused to be delivered] to [specify carrier] a package or other container in which there was [specify firearm] [specify ammunition];
Second, the package or container was to be [[shipped] [transported]] [[from one state to another] [between a foreign nation and the United States]];
Third, the package or container was to be [shipped] [transported] to a person who was not licensed as a firearms dealer, manufacturer, importer, or collector; and
Fourth, the defendant did not give written notice to [specify carrier] that there was [specify firearm] [specify ammunition] in the package or container.
Comment
See Comment in 8.51 (Firearms).
Approved 5/2020
8.63 FIREARMS—UNLAWFUL RECEIPT
(18 U.S.C. § 922(g))
The defendant is charged in [Count _______ of] the indictment with receiving [a firearm] [ammunition] in violation of Section 922(g) of Title 18 of the United States Code. 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 knowingly received [specify firearm] [specify ammunition];
Second, the [specify firearm] [specify ammunition] had been [[shipped] [transported]] [[from one state to another] [between a foreign nation and the United States]];
Third, at the time the defendant received the [specify firearm] [specify ammunition], the defendant [specify applicable prohibited status from 18 U.S.C. § 922(g)(1)-(9)]; and
Fourth, at the time the defendant received the [specify firearm] [specify ammunition], the defendant knew [he] [she] was [specify applicable prohibited status from 18 U.S.C. § 922(g)(1)-(9)].
If a person knowingly takes possession of [a firearm] [ammunition], [he] [she] has “received” it.
Comment
See Comment in 8.51 (Firearms).
Under 18 U.S.C. § 922(g) individuals falling into certain categories, such as fugitives from justice, are prohibited from receiving, shipping or transporting firearms or ammunition. This instruction covers receipt; for shipment or transportation, see Instruction 8.64 (Firearms—Unlawful Shipment or Transportation), and for possession, see Instruction 8.65 (Firearms—Unlawful Possession).
To establish “knowingly” under the first element, the government need not prove the defendant’s knowledge of the law, only “that the defendant consciously possessed [received, shipped, or transported] what he knew to be a firearm.” United States v. Benamor, 937 F.3d 1182, 1186 (9th Cir. 2019); United States v. Beasley, 346 F.3d 930, 934 (2003). Moreover, a defendant prosecuted under § 922(g)(1) need not be aware that the firearm or ammunition traveled in interstate commerce. United States v. Stone, 706 F.3d 1145, 1147 (9th Cir. 2013)(holding defendant’s “knowledge of ammunition’s [or firearm’s] interstate connection is irrelevant”); see also United States v. Nevils, 598 F.3d 1158, 1168-70 (9th Cir. 2010) (en banc) (concluding sufficient evidence established sleeping defendant had knowing possession of firearms). The antique firearm exception, codified at 18 U.S.C. § 921(a)(16), is an affirmative defense and the government need not prove that the defendant knew a firearm was not antique to establish knowing possession. Benamor, 973 F.3d at 1186, 87.
The third and fourth elements refer to 18 U.S.C. § 922(g)(1)-(9), which sets forth nine categories of individuals prohibited from receiving, shipping, transporting, or possessing firearms and ammunition. Those categories are: (1) convicted felons; (2) fugitives from justice; (3) unlawful users and addicts of controlled substances defined in 21 U.S.C. § 802; (4) individuals who have been adjudicated as mentally ill or who have been committed to a mental institution; (5) aliens without authorization to be in the United States, and (subject to certain exceptions set forth at 18 U.S.C. § 922(y)(2)) aliens lawfully in the United States but with non-immigrant visas; (6) individuals who have been dishonorably discharged from the Armed Forces; (7) individuals who have renounced their citizenship; (8) individuals who are subject to certain restraining orders issued after the individuals have been provided notice and opportunity to be heard and supported by specific factual findings that the individuals represent a credible threat to their intimate partners or children; and (9) individuals who have been convicted in any court of a misdemeanor crime of domestic violence.
In addition to proving that the defendant falls into one of the categories listed in § 922(g)(1)-(9), the defendant must have known of his or her relevant status at the time of the offense. Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019) (“in a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2), the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm”). See also United States v. Door, 996 F.3d 606 (9th Cir. April 28, 2021) (holding that government must prove defendant’s knowledge of prohibited status). If a defendant is charged under § 922(g)(5)(b), the government must prove that the defendant knew he had a nonimmigrant visa at the time of the offense. See United States v. Gear, 985 F.3d 759, 761 (9th Cir. 2021).
If the defendant is charged under § 922(g)(1) (convicted felon), the instruction should be modified if the defendant stipulates to the third element of the offense rather than have evidence of prior convictions presented to the jury. See Old Chief v. United States, 519 U.S. 172, 189 (1997) (holding reversible error to allow government to prove nature of prior conviction when defendant offers to stipulate to the prior conviction). If the defendant so stipulates, the third element should be modified as follows:
Third, at the time the defendant [received] [shipped] [transported] [possessed] the [specify firearm] [specify ammunition], the defendant had been convicted of a crime punishable by imprisonment for a term exceeding one year. The defendant stipulates that on [date], the defendant was convicted of a crime punishable by imprisonment for a term exceeding one year.
If the defendant does not stipulate to the third element, the following instruction should be given:
Third, at the time the defendant [received] [shipped] [transported] [possessed] the [specify firearm] [specify ammunition], the defendant had been convicted of [specify prior felony], which is a crime punishable by imprisonment for a term exceeding one year.
A conviction in a foreign court does not satisfy the element of prior conviction under § 922(g)(1). Small v. United States, 544 U.S. 385, 387 (2005).
For a definition of “fugitive from justice” as used in § 922(g)(2), see Instruction 8.52 (Firearms—Fugitive From Justice Defined).
Despite some indication in the case law that aliens who have been released on bail pending deportation or pending a removal hearing, but who have filed applications to legalize their immigration status, are not subject to the prohibition of § 922(g)(5), such a conclusion is incorrect under current versions of removability statutes. See United States v. Latu, 479 F.3d 1153, 1158 (9th Cir. 2007).
The term “misdemeanor crime of domestic violence” used in § 922(g)(9) is separately defined in § 921(a)(33)(A). The Supreme Court has interpreted that definition to include two requirements: first, the crime must have as an element “the use or attempted use of physical force, or the threatened use of a deadly weapon,” and second, the victim of the offense must have been in a specified domestic relationship with the defendant. United States v. Hayes, 555 U.S. 415, 421 (2009). The first requirement, the use or attempted use of force, or threatened use of a deadly weapon, must be an element of the underlying offense. Id. Conversely, the second requirement, the domestic relationship, need not be an element of the underlying offense. A conviction under a statute that does not require a domestic relationship may thus be a misdemeanor crime of domestic violence if the government proves that the “prior conviction was, in fact, for an offense . . . committed by the defendant against a spouse or other domestic victim.” Id. (internal quotation marks omitted).
In determining whether a statute has as an element the “use . . . of physical force” for purposes of § 922(g)(9), the Supreme Court has held that “Congress incorporated the common-law meaning of ‘force’—namely, offensive touching—in § 921(a)(33)(A)’s definition of a ‘misdemeanor crime of domestic violence.’” United States v. Castleman, 134 S. Ct. 1405, 1410 (2014). Accordingly, the statute under which the defendant is convicted need not prohibit violent force, so long as it prohibits “the degree of force that supports a common-law battery conviction.” Id. at 1413; see id. at 1413–14 (holding that Tennessee statute prohibiting “intentionally or knowingly caus[ing] bodily injury” to family or household member necessarily has as element use of physical force in common-law sense).
Approved 6/2021
8.64 FIREARMS—UNLAWFUL SHIPMENT OR TRANSPORTATION
(18 U.S.C. § 922(g))
The defendant is charged in [Count _______ of] the indictment with [[shipping] [transporting]] [[a firearm] [ammunition]] in violation of Section 922(g) of Title 18 of the United States Code. 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 knowingly [[shipped] [transported]] [[specify firearm] [specify ammunition]] [[from one state to another] [between a foreign nation and the United States]];
Second, at the time of [shipment] [transportation] the defendant was [specify applicable prohibited status from 18 U.S.C. § 922(g)(1)-(9)]; and
Third, at the time the defendant [[shipped] [transported]] [[specify firearm] [specify ammunition]] [[from one state to another] [between a foreign nation and the United States]], the
defendant knew [he] [she] was [specify applicable prohibited status from 18 U.S.C. § 922(g)(1)-(9)].
Comment
See Comment in 8.51 (Firearms).
For a discussion of "knowingly" and of the nine categories of prohibited status set forth in 18 U.S.C. § 922(g)(1)-(9), see Comment to Instruction 8.63 (Firearms—Unlawful Receipt).
Approved 5/2020
8.65 FIREARMS—UNLAWFUL POSSESSION
(18 U.S.C. § 922(g))
The defendant is charged in [Count _______ of] the indictment with the possession of [a firearm] [ammunition] in violation of Section 922(g) of Title 18 of the United States Code. 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 knowingly possessed [specify firearm] [specify ammunition];
Second, the [specify firearm] [specify ammunition] had been [[shipped] [transported]] [[from one state to another] [between a foreign nation and the United States]];
Third, at the time the defendant possessed the [specify firearm] [specify ammunition], the defendant [specify applicable prohibited status from 18 U.S.C. § 922(g)(1)-(9)]; and
Fourth, at the time the defendant possessed the [specify firearm] [specify ammunition], the defendant knew [he] [she] was [specify applicable prohibited status from 18 U.S.C. § 922(g)(1)-(9)].
Comment
See Comment in 8.51 (Firearms).
For a discussion of "knowingly" and of the nine categories of prohibited status set forth in 18 U.S.C. § 922(g)(1)-(9), see Comment to Instruction 8.63 (Firearms—Unlawful Receipt). For a definition of "possession," see Instruction 3.17 (Possession—Defined).
Depending on the facts in evidence, it may be appropriate to amend this instruction with language requiring specific jury unanimity as to when the possession occurred. See Instruction 7.9 (Specific Issue Unanimity) and United States v. Garcia-Rivera, 353 F.3d 788, 792 (9th Cir. 2003). For instance, an indictment may allege that the possession occurred at some point within an imprecise time frame. In such a case, and if there was evidence that the defendant possessed the weapon or ammunition on more than one occasion during the interval, the jury should be instructed to find unanimously as follows: "You must unanimously agree that the possession occurred on or about a particular date." In such a case, it is advisable to require the jurors to answer a special interrogatory specifying the date(s) upon which all agreed that the possession occurred.
The Ninth Circuit does not recognize an "innocent possession" affirmative defense. See United States v. Johnson, 459 F.3d 990, 995-98 (9th Cir. 2006).
Although brief handling of a weapon does not always satisfy the element of possession, a short length of possession does not preclude conviction. Compare United States v. Teemer, 394 F.3d 59, 63 (9th Cir. 2005), with United States v. Kearns, 61 F.3d 1422, 1425 (9th Cir. 1995). The commission of the crime requires no "act" other than the knowing possession of a firearm or ammunition by someone not authorized to do so. United States v. Beasley, 346 F.3d 930, 934 (9th Cir. 2003).
Constructive or joint possession may satisfy the possession element. To show constructive possession, the government must prove a connection between the defendant and the firearm or ammunition sufficient "to support the inference that the defendant exercised dominion and control over" it. United States v. Carrasco, 257 F.3d 1045, 1049 (9th Cir. 2001) (internal quotation marks and citation omitted). See generally, United States v. Tucker, 641 F.3d 1110 (9th Cir. 2011). Similarly, joint control of the premises where the firearm or ammunition was found may be sufficient to establish possession where a defendant "has knowledge of the weapon and both the power and the intention to exercise dominion and control over it." Carrasco, 257 F.3d at 1049 (internal quotation marks and citation omitted).
For a defendant to be convicted of multiple counts under 18 U.S.C. § 922(g)(1) for possession of multiple firearms and/or ammunition, the government must prove that the firearms and/or ammunition at issue were acquired or possessed at different times or stored in different places. United States v. Keen, 96 F.3d 425, 432 n.11 (9th Cir. 1996); United States v. Wiga, 662 F.2d 1325, 1336 (9th Cir. 1981). If a defendant is charged with multiple counts, the jury should be instructed to make a finding of fact as to separate acquisition or possession. United States v. Ankeny, 502 F.3d 829, 838 (9th Cir. 2007); United States v. Szalkiewicz, 944 F.2d 653, 653-54 (9th Cir. 1991) (per curiam). A possible instruction could be:
If you have found the defendant guilty of Count I, you may not find [[him][her]] guilty of Count II unless you also find that the government has proven beyond a reasonable doubt that the [firearm[s]] [and] [ammunition] charged in Counts I and II [[were][was]] acquired or possessed at different times, or stored in different places.
Approved 5/2020
8.65A FIREARMS—UNLAWFUL POSSESSION—CONVICTED FELON
(18 U.S.C. § 922(g)(1))
The defendant is charged in [Count _______ of] the indictment with the possession of [a firearm] [ammunition] in violation of Section 922(g)(1) of Title 18 of the United States Code. 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 knowingly possessed [specify firearm] [specify ammunition];
Second, the [specify firearm] [specify ammunition] had been [[shipped] [transported]] [[from one state to another] [between a foreign nation and the United States]];
[Third, at the time the defendant possessed the [specify firearm] [specify ammunition], the defendant had been convicted of a crime punishable by imprisonment for a term exceeding one year. The defendant stipulates that on [date], the defendant was convicted of a crime punishable by imprisonment for a term exceeding one year]
or
[Third, at the time the defendant possessed the [specify firearm] [specify ammunition], the defendant had been convicted of [specify prior felony], which is a crime punishable by imprisonment for a term exceeding one year]; and
Fourth, at the time the defendant possessed the [specify firearm] [specify ammunition], the defendant knew [he] [she] had been convicted of [specify prior felony].
Comment
For a discussion of "knowingly," see Comment to Instruction 8.63 (Firearms—Unlawful Receipt). For a discussion of possession, see Comment to Instruction 8.65 (Firearms—Unlawful Possession). See also Instruction 3.17 (Possession—Defined).
Defendants frequently stipulate to the third element of the offense rather than have evidence of the prior convictions presented to the jury. See Old Chief v. United States, 519 U.S. 172, 189 (1997) (holding reversible error to allow government to prove nature of prior conviction when defendant offers to stipulate to the prior conviction).
If multiple 18 U.S.C. § 922(g)(1) counts are charged, see the Comment to Instruction 8.65 (Firearms—Unlawful Possession).
Approved 5/2020
8.66 FIREARMS—UNLAWFUL POSSESSION—DEFENSE OF JUSTIFICATION
The defendant claims that [he] [she] was justified in committing the crime of [specify unlawful possession offense charged]. Justification is a defense to that charge. The defendant is justified in committing the crime of [specify unlawful possession offense charged] if:
First, the defendant was under unlawful and present threat of death or serious bodily injury;
Second, the defendant did not recklessly place [himself] [herself] in a situation where he would be forced to engage in criminal conduct;
Third, the defendant had no reasonable legal alternative; and
Fourth, there was a direct causal relationship between the criminal activity and the avoidance of the threatened harm.
The defendant has the burden of proving each of the elements of this defense by a preponderance of the evidence.
Comment
The defense usually arises when a defendant is charged as a felon in possession of a firearm. It is based on the theory that criminal conduct may be justified if necessary to prevent a greater wrong. The defendant is entitled to the instruction when there is any foundation in the evidence. However, a mere scintilla of evidence supporting a theory of justification is not sufficient. United States v. Wofford, 122 F.3d 787, 789 (9th Cir.1997). The justification instruction should be given only in exceptional circumstances. United States v. Gomez, 92 F.3d 770, 774-75 (9th Cir.1996).
The burden is on the defendant to prove the elements of the defense. United States v. Beasley, 346 F3d 930, 935 (9th Cir.2003), cert. denied, 542 U.S. 921 (2004). Where the defendant is involved in illegal activities and his or her fear is a result of engaging in those activities, the justification defense is not permitted. United States v. Phillips, 149 F.3d 1026, 1030 (9th Cir.1998).
Approved 5/2020
8.67 FIREARMS—TRANSPORTATION OR SHIPMENT OF STOLEN FIREARM
(18 U.S.C. § 922(i))
The defendant is charged in [Count _______ of] the indictment with [[transporting] [shipping]] [[a stolen [specify firearm] [stolen ammunition]] in violation of Section 922(i) of Title 18 of the United States Code. 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 knowingly [[transported] [shipped]] [[a stolen [specify firearm] [stolen specify ammunition]] [[from one state to another] [between a foreign nation and the United States]]; and
Second, the defendant knew or had reasonable cause to believe that the [specify firearm] [specify ammunition] had been stolen.
Approved 5/2020
8.68 FIREARMS—TRANSPORTATION, SHIPMENT, POSSESSION OR RECEIPT IN
COMMERCEWITH REMOVED OR ALTERED SERIAL NUMBER
(18 U.S.C. § 922(k))
The defendant is charged in [Count _______ of] the indictment with [transporting] [shipping] [receiving] [possessing] a firearm that had the serial number removed, obliterated or altered in violation of Section 922(k) of Title 18 of the United States Code. 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 knew that [he] [she] had [transported] [shipped] [received] [possessed] a [specify firearm] [[from one state to another] [between a foreign nation and the United States]];
Second, the serial number of the [specify firearm] had been removed, obliterated or altered; and
Third, the defendant knew that the serial number had been removed, obliterated or altered.
Comment
A serial number is "altered" if the serial number is changed in a manner that makes it appreciably more difficult to discern; it need not make tracing the gun impossible or extraordinarily difficult. United States v. Carter, 421 F.3d 909, 916 (9th Cir.2005).
Approved 5/2020
8.69 FIREARMS—SHIPMENT OR TRANSPORTATION BY
PERSON UNDER INDICTMENT FOR FELONY
(18 U.S.C. § 922(n))
The defendant is charged in [Count _______ of] the indictment with [[shipping] [transporting]] [[a firearm] [ammunition]] while under indictment for a felony in violation of Section 922(n) of Title 18 of the United States Code. 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 was under indictment for [specify felony]; and
Second, the defendant willfully [[shipped] [transported]] [[specify firearm] [specify ammunition]] [[from one state to another] [between a foreign nation and the United States]].
Comment
The willfulness requirement is not found in the statutory text of § 922(n); rather, it is found in the relevant statutory sentencing provision, § 924(a)(1)(D). See Dixon v. United States, 548 U.S. 1, 5 n.3 (2006).
Approved 5/2020
8.70 FIREARMS—RECEIPT BY PERSON UNDER INDICTMENT FOR FELONY
(18 U.S.C. § 922(n))
The defendant is charged in [Count _______ of] the indictment with receiving [a firearm] [ammunition] while under indictment for a felony in violation of Section 922(n) of Title 18 of the United States Code. 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 was under indictment for [specify felony]; and
Second, the defendant willfully received [specify firearm] [specify ammunition] that had been shipped or transported [from one state to another] [between a foreign nation and the United States].
Comment
Federal law prohibits receipt of a firearm by anyone charged with a felony, whether under state or federal law, or whether by indictment or information. See 18 U.S.C. § 921(a)(14) (defining "indictment" as including information).
Approved 5/2020
8.71 FIREARMS—USING, CARRYING, OR BRANDISHING IN COMMISSION
OF CRIME OF VIOLENCE OR DRUG TRAFFICKING CRIME
(18 U.S.C. § 924(c))
The defendant is charged in [Count ____ of] the indictment with [using] [carrying] [brandishing] a firearm during and in relation to [specify applicable crime of violence or drug trafficking crime] in violation of Section 924(c) of Title 18 of the United States Code. 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 committed the crime of [specify crime] as charged in [Count ____ of] the indictment, which I instruct you is a [crime of violence] [drug trafficking crime]; and
Second, the defendant knowingly [used] [carried] [brandished] the [specify firearm] during and in relation to that crime.
[A defendant “used” a firearm if [he] [she] actively employed the firearm during and in relation to [specify crime].]
[A defendant “carried” a firearm if [he] [she] knowingly possessed it and held, moved, conveyed or transported it in some manner on [his] [her] person or in a vehicle.]
[A defendant “brandished” a firearm if [he] [she] displayed all or part of the firearm, or otherwise made the presence of the firearm known to another person, in order to intimidate that person, regardless of whether the firearm was directly visible to that person.]
A defendant [used] [carried] [brandished] a firearm “during and in relation to” the crime if the firearm facilitated or played a role in the crime.
Comment
In United States v. Thongsy, 577 F.3d 1036, 1043 n.5 (9th Cir. 2009), the Ninth Circuit held that the former version of this instruction “should be revised to clarify there are two ways to prove an offense under § 924(c): the defendant either (1) used or carried a firearm ‘during and in relation to’ a crime or (2) possessed a firearm ‘in furtherance of’ a crime.” Use this instruction when the defendant is charged with using, carrying, or brandishing a firearm during and in relation to a crime. When the defendant is charged with possessing a firearm in furtherance of a crime, use Instruction 8.72 (Firearms—Possession in Furtherance of Crime of Violence or Drug Trafficking Crime).
The trial judge may want to consider having separate instructions regarding using and brandishing a firearm, depending on how the case is charged.
If the crime of violence or drug trafficking crime is not charged in the same indictment, the elements of the crime must also be listed and the jury must be instructed that each element must be proved beyond a reasonable doubt.
The Supreme Court has construed the term “use” to require proof that “the defendant actively employed the firearm during and in relation to the predicate crime.” Bailey v. United States, 516 U.S. 137, 150 (1995). “The active-employment understanding of ‘use’ certainly includes brandishing, displaying, bartering, striking with, and, most obviously, firing or attempting to fire a firearm.” Id. at 148. “[A] reference to a firearm calculated to bring about a change in the circumstances of the predicate offense is a ‘use,’ just as the silent but obvious and forceful presence of a gun on a table can be a ‘use.’” Id. Although a person uses a firearm when he or she trades it for drugs, Smith v. United States, 508 U.S. 223, 241 (1993), a person does not “use” a firearm when he or she receives it in trade for drugs, Watson v. United States, 552 U.S. 74, 83 (2007).
The Supreme Court has construed the term “carry” to include carrying on a person or vehicle. Muscarello v. United States, 524 U.S. 125, 130-33(1998). “‘Carry’ implies personal agency and some degree of possession . . . .” Id. at 134. However, the firearm need not be “immediately accessible.” Id. at 138; see also id. at 126-27 (carrying “applies to a person who knowingly possesses and conveys firearms in a vehicle, including in the locked glove compartment or trunk of a car, which the person accompanies”); United States v. Long, 301 F.3d 1095, 1106 (9th Cir. 2002).
“[T]he term ‘brandish’ means, with respect to a firearm, to display all or part of the firearm, or otherwise make the presence of the firearm known to another person, in order to intimidate that person, regardless of whether the firearm is directly visible to that person.” 18 U.S.C. § 924(c)(4). The “brandishing” of a firearm is a type of “use”, but carries a greater penalty. Compare id. § 924(c)(1)(A)(i) (setting statutory minimum penalty for “use” at five years) with id. § 924(c)(1)(A)(ii) (setting statutory minimum penalty for “brandishing” at seven years). See also United States v. Carter, 560 F.3d 1107, 1114 (9th Cir. 2009) (remanding for re-sentencing when it was unclear whether court found the defendant “used” or “brandished” a firearm).
Discharging a firearm is another type of “use” that carries a penalty greater than that for brandishing. See 18 U.S.C. § 924(c)(1)(A)(iii) (setting statutory minimum penalty for “discharge” of a firearm at ten years).Therefore, when discharging is alleged, this instruction should be modified accordingly. The statute does not contain a definition of the term “discharge.” The Supreme Court has held that discharge of a firearm does not require proof of intent to discharge. Dean v. United States, 556 U.S. 568, 577 (2009) (discharge of firearm does not require separate proof of intent; “10-year mandatory minimum applies if a gun is discharged in the course of a violent or drug trafficking crime, whether on purpose or by accident”).
Whether the defendant brandished or discharged a firearm is a question that must be submitted to the jury and found beyond a reasonable doubt. See Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013) (holding that “any fact that increases the mandatory minimum [sentence] is an ‘element’ that must be submitted to the jury”).
A “crime of violence” is an offense that is a felony and “has an element the use, attempted use, or threatened use of physical force against the person or property of another.” United States v. Davis, 139 S.Ct. 2319 (2019) (quoting 18 U.S.C. § 924(c)(3)(A)). “Physical force” is “force capable of causing physical pain or injury,” and includes “the amount of force necessary to overcome a victim’s resistance.” Stokeling v. United States, 139 S.Ct. 544, 533-55 (2019) (citing Johnson v. United States, 559 U.S. 133, 140 (2010)).
Similarly, whether the defendant used, carried, or brandished any of the firearm types listed in 18 U.S.C. § 924(c)(1)(B) is an element of a separate, aggravated crime to be proved to the jury beyond a reasonable doubt. Castillo v. United States, 530 U.S. 120, 131 (2000); United States v. O’Brien, 560 U.S. 218, 231-35 (2010) (fact that firearm is machinegun is element of offense to be proved to jury beyond a reasonable doubt); United States v. Woodberry, 987 F.3d 1231, 1236 (9th Cir. 2021) (stating that fact that firearm is short-barrel rifle is element of offense). In appropriate cases, a special interrogatory may be used to determine the jury’s findings as to whether the defendant used, carried, or brandished particular firearm types listed in 18 U.S.C. § 924(c)(1)(B). See Castillo, 530 U.S. at 128. With respect to 18 U.S.C. § 924(c)(1)(B)(i), there is no mens rea requirement that the defendant knew the rifle barrel’s length. See Woodberry, 987 F.3d at 1239 (holding “§ 924(c)(1)(B)(i) requires no showing of mens rea as to the rifle barrel’s length to sustain a conviction”).
A crime of violence for purposes of § 924(c)(3)(A) is one whose “commission requires proof of both the specific intent to complete a crime of violence, and a substantial step actually (not theoretically) taken toward its completion. St. Hubert, 909 F.3d at 351. It does not matter the substantial step . . . is not itself a violent act or even a crime.” United States v. Dominguez, 954 F.3d 1251, 1255 (9th Cir. 2020). “The definition of ‘crime of violence’ in § 924(c)(3)(A) explicitly includes not just completed crimes, but those felonies that have the ‘attempted use’ of physical force as an element.” Id. Thus, “when a substantive offense would be a crime of violence under 18 U.S.C. § 924(c)(3)(A), an attempt to commit that offense is also a crime of violence.” Id. at 1261.
Whether a particular crime is a crime of violence is a question of law. See United States v. Amparo, 68 F.3d 1222, 1226 (9th Cir. 1995) (crime of violence); 18 U.S.C. § 924(c)(2) (drug trafficking crime).
See United States v. Potter, 630 F.3d 1260, 1261 (9th Cir. 2011) (holding that defendant charged under § 924(c)(1)(A) was not entitled to a “Second Amendment defense” instruction).
A conviction based on an accomplice theory of liability may serve as a predicate for a § 924(c) conviction. See United States v. Henry, 984 F.3d 1343, 1356 (9th Cir. 2021).
Approved 6/2021
8.72 FIREARMS—POSSESSION IN FURTHERANCE OF CRIME
OF VIOLENCE OR DRUG TRAFFICKING CRIME
(18 U.S.C. § 924(c))
The defendant is charged in [Count ______ of] the indictment with possessing a firearm in furtherance of [specify applicable crime of violence or drug trafficking crime] in violation of Section 924(c) 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 committed the crime of [specify crime] [as charged in Count ______ of] the indictment, which I instruct you is a [crime of violence] [drug trafficking crime];
Second, the defendant knowingly possessed the [specify firearm]; and
Third, the defendant possessed the firearm in furtherance of the crime of [specify crime].
A person “possesses” a firearm if the person knows of its presence and has physical control of it, or knows of its presence and has the power and intention to control it.
Comment
In United States v. Thongsy, 577 F.3d 1036, 1043 n.5 (9th Cir. 2009), the Ninth Circuit held that the former version of this instruction “should be revised to clarify there are two ways to prove an offense under § 924(c): the defendant either (1) used or carried a firearm ‘during and in relation to’ a crime or (2) possessed a firearm ‘in furtherance of’ a crime.” Use this instruction when the defendant is charged with possessing a firearm in furtherance of a crime. When the defendant is charged with using or carrying a firearm during and in relation to a crime, use Instruction 8.71 (Firearms—Using or Carrying in Commission of Crime of Violence or Drug Trafficking Crime).
The definition of possession is taken from Instruction 3.17 (Possession—Defined). See also Thongsy, 577 F.3d at 1041 (defining constructive possession). The joint possession language from Instruction 3.17 may be used if appropriate to the circumstances of the case.
A district court does not err in failing separately to define “in furtherance of” in its instruction to the jury on possession of a firearm in furtherance of a drug trafficking crime. United States v. Lopez, 477 F.3d 1110, 1115-16 (9th Cir.), cert. denied, 552 U.S. 855 (2007) (instruction that separately listed requirements of possession and possession in furtherance of the crime eliminated the possibility that rational juror would convict defendant upon finding mere possession). “The question whether possession of a firearm is ‘in furtherance of’ a crime is a ‘fact-based inquiry into the nexus between possession of the firearm and the drug crime.’” Thongsy, 577 F.3d at 1041 (citation omitted); see United States v. Mahan, 586 F.3d 1185, 1187-89 & n.3 (9th Cir. 2009) (holding that a defendant who receives guns in exchange for drugs possesses those guns “in furtherance of” his drug trafficking offense).
If the crime of violence or drug trafficking crime is not charged in the same indictment, the elements of the crime must also be listed and the jury must be instructed that each element must be proved beyond a reasonable doubt. See United States v. Mendoza, 11 F.3d 126 (9th Cir. 1993).
In appropriate cases, a special interrogatory may be used to determine the jury’s findings as to whether the defendant possessed the particular firearm types listed in 18 U.S.C. § 924(c)(1). See Castillo v. United States, 530 U.S. 120, 128 (2000); United States v. O’Brien, 560 U.S. 218, 231-33 (2010) (fact that firearm is machinegun is element of offense to be proved to jury beyond reasonable doubt); United States v. Woodberry, 987 F.3d 1231, 1236 (9th Cir. 2021) (stating that fact that firearm is short-barrel rifle is element of offense). With respect to 18 U.S.C. § 924(c)(1)(B)(i), there is no mens rea requirement that the defendant knew the rifle barrel’s length. See Woodberry, 987 F.3d at 1239 (holding “§ 924(c)(1)(B)(i) requires no showing of mens rea as to the rifle barrel’s length to sustain a conviction”).
Whether a particular crime is a crime of violence is a question of law. See United States v. Amparo, 68 F.3d 1222, 1226 (9th Cir. 1995) (crime of violence); 18 U.S.C. § 924(c)(2) (drug trafficking crime).
See United States v. Potter, 630 F.3d 1260, 1261 (9th Cir. 2011) (defendant charged under Section 924(c)(1)(A) was not entitled to a “Second Amendment defense” instruction).
Approved 6/2021
8.72A FIREARMS—UNAWFUL POSSESSION OF BODY ARMOR
(18 U.S.C. § 931(a))
The defendant is charged in [Count _______ of] the indictment with possessing body armor in violation of Section 931(a) of Title 18 of the United States Code. 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 knowingly possessed body armor;
Second, the defendant had previously been convicted of a felony; and
Third, the defendant knew that [his][her] felony conviction had as an element the use, attempted use, or threatened use of physical force.
Comment
The term “body armor” means any product sold or offered for sale, in interstate or foreign commerce, as personal protective body covering intended to protect against gunfire, regardless of whether the product is to be worn alone or is sold as a complement to another product or garment. 18 USC § 921(a)(35) [81].
In United States v. Door, 996 F.3d 606, 615 (9th Cir. 2021), the Ninth Circuit held that “the government must prove that a defendant who possessed body armor knew that (1) he was convicted of a felony and, (2) the felony of which he was convicted had as an element ‘the use, attempted use, or threatened use of physical force.’”
Approved 6/2021
8.73 FALSE STATEMENT TO GOVERNMENT AGENCY
(18 U.S.C. § 1001)
The defendant is charged in [Count _______ of] the indictment with knowingly and willfully [making a false statement] [using a document containing a false statement] in a matter within the jurisdiction of a governmental agency or department in violation of Section 1001 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 [made a false statement] [used a writing that contained a false statement];
Second, the [statement][writing] was made in a matter within the jurisdiction of the [specify government agency or department];
Third, the defendant acted willfully; that is, the defendant acted deliberately and with knowledge both that the statement was untrue and that his or her conduct was unlawful; and
Fourth, the [statement] [writing] was material to the activities or decisions of the [specify government agency or department]; that is, it had a natural tendency to influence, or was capable of influencing, the agency’s decisions or activities.
Comment
The Ninth Circuit has held the common law test for materiality, as reflected in the last sentence of this instruction, is the standard to use when false statement statutes such as 18 U.S.C. § 1001 are charged. United States v. Peterson, 538 F.3d 1064, 1072 (9th Cir. 2008) (citing United States v. Gaudin, 515 U.S. 506, 509 (1995)). "The false statement need not have actually influenced the agency, and the agency need not rely on the information in fact for it to be material." United States v. Serv. Deli Inc., 151 F.3d 938, 941 (9th Cir. 1998); see also United States v. King, 735 F.3d 1098, 1108 (9th Cir. 2013).
No mental state is required with respect to the fact that a matter is within the jurisdiction of a federal agency, and the false statement need not be made directly to the government agency. United States v. Green, 745 F.2d 1205, 1208-10 (9th Cir. 1984). There is no requirement that the defendant acted with the intention of influencing the government agency. United States v. Yermian, 468 U.S. 63, 73 & n.13 (1984). The initial determination whether the matter is one within the jurisdiction of a department or agency of the United States—apart from the issue of materiality—should be made by the court as a matter of law. United States v. F.J. Vollmer & Co., Inc.,1 F.3d 1511, 1518 (7th Cir. 1993).
To make a false statement “willfully” under Section 1001, the defendant must have both the specific intent to make a false statement and the knowledge that his or her conduct was unlawful. Specific intent does not require evil intent but only that the defendant act deliberately and knowingly. See United States v. Heuer, 4 F.3d 723, 732 (9th Cir. 1993). The requirement that the defendant knew that his or her conduct was unlawful is based on Bryan v. United States, wherein the Supreme Court stated that “in order to establish a willful violation of a statute, the Government must prove that the defendant acted with knowledge that his conduct was unlawful.” 524 U.S. 184, 191–92 (1998) (internal citations omitted). After the Solicitor General conceded that the district court erred by giving an instruction on “willfulness” that does not comply with Bryan. Ajoku v. United States, 134 S. Ct. 1872 (Mem.) (U.S. April 21, 2014).
In determining whether the government has carried its burden to prove defendant’s knowledge of unlawfulness, the jurors may rely on their common sense and life experiences in the absence of direct evidence. See United States v. Charley, 1 F.4th 637, 644 (9th Cir. 2021) (quoting United States v. Ramirez, 714 F.3d 1134, 1138 (9th Cir. 2013)).
Materiality must be demonstrated by the government, United States v. Oren, 893 F.2d 1057, 1063 (9th Cir. 1990); United States v. Talkington, 589 F.2d 415, 416 (9th Cir. 1978), and must be submitted to the jury. Gaudin, 515 U.S. at 506. Actual reliance is not required. Talkington, 589 F.2d at 417. The materiality test applies to each allegedly false statement submitted to the jury. Id.
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 which statement was false and material"). See Instruction 7.9 (Specific Issue Unanimity).
Approved 9/2021
8.74 FALSE STATEMENT TO A BANK OR OTHER FEDERALLY INSURED INSTITUTION
(18 U.S.C. § 1014)
The defendant is charged in [Count __________ of] the indictment with making a false statement to a federally insured [specify institution] for the purpose of influencing the [specify institution] in violation of Section 1014 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 [made a false statement or report] [willfully overvalued any land, property or security] to a federally insured [specify institution]; Second, the defendant made the false statement or report to the [specify institution] knowing it was false; and Third, the defendant did so for the purpose of influencing in any way the action of the [specify institution]. It is not necessary, however, to prove that the [specify institution] involved was, in fact, influenced or misled, or that [specify institution] was exposed to a risk of loss. What must be proved is that the defendant intended to influence the [specify institution] by the false statement.
Comment
See generally Comment to Instruction 8.73 (False Statement to Government Agency). Materiality is not an element of the crime of knowingly making a false statement to a federally insured bank in violation of 18 U.S.C. § 1014. United States v. Wells, 519 U.S. 482, 496-97 (1997). Compare bank fraud under § 1344(2) where materiality is an element. United States v. Nash, 115 F.3d 1431 (9th Cir.1997). See Instruction 8.127 (Bank Fraud—Scheme to Defraud by False Promises).
Depending on the facts in evidence, it may be appropriate to amend this instruction with language requiring specific jury unanimity. See Instruction 7.9 (Specific Issue Unanimity). Federally insured status is an element of the crime. United States v. Davoudi, 172 F.3d 1130, 1133 (9th Cir.1999).
Proof of a risk of loss to a financial institution is not an element of the crime. United States v. Taylor, 808 F.3d 1202, 1205 (9th Cir.2015).
Approved 3/2016
8.75 FRAUD IN CONNECTION WITH
IDENTIFICATION DOCUMENTS—PRODUCTION
(18 U.S.C. § 1028(a)(1))
The defendant is charged in [Count ______ of] the indictment with producing without legal authority [an identification document] [an authentication feature] [a false identification document] in violation of Section 1028(a)(1) 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 knowingly produced [an identification document] [an authentication feature] [a false identification document];
Second, the defendant produced the [identification document] [authentication feature] [false identification document] without lawful authority; and
[Third, the [identification document] [authentication feature] [false identification document] was or appeared to be issued by or under authority of [the United States] [specify issuing authority].]
or
[Third, the production of the [identification document] [authentication feature] [false identification document] was in or affected commerce between one state and [an]other state[s], or between a state of the United States and a foreign country.]
or
[Third, in the course of production, the [identification document] [authentication feature] [false identification document] was transported in the mail.]
Comment
The first and second elements are drawn from 18 U.S.C. § 1028(a)(2); the alternative third elements are drawn from 18 U.S.C. § 1028(c)(1), (c)(3)(A) and (c)(3)(B).
Section 1028(d) provides definitions for the terms: "identification document," "authentication feature," "false identification document," "issuing authority," and "produce."
Section 1028(b) provides for various enhanced statutory maximum penalties in certain circumstances such as when particular types of identification documents are involved or when their use occurs in connection with certain other criminal conduct. In the event that such enhanced penalties are charged, a special verdict form may need to be submitted to the jury regarding the presence or absence of such facts.
When a defendant presents false information to a government agent to obtain an identification document, it is unnecessary to show that the government agent who actually produced the identification document intended to commit identification fraud. United States v. Lee, 602 F.3d 974, 976 (9th Cir. 2010).
Approved 9/2018
8.76 FRAUD IN CONNECTION WITH IDENTIFICATION DOCUMENTS—TRANSFER (18 U.S.C. § 1028(a)(2))
The defendant is charged in [Count ______ of] the indictment with transferring [an identification document] [an authentication feature] [a false identification document] in violation of Section 1028(a)(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 each of the following elements beyond a reasonable doubt:
First, the defendant knowingly transferred [an identification document] [an authentication feature] [a false identification document];
Second, the defendant knew the [identification document] [authentication feature] [false identification document] was [stolen] [produced without lawful authority]; and
[Third, the [identification document] [authentication feature] [false identification document] was or appeared to be issued by or under the authority of [the United States] [specify issuing authority].]
or
[Third, the production of the [identification document] [authentication feature] [false identification document] was in or affected commerce between one state and [an]other state[s], or between a state of the United States and a foreign country.]
or
[Third, in the course of production, the [identification document] [authentication feature] [false identification document] was transported in the mail.]
Comment
The first and second elements are drawn from 18 U.S.C. § 1028(a)(2); the alternative third elements are drawn from 18 U.S.C. § 1028(c)(1), (c)(3)(A) and (c)(3)(B).
Section 1028(d) provides definitions for the terms: "identification document," "authentication feature," "false identification document," "issuing authority," and "transfer."
Section 1028(b) provides for various enhanced statutory maximum penalties in certain circumstances such as when particular types of identification documents are involved or when their use occurs in connection with certain other criminal conduct. In the event that such enhanced penalties are charged, a special verdict form may need to be submitted to the jury regarding the presence or absence of such facts.
8.77 FRAUD IN CONNECTION WITH IDENTIFICATION DOCUMENTS—POSSESSION OF FIVE OR MORE DOCUMENTS (18 U.S.C. § 1028(a)(3))
The defendant is charged in [Count ______ of] the indictment with possessing five or more [identification documents] [authentication features] [false identification documents] for unlawful use or transfer in violation of Section 1028(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 knowingly possessed five or more [identification documents] [authentication features] [false identification documents];
Second, the defendant intended to [use] [transfer] unlawfully those [identification documents] [authentication features] [false identification documents]; and
[Third, the [identification document] [authentication feature] [false identification document] was or appeared to be issued by or under the authority of [the United States] [specify issuing authority].]
or
[Third, the production of the [identification document] [authentication feature] [false identification document] was in or affected commerce between one state and [an]other state[s], or between a state of the United States and a foreign country.]
or
[Third, in the course of production, the [identification document] [authentication feature] [false identification document] was transported in the mail.]
[In determining whether the defendant possessed five or more identification documents, you should not count any that were issued lawfully for the use of the defendant.]
Comment
The first and second elements are drawn from 18 U.S.C. § 1028(a)(2); the alternative third elements are drawn from 18 U.S.C. § 1028(c)(1), (c)(3)(A) and (c)(3)(B).
Section 1028(d) provides definitions for the terms: "identification document," "authentication feature," "false identification document," "issuing authority," and "transfer."
Section 1028(b) provides for various enhanced statutory maximum penalties in certain circumstances such as when particular types of identification documents are involved or when their use occurs in connection with certain other criminal conduct. In the event that such enhanced penalties are charged, a special verdict form may need to be submitted to the jury regarding the presence or absence of such facts.
8.78 FRAUD IN CONNECTION WITHIDENTIFICATION DOCUMENTS—POSSESSION OF
IDENTIFICATION DOCUMENT TO DEFRAUD UNITED STATES
(18 U.S.C. § 1028(a)(4))
The defendant is charged in [Count ______ of] the indictment with possessing [an identification document] [an authentication feature] [a false identification document] for use in defrauding the United States in violation of Section 1028(a)(4) 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 knowingly possessed [an identification document] [an authentication feature] [a false identification document]; and
Second, the defendant intended the [identification document] [authentication feature] [false identification document] to be used to defraud the United States.
[In determining whether the defendant possessed an identification document you should not count any that were issued lawfully for the use of the defendant.]
Comment
The first and second elements are drawn from 18 U.S.C. § 1028(a)(4) in light of 18 U.S.C. § 1028(c)(2).
Violation of a federal, state, or local law is not an essential element of an offense under Section 1028(a)(4). United States v. McCormick, 72 F.3d 1404, 1407 (9th Cir.1995) (affirming the trial court’s instruction that the government must prove (1) that the defendant knowingly possessed a false identification document, and (2) that he did so with the intent to defraud the United States).
Section 1028(d) provides definitions for the terms: "identification document," "authentication feature," and "false identification document."
Section 1028(b) provides for various enhanced statutory maximum penalties in certain circumstances such as when particular types of identification documents are involved or when their use occurs in connection with certain other criminal conduct. In the event that such enhanced penalties are charged, a special verdict form may need to be submitted to the jury regarding the presence or absence of such facts.
See Instruction 3.16 (Intent to Defraud—Defined).
8.79 FRAUD IN CONNECTION WITH IDENTIFICATION DOCUMENTS—DOCUMENT-MAKING IMPLEMENTS (18 U.S.C. § 1028(a)(5))
The defendant is charged in [Count ______ of] the indictment with [[possessing] [producing] [transferring]] [[a document-making implement] [an authentication feature]] in violation of Section 1028(a)(5) 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 knowingly [[produced] [transferred] [possessed]] [[a document-making implement] [an authentication feature]];
Second, the defendant intended the [document-making implement] [authentication feature] to be used in the production of [another document-making implement] [another authentication feature], which was to be used in producing a false identification document; and
[Third, the authentication feature was or appeared to be issued by or under authority of [the United States] [specify issuing authority].]
or
[Third, thedocument-making implement was designed or suited for making [an identification document] [an authentication feature] [a false identification document].]
or
[Third, the [production] [transfer] [possession] [use] of the [document-making implement] [authentication feature] was in or affected commerce between one state and [an]other state[s], or between a state of the United States and a foreign country].]
or
[Third, in the course of defendant’s [production] [transfer] [possession] [use] of the document-making implement, it was transported in the mail.]
Comment
The first and second elements are drawn from 18 U.S.C. § 1028(a)(5); the alternative third elements are drawn from18 U.S.C. § 1028(c)(1), (c)(3)(A) and (c)(3)(B).
Section 1028(d) provides definitions for the terms: "identification document," "authentication feature," "false identification document," "document-making implement," "issuing authority," and "transfer."
Section 1028(b) provides for various enhanced statutory maximum penalties in certain circumstances such as when particular types of identification documents are involved or when their use occurs in connection with certain other criminal conduct. In the event that such enhanced penalties are charged, a special verdict form may need to be submitted to the jury regarding the presence or absence of such facts.
8.80 FRAUD IN CONNECTION WITH IDENTIFICATION DOCUMENTS—POSSESSION (18 U.S.C. § 1028(a)(6))
The defendant is charged in [Count ______ of] the indictment with possessing an [identification document] [authentication feature] in violation of Section 1028(a)(6) 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 knowingly possessed an [identification document] [authentication feature];
Second, the [identification document] [authentication feature] was or appeared to be an [identification document] [authentication feature] of [the United States] [specify issuing authority];
Third, the [identification document] [authentication feature] was [stolen] [produced without lawful authority]; and
Fourth, the defendant knew the [identification document] [authentication feature] was [stolen] [produced without lawful authority].
Comment
The elements are drawn from 18 U.S.C. § 1028(a)(6).
Section 1028(d) provides definitions for the terms: "identification document," "authentication feature," "issuing authority," and "produce."
Section 1028(b) provides for various enhanced statutory maximum penalties in certain circumstances such as when particular types of identification documents are involved or when their use occurs in connection with certain other criminal conduct. In the event that such enhanced penalties are charged, a special verdict form may need to be submitted to the jury regarding the presence or absence of such facts.
In United States v. Fuller, 531 F.3d 1020, 1027–28 (9th Cir.2008), the Ninth Circuit, in a case under Section 1028(a)(6), approved the use of an instruction that the identification document "was or appeared to be an identification document of the United States." In so doing, the court rejected the argument that the language of the instruction operated to relieve the government of the burden of showing that the identification document be issued by or under the authority of the United States. Id. at 1028.
8.81 FRAUD IN CONNECTION WITH IDENTIFICATION DOCUMENTS—
POSSESSING ANOTHER’S MEANS OF IDENTIFICATION
(18 U.S.C. § 1028 (a)(7))
The defendant is charged in [Count ______ of] the indictment with [possessing] [transferring] [using] another person’s means of identification without lawful authority in violation of Section 1028(a)(7) 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 knowingly [transferred] [possessed] [used] a means of identification of another person;
Second, the defendant did so without lawful authority;
[Third, the defendant intended to commit [specify unlawful activity]; and]
or
[Third, the defendant aided or abetted [specify unlawful activity]; and]
or
[Third, the defendant [transferred] [possessed] [used] the means of identification in connection with [specify unlawful activity]; and]
[Fourth, [transfer] [possession] [use] of the means of identification of another person was in or affected commerce between one state and [an]other state[s], or between a state of the United States and a foreign country];
or
[Fourth, [in the course of [transfer] [possession] [use], the means of identification was transported in the mail.]
Comment
The first, second, and third elements are drawn from 18 U.S.C. § 1028(a)(7); the fourth element is drawn from § 1028(c)(3). The unlawful activity must be a violation of federal law or be a felony under applicable state or local law. 18 U.S.C. § 1028(a)(7).
A § 1028(a)(7) conviction requires no evidence of an underlying crime. United States v. Sutcliffe, 505 F.3d 944, 960 (9th Cir.2007) ( "the government must only prove that the defendant committed the unlawful act with the requisite criminal intent, not that the defendant’s crime actually caused another crime to be committed").
Section 1028(d) provides definitions for the terms: "means of identification" and "transfer." The Ninth Circuit has held that a signature qualifies as a "means of identification." United States v. Blixt, 548 F.3d 882, 887 (9th Cir.2008).
Section 1028(b) provides for various enhanced statutory maximum penalties in certain circumstances such as when particular types of identification documents are involved or when their use occurs in connection with certain other criminal conduct. In the event that such enhanced penalties are charged, a special verdict form may need to be submitted to the jury regarding the presence or absence of such facts.
8.82 FRAUD IN CONNECTION WITH IDENTIFICATION DOCUMENTS—TRAFFICKING
(18 U.S.C. § 1028(a)(8))
The defendant is charged in [Count ______ of] the indictment with trafficking in authentication features in violation of Section 1028(a)(8) 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 knowingly trafficked in [false] authentication features;
Second, that the [false] authentication features were for use in [false identification documents] [document-making implements] [means of identification]; and
[Third, the authentication feature was or appeared to be issued by or under authority of [the United States] [specify issuing authority].]
or
[Third, the transfer of the [false] authentication feature was in or affected commerce between one state and [an]other state[s], or between a state of the United States and a foreign country.]
or
[Third, in the course of transferring the authentication feature, it was transported in the mail.]
Comment
The first and second elements are drawn from 18 U.S.C. § 1028(a)(8); the alternative third elements are drawn from 18 U.S.C. § 1028(c)(1), (c)(3)(A) and (c)(3)(B).
Section 1028(d) provides definitions for the terms: "authentication feature," "false authentication feature," "false identification document," "document-making implements," "means of identification," "traffic," "issuing authority," and "transfer." The Ninth Circuit has held that a signature qualifies as a "means of identification." United States v. Blixt, 548 F.3d 882, 887 (9th Cir.2008).
Section 1028(b) provides for various enhanced statutory maximum penalties in certain circumstances such as when particular types of identification documents are involved or when their use occurs in connection with certain other criminal conduct. In the event that such enhanced penalties are charged, a special verdict form may need to be submitted to the jury regarding the presence or absence of such facts.
8.83 FRAUD IN CONNECTION WITH IDENTIFICATION
DOCUMENTS—AGGRAVATED IDENTITY THEFT
(18 U.S.C. § 1028A)
The defendant is charged in [Count ______ of] the indictment with aggravated identity theft in violation of Section 1028A 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 knowingly [transferred] [possessed] [used] without legal authority [a means of identification of another person] [a false identification document]; [and]
[Second, the defendant knew that the means of identification belonged to a real person; and]
[Second] [Third], the defendant did so during and in relation to [specify felony violation].
[The government need not establish that the [means of identification of another person] [false identification document] was stolen.]
Comment
See United States v. Doe, 842 F.3d 1117, 1119-20 (9th Cir. 2016) (setting out elements for section 1028A). Both direct and circumstantial evidence can establish that a defendant knew that the means of identification belonged to a real person. Id. at 1120-22. If the case involves circumstantial evidence of knowledge, consider the following instruction from Doe at 1121:
Repeated and successful testing of the authenticity of a victim's identifying information by submitting it to a government agency, bank or other lender is circumstantial evidence that you may consider in deciding whether the defendant knew the identifying information belonged to a real person as opposed to a fictitious one. It is up to you to decide whether to consider any such evidence and how much weight to give it.
For offenses charged under Section 1028A(a)(1), use only “a means of identification of another person” under the first element and select the applicable felony from Section 1028A(c)(1)–(11) for insertion in the last element. For offenses charged under Section 1028A(a)(2) [terrorism offense], select the applicable felony from 18 U.S.C. § 2332b(g)(5) for insertion in the last element. Do not use the bracketed second element in cases charging a false identification document under Section 1028A(a)(2).
Section 1028(d) provides definitions for the terms: “false identification document” and “means of identification.” The Ninth Circuit has held that a signature qualifies as a “means of identification.” United States v. Blixt, 548 F.3d 882, 887 (9th Cir. 2008).
In Flores-Figueroa v. United States,556 U.S. 646 (2009), the Supreme Court held that Section 1028A requires that the government prove the defendant knew that the “means of identification” he or she unlawfully transferred, possessed or used belonged to a real person. The word “person” includes both living and deceased persons, and the government is not required to prove that the defendant knew the person was living when the defendant committed the crime of aggravated identity theft. United States v. Maciel-Alcala, 612 F.3d 1092, 1100-02 (9th Cir. 2010).
If the government offers evidence at trial of uncharged identity theft against victims not included in the indictment, or if the government’s proof at trial includes uncharged conduct that would satisfy an element of the offense charged in the indictment, it may be necessary for the court to modify this instruction to name the specific victims whose identities the indictment accuses the defendant of stealing or to instruct the jury that it must find the conduct charged in the indictment before it may convict. See United States v. Ward, 747 F.3d 1184, 1192 (9th Cir. 2014) (holding it was reversible error to permit jury to convict on counts of aggravated identity theft against two victims named in indictment based on evidence presented at trial of uncharged conduct against identity-theft victims not named in indictment). See Instruction 3.10 (Activities Not Charged).
The government need not prove that the identification document was stolen. United States v. Osuna-Alvarez, 788 F.3d 1183, 1185 (9th Cir. 2015); see also United States v. Gagarin, 950 F.3d 596, 604-605 (9th Cir. 2020) (holding that government is not required to prove that other person did not consent to use of his or her means of identification).
“Use” under § 1028A requires that the use of the means of identification was central to the specified felony and facilitated its commission. For example, the forging of someone else’s signature on a fraudulent life insurance application constitutes a “use” within the meaning of § 1028A. See United States v. Gagarin, 950 F.3d 596, 604 (9th Cir. 2020). In addition, submitting TRICARE claims that falsely identify a therapist as being the rendering provider for dates on which the therapist provided no services constitutes a “use” within the meaning of § 1028A. See United States v. Harris, 983 F.3d 1125, 1128 (9th Cir. 2020). But employing a patient’s Medicare identification information to file Medicare claims that falsely identified the treatments as a Medicare-eligible physical therapy services rather than as massages does not constitute a “use” within the meaning of § 1028A. See United States v. Hong, 938 F.3d 1040, 1051 (9th Cir. 2019).
Approved 3/2021
8.84 COUNTERFEIT ACCESS DEVICES—PRODUCING, USING, OR TRAFFICKING
(18 U.S.C. § 1029(a)(1))
The defendant is charged in [Count _______ of] the indictment with [production of] [use of] [trafficking in] [a] counterfeit access device[s] in violation of Section 1029(a)(1) 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 knowingly [used] [produced] [trafficked in] a counterfeit access device;
Second, the defendant acted with intent to defraud; and
Third, the defendant’s conduct in some way affected commerce between one state and [an]other state[s], or between a state of the United States and a foreign country.
A “counterfeit access device” means any access device that is counterfeit, fictitious, altered or forged, or an identifiable component of an access device or a counterfeit access device.
[To “produce” a telecommunications instrument means to design, alter, authenticate, duplicate, or assemble it.]
[To “traffic” in a telecommunications instrument means to transfer or otherwise dispose of it to another, or to obtain control of it with intent to transfer or dispose of it.]
Comment
Use this instruction in conjunction with Instruction 8.90 (Access Device—Defined).
For a definition of “intent to defraud,” see Instruction 3.16 (Intent to Defraud—Defined).
18 U.S.C. § 1029(e) defines the terms “access device,” “counterfeit access device,” “produce,” and “traffic.”
For a definition of “knowingly,” see Instructions 5.7 (Knowingly—Defined) and 5.8 (Deliberate Ignorance).
Regarding a jury finding that commerce was affected, consult United States v. Gomez, 87 F.3d 1093, 1096–97 (9th Cir. 1996) (discussing role of the jury in determining a fact which is both an element of the offense and a jurisdictional fact). See also United States v. Lopez, 514 U.S. 549 (1995) (regarding the “affecting” commerce requirement); United States v. Clayton, 108 F.3d 1114, 1117 (9th Cir. 1997) (applying the test in Lopez to alleged violation of section 1029).
18 U.S.C. § 1029(b)(1) and (b)(2) specify penalties for an attempt or a conspiracy to violate any subsection of § 1029(a). Where the indictment charges such an attempt or conspiracy, adjust this instruction accordingly, using relevant elements from Instructions 5.3 (Attempt) or 8.20 (Conspiracy—Elements).
For specific cases referring to counterfeit access devices, see the following: United States v. McCormick, 72 F.3d 1404, 1408 (9th Cir. 1995) (holding that submission of a credit card application containing false or inflated information produces a counterfeit access device); United States v. Brannan, 898 F.2d 107, 109 (9th Cir. 1990) (submitting fictitious credit card applications to bank was functional equivalent to the manufacture of counterfeit access devices); United States v. Luttrell, 889 F.2d 806, 810 (9th Cir. 1989) (discussing the distinction between unauthorized and counterfeit access devices) (opinion amended in part, vacated in part on rehearing, 923 F.2d 764 (9th Cir. 1991).
18 U.S.C. § 10 defines interstate and foreign commerce.
Approved 3/2021
8.85 UNAUTHORIZED ACCESS DEVICES—USING OR TRAFFICKING
(18 U.S.C. § 1029(a)(2))
The defendant is charged in [Count _______ of] the indictment with [using] [trafficking in] unauthorized access devices during a period of one year in violation of Section 1029(a)(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 each of the following elements beyond a reasonable doubt:
First, the defendant knowingly [used] [trafficked in] the unauthorized access devices at any time during a one-year period [beginning [date], and ending [date]];
Second, by [using] [trafficking in] the unauthorized access devices during that period, the defendant obtained [anything of value worth $1,000 or more] [things of value, their value together totaling $1,000 or more] during that period;
Third, the defendant acted with the intent to defraud; and
Fourth, the defendant’s conduct in some way affected commerce between one state and [an]other state[s], or between a state of the United States and a foreign country.
An “unauthorized access device” is any access device that is lost, stolen, expired, revoked, canceled, or obtained with intent to defraud.
[To “traffic” in an access device means to transfer or otherwise dispose of it to another, or to obtain control of it with intent to transfer or dispose of it.]
Comment
Use this instruction in conjunction with Instruction 8.90 (Access Device—Defined). See United States v. Brannan, 898 F.2d 107, 110 (9th Cir.1990) (distinguishing “unauthorized access device” from “counterfeit access device”).
For a definition of “intent to defraud,” see Instruction 3.16 (Intent to Defraud—Defined).
For a definition of “knowingly,” see Instructions 5.6 (Knowingly—Defined) and 5.7 (Deliberate Ignorance).
When parties dispute the “affecting commerce” requirement, see Comment to Instruction 8.84 (Counterfeit Access Devices—Producing, Using, or Trafficking). See also that Comment regarding changes to this instruction when attempt or conspiracy is alleged in violation of 18 U.S.C. § 1029(a).
18 U.S.C. § 10 defines interstate and foreign commerce.
18 U.S.C. § 1029(e) defines “access device,” “traffic,” and “unauthorized access device.”
8.86 ACCESS DEVICES—UNLAWFUL POSSESSING FIFTEEN OR MORE
(18 U.S.C. § 1029(a)(3))
The defendant is charged in [Count _______ of] the indictment with unlawful possession of access devices in violation of Section 1029(a)(1) 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 knowingly possessed at least fifteen [counterfeit] [unauthorized] access devices at the same time;
Second, the defendant knew that the devices were [counterfeit] [unauthorized];
Third, the defendant acted with the intent to defraud; and
Fourth, the defendant’s conduct in some way affected
commerce between one state and [an]other state[s], or between a state of the United States and a foreign country.
[An "unauthorized access device" is any access device that is lost, stolen, expired, revoked, canceled, or obtained with intent to defraud.]
[A "counterfeit access device" is any device that is counterfeit, fictitious, altered or forged, or an identifiable component of an access device or a counterfeit access device.]
Comment
Use this instruction in conjunction with Instruction 8.90 (Access Device—Defined).
See Comment to Instruction 8.84 (Counterfeit Access Devices—Producing, Using, or Trafficking) and Comment to Instruction 8.85 (Unauthorized Access Devices—Using or Trafficking).
18 U.S.C. § 10 defines interstate and foreign commerce.
18 U.S.C. § 1029(e) defines "access device," "counterfeit access device," and "unauthorized access device."
8.87 DEVICE-MAKING EQUIPMENT—ILLEGAL POSSESSION OR PRODUCTION
(18 U.S.C. § 1029(a)(4))
The defendant is charged in [Count _______ of] the indictment with [production] [trafficking in] [having control or custody of] [possessing] device-making equipment in violation of Section 1029(a)(4) 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 knowingly [produced] [trafficked in] [had custody or control of] [possessed] device-making equipment;
Second, the defendant acted with intent to defraud; and
Third, the defendant’s conduct in some way affected commerce between one state and [an]other state[s], or between a state of the United States and a foreign country.
"Device-making equipment" is any equipment, mechanism, or impression designed or primarily used for making an access device or a counterfeit access device.
[A "counterfeit access device" is any device that is counterfeit, fictitious, altered or forged, or an identifiable component of an access device or a counterfeit access device.]
[To "traffic" in device-making equipment means to transfer or otherwise dispose of it to another, or to obtain control of it with intent to transfer or dispose of it to another.]
[To "produce" device-making equipment means to design, alter, authenticate, duplicate, or assemble it.]
Comment
Use this instruction in conjunction with Instruction 8.90 (Access Device—Defined).
See Comment to Instruction 8.84 (Counterfeit Access Devices—Producing, Using, or Trafficking) and Comment to Instruction 8.85 (Unauthorized Access Devices—Using or Trafficking).
18 U.S.C. § 10 defines interstate and foreign commerce.
18 U.S.C. § 1029(e) defines "access device," "counterfeit access device," "trafficking," "produce," and "unauthorized access device."
8.88 ACCESS DEVICES—ILLEGAL TRANSACTION
(18 U.S.C. § 1029(a)(5))
The defendant is charged in [Count _______ of] the indictment with effecting transactions with an access device issued to another person in violation of Section 1029(a)(5) 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, with [an access device] [access devices] issued to [another person] [other persons], the defendant knowingly effected transactions;
Second, the defendant obtained through such transactions [at any time during a one-year period beginning [date], and ending [date]] a total of at least $1,000 in payment[s] or [any other thing] [other things] of value;
Third, the defendant acted with intent to defraud; and
Fourth, the defendant’s conduct in some way affected commerce between one state and [an]other state[s], or between a state of the United States and a foreign country.
Comment
Use this instruction in conjunction with Instruction 8.90 (Access Device—Defined).
See Comment to Instruction 8.84 (Counterfeit Access Devices—Producing, Using, or Trafficking) and Comment to Instruction 8.85 (Unauthorized Access Devices—Using or Trafficking).
18 U.S.C. § 10 defines interstate and foreign commerce.
8.89 ACCESS DEVICES—UNAUTHORIZED SOLICITATION
(18 U.S.C. § 1029(a)(6))
The defendant is charged in [Count _______ of] the indictment with soliciting persons for the purpose of [offering] [selling information regarding] an access device in violation of Section 1029(a)(6) 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, that the defendant knowingly solicited a person for the purpose of [offering an access device] [selling information regarding an access device] [selling information regarding an application to obtain an access device];
Second, the defendant solicited that person without authorization of the issuer of the access device;
Third, the defendant acted with the intent to defraud; and
Fourth, the defendant’s conduct in some way affected
commerce between one state and [an]other state[s], or between a state of the United States and a foreign country.
Comment
Use this instruction in conjunction with Instruction 8.90 (Access Device—Defined).
See Comment to Instruction 8.84 (Counterfeit Access Devices—Producing, Using, or Trafficking) and Comment to Instruction 8.85 (Unauthorized Access Devices—Using or Trafficking).
18 U.S.C. § 10 defines interstate and foreign commerce.
8.90 ACCESS DEVICE—DEFINED
(18 U.S.C. § 1029)
An “access device” means any card, plate, code, account number, electronic serial number, mobile identification number, personal identification number, or other telecommunications service, equipment, or instrument identifier, or other means of account access, that can be used alone or in conjunction with another access device, to obtain money, goods, services, or any other thing of value, or that can be used to initiate a transfer of funds (other than a transfer originated solely by paper instrument).
Comment
18 U.S.C. § 1029(e)(1) contains the definition of what constitutes an “access device.” See also United States v. Gainza, 982 F.3d 762, 764 (9th Cir. 2020) (“The term ‘access device’ includes the information needed to access funds from a debit or credit card, such as the account number and the PIN.”). Use this instruction in conjunction with Instructions 8.84 to 8.89.
Approved 3/2021
8.91 TELECOMMUNICATIONS
INSTRUMENT—ILLEGAL MODIFICATION
(18 U.S.C. § 1029(a)(7))
The defendant is charged in [Count _______ of] the indictment with [use of] [production of] [trafficking in] a telecommunications instrument that had been modified to obtain unauthorized telecommunications services in violation of Section 1029(a)(7) 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 knowingly [used] [produced] [trafficked in] [had custody or control of] [possessed] a telecommunications instrument that had been modified or altered to obtain unauthorized use of telecommunications services;
Second, the defendant acted with the intent to defraud; and
Third, the defendant’s conduct in some way affected commerce between one state and [an]other state[s], or between a state of the United States and a foreign country.
[To "produce" a telecommunications instrument means to design, alter, authenticate, duplicate, or assemble it.]
[To "traffic" in a telecommunications instrument means to transfer or otherwise dispose of it to another, or to obtain control of it with intent to transfer or dispose of it.]
Comment
Section 1029 does not define the term "telecommunications instrument." Section 1029(e)(9) provides that "telecommunications service" has the meaning given in the Communications Act of 1934, 47 U.S.C. § 153, which defines "telecommunications service" as: "the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used." 47 U.S.C. § 153(53).
18 U.S.C. § 10 defines interstate and foreign commerce.
18 U.S.C. § 1029(e)(4) and (5) defines "produce" and "traffic."
Approved 9/2018
8.92 USE OR CONTROL OF SCANNING RECEIVER
(18 U.S.C. § 1029(a)(8))
The defendant is charged in [Count _______ of] the indictment with [using] [producing] [trafficking in] [possessing] a scanning receiver in violation of Section 1029(a)(8) 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 knowingly [used] [produced] [trafficked in] [had custody or control of] [possessed] a scanning receiver;
Second, the defendant acted with intent to defraud; and
Third, the defendant’s conduct in some way affected commerce between one state and [an]other state[s], or between a state of the United States and a foreign country.
[A "scanning receiver" is a device or apparatus that can be used to intercept illegally a wire or electronic communication or to intercept illegally an electronic serial number, mobile identification number, or other identifier of any telecommunications service, equipment, or instrument.]
[To "produce" a scanning receiver means to design, alter, authenticate, duplicate, or assemble it.]
[To "traffic" in a scanning receiver means to transfer or otherwise dispose of it to another, or to obtain control of it with intent to transfer or dispose of it.]
Comment
For a definition of "intent to defraud," see Instruction 3.16 (Intent to Defraud—Defined).
For a definition of "knowingly," see Instructions 5.7 (Knowingly—Defined) and 5.8 (Deliberate Ignorance).
18 U.S.C. § 10 defines interstate and foreign commerce.
18 U.S.C. § 1029(e)(8) defines the term "scanning receiver" to be a device or apparatus that can be used to intercept a wire or electronic communication in violation of 18 U.S.C. §§ 2510-2522. 18 U.S.C. § 2510(4) defines "intercept" to mean the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device. When parties dispute whether the device involved is a "scanning receiver," the court should add the following sentence to the instruction concerning the meaning of that term:
The government has the burden of proving beyond a reasonable doubt that [specify device] is a scanning receiver.
Section 1029 does not define the term "telecommunications instrument." Section 1029(e)(9) provides that "telecommunications service" has the meaning given in the Communications Act of 1934, 47 U.S.C. § 153, that carries the definition: "transmission between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received." 47 U.S.C. § 153(47).
Section 1029(b)(1) and (b)(2) specifies penalties for an attempt or a conspiracy to violate any subsection of Section 1029(a). When the indictment charges an attempt or conspiracy, modify this instruction accordingly, using relevant elements from Instruction 5.3 (Attempt) or 8.20 (Conspiracy—Elements).
Approved 9/2018
8.93 ILLEGALLY MODIFIED TELECOMMUNICATIONS EQUIPMENT—
POSSESSION OR PRODUCTION
(18 U.S.C. § 1029(a)(9))
The defendant is charged in [Count _____ of] the indictment with [use of] [production of] [having possession, custody, or control of] [trafficking in] hardware or software configured to [insert] [modify] telecommunication identifying information [contained within] [associated with] a telecommunications instrument, so that such instrument could be used to obtain telecommunications services, in violation of Section 1029(a)(9) 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 knowingly [used] [produced] [trafficked in] [had custody or control of] [possessed] hardware or software configured to [insert] [modify] telecommunication identifying information, so that a telecommunications instrument could be used to obtain telecommunications services without authorization;
Second, the defendant acted with the intent to defraud; and
Third, the defendant’s conduct in some way affected commerce between one state and [an]other state[s], or between a state of the United States and a foreign country.
"Telecommunication identifying information" means an electronic serial number or any other number or signal that identifies a specific telecommunications instrument or account, or a specific communication transmitted from a telecommunications instrument.
[To "produce" a telecommunications instrument means to design, alter, authenticate, duplicate, or assemble it.]
[To "traffic" in a telecommunications instrument means to transfer or otherwise dispose of it to another, or to obtain control of it with intent to transfer or dispose of it.]
Comment
See Comment to Instruction 8.91 (Telecommunications Instrument—Illegal Modification). See also Comment to Instruction 8.84 (Counterfeit Access Devices—Producing, Using, or Trafficking) and Comment to Instruction 8.85 (Unauthorized Access Devices—Using or Trafficking) for discussion of intent to defraud, and affecting interstate commerce.
18 U.S.C. § 10 defines interstate and foreign commerce.
8.94 CREDIT CARD TRANSACTION FRAUD
(18 U.S.C. § 1029(a)(10))
The defendant is charged in [Count _______ of] the indictment with arranging for another person to present a record of a transaction made by an access device to a credit card system for payment in violation of Section 1029(a)(10) 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, that the defendant knowingly [arranged for] [caused] another person to present, for payment to a credit card system [member] [agent], one or more [records] [evidences] of transactions made by an access device;
Second, that the defendant was not authorized by the credit card system [member] [agent] to [arrange] [cause] such a claim to be presented for payment;
Third, the defendant acted with the intent to defraud; and
Fourth, the defendant’s conduct in some way affected commerce between one state and [an]other state[s], or between a state of the United States and a foreign country.
Comment
Use this instruction in conjunction with Instruction 8.90 (Access Device—Defined).
See Comment to Instruction 8.84 (Counterfeit Access Devices—Producing, Using, or Trafficking) and Comment to Instruction 8.85 (Unauthorized Access Devices—Using or Trafficking).
A “credit card system member” is a “financial institution or other entity that is a member of a credit card system, including an entity, whether affiliated with or identical to the credit card issuer, that is the sole member of a credit card system.” 18 U.S.C. § 1029(e)(7).
18 U.S.C. § 10 defines interstate and foreign commerce.
8.94A WITHOUT AUTHORIZATION—DEFINED
A person uses a computer "without authorization" when the person has not received permission from the [owner] [[person who] or [entity which] controls the right of access to the computer] for any purpose, or when the [owner] [[person who] or [entity which] controls the right of access to the computer] has withdrawn or rescinded permission to use the computer and the person uses the computer anyway.
Comment
Use this instruction with instructions 8.95, 8.96, 8.97, 8.98, 8.99, 8.100, 8.101, 8.102, 8.103, and 8.104. Where appropriate, substitute "government," "financial institution," or other specific entity where called for by the accompanying CFAA instructions. See, e.g., Instruction No. 8.96 (Obtaining Information by Computer From Financial Institution or Government Computer).
A person uses a computer "without authorization" under the CFAA when the owner of the computer, or of the right to access to the computer, has rescinded permission to access the computer and the defendant uses the computer anyway. United States v. Nosal, 844 F.3d 1024, 1034 (9th Cir. 2016).
Approved 3/2017
8.95 OBTAINING INFORMATION BY COMPUTER —INJURIOUS TO
UNITED STATES OR ADVANTAGEOUS TO FOREIGN NATION
(18 U.S.C. § 1030(a)(1))
The defendant is charged in [Count _______ of] the indictment with obtaining and transmitting injurious information by computer in violation of Section 1030(a)(1) 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 knowingly [accessed without authorization] [exceeded authorized access to] a computer;
Second, by [accessing without authorization] [exceeding authorized access to] a computer, the defendant obtained [information that had been determined by the United States government to require protection against disclosure for reasons of national defense or foreign relations] [data regarding the design, manufacture or use of atomic weapons];
Third, the defendant had reason to believe that the [information] [data] obtained could be used to the injury of the United States or to the benefit of a foreign nation; and
[Fourth, the defendant willfully [caused to be] [[communicated] [delivered] [transmitted]] the [information] [data] to any person not entitled to receive it.]
or
[Fourth, the defendant willfully [caused to be] retained and failed to deliver the information or data to an officer or employee of the United States entitled to receive it.]
Comment
18 U.S.C. § 1030(e) provides definitions of the terms "computer," "exceeds authorized access," and "person." As to "knowingly," see Instruction 5.7 (Knowingly—Defined), and as to "willfully," see Comment in 5.5 (Willfully).
The Ninth Circuit has held that the phrase "exceeds [or exceeded] authorized access" is limited to violations of restrictions on access to information, and not restrictions on the use of information that is permissibly accessed. United States v. Nosal, 676 F.3d 854, 864 (9th Cir. 2012); see also United States v. Christensen, 828 F.3d 763, 786-87 (9th Cir. 2015), as amended on denial of reh’g (July 8, 2016).
Approved 6/2019
8.96 OBTAINING INFORMATION BY COMPUTER—FROM FINANCIAL
INSTITUTION OR GOVERNMENT COMPUTER
(18 U.S.C. § 1030(a)(2)(A) and (B))
The defendant is charged in [Count _______ of] the indictment with unlawfully obtaining information of a [financial institution] [card issuer] [consumer reporting agency] [government department or agency] in violation of Section 1030(a)(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 each of the following elements beyond a reasonable doubt:
First, the defendant intentionally [accessed without authorization] [exceeded authorized access to] a computer; and
[Second, by [accessing without authorization] [exceeding authorized access to] a computer, the defendant obtained information contained in a financial record of [specify financial institution or card issuer].]
or
[Second, by [accessing without authorization] [exceeding authorized access to] a computer, the defendant obtained information contained in a file [of specify consumer reporting agency] on a consumer.]
or
[Second, by [accessing without authorization] [exceeding authorized access to] a computer, the defendant obtained information from [specify department or agency of the United States].]
Comment
18 U.S.C. § 1030(e) provides definitions of the terms "computer," "financial institution," "financial record," "exceeds authorized access," and "department of the United States."
Interpreting the civil counterpart to Section 1030 and expressly finding such interpretation equally applicable in the criminal context, the Ninth Circuit held that "a person uses a computer ‘without authorization’ under §§ 1030(a)(2) and (4) when the person has not received permission to use the computer for any purpose (such as when a hacker accesses someone’s computer without any permission), or when the employer has rescinded permission to access the computer and the defendant uses the computer anyway." LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1135 (9th Cir. 2009). The court further held that an employee’s use of a computer contrary to the employer’s interest does not alone satisfy the "without authorization" prong of the statute. Id.
The Ninth Circuit has held that the phrase "exceeds [or exceeded] authorized access" is limited to violations of restrictions on access to information, and not restrictions on the use of information that is permissibly accessed. United States v. Nosal, 676 F.3d 854, 864 (9th Cir. 2012); see also United States v. Christensen, 828 F.3d 763, 786-87 (9th Cir. 2015), as amended on denial of reh’g (July 8, 2016).
Approved 6/2019
8.97 OBTAINING INFORMATION BY COMPUTER—"PROTECTED" COMPUTER
(18 U.S.C. § 1030(a)(2)(C))
The defendant is charged in [Count _______ of] the indictment with unlawfully obtaining information from a protected computer in violation of Section 1030(a)(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 each of the following elements beyond a reasonable doubt:
First, the defendant intentionally [accessed without authorization] [or] [exceeded authorized access to] a computer; and
Second, by [accessing without authorization] [exceeding authorized access to] a computer, the defendant obtained information from a computer that was [[exclusively for the use of a financial institution or the United States government] [not exclusively for the use of a financial institution or the United States government, but the defendant’s access affected the computer’s use by or for the financial institution or the United States government] [used in or affecting interstate or foreign commerce or communication] [located outside the United States but that computer was used in a manner that affected interstate or foreign commerce or communication of the United States]].
Comment
18 U.S.C. § 1030(e) provides definitions of the terms "computer," "financial institution," and "exceeds authorized access." While the term "protected computer" is defined in 18 U.S.C. § 1030(e), that term is not used in the elements of this instruction because that definition has been incorporated into the second element. Accordingly, it is not necessary to provide a definition of "protected computer."
The first prong is satisfied when a defendant intentionally accesses a computer without authorization or exceeds authorized access. Musacchio v. United States, 136 S. Ct. 709, 713 (2016).
Interpreting the civil counterpart to Section 1030 and expressly finding such interpretation equally applicable in the criminal context, the Ninth Circuit held that "a person uses a computer ‘without authorization’ under §§ 1030(a)(2) and (4) when the person has not received permission to use the computer for any purpose (such as when a hacker accesses someone’s computer without any permission), or when the employer has rescinded permission to access the computer and the defendant uses the computer anyway." LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1135 (9th Cir. 2009). The court further held that an employee’s use of a computer contrary to the employer’s interest does not alone satisfy the "without authorization" prong of the statute. Id.
The Ninth Circuit has held that the phrase "exceeds [or exceeded] authorized access" is limited to violations of restrictions on access to information, and not restrictions on the use of information that is permissibly accessed. United States v. Nosal, 676 F.3d 854, 864 (9th Cir. 2012); see also United States v. Christensen, 828 F.3d 763, 786-87 (9th Cir. 2015), as amended on denial of reh’g (July 8, 2016).
Approved 6/2019
8.98 UNLAWFULLY ACCESSING NONPUBLIC COMPUTER USED BY THE GOVERNMENT
(18 U.S.C. § 1030(a)(3))
The defendant is charged in [Count _______ of] the indictment with unlawfully accessing a computer in violation of Section 1030(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 intentionally accessed a nonpublic computer of [specify department or agency of the United States];
Second, the defendant accessed that computer without authorization; and
Third, the computer accessed by the defendant [was exclusively for the use of the United States government] [was used nonexclusively by or for the United States government, but the defendant’s conduct affected that computer’s use by or for the United States government].
Comment
18 U.S.C. § 1030(e) provides definitions of the terms "computer" and "department of the United States."
8.99 COMPUTER FRAUD—USE OF PROTECTED COMPUTER
(18 U.S.C. § 1030(a)(4))
The defendant is charged in [Count _______ of] the indictment with computer fraud in violation of Section 1030(a)(4) 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 knowingly [accessed without authorization] [exceeded authorized access to] a computer [that was exclusively for the use of a financial institution or the United States government] [that was not exclusively for the use of a financial institution or the United States government, but the defendant’s access affected the computer’s use by or for the financial institution or the United States government] [used in or affecting interstate or foreign commerce or communication] [located outside the United States but using it in a manner that affected interstate or foreign commerce or communication of the United States];
Second, the defendant did so with the intent to defraud;
Third, by [accessing the computer without authorization] [exceeding authorized access to the computer], the defendant furthered the intended fraud; [and]
Fourth, the defendant by [accessing the computer without authorization] [exceeding authorized access to the computer] obtained anything of value[.] [; and]
[Fifth, the total value of the defendant’s computer use exceeded $5,000 during [specify applicable period.]
Comment
See as to intent to defraud, Instruction 5.12 (Intent to Defraud—Defined).
Use the fifth element of this instruction when the prosecution’s theory is that the object of the defendant’s alleged fraud was only the use of the computer and the value of that computer use was "more than $5,000 in any 1-year period." This fifth element reflects the requirements of 18 U.S.C. § 1030(a)(4) which apply where the defendant’s purpose and the thing of value the defendant obtained by the fraud was only the use of the computer.
18 U.S.C. § 1030(e) provides definitions of the terms "computer," "financial institution," and "exceeds authorized access." While the term "protected computer" is defined in 18 U.S.C. § 1030(e), that term is not used in the elements of this instruction because that definition has been incorporated into the first element of the instruction. Accordingly, it is not necessary to provide a definition of "protected computer."
Interpreting the civil counterpart to Section 1030 and expressly finding such interpretation equally applicable in the criminal context, the Ninth Circuit held that "a person uses a computer ‘without authorization’ under §§ 1030(a)(2) and (4) when the person has not received permission to use the computer for any purpose (such as when a hacker accesses someone’s computer without any permission), or when the employer has rescinded permission to access the computer and the defendant uses the computer anyway." LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1135 (9th Cir. 2009). The court further held that an employee’s use of a computer contrary to the employer’s interest does not alone satisfy the "without authorization" prong of the statute. Id.
The Ninth Circuit has held that the phrase "exceeds [or exceeded] authorized access" is limited to violations of restrictions on access to information, and not restrictions on the use of information that is permissibly accessed. United States v. Nosal, 676 F.3d 854, 864 (9th Cir. 2012); see also United States v. Christensen, 828 F.3d 763, 786-87 (9th Cir. 2015), as amended on denial of reh’g (July 8, 2016).
Approved 6/2019
8.100 INTENTIONAL DAMAGE TO A
PROTECTED COMPUTER
(18 U.S.C. § 1030(a)(5)(A))
The defendant is charged in [Count _______ of] the indictment with transmitting [a program] [information] [a code] [a command] to a computer [system], intending to cause damage, in violation of Section 1030(a)(5) 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 knowingly caused the transmission of [a program] [information] [a code] [a command] to a computer;
Second, as a result of the transmission, the defendant intentionally impaired without authorization the [integrity] [availability] of [data] [a program] [a system] [information]; and
Third, the computer was [exclusively for the use of a financial institution or the United States government] [not exclusively for the use of a financial institution or the United States government, but the defendant’s transmission affected the computer’s use by or for a financial institution or the United States government] [used in or affected interstate or foreign commerce or communication] [located outside the United States but was used in a manner that affects interstate or foreign commerce or communication of the United States].
Comment
18 U.S.C. § 1030(e) provides definitions of the terms "computer" and "financial institution." While the term "protected computer" is defined in 18 U.S.C. § 1030, that term is not used in the elements of this introduction because that definition has been incorporated into the third element of the instruction. Accordingly, it is not necessary to provide a definition of "protected computer." Similarly, the term "damage" is defined at 18 U.S.C. § 1030(e), but because the common usage of that term could be broader and therefore conducive to confusion, the definition has been incorporated into the second and third elements.
In United States v. Middleton, 231 F.3d 1207, 1211-12 (9th Cir. 2000), the Ninth Circuit discussed the definitions of "protected computer" and "damage." However, it is uncertain that the conclusions drawn by the circuit are still applicable after amendments to § 1030 in Pub. L. 107-56, Title V, § 506(a), Title VIII, § 814, Oct. 26, 2001, 115 Stat. 366, 382). See 18 U.S.C. § 1030(e) ("protected computer" and "damage").
Approved 6/2019
8.101 RECKLESS DAMAGE TO A
PROTECTED COMPUTER
(18 U.S.C. § 1030(a)(5)(B))
The defendant is charged in [Count _______ of] the indictment with accessing a computer and recklessly damaging it in violation of Section 1030(a)(5) 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 intentionally accessed a computer without authorization;
Second, as a result of the defendant’s access, the defendant recklessly impaired the [integrity] [availability] of [data] [a program] [a system] [information]; and
Third, the computer was [exclusively for the use of a financial institution or the United States government] [not exclusively for the use by or for a financial institution or the United States government, but the defendant’s transmission affected the computer’s use by or for a financial institution or the United States government] [used in or affected interstate or foreign commerce or communication] [located outside the United States but was used in a manner that affects interstate or foreign commerce or communication of the United States].
Comment
18 U.S.C. § 1030(e) provides definitions of the terms "computer" and "financial institution." While the term "protected computer" is defined in 18 U.S.C. § 1030(e), that term is not used in the elements of this instruction because that definition has been incorporated into the third element of the instruction. Accordingly, it is not necessary to provide a definition of "protected computer." Similarly, the term "damage" is defined at 18 U.S.C. § 1030(e) but because the common usage of that term could be broader and therefore conducive to confusion, the definition has been incorporated into the second and third elements.
In United States v. Middleton, 231 F.3d 1207, 1211-12 (9th Cir. 2000), the Ninth Circuit discussed the definitions of "protected computer" and "damage." However, it is uncertain that the conclusions drawn by the circuit are still applicable after amendments to § 1030 in Pub. L. 107-56, Title V, § 506(a), Title VIII, § 814, Oct. 26, 2001, 115 Stat. 366, 382). See 18 U.S.C. § 1030(e) ("protected computer" and "damage").
Approved 6/2019
8.102 DAMAGE TO A PROTECTED COMPUTER
CAUSING LOSS
(18 U.S.C. § 1030(a)(5)(C))
The defendant is charged in [Count _______ of] the indictment with accessing a computer [system] which resulted in its damage in violation of Section 1030(a)(5) 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 intentionally accessed a computer without authorization;
Second, as a result of the defendant’s access, the defendant caused the impairment of the [integrity] [availability] of [data] [a program] [a system] [information];
Third, as a result of the defendant’s access, the defendant caused a loss; and
Fourth, the computer was [exclusively for the use of a financial institution or the United States government] [not exclusively for the use by or for a financial institution or the United States government, but the defendant’s transmission affected the computer’s use by or for a financial institution or the United States government] [used in or affected interstate or foreign commerce or communication] [located outside the United States but was used in a manner that affects interstate or foreign commerce or communication of the United States].
Comment
18 U.S.C. § 1030(e) provides definitions of the terms "computer," "financial institution" and "loss." While the term "protected computer" is defined in 18 U.S.C. § 1030(e), that term is not used in the elements of this instruction because that definition has been incorporated into the third element of the instruction. Accordingly, it is not necessary to provide a definition of "protected computer." Similarly, the term "damage" is defined at 18 U.S.C. § 1030(e) but as the common usage of that term could be broader and therefore conducive to confusion, the definition has been incorporated into the second and third elements.
In United States v. Middleton, 231 F.3d 1207, 1211-12 (9th Cir. 2000), the Ninth Circuit discussed the definitions of "protected computer" and "damage." However, it is uncertain that the conclusions drawn by the circuit are still applicable after amendments to § 1030 in Pub. L. 107-56, Title V, § 506(a), Title VIII, § 814, Oct. 26, 2001, 115 Stat. 366, 382). See 18 U.S.C. § 1030(e) ("protected computer" and "damage").
Approved 6/2019
8.103 TRAFFICKING IN PASSWORDS
(18 U.S.C. § 1030(a)(6)(A) and (B))
The defendant is charged in [Count _______ of] the indictment with trafficking in [a] password[s] or similar information through which a computer may be accessed without authorization, in violation of Section 1030(a)(6) 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 knowingly [[transferred to another] [disposed of to another] [obtained control of with intent to transfer or dispose of]] [a] password[s] or similar information through which a computer may be accessed without authorization;
Second, the defendant acted with the intent to defraud; and
Third, [the defendant’s conduct affected commerce between [one state and another] [a foreign nation and the United States]] [the computer was used by or for the government of the United States].
Comment
See as to intent to defraud,Instruction 5.12 (Intent to Defraud—Defined).
18 U.S.C. § 1030(e)(1) provides a definition of "computer," and 18 U.S.C. § 1030(a)(6) incorporates the definition of "traffic" in 18 U.S.C. § 1029(e).
Approved 6/2019
8.104 THREATENING TO DAMAGE A COMPUTER
(18 U.S.C. § 1030(a)(7))
The defendant is charged in [Count _______ of] the indictment with transmitting a threat to damage a computer, in violation of Section 1030(a)(7) 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 beyond a reasonable doubt:
First, the defendant transmitted a communication in interstate or foreign commerce;
Second, the defendant acted with intent to extort money or any other thing of value from any individual, firm, corporation, educational institution, financial institution, government entity, or legal or other entity;
[Third, the communication contained a threat to cause damage to a computer; and]
or
[Third, the communication contained a threat to [obtain] [impair the confidentiality of] information from a computer [without authorization] [in excess of authorization]; and]
or
[Third, the communication contained a [demand or request for money or other thing of value in relation to damage to a computer, and damages were caused to facilitate the extortion]; and]
Fourth, the defendant’s threat concerned a computer that was [exclusively for the use of a financial institution or the United States government] [not exclusively for the use by or for a financial institution or the United States government, but the defendant’s transmission affected the computer’s use by or for a financial institution or the United States government] [used in or affected interstate or foreign commerce or communication] [located outside the United States but was used in a manner that affects interstate or foreign commerce or communication of the United States].
Comment
18 U.S.C. § 1030(e) provides definitions of the terms "computer," "financial institution" and "government entity."
Approved 6/2019
8.105 HARBORING OR CONCEALING PERSON FROM ARREST
(18 U.S.C. § 1071)
The defendant is charged in [Count _______ of] the indictment with [harboring] [concealing] a person from arrest in violation of Section 1071 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, a federal warrant had been issued for the arrest of [name of person];
Second, the defendant knowingly [harbored] [concealed] [name of person];
Third, at the time the defendant [harbored] [concealed] [name of person], the defendant knew that a warrant had been issued for the arrest of [name of person].
Fourth, the defendant intended to prevent the discovery or arrest of [name of person].
Comment
A violation of 18 U.S.C. § 1071 requires proof of four elements. United States v. Hill, 279 F.3d 731, 737 (9th Cir. 2002) (setting forth four elements listed in instruction). Any "physical act of providing assistance, including food, shelter, and other assistance to aid a fugitive in avoiding detection and apprehension is harboring." Id. at 738 (quoting United States v. Yarbrough, 852 F.2d 1522, 1543 (9th Cir. 1988)) (holding that giving money to fugitive in order to shelter, feed, or hide himself is not harboring, while directly providing shelter, food, or aid is harboring).
A wife may be convicted of harboring her fugitive husband even if the harboring occurs outside the United States (i.e., Mexico). Hill, 279 F.3d at 733.
Failure to disclose a fugitive’s location to law enforcement and making false statements to law enforcement are not crimes under the statute. Yarbrough, 852 F.2d at 1543.
Approved 6/2019
8.106 HARBORING OR CONCEALING ESCAPED PRISONER
(18 U.S.C. § 1072)
The defendant is charged in [Count _______ of] the indictment with [harboring] [concealing] an escaped prisoner in violation of Section 1072 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, [name of prisoner] escaped from [the custody of [e.g., a Deputy U.S. Marshal]] [a federal penal or correctional institution]; and
Second, the defendant thereafter knowingly [[harbored] [concealed]] [name of prisoner].
Comment
As to the first element, a defendant is in "federal custody" for the purposes of this statute if he or she is confined under the authority of the Attorney General. It does not matter that the prisoner is not physically confined in a federal institution, nor that actual federal officials supervise custody. United States v. Eaglin,571 F.2d 1069, 1072-73 (9th Cir. 1977); see also United States v. Hobson, 519 F.2d 765, 771 (9th Cir. 1975) ("escape from an institution designated by the Attorney General, pursuant to a commitment to his custody, under a federal sentence, is an escape from ‘the custody of the Attorney General’ in the legal sense, even though the institution is run by the State.").
As to the issue of whether walking away from a half-way house is an escape, see United States v. Jones, 569 F.2d 499, 500 (9th Cir. 1978) ("A federal prisoner participating in a pre-release or half-way house program by designation of the Attorney General commits an escape when he willfully violates the terms of his extended confinement."). As to the issue of whether not returning from temporary leave is an escape, see United States v. Eaglin, 571 F.2d 1069, 1073 (9th Cir. 1977) ("The custody of the Attorney General continues despite the unsupervised nature of the temporary release from confinement granted under a social pass . . . .").
Any "physical act of providing assistance, including food, shelter, and other assistance to aid a fugitive in avoiding detection and apprehension is harboring." United States v. Hill, 279 F.3d 731, 738 (9th Cir. 2002)(quoting United States v. Yarbrough, 852 F.2d 1522, 1543 (9th Cir. 1988)) (holding that giving money to fugitive in order to shelter, feed, or hide himself is not harboring, while directly providing shelter, food, or aid is harboring).
Regarding the second element, the government must prove that the defendant knew the person aided was an escapee, but does not need to prove that the defendant knew the escape was from federal custody. Eaglin, 571 F.2d at 1074 n.4 (1977); see also United States v. Kutas, 542 F.2d 527, 528-29 (9th Cir. 1976) (holding no error in instructing jury that "[t]he words ‘harbor’ and ‘conceal’ refer to any physical act of providing assistance, including food, shelter, and other assistance to aid the prisoner in avoiding detection and apprehension").
Approved 6/2019
8.107 MURDER—FIRST DEGREE
(18 U.S.C. § 1111)
The defendant is charged in [Count _______ of] the indictment with murder in the first degree in violation of Section 1111 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 unlawfully killed [name of victim];
Second, the defendant killed [name of victim] with malice aforethought;
Third, the killing was premeditated; and
Fourth, the killing occurred at [specify place of federal jurisdiction].
To kill with malice aforethought means to kill either deliberately and intentionally or recklessly with extreme disregard for human life.
Premeditation means with planning or deliberation. The amount of time needed for premeditation of a killing depends on the person and the circumstances. It must be long enough, after forming the intent to kill, for the killer to have been fully conscious of the intent and to have considered the killing.
Comment
The applicable statute, 18 U.S.C. § 1111 also contains a first-degree felony murder provision. When felony murder is charged, the instruction relevant to premeditation should be appropriately modified. For examples, see the Tenth Circuit’s Criminal Pattern Jury Instructions
2.52.1 (2011 ed., updated Feb. 2018) and the Eleventh Circuit’s Pattern Jury Instructions O45.2 (2019 ed).
The elements for first degree murder are discussed in United States v. Free, 841 F.2d 321, 325 (9th Cir. 1988) ("The essential elements of first-degree murder are: (1) the act . . . of killing a human being; (2) doing such act . . . with malice aforethought; and (3) doing such act . . . with premeditation."); United States v. Warren, 984 F.2d 325, 327 (9th Cir. 1993) (locus of offense is issue for jury).
As to the second element, in United States v. Houser, 130 F.3d 867, 872 (9th Cir. 1997), the Ninth Circuit approved the use of a jury instruction that defined malice aforethought as "either deliberately and intentionally or recklessly with extreme disregard for human life."
Killing with "extreme disregard" refers not only to acts endangering the public at large, but also to acts directed solely to the person killed. Houser, 130 F.3d at 890. In addition, the court should exercise caution regarding the "troublesome issue" of providing a permissive inference instruction on malice aforethought. Id. at 869-71.
As to the fourth element, whether the crime alleged occurred at a particular location is a question of fact. Whether the location is within the special maritime and territorial jurisdiction of the United States or a federal prison is a question of law. See United States v. Gipe, 672 F.2d 777, 779 (9th Cir. 1982).
If there is evidence that the defendant acted in self-defense or with some other justification or excuse, see Instruction 6.8 (Self-Defense).
Voluntary and involuntary manslaughter are lesser included offenses of murder. United States v. Arnt, 474 F.3d 1159, 1163 (9th Cir. 2007). However, they are not lesser included offenses of felony murder. United States v. Miguel, 338 F.3d 995, 1004-06 (9th Cir. 2003).
The trial judge may be obligated to give an instruction on involuntary manslaughter in a murder case even when the defense does not offer the instruction. In United States v. Anderson, 201 F.3d 1145, 1150 (9th Cir. 2000), the Ninth Circuit concluded it was plain error for the court not to instruct the jury on involuntary manslaughter, even though the defendant had not requested such an instruction, because there was evidence in the record to support the theory that the killing was accidental. A defendant is not automatically entitled to a voluntary manslaughter instruction. There must be some evidence which supports the proposition that the defendant was acting out of passion rather than malice, such as evidence of provocation. United States v. Begay, 673 F.3d 1038 (9th Cir. 2011) (en banc). The court, which instructed the jury following 9th Cir. Model Crim. Jury Instr. 8.89 (2003) (now this instruction), properly instructed the jury on the correct definition of premeditation. Id. at 1043.
The trial judge is obligated to give an instruction on a lesser included offense in a murder case if the law and evidence satisfy a two-part test. United States v. Arnt, 474 F.3d 1159, 1163 (9th Cir. 2007). The first step is a legal question: "Is the offense for which the instruction is sought a lesser-included offense of the charged offense?" Id. "The second step is a factual inquiry: Does the record contain evidence that would support conviction of the lesser offense?" Id.
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8.108 MURDER—SECOND DEGREE
(18 U.S.C. § 1111)
The defendant is charged in [Count _______ of] the indictment with murder in the second degree in violation of Section 1111 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 unlawfully killed [name of victim];
Second, the defendant killed [name of victim] with malice aforethought; and
Third, the killing occurred at [specify place of federal jurisdiction].
To kill with malice aforethought means to kill either deliberately and intentionally or recklessly with extreme disregard for human life.
Comment
See Comment to Instruction 8.107 (Murder—First Degree). Because the difference between first and second degree murder is the element of premeditation, United States v. Quintero, 21 F.3d 885, 890 (9th Cir. 1994), most of that Comment is applicable to second degree murder.
This instruction is derived from several sources. It is primarily based upon Ornelas v. United States, 236 F.2d 392, 394 (9th Cir. 1956) (defendant could be convicted of second degree at most, when premeditation not part of murder charge). See also Quintero, 21 F.3d at890.
As to the second element, the standard of malice was approved in United States v. Houser, 130 F.3d 867, 871 (9th Cir. 1997) (in second degree murder prosecution, malice aforethought means "to kill either deliberately and intentionally or recklessly with extreme disregard for human life").
As to the third element, that a jurisdiction element is necessary is suggested by United States v. Warren, 984 F.2d 325, 327 (9th Cir. 1993). Whether the crime alleged occurred at a particular location is a question of fact. Whether the location is within the special maritime and territorial jurisdiction of the United States or a federal prison is a question of law. See United States v. Gipe, 672 F.2d 777, 779 (9th Cir. 1982).
The necessity for an additional element if a defense is raised is considered in United States v. Lesina, 833 F.2d 156, 160 (9th Cir. 1987) (when defendant raised defense of accident to second degree murder charge, government bore burden of proving lack of heat of passion).
If there is evidence that the defendant acted in self-defense, see Instruction 6.8 (Self-Defense).
Evidence that the defendant acted upon a sudden quarrel or heat of passion "acts in the nature of a defense to the murder charge . . . . Once such evidence is raised, the burden is on the government to prove . . . the absence of sudden quarrel or heat of passion before a conviction for murder can be sustained." United States v. Quintero, 21 F.3d 885, 890 (9th Cir. 1994). The following language might be added to address such circumstances:
The defendant claims to have acted in sudden quarrel or in the heat of passion caused by adequate provocation, and therefore without malice aforethought. Heat of passion may be provoked by fear, rage, anger or terror. Provocation, in order to be adequate, must be such as might arouse a reasonable and ordinary person to kill someone.
In order to show that the defendant acted with malice aforethought, the government must prove the absence of heat of passion beyond a reasonable doubt.
The heat of passion standard set forth above is suggested by United States v. Roston, 986 F.2d 1287, 1291 (9th Cir. 1993).
The Ninth Circuit has noted that heat of passion is not the only condition that might serve as a defense to a murder charge and reduce the offense to manslaughter. In Kleeman v. United States Parole Commission, 125 F.3d 725, 732 (9th Cir. 1997), the circuit suggested that an "extremely irrational and paranoid state of mind that severely impairs a defendant’s capacity for self control" may also negate the malice attached to an intentional killing. If such a defense is raised, it may be appropriate to instruct the jury regarding the effect of such a theory.
The trial judge may be obligated to give an instruction on involuntary manslaughter in a murder case even when the defense does not offer the instruction. In United States v. Anderson, 201 F.3d 1145, 1150 (9th Cir. 2000), the court of appeals concluded it was plain error for the court not to instruct the jury on involuntary manslaughter, even though the defendant had not requested such an instruction, because there was evidence in the record to support the theory that the killing was accidental.
The trial judge is obligated to give an instruction on involuntary manslaughter in a murder case if the law and evidence satisfy a two part test. United States v. Arnt, 474 F.3d 1159, 1163 (9th Cir. 2007). The first step is a legal question: "Is the offense for which the instruction is sought a lesser-included offense of the charged offense?" Id. "The second step is a factual inquiry: Does the record contain evidence that would support conviction of the lesser offense?" Id. Voluntary and involuntary manslaughter are lesser included offenses of murder. Id.
It is reversable error if the instructions "make it appear as though there is no difference between the severity of second degree murder and manslaughter . . . ." United States v. Lesina, 833 F.2d 156, 158-59 (9th Cir. 1987) (language used in instructions did not provide a meaningful distinction between second degree murder and involuntary manslaughter).
Voluntary and involuntary manslaughter are lesser included offenses of murder. United States v. Arnt, 474 F.3d 1159, 1163 (9th Cir. 2007). If any construction of the evidence would rationally support a jury’s conclusion that the killing was unintentional or accidental, even if there is conflicting evidence, an involuntary manslaughter instruction must be given. United States v. Anderson, 201 F.3d 1145, 1150 (9th Cir. 2000).
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8.108A MURDER-FOR-HIRE
(18 U.S.C. § 1958)
The defendant is charged in [Count _______ ] of the indictment with using interstate
commerce facilities in the commission of a murder-for-hire in violation of Section 1958 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 [used] [caused another to use] [conspired to use] [conspired to cause
another to use] a [specify facility in interstate or foreign commerce]];
or
[First, the defendant [traveled] [caused another to travel] [conspired to travel] [conspired to cause another to travel] via [specify method of travel in interstate or foreign commerce]];
Second, the defendant did so with the intent that murder be committed; and
Third, the defendant intended that the murder be committed in exchange for [specify thing of pecuniary value].
Comment
As to the first element, a "facility in interstate or foreign commerce" includes means of transportation and communication. 18 U.S.C. § 1958(b)(2).
As to the second element, the intent that murder be committed must have existed when the defendant used or conspired to use the facility of interstate commerce. United States v. Driggers, 559 F.3d 1021, 1023 (9th Cir. 2009).
"State" includes a State of the United States as well as the District of Columbia, and any commonwealth, territory, or possession of the United States. 18 U.S.C. § 1958(b)(2).
"Pecuniary value" means anything of value, whether in the form of money, a negotiable instrument, a commercial interest, or anything else the primary significance of which is economic advantage. 18 U.S.C. § 1958(b)(1). The defendant must have clearly understood he or she would give or receive the thing of pecuniary value in exchange for the murderous act. United States v. Chong, 419 F.3d 1076, 1082 (9th Cir. 2005). A promise of economic advantage may constitute a thing of pecuniary value even if it is not enforceable under contract law. United States v. Phillips, 929 F.3d 1120, 1124 (9th Cir. 2019).
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8.109 MANSLAUGHTER—VOLUNTARY
(18 U.S.C. § 1112)
The defendant is charged in [Count _______ of] the indictment with voluntary manslaughter in violation of Section 1112 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 unlawfully killed [name of victim];
Second, while in a sudden quarrel or heat of passion, caused by adequate provocation:
a) the defendant intentionally killed [name of victim]; or
b) the defendant killed [name of victim] recklessly with extreme disregard for human life; and
Third, the killing occurred at [specify place of federal jurisdiction].
Heat of passion may be provoked by fear, rage, anger or terror. Provocation, in order to be adequate, must be such as might arouse a reasonable and ordinary person to kill someone.
Comment
As to the first element, if there is evidence of justification or excuse, the following language should be added: "A killing is unlawful within the meaning of this instruction if it was [not justifiable] [not excusable] [neither justifiable nor excusable]."
As to the second element, the United States Code defines manslaughter as an "unlawful killing of a human being without malice." 18 U.S.C. § 1112. Such killing is voluntary manslaughter when it occurs "[u]pon a sudden quarrel or heat of passion." Id. However, noting tension between the common law and the boundaries of these statutory definitions, the circuit suggested that courts have leeway to reconcile the "apparent language" of the statute with the common law of homicide. See United States v. Quintero, 21 F.3d 885, 890-91 (9th Cir. 1994) (holding that intent without malice, not heat of passion, is essential element of voluntary manslaughter, despite "apparent" statutory language). But see United States v. Paul, 37 F.3d 496, 499 n.1 (9th Cir. 1994) (suggesting language from Quintero that intent to kill is necessary element of voluntary manslaughter is dicta; while most voluntary manslaughter cases involve intent to kill, it is possible that a defendant who killed unintentionally but recklessly with extreme disregard for human life may have acted in a heat of passion with adequate provocation, so as to commit voluntary manslaughter).
Regardless of whether the mental state of a defendant was to kill intentionally or to kill with extreme recklessness, the circuit has explained that acting under a heat of passion serves to negate the malice that otherwise would attach to an intentional or extremely reckless killing. United States v. Roston, 986 F.2d 1287, 1291 (9th Cir. 1993) (holding defendant’s showing of heat of passion negates presence of malice); Paul, 37 F.3d at 499 n.1 (holding heat of passion and adequate provocation negates malice that would otherwise attach if defendant killed with mental state required for murder—intent to kill or extreme recklessness—so that it would not be murder but manslaughter); Quintero, 21 F.3d at 890-91 (holding sudden quarrel or heat of passion are not essential elements of voluntary manslaughter, but may demonstrate that the defendant acted without malice).
The heat of passion standard found in the last paragraph of this instruction was suggested by Roston, 986 F.2d at 1291.
As to the third element, whether the crime alleged occurred at a particular location is a question of fact. Whether the location is within the special maritime and territorial jurisdiction of the United States or a federal prison is a question of law. See United States v. Gipe, 672 F.2d 777, 779 (9th Cir. 1982).
Heat of passion is not the only condition that might serve as a defense to a murder charge and reduce the offense to manslaughter. In Kleeman v. United States Parole Commission, 125 F.3d 725, 732 (9th Cir. 1997), the circuit suggested that an "extremely irrational and paranoid state of mind that severely impairs a defendant's capacity for self control" may also negate the malice attached to an intentional killing.
If there is evidence that the defendant acted in self-defense, see Instruction 6.8 (Self-Defense).
Voluntary and involuntary manslaughter are lesser included offenses of murder. United States v. Arnt, 474 F.3d 1159, 1163 (9th Cir. 2007). However, they are not lesser included offenses of felony murder. United States v. Miguel, 338 F.3d 995, 1004-06 (9th Cir. 2003).
Second degree murder is reduced to voluntary manslaughter if the unlawful killing is done upon a sudden quarrel or in the heat of passion caused by adequate provocation. Roston, 986 F.2d 1290-91.
The trial judge may be obligated to give an instruction on involuntary manslaughter in a murder case even when the defense does not offer the instruction. In United States v. Anderson, 201 F.3d 1145, 1150 (9th Cir. 2000), the Ninth Circuit concluded it was plain error for the court not to instruct the jury on involuntary manslaughter, even though the defendant had not requested such an instruction, because there was evidence in the record to support the theory that the killing was accidental.
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8.110 MANSLAUGHTER—INVOLUNTARY
(18 U.S.C. § 1112)
The defendant is charged in [Count _______ of] the indictment with involuntary manslaughter in violation of Section 1112 of Title 18 of the United States Code. [Involuntary manslaughter is the unlawful killing of a human being without malice aforethought and without an intent to kill.] 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 committed an act that might produce death;
Second, the defendant acted with gross negligence, defined as wanton or reckless disregard for human life;
Third, the defendant’s act was the proximate cause of the death of the victim. A proximate cause is one that played a substantial part in bringing about the death, so that the death was the direct result or a reasonably probable consequence of the defendant's act;
Fourth, the killing was unlawful;
Fifth, the defendant either knew that such conduct was a threat to the lives of others or knew of circumstances that would reasonably cause the defendant to foresee that such conduct might be a threat to the lives of others; and
Sixth, the killing occurred at [specify place of federal jurisdiction].
Comment
With respect to the first and second elements, see United States v. Garcia, 729 F.3d 1171 (9th Cir. 2013).
While the third element is not in the statute, it is required by United States v. Main, 113 F.3d 1046, 1049-50 (9th Cir. 1997) ("When the jury is not told that it must find that the victim’s death was within the risk created by the defendant’s conduct an element of the crime has been erroneously withdrawn from the jury. . . . It is not relevant that § 1112 does not expressly mention proximate cause.").
As to the fourth element, if there is evidence of justification or excuse, the following language should be added: "A killing is unlawful within the meaning of this instruction if it was [not justifiable] [not excusable] [neither justifiable nor excusable]."
While the fifth element is not in the statute, it is required by United States v. Keith, 605 F.2d 462, 463 (9th Cir. 1979).
As to the sixth element, whether the crime alleged occurred at a particular location is a question of fact. Whether the location is within the special maritime and territorial jurisdiction of the United States or a federal prison is a question of law. See United States v. Gipe, 672 F.2d 777, 779 (9th Cir. 1982).
The trial judge may be obligated to give an instruction on involuntary manslaughter in a murder case even when the defense does not offer the instruction. In United States v. Anderson, 201 F.3d 1145, 1150 (9th Cir. 2000), the Ninth Circuit concluded it was plain error for the court not to instruct the jury on involuntary manslaughter, even though the defendant had not requested such an instruction, because there was evidence in the record to support the theory that the killing was accidental.
A two-step test applies to determine whether the trial judge is obligated to give an instruction on involuntary manslaughter in a murder case. United States v. Arnt, 474 F.3d 1159, 1163 (9th Cir. 2007). The first step is a legal question: "Is the offense for which the instruction is sought a lesser-included offense of the charged offense?" Id. "The second step is a factual inquiry: Does the record contain evidence that would support conviction of the lesser offense?" Id. Voluntary and involuntary manslaughter are lesser included offenses of murder. Id. However, they are not lesser included offenses of felony murder. United States v. Miguel, 338 F.3d 995, 1004-06 (9th Cir. 2003).
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8.111 ATTEMPTED MURDER
(18 U.S.C. § 1113)
The defendant is charged in [Count __________ of] the indictment with attempted murder in violation of Section 1113 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 did something that was a substantial step toward killing [name of intended victim] and that strongly corroborated the defendant’s intent to commit that crime;
Second, when the defendant took that substantial step, the defendant intended to kill [name of intended victim]; and
Third,the attempted killing occurred at [specify place of federal jurisdiction].
Mere preparation is not a substantial step toward committing the crime. To constitute a substantial step, a defendant’s act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.
Comment
"To constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances." United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (internal quotations omitted).
The "strongly corroborated" language in this instruction is taken from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) ("A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent") and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).
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).
See Braxton v. United States, 500 U.S. 344, n.351 (1991) ("Although a murder may be committed without an intent to kill, an attempt to commit murder requires a specific intent to kill.") (citations omitted). Although one acting "recklessly with extreme disregard for human life" can be convicted of murder if a killing results (see Instruction 8.107 (Murder—First Degree) and 8.108 (Murder—Second Degree)), that same recklessness cannot support a conviction of attempted murder if, fortuitously, no one is killed. See United States v. Kwong, 14 F.3d 189, 194-95 (2d Cir. 1994) (holding that under 18 U.S.C. § 1113, attempted murder conviction requires proof of specific intent to kill; recklessness and wanton conduct, grossly deviating from a reasonable standard of care such that defendant was aware of the serious risk of death, would not suffice as proof of an intent to kill).
"[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime." United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).
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8.112 KILLING OR ATTEMPTING TO KILL FEDERAL OFFICER OR EMPLOYEE
(18 U.S.C. § 1114)
Comment
If a defendant is charged with murder, manslaughter, attempted murder, or attempted manslaughter of an officer or employee of the United States in violation of 18 U.S.C. § 1114, the appropriate murder instruction (8.107, Murder—First Degree or 8.108, Murder—Second Degree), manslaughter instruction (8.109, Manslaughter—Voluntary or 8.110, Manslaughter—Involuntary ) or attempted murder instruction (8.111, Attempted Murder) should be used but modified to require the jury to find that the victim was a federal officer or employee and that at the time of the killing the victim was engaged in the victim’s official duties or was killed on account of the performance of his/her official duties. An element alleging that the killing or attempted killing occurred at a place of federal jurisdiction, that is, within the special maritime and territorial jurisdiction of the United States is not necessary here.
For an instruction defining "official duties," see United States v. Ornelas, 906 F.3d 1138, 1149 (9th Cir. 2018) (upholding "official duties" instruction stating that test for determining whether officer is "[e]ngaged in the performance of official duties" is "whether the officer is acting within the scope of his employment, that is, whether the officer’s actions fall within his agency’s overall mission, in contrast to engaging in a personal frolic of his own"); see also United States v. Juvenile Female, 566 F.3d 943, 950 (9th Cir. 2009) (describing official duties test as "whether [the officer] is acting within the scope of what he is employed to do, as distinguished from engaging in a personal frolic of his own").
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8.113 DETERMINATION OF INDIAN STATUS FOR
OFFENSES COMMITTED WITHIN INDIAN COUNTRY
(18 U.S.C. § 1153)
In order for the defendant to be found to be an Indian, the government must prove the following, beyond a reasonable doubt:
First, the defendant has some quantum of Indian blood, whether or not that blood is traceable to a member of a federally recognized tribe; and
Second, the defendant was a member of, or affiliated with, a federally recognized tribe at the time of the offense.
[I instruct you that [specify tribe] is a federally recognized tribe.]
Whether the defendant was a member of, or affiliated with, a federally recognized tribe is determined by considering four factors, in declining order of importance, as follows:
1. Enrollment in a federally recognized tribe;
2. Government recognition formally and informally through receipt of assistance reserved only to individuals who are members, or are eligible to become members, of federally recognized tribes;
3. Enjoyment of the benefits of affiliation with a federally recognized tribe; and
4. Social recognition as someone affiliated with a federally recognized tribe through residence on a reservation and participation in the social life of a federally recognized tribe.
Comment
Indian status is a jurisdictional element under 18 U.S.C. § 1153. See United States v. Bruce, 394 F.3d 1215, 1223-24 (9th Cir. 2005). "[T]he government must prove that the defendant was an Indian at the time of the offense with which the defendant is charged." United States v. Zepeda, 792 F.3d 1103, 1113 (9th Cir. 2015) (en banc). This rule applies with the same force when the Indian status of the victim is in question under 18 U.S.C. § 1152. United States v. Reza-Ramos, 816 F.3d 110, 1120-21 (9th Cir. 2016). As to the first element, the defendant must have a blood connection to an Indian tribe, but the tribe need not be federally recognized. Zepeda, 792 F.3d 1103, 1113. With regard to the second element, the defendant must have a current affiliation with a federally recognized tribe. Id. It is plain error for the court to fail to instruct on each of the two prongs of the Indian status test. Reza-Ramos, 816 F.3d at 1123.
Offenses committed within Indian country are identified in 18 U.S.C. § 1153(a) as follows: murder, manslaughter, kidnapping, maiming, a felony under chapter 109A (sexual abuse felonies), incest, assault with intent to commit murder, assault with a dangerous weapon, assault resulting in serious bodily injury (as defined in 18 U.S.C. § 1365), an assault against an individual who has not attained the age of 16 years, arson, burglary, robbery, and a felony under section 661 (embezzlement and theft) committed by any Indian against the person or property of another Indian or other person within Indian country.
For the enumerated offenses prosecuted under 18 U.S.C. § 1153, the court should give
Instruction 8.113, and the jury instruction used for the substantive offense should include two additional elements, as follows:
[Number of element], the [specify offense] occurred at a place within the [name of the alleged Indian Country where the offense occurred], which I instruct you is in Indian Country.
[Number of element], the defendant is an Indian.
Whether the offense occurred at a particular location is a question of fact to be decided
by the jury, with the court determining the jurisdictional question of whether the location is within Indian country as a question of law. See United States v. Gipe, 672 F.2d 777, 779 (9th Cir. 1982).
It is plain error for the court to fail to instruct on each of the two prongs of the Indian
status test. Reza-Ramos, 816 F.3d at 1123.
As to the first element, the defendant must have a blood connection to an Indian tribe, but the tribe need not be federally recognized. Zepeda, 792 F.3d at 1113.
As to the second element, the defendant must have a current affiliation with a federally recognized tribe. Id. "The federally recognized tribe with which a defendant is currently affiliated need not be, and sometimes is not, the same as the tribe or tribes from which his bloodline derives." Zepeda, 792 F.3d at 1110.
The court also must instruct the jury of the "declining order of importance" of the four factors used to determine whether the defendant was a member of, or affiliated with, a federally recognized tribe at the time of the offense. Zepeda, 792 F.3d at 1114.
Whether a tribe is federally recognized is a question of law to be determined by the court. Id. at 1115. "[T]he list of federally recognized tribes [at the time of the offense] prepared by the Bureau of Indian Affairs (BIA) is the best evidence of a tribe’s federal recognition. Reza-Ramos, 816 F.3d at 1122 (9th Cir. 2016). "If the court has found that the tribe of which the government claims the defendant is a member, or with which the defendant is affiliated, is federally recognized, it should inform the jury that the tribe is federally recognized as a matter of law." Zepeda, 792 F.3d at 1114-15.
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8.114 KIDNAPPING—INTERSTATE TRANSPORTATION
(18 U.S.C. § 1201(a)(1))
The defendant is charged in [Count _______ of] the indictment with kidnapping in violation of Section 1201(a)(1) 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 [seized] [confined] [inveigled] [decoyed] [kidnapped] [abducted] [carried away] [name of kidnapped person];
Second, the defendant [held] [detained] [name of kidnapped person] against [his][her] will; and
[Third, the defendant intentionally transported [name of kidnapped person] across state lines]
or
[Third, the defendant [traveled in [interstate][foreign] commerce] [used the mail [in committing] [in furtherance of] the offense] [used any [means] [facility] [instrumentality] of [interstate][foreign] commerce in [committing] [furtherance of committing] the offense].
[The government is not required to prove that the defendant kidnapped [name of kidnapped person] for reward or ransom, or for any other purpose.]
[The fact that [name of kidnapped person] [may have] initially voluntarily accompanied the defendant does not necessarily [prevent the occurrence] [negate the existence] of a later kidnapping.]
Comment
A previous version of this instruction included language requiring that the kidnapping be for "ransom, reward, or other benefit." The Committee has deleted this language in light of contrary case law. See United States v. Healy, 376 U.S. 75, 81 (1964) (noting that 1934 amendment to §1201(a) "was intended to make clear that a nonpecuniary motive did not preclude prosecution under the statute . . . . The wording certainly suggests no distinction based on the ultimate purpose of a kidnaping"); Gawne v. United States, 409 F.2d 1399, 1403 (9th Cir. 1969) ("[I]n light of the language and legislative history of the 1934 amendment a purpose to obtain pecuniary benefit [is] no longer required . . . [and] an illegal purpose need not be shown") (internal quotations and citations omitted). Cf. United States v. Bradshaw, 690 F.2d 704, 708 (9th Cir. 1982) ("Although it is true that motive need not be proved under 18 U.S.C. § 1201, it is far from irrelevant. Motive is evidence of the commission of any crime").
"The act of holding a kidnapped person . . . necessarily implies an unlawful physical or mental restraint for an appreciable period against the person’s will and with a willful intent so to confine the victim. If the victim is of such an age or mental state as to be incapable of having a recognizable will, the confinement then must be against the will of the parents or legal guardian of the victim." Chatwin v. United States, 326 U.S. 455, 460 (1946). The "involuntariness of seizure and detention . . . is the very essence of the crime of kidnaping." Id. at 464.
As to the last paragraph of the instruction, see United States v. Redmond, 803 F.2d 438, 439 (9th Cir. 1986) ("The fact that one originally accompanies another without being forced does not prevent the occurrence of a kidnapping where force is later used to seize or confine the victim.").
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8.115 KIDNAPPING—WITHIN SPECIAL MARITIME AND TERRITORIAL
JURISDICTION OF UNITED STATES
(18 U.S.C. § 1201(a)(2))
The defendant is charged in [Count _______ of] the indictment with kidnapping [name of kidnapped person] within the special maritime and territorial jurisdiction of the United States in violation of Section 1201(a)(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 each of the following elements beyond a reasonable doubt:
First, the defendant [seized] [confined] [inveigled] [decoyed] [kidnapped] [abducted] [carried away] [name of kidnapped person] within [specify place of federal jurisdiction]; and
Second, the defendant [held] [detained] [name of kidnapped person] against [his][her] will.
[The government is not required to prove that the defendant kidnapped [name of kidnapped person] for reward or ransom, or for any other purpose.]
[The fact that [name of kidnapped person] [may have] initially voluntarily accompanied the defendant does not necessarily [prevent the occurrence] [negate the existence] of a later kidnapping.]
Comment
See Comment to Instruction 8.114 (Kidnapping—Interstate Transportation).
"Special maritime and territorial jurisdiction of the United States" is defined in 18 U.S.C. § 7. While federal jurisdiction over the place may be determined as a matter of law, the locus of the offense within that place is an issue for the jury. United States v. Gipe, 672 F.2d 777, 779 (9th Cir. 1982).
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8.116 KIDNAPPING—FOREIGN OFFICIAL OR OFFICIAL GUEST
(18 U.S.C. § 1201(a)(4))
The defendant is charged in [Count _______ of] the indictment with kidnapping [a foreign official] [an internationally protected person] [an official guest] in violation of Section 1201(a)(4) 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 [seized] [confined] [inveigled] [decoyed] [kidnapped] [abducted] [carried away] [name of kidnapped person];
Second, [name of kidnapped person] was [specify status]; and
Third, the defendant [held] [detained] [name of kidnapped person] against [his][her] will.
[The government is not required to prove that the defendant kidnapped [name of kidnapped person] for reward or ransom, or for any other purpose.]
[The fact that [name of kidnapped person] [may have] initially voluntarily accompanied the defendant does not necessarily [prevent the occurrence] [negate the existence] of a later kidnapping.]
Comment
See Comment to Instruction 8.114 (Kidnapping—Interstate Transportation).
"Foreign official," "internationally protected person," and "official guest" are defined in 18 U.S.C. § 1116(b).
Approved 6/2019
8.117 KIDNAPPING—FEDERAL OFFICER OR EMPLOYEE
(18 U.S.C. § 1201(a)(5))
The defendant is charged in [Count _______ of] the indictment with kidnapping a federal officer or employee in violation of Section 1201(a)(5) 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 [seized] [confined] [inveigled] [decoyed] [kidnapped] [abducted] [carried away] [name of kidnapped person];
Second, at the time [name of kidnapped person] was [specify federal office or employment position];
Third, the defendant acted while [name of kidnapped person] was engaged in, or on account of, the performance of official duties; and
Fourth, the defendant [held] [detained] [name of kidnapped person] against [his][her] will.
[The government is not required to prove that the defendant kidnapped [name of kidnapped person] for reward or ransom, or for any other purpose.]
[The fact that [name of kidnapped person] [may have] initially voluntarily accompanied the defendant does not necessarily [prevent the occurrence] [negate the existence] of a later kidnapping.]
Comment
See Comment to Instruction 8.114 (Kidnapping—Interstate Transportation).
Federal officers or employees who may be the victim of a kidnapping are listed in 18 U.S.C. § 1114.
Approved 6/2019
8.118 ATTEMPTED KIDNAPPING—
FOREIGN OFFICIAL OR OFFICIAL GUEST
(18 U.S.C. § 1201(d))
The defendant is charged in [Count _______ of] the indictment with attempting to kidnap [a foreign official] [an official guest] [an internationally protected person] in violation of Section 1201(d) 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 intended to [seize] [confine] [inveigle] [decoy] [kidnap] [abduct] [carry away] and hold [a foreign official] [an official guest] [an internationally protected person] against [his] [her] will; and
Second, the defendant did something that was a substantial step toward committing the crime and that strongly corroborated the defendant’s intent to commit 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 unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.
Comment
See Comment to Instruction 8.114 (Kidnapping—Interstate Transportation).
"Foreign official," "official guest," and "internationally protected person" are defined in 18 U.S.C. § 1116(b).
"To constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances." United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (internal quotations omitted).
The "strongly corroborated" language in this instruction is taken from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) ("A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent") and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).
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).
"[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime." United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).
Approved 6/2019
8.119 ATTEMPTED KIDNAPPING—FEDERAL OFFICER OR EMPLOYEE
(18 U.S.C. § 1201(d))
The defendant is charged in [Count _______ of] the indictment with attempting to kidnap a [federal officer] [federal employee] in violation of Section 1201(d) 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 intended to [seize] [confine] [inveigle] [decoy] [kidnap] [abduct] [carry away] and to hold a [federal officer] [federal employee] against [his] [her] will, on account of or during the performance of [his] [her] official duties; and
Second, the defendant did something that was a substantial step toward committing the crime and that strongly corroborated the defendant’s intent to commit 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 unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.
Comment
See Comment to Instruction 8.114 (Kidnapping—Interstate Transportation).
Federal officers or employees who may be victims of kidnapping are listed in 18 U.S.C. § 1114.
As to the first element, for an instruction defining "official duties," see United States v. Ornelas, 906 F.3d 1138, 1149 (9th Cir. 2018) (upholding "official duties" instruction providing that test for determining whether officer is "[e]ngaged in the performance of official duties" is "whether the officer is acting within the scope of his employment, that is, whether the officer’s actions fall within his agency’s overall mission, in contrast to engaging in a personal frolic of his own"); see also United States v. Juvenile Female, 566 F.3d 943, 950 (9th Cir. 2009) (describing official duties test as "whether [the officer] is acting within the scope of what he is employed to do, as distinguished from engaging in a personal frolic of his own").
As to the second element, [t]o constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances." United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (internal quotations omitted).
The "strongly corroborated" language in this instruction is taken from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) ("A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent") and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).
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).
"[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime." United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).
Approved 6/2019
8.120 HOSTAGE TAKING
(18 U.S.C. § 1203(a))
The defendant is charged in [Count _______ of] the indictment with taking a person hostage in violation of Section 1203(a) of Title 18 of the United States Code. In order for a defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant intentionally seized or detained a person;
Second, the defendant threatened to kill, injure, or continue to detain that person; and
Third, the defendant did so with the purpose and intention of compelling a third person [or government organization] to act, or refrain from acting, in some way, as an explicit or implicit condition for the release of the seized or detained person.
A person is "seized" or "detained" when the person is held or confined against his or her will by physical restraint, fear, or deception for an appreciable period of time.
[The fact that the person may initially agree to accompany the hostage taker does not prevent a later "seizure" or "detention."]
Comment
In a case involving foreign national defendants, the Ninth Circuit has held that along with these three elements, 18 U.S.C. § 1203(b) "requires some international element," but does not require proof of nexus to international terrorism. United States v. Mikhel, 889 F.3d 1003, 1022 (9th Cir. 2018).
The crime of hostage taking is not limited to taking aliens as hostages. United States v. Sierra-Velasquez, 310 F.3d 1217, 1220 (9th Cir. 2002), cert. denied, 538 U.S. 952 (2003). In the context of alien smuggling, it is not necessary that the smuggler demand an increase in fee in order for the smuggler to be found guilty of hostage taking. Id. See 18 U.S. C. § 1203(b)(1) and (2) limiting the application of this offense.
As to the specific intent element, see United States v. Fei Lin, 139 F.3d 1303, 1305-06 (9th Cir. 1998) (holding that statute "does contemplate that the defendant must not merely engage in conduct knowingly, but purposefully and intentionally").
As to the penultimate paragraph of the instruction, see United States v. Carrion-Caliz, 944 F.2d 220,225 (5th Cir. 1991) (holding that hostage is "seized" or "detained" within meaning of Hostage Taking Act "when she is held or confined against her will for an appreciable period of time").
As to the last paragraph of the instruction, see United States v. Lopez-Flores,63 F.3d 1468, 1477 (9th Cir. 1995) ("[T]hat the hostage may initially agree to accompany the hostage taker does not prevent a later ‘seizure’ or ‘detention’ within the meaning of the Hostage Taking Act") (quoting Carrion-Caliz, 944 F.2d at 226); see also Sierra-Valasquez, 310 F.3d at 1220 ("There was a seizure or detention within the meaning of § 1203(a) from the time the defendants began to hold the aliens in a manner that was not contemplated in the alien smuggling agreement. At that point, the aliens were no longer consensually in the custody of the smuggling defendants.").
Approved 6/2019
8.121 MAIL FRAUD—SCHEME TO DEFRAUD OR TO OBTAIN
MONEY OR PROPERTYBY FALSE PROMISES
(18 U.S.C. § 1341)
The defendant is charged in [Count _______ of] the indictment with mail fraud in violation of Section 1341 of Title 18 of the United States Code. 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 knowingly [participated in] [devised] [intended to devise] a scheme or plan to defraud, or a scheme or plan for obtaining money or property by means of false or fraudulent pretenses, representations, or promises[, or omitted facts.] [Deceitful statements of half-truths may constitute false or fraudulent representations];
Second, the statements made or facts omitted as part of the scheme were material; that is, they had a natural tendency to influence, or were capable of influencing, a person to part with money or property;
Third, the defendant acted with the intent to defraud; that is, the intent to deceive and cheat; and
Fourth, the defendant used, or caused to be used, the mails to carry out or attempt to carry out an essential part of the scheme.
In determining whether a scheme to defraud exists, you may consider not only the defendant’s words and statements, but also the circumstances in which they are used as a whole.
[To convict defendant[s] of mail fraud based on omission[s] of material fact[s], you must find that defendant[s] had a duty to disclose the omitted fact[s] arising out of a relationship of trust. That duty can arise either out of a formal fiduciary relationship, or an informal, trusting relationship in which one party acts for the benefit of another and induces the trusting party to relax the care and vigilance that it would ordinarily exercise.]
A mailing is caused when one knows that the mails will be used in the ordinary course of business or when one can reasonably foresee such use. It does not matter whether the material mailed was itself false or deceptive so long as the mail was used as a part of the scheme, nor does it matter whether the scheme or plan was successful or that any money or property was obtained.
Comment
Use this instruction with respect to a crime charged under the second clause of 18 U.S.C. § 1341.
The validity of this instruction was initially confirmed in United States v. Holden, 908 F.3d 395, 399-401 (9th Cir. 2018), as amended on denial of reh’g (Oct. 30, 2018). However, in United States v. Miller, 953 F.3d 1095, 1101-03 (9th Cir. 2020), the Ninth Circuit expressly considered the intent language in Instruction 8.124 (Wire Fraud), which mirrors the intent language for mail fraud in this instruction, and held that wire fraud (and thus mail fraud) requires the intent to “deceive and cheat.” The Miller Court thus overruled prior holdings approving the “deceive or cheat” language in light of the Supreme Court’s decision in Shaw v. United States, 137 S. Ct. 462, 469 (2016). Id. at 1102. Miller does not disturb Holden’s ruling that, although the mail and wire fraud statutes expressly punish only those who “devise . . . or intend . . . to devise” a fraudulent scheme, those who “participate in” such a scheme also fall within the statute’s ambit. Holden, 908 F.3d at 399-401.
Much of the language in this instruction comes from the instructions approved in United States v. Woods, 335 F.3d 993 (9th Cir. 2003). Materiality is an essential element of the crime of mail fraud. Neder v. United States, 527 U.S. 1 (1999). Materiality of statements or promises must be established, United States v. Halbert, 640 F.2d 1000, 1007 (9th Cir. 1981), but the jury need not unanimously agree that a specific material false statement was made. United States v. Lyons, 472 F.3d 1055, 1068 (9th Cir. 2007). Materiality is a question of fact for the jury. United States v. Carpenter, 95 F.3d 773, 776 (9th Cir. 1996). The common-law test for materiality in the false-statement statutes, as reflected in the second element of this instruction, is the preferred formulation. United States v. Peterson, 538 F.3d 1064, 1072 (9th Cir. 2008).
For cases involving the failure to disclose material information, see United States v. Shields, 844 F.3d 819, 822-23 (9th Cir. 2016); United States v. Milovanovic, 678 F.3d 713, 723-24 (9th Cir.2012).
For a definition of "fiduciary" duty, see Ninth Circuit Model Criminal Instruction 8.123.
Success of the scheme is immaterial. United States v. Rude, 88 F.3d 1538, 1547 (9th Cir. 1996); United States v. Utz, 886 F.2d 1148, 1150-51 (9th Cir. 1989).
"[M]ailings designed to avoid detection or responsibility for a fraudulent scheme"—even if sent after the proceeds of the fraud have been obtained—may satisfy the fourth element of the instruction if "they are sent prior to the scheme’s completion." United States v. Tanke, 743 F.3d 1296, 1305 (9th Cir. 2014). To determine when the scheme ends, the jury must look to the scope of the scheme as devised by the perpetrator. Id. But allowance must be made for the reality that fraudulent schemes "may evolve over time, contemplate no fixed end date or adapt to changed circumstances." Id. See also Schmuck v. United States, 489 U.S. 705, 712 (1989) (holding that mailing that is "incident to an essential part of the scheme" or "a step in the plot" satisfies mailing element of offense); United States v. Hubbard, 96 F.3d 1223, 1228–29 (9th Cir. 1996) (same).
See United States v. LeVeque, 283 F.3d 1098, 1102 (9th Cir. 2002) (holding that government-issued license does not constitute property for purposes of § 1341).
A charge of mail fraud can be premised on a mailing that, although not sent by the defendant, was "incident to an essential part of the scheme." See United States v. Eglash, 813 F.3d 882, 886 (9th Cir. 2016) (quoting Schmuck v. United States, 489 U.S. 705, 721 (1989) (affirming conviction for mail fraud premised on Social Security Administration’s mailing of notice of disability award); see also United States v. Brown, 771 F.3d 1149, 1158 (9th Cir. 2014) (affirming conviction for mail fraud based on mailings by bankruptcy court of Notice of Chapter 7 Bankruptcy Case and Notice of Discharge).
Approved 6/2021
8.122 SCHEME TO DEFRAUD—VICARIOUS LIABILITY
(18 U.S.C. §§ 1341, 1343, 1344, 1346)
If you decide that the defendant was a member of a scheme to defraud and that the defendant had the intent to defraud, the defendant may be responsible for other co-schemers’ actions during the course of and in furtherance of the scheme, even if the defendant did not know what they said or did.
For the defendant to be guilty of an offense committed by a co-schemer in furtherance of the scheme, the offense must be one that the defendant could reasonably foresee as a necessary and natural consequence of the scheme to defraud.
Comment
This instruction is based on the co-schemer liability instruction approved by United States v. Stapleton, 293 F.3d 1111, 1115-18 (9th Cir.2002) (no error of law in court’s instruction on elements of co-schemer vicarious liability, when court also correctly instructed on scheme to defraud), and the Ninth Circuit’s guidance on vicarious liability in United States v. Green, 592 F.3d 1057, 1070-71 (9th Cir.2010).
When this instruction is appropriate, it should be given in addition to Instructions 8.121 (Mail Fraud—Scheme to Defraud or to Obtain Money or Property by False Promises), 8.123 (Mail Fraud—Scheme to Defraud—Deprivation of Intangible Right of Honest Services, 8.124 (Wire Fraud) or 8.127 (Bank Fraud—Scheme to Defraud by False Promises). See Stapleton, 293 F.3d at 1118-20.
On co-schemer liability generally, see United States v. Blitz, 151 F.3d 1002, 1006 (9th Cir.1998) (stating that knowing participant in scheme to defraud is liable for fraudulent acts of co-schemers); United States v. Lothian, 976 F.2d 1257, 1262-63 (9th Cir.1992) (discussing similarity of co-conspirator and co-schemer liability); and United States v. Dadanian, 818 F.2d 1443, 1446 (9th Cir.1987), modified, 856 F.2d 1391 (1988) ("[K]nowing participants in the scheme are legally liable for their co-schemer’s use of mails or wires").
Approved 6/2021
8.123 MAIL FRAUD—SCHEME TO DEFRAUD—DEPRIVATION OF
INTANGIBLE RIGHT OF HONEST SERVICES
(18 U.S.C. §§ 1341 and 1346)
The defendant is charged in [Count _______ of] the indictment with mail fraud in violation of Section 1341 of Title 18 of the United States Code. 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 devised or knowingly participated in a scheme or plan to deprive [name of victim] of [his] [her] right of honest services;
Second,the scheme or plan consists of a [bribe] [kickback] in exchange for the defendant’s services. The "exchange" may be express or may be implied from all the surrounding circumstances;
Third, the defendant owed a fiduciary duty to [name of victim];
Fourth, the defendant acted with the intent to defraud by depriving [name of victim] of [his] [her] right of honest services;
Fifth, the defendant’s act was material; that is, it had a natural tendency to influence, or was capable of influencing, [a person’s] [an entity’s] acts; and
Sixth, the defendant used, or caused someone to use, the mails to carry out or to attempt to carry out the scheme or plan.
A "fiduciary" duty exists whenever one [person] [entity] places special trust and confidence in another person–the fiduciary–in reliance that the fiduciary will exercise [his] [her] discretion and expertise with the utmost honesty and forthrightness in the interests of the [person] [entity], such that the [person] [entity] relaxes the care and vigilance that [he] [she] [it] would ordinarily exercise, and the fiduciary knowingly accepts that special trust and confidence and thereafter undertakes to act on behalf of the other [person] [entity] based on such reliance.
The mere fact that a business relationship arises between two persons does not mean that either owes a fiduciary duty to the other. If one person engages or employs another and thereafter directs, supervises, or approves the other’s actions, the person so employed is not necessarily a fiduciary. Rather, as previously stated, it is only when one party places, and the other accepts, a special trust and confidence—usually involving the exercise of professional expertise and discretion—that a fiduciary relationship exists.
A mailing is caused when one knows that the mails will be used in the ordinary course of business or when one can reasonably foresee such use. It does not matter whether the material mailed was itself false or deceptive so long as the mail was used as a part of the scheme, nor does it matter whether the scheme or plan was successful or that any money or property was obtained.
Comment
Honest services fraud criminalizes only schemes to defraud that involve bribery or kickbacks. Skilling v. United States, 561 U.S. 358, 408-09 (2010); Black v. United States, 561 U.S. 465, 471 (2010). Undisclosed conflicts of interest, or undisclosed self-dealing, is not sufficient. Skilling, 561 U.S. at 409-10. This instruction is limited to honest services schemes to defraud that involve a bribe or kickback because there is, as yet, no controlling case law subsequent to Skilling that extends honest services fraud to any other circumstance. See id. at 412 ("no other misconduct falls within § 1346’s province").
The "prohibition on bribes and kickbacks draws content not only from the pre-McNally case law, but also from federal statutes proscribing – and defining – similar crimes." Id. (citing 18 U.S.C. §§ 201(b) (bribery), 666(a)(2); 41 U.S.C. § 52(2) (kickbacks)); see also McNally v. United States, 483 U.S. 350 (1987). However, conduct constituting a bribe or kickback under either state law or federal law establishes the second element of a charge of services fraud. See United States v. Christensen, 828 F.3d 763 (9th Cir.2015), as amended on denial of reh’g (July 8, 2016) (affirming RICO conviction when honest services fraud predicate act under § 1346 was premised on violation of California state bribery law). Although it did not define bribery or kickbacks, the Supreme Court in Skilling cited three appellate decisions that reviewed jury instructions on the bribery element of honest services fraud. Skilling, 561 U.S. at 413 (citing United States v. Ganim, 510 F.3d 134, 147-49 (2d Cir.2007); United States v. Whitfield, 590 F.3d 325, 352-53 (5th Cir.2009); and United States v. Kemp, 500 F.3d 257, 281-86 (3d Cir.2007)). In the Ninth Circuit, bribery requires at least an implicit quid pro quo. United States v. Kincaid-Chauncey, 556 F.3d 923, 941 (9th Cir.2009). "Only individuals who can be shown to have had the specific intent to trade official actions for items of value are subject to criminal punishment on this theory of honest services fraud." Id. at 943 n.15. The quid pro quo need not be explicit, and an implicit quid pro quo need not concern a specific official act. Id. at 945-46 (citing Kemp, 500 F.3d at 282 ("[T]he government need not prove that each gift was provided with the intent to prompt a specific official act.")). A quid pro quo requirement is satisfied if the evidence shows a course of conduct of favors and gifts flowing to a public official in exchange for a pattern of official acts favorable to the donor. Id. at 943. Bribery is to be distinguished from legal lobbying activities. Id. at 942, 946 (citing Kemp, 500 F.3d at 281-82). These principles are consistent with the appellate decisions cited by the Supreme Court.
The Supreme Court in Skilling cited a statutory definition of kickbacks. Skilling, 561 U.S. at 412 ("‘The term ‘kickback’ means any money, fee, commission, credit, gift, gratuity, thing of value, or compensation of any kind which is provided, directly or indirectly, to [enumerated persons] for the purpose of improperly obtaining or rewarding favorable treatment in connection with [enumerated circumstances].’") (quoting 41 U.S.C. 52(2)).
Relying on Skilling, the Ninth Circuit determined that breach of a fiduciary duty is an element of honest services fraud. United States v. Milovanovic, 678 F.3d 713 (9th Cir.2012) (en banc). The fiduciary duty required is not limited to the classic definition of the term but also extends to defendants who assume a comparable duty of loyalty, trust, or confidence with the victim. Id. at 723-24. "The existence of a fiduciary duty in a criminal prosecution is a fact-based determination that must ultimately be determined by a jury properly instructed on this issue." Id at 723.
Honest services fraud requires a "specific intent to defraud." Kincaid-Chauncey, 556 F.3d at 941.
The Ninth Circuit has expressly adopted the "materiality test" to bring § 1346 in line with the mail, wire, and bank fraud statutes. Milovanovic, 678 F.3d at 726-27. The common law test for materiality in the false statement statutes, as reflected in the fifth element of this instruction, is the preferred formulation. United States v. Peterson, 538 F.3d 1064, 1072 (9th Cir. 2008). In a public sector case, the government need not prove that the fraud involved any foreseeable economic harm. Milovanovic, 678 F.3d at 727 ("We do not need to decide whether in a private sector case there might be a requirement that economic damages be shown").
In the case of mail or wire fraud, the government need not prove a specific false statement was made. United States v. Woods, 335 F.3d 993, 999 (9th Cir. 2003). "Under the mail fraud statute the government is not required to prove any particular false statement was made. Rather, there are alternative routes to a mail fraud conviction, one being proof of a scheme or artifice to defraud, which may or may not involve any specific false statements." Id. (quoting United States v. Munoz, 233 F.3d 1117, 1131 (9th Cir. 2000) (internal citations omitted)).
Approved 6/2021
8.124 WIRE FRAUD
(18 U.S.C. § 1343)
The defendant is charged in [Count _______ of] the indictment with wire fraud in violation of Section 1343 of Title 18 of the United States Code. 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 knowingly [participated in] [devised] [intended to devise] a scheme or plan to defraud, or a scheme or plan for obtaining money or property by means of false or fraudulent pretenses, representations, or promises[, or omitted facts.] [Deceitful statements of half-truths may constitute false or fraudulent representations];
Second, the statements made or facts omitted as part of the scheme were material; that is, they had a natural tendency to influence, or were capable of influencing, a person to part with money or property;
Third, the defendant acted with the intent to defraud, that is, the intent to deceive and cheat; and
Fourth, the defendant used, or caused to be used, an interstate [or foreign] wire communication to carry out or attempt to carry out an essential part of the scheme.
In determining whether a scheme to defraud exists, you may consider not only the defendant’s words and statements, but also the circumstances in which they are used as a whole.
[To convict defendant[s] of wire fraud based on omission[s] of material fact[s], you must find that defendant[s] had a duty to disclose the omitted fact[s] arising out of a relationship of trust. That duty can arise either out of a formal fiduciary relationship, or an informal, trusting relationship in which one party acts for the benefit of another and induces the trusting party to relax the care and vigilance which it would ordinarily exercise.]
A wiring is caused when one knows that a wire will be used in the ordinary course of business or when one can reasonably foresee such use.
It need not have been reasonably foreseeable to the defendant that the wire communication would be interstate [or foreign] in nature. Rather, it must have been reasonably foreseeable to the defendant that some wire communication would occur in furtherance of the scheme, and an interstate [or foreign] wire communication must have actually occurred in furtherance of the scheme.
Comment
See also Comment to Instruction 8.121 (Mail Fraud—Scheme to Defraud or to Obtain Money or Property by False Promises). For cases involving wire fraud by deprivation of honest services, see Instruction 8.123 (Mail Fraud—Scheme to Defraud—Deprivation of Intangible Right of Honest Services).
The validity of this instruction was initially confirmed in United States v. Holden, 908 F.3d 395, 399-401 (9th Cir. 2018), as amended on denial of reh’g (Oct. 30, 2018). However, in United States v. Miller, 953 F.3d 1095, 1101-03 (9th Cir. 2020), the Ninth Circuit expressly considered this instruction and held that wire fraud requires the intent to “deceive and cheat”, thereby overruling prior holdings approving the “deceive or cheat” language in light of the Supreme Court’s decision in Shaw v. United States, 137 S. Ct. 462, 469 (2016). Id. at 1102. Miller reasoned that “to be guilty of wire fraud, a defendant must act with the intent not only to make false statements or utilize other forms of deception, but also to deprive a victim of money or property by means of those deceptions. In other words, a defendant must intend to deceive and cheat.” Id. at 1101. Miller does not disturb Holden’s ruling that although the mail and wire fraud statutes expressly punish only those who “devise . . . or intend . . . to devise” a fraudulent scheme, those who “participate in” such a scheme also fall within the statute’s ambit. Holden, 908 F.3d at 399-401. Miller also left unchanged the precedent that inten to repay “is not a defense to wire fraud.” Miller, 953. F.3d at 1103.
A defendant acts with the intent to deceive when he “make[s] false statements or utilize[s] other forms of deception[.]” Miller, 953 F.3d at 1101. A defendant acts with the intent to cheat when he engages in “a scheme or artifice to defraud or obtain money or property” and “deprive[s] a victim of money or property[.]” thereby “cheat[ing] someone out of something valuable.” Id.
In clarifying the distinction between “deceive” and “cheat,” Miller cites to United States v. Walters, 997 F.2d 1219 (7th Cir. 1993). In Walters, the court reviewed the conviction for mail fraud of a sports agent who had defrauded the NCAA, not by stealing its property, but by inducing college athletets to sign secret representation contracts in violation of the Association’s rules. Id. at 1221. Finding that the agent had deceived, but not cheated, his victim, the Seventh Circuit reversed the agent’s conviction, holding that the statute requires “a scheme to obtain money or other property from the victim,” and that while a deprivation of money or property is a necessary condition of mail fraud, “[l]osses that occur as byproducts of a deceitful scheme do not satisfy the statutory requirement” Id. at 1227.
The only difference between mail fraud and wire fraud is that the former involves the use of the mails and the latter involves the use of wire, radio, or television communication in interstate or foreign commerce. Much of the language of this instruction comes from the instructions approved in United States v. Jinian, 712 F.3d 1255, 1265-67 (9th Cir. 2013).
As with mail fraud, materiality is an essential element of the crime of wire fraud. Neder v. United States, 527 U.S. 1 (1999); United States v. Milovanovic, 678 F.3d 713, 726-27 (9th Cir. 2012) (en banc).
In a case involving wire fraud that "affects a financial institution" within the meaning of 18 U.S.C. § 1343, see United States v. Stargell, 738 F.3d 1018, 1022-23 (9th Cir. 2013) (defining term "affects").
For cases involving the failure to disclose material information, see United States v. Shields, 844 F.3d 819, 822-23 (9th Cir. 2016); United States v. Milovanovic, 678 F.3d 713, 723-24 (9th Cir. 2012).
For a definition of "fiduciary" duty, see Ninth Circuit Model Criminal Instruction 8.123.
Cases Involving Mortgage Fraud. In prosecutions for mortgage fraud under this statute, lender negligence in verifying loan application information, or even intentional disregard of the information, is not a defense to fraud, and so evidence of such negligence or intentional disregard is inadmissible as a defense against charges of mortgage fraud. See United States v. Lindsey, 850 F.3d 1009, 1015 (9th Cir. 2017). Also, when a lender requests specific information in its loan applications, that information is objectively material as a matter of law, regardless of the lenders’ policies or practices with respect to use of that information. Id. at 1015. Evidence of general lending standards in the mortgage industry, however, is admissible to disprove materiality. "This difference matters because materiality measures natural capacity to influence, not whether the statement actually influenced any decision." Id. at 1016.
Approved 6/2021
8.125 BANK FRAUD—SCHEME TO DEFRAUD BANK
(18 U.S.C. § 1344(1))
The defendant is charged in [Count _______ of] the indictment with bank fraud in violation of Section 1344(1) of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following beyond a reasonable doubt:
First, the defendant knowingly executed or attempted to execute a scheme to defraud a financial institution as to something of value;
Second, the defendant did so with the intent to defraud the financial institution; and
Third, the financial institution was insured by the Federal Deposit Insurance Corporation.
The phrase "scheme to defraud" means any deliberate plan of action or course of conduct by which someone intends to deceive or cheat a financial institution and deprive it of something of value. It is not necessary for the government to prove that a financial institution was the only or sole victim of the scheme to defraud. It is also not necessary for the government to prove that the defendant was actually successful in defrauding any financial institution. Finally, it is not necessary for the government to prove that any financial institution lost any money or property as a result of the scheme to defraud.
An intent to defraud is an intent to deceive or cheat.
Comment
When the scheme or artifice to defraud is a scheme or artifice to deprive another of the intangible right to honest services under 18 U.S.C. § 1346, use Instruction 8.126 (Bank Fraud—Scheme to Deprive Bank of Intangible Right of Honest Services).
A "scheme to defraud" under 18 U.S.C. § 1344(1) "must be one to [both] deceive the bank and deprive it of something of value." Shaw v. United States, 137 S. Ct. 462, 469 (2016).
In Shaw, the defendant created a scheme to siphon off funds from a bank depositor’s account through the use of PayPal, an online payment and money transfer service. The defendant argued that because the losses were eventually borne by the depositor and PayPal, and not the bank, he had not defrauded a "financial institution" within the meaning of § 1344(1). The Supreme Court rejected this argument, holding that for purposes of the bank fraud statute, a scheme fraudulently to obtain funds from a bank depositor’s account normally is also a scheme fraudulently to obtain property from a ‘financial institution,’ at least where, as here, the defendant knew that the bank held the deposits, the funds obtained came from the deposit account, and the defendant misled the bank in order to obtain those funds. Id. at 466. The Court also clarified that in a prosecution under § 1344(1), the government is not required to prove that the bank ultimately suffered a financial loss, that the defendant intended the bank to suffer a financial loss, or that the defendant was aware the bank had a property interest in its customer accounts. Id. at 467; see also United States v. Shaw, 885 F.3d 1217, 1219 (9th Cir. 2018) ("As the Supreme Court has now clarified, an intent to obtain money from a depositor’s bank account is sufficient to constitute bank fraud under 18 U.S.C. § 1344(1). It is not necessary to show an intent to cause the bank itself a financial loss.").
In United States v. Yates, 16 F.4th 256 (9th Cir. 2021), the Ninth Circuit vacated and remanded a conviction of two bank executives for bank fraud. The court rejected the government’s theories that the deprivation of “accurate information” or the officers’ salaries and bonuses could constitute the requisite deprivation of “something of value.” Id. at 264‑66. The court explained that “property deprivation ‘must play more than some bit part in a scheme’—the loss to the victim ‘must be an “object of the fraud,” ’ not a mere ‘implementation cost[ ]’ or ‘incidental byproduct of the scheme.’ ” Id. at 264, quoting Kelly v. United States, 140 S. Ct. 1565, 1573-74 (2020). The court, however, agreed with the government’s third theory of deprivation of something of value. “[W]e agree with the government that a bank has a property interest in its funds and that it ‘has the right to use [its] funds as a source of loans that help the bank earn profits.’ ” Id. at 268, quoting Shaw (alterations in original). “In addition, a bank’s right to its funds extends to the right to decide how to use those funds. So the fraudulent diversion of a bank’s funds for unauthorized purposes certainly could be the basis for a conviction under section 1344.” Id.
Approved 12/2021
8.126 BANK FRAUD—SCHEME TO DEPRIVE BANK OF
INTANGIBLE RIGHT OF HONEST SERVICES
(18 U.S.C. §§ 1344(1) and 1346)
The defendant is charged in [Count _______ of] the indictment with bank fraud in violation of Section 1344(1) of Title 18 of the United States Code. 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 devised or knowingly participated in a scheme or plan to deprive the [specify financial institution] of the right of honest services;
Second,the scheme or plan consists of a [bribe] [kickback] in exchange for the defendant’s services. The "exchange" may be express or may be implied from all the surrounding circumstances;
Third, the defendant owed a fiduciary duty to [specify financial institution];
Fourth, the defendant acted with the intent to defraud by depriving the [specify financial institution] of the right of honest services;
Fifth, the defendant’s act was material; that is, the act had a natural tendency to influence, or was capable of influencing, the decisionmaker or decisionmaking body to which it was directed; and
Sixth, the [specify financial institution] was federally [chartered] [insured].
A "fiduciary" duty exists whenever one [person] [entity] places special trust and confidence in another person–the fiduciary–in reliance that the fiduciary will exercise [his] [her] discretion and expertise with the utmost honesty and forthrightness in the interests of the [person] [entity], such that the [person] [entity] relaxes the care and vigilance that [he] [she] [it] would ordinarily exercise, and the fiduciary knowingly accepts that special trust and confidence and thereafter undertakes to act on behalf of the other [person] [entity] based on such reliance.
The mere fact that a business relationship arises between two persons does not mean that either owes a fiduciary duty to the other. If one person engages or employs another and thereafter directs, supervises, or approves the other’s actions, the person so employed is not necessarily a fiduciary. Rather, as previously stated, it is only when one party places, and the other accepts, a special trust and confidence—usually involving the exercise of professional expertise and discretion—that a fiduciary relationship exists.
Comment
Caution: Honest services fraud criminalizes only schemes to defraud that involve bribery or kickbacks. Skilling v. United States, 561 U.S. 358, 408-409 (2010); Black v. United States, 561 U.S. 465, 471 (2010).
See Comment to Instruction 8.123 (Mail Fraud—Scheme to Defraud—Deprivation of Intangible Right of Honest Services).
For a definition of "financial institution," see 18 U.S.C. § 20.
Approved 6/2021
8.126A ATTEMPTED BANK FRAUD—SCHEME TO DEPRIVE OF
INTANGIBLE RIGHT OF HONEST SERVICES
(18 U.S.C. §§ 1344(1) and 1346)
The defendant is charged in [Count _______ of] the indictment with attempted bank fraud in violation of Section 1344(1) of Title 18 of the United States Code. 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 devised or knowingly participated in a scheme or plan to deprive the [specify financial institution] of the right of honest services;
Second,the scheme or plan consists of a [bribe] [kickback] in exchange for the defendant’s services. The "exchange" may be express or may be implied from all the surrounding circumstances;
Third, the defendant owed a fiduciary duty to [specify financial institution];
Fourth, the defendant acted with the intent to defraud by depriving the [specify financial institution] of the right of honest services;
Fifth, the plan or scheme was material; that is, it had a natural tendency to, or was capable of depriving the [specify financial institution] of the right of honest services;
Sixth, the defendant did something that was a substantial step toward carrying out the plan or scheme to deprive the [specify financial institution] of the right of honest services, and that strongly corroborated the defendant’s intent to commit that crime; and
Seventh, the [specify financial institution] was federally [chartered] [insured].
A "fiduciary" duty exists whenever one [person] [entity] places special trust and confidence in another person–the fiduciary–in reliance that the fiduciary will exercise [his] [her] discretion and expertise with the utmost honesty and forthrightness in the interests of the [person] [entity], such that the [person] [entity] relaxes the care and vigilance that [he] [she] [it] would ordinarily exercise, and the fiduciary knowingly accepts that special trust and confidence and thereafter undertakes to act on behalf of the other [person] [entity] based on such reliance.
The mere fact that a business relationship arises between two persons does not mean that either owes a fiduciary duty to the other. If one person engages or employs another and thereafter directs, supervises, or approves the other’s actions, the person so employed is not necessarily a fiduciary. Rather, as previously stated, it is only when one party places, and the other accepts, a special trust and confidence—usually involving the exercise of professional expertise and discretion—that a fiduciary relationship exists.
Mere preparation is not a substantial step toward committing the crime. To constitute a substantial step, a defendant’s act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.
Comment
Caution: Honest services fraud criminalizes only schemes to defraud that involve bribery or kickbacks. Skilling v. United States, 561 U.S. 358, 408-409 (2010); Black v. United States, 561 U.S. 465, 471 (2010).
See Comment to Instruction 8.123 (Mail Fraud—Scheme to Defraud—Deprivation of Intangible Right of Honest Services).
For a definition of "financial institution," see 18 U.S.C. § 20.
"To constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances." United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (internal quotations omitted).
The "strongly corroborated" language in this instruction comes from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) ("A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent") and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).
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).
"[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime." United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).
Approved 6/2021
8.127 BANK FRAUD—SCHEME TO DEFRAUD BY FALSE PROMISES
(18 U.S.C. § 1344(2))
The defendant is charged in [Count _______ of] the indictment with bank fraud in violation of Section 1344(2) of Title 18 of the United States Code. 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 knowingly carried out a scheme or plan to obtain money or property from the [specify financial institution] by making false statements or promises;
Second, the defendant knew that the statements or promises were false;
Third, the statements or promises were material; that is, they had a natural tendency to influence, or were capable of influencing, a financial institution to part with money or property;
Fourth, the defendant acted with the intent to defraud; and
Fifth, [specify financial institution] was federally [chartered] [insured].
Comment
In United States v. Molinaro, 11 F.3d 853, 863 (9th Cir.1993), the Ninth Circuit approved the following instruction in a case involving the crime of bank fraud:
You may determine whether a defendant had an honest, good faith belief in the truth of the specific misrepresentations alleged in the indictment in determining whether or not the defendant acted with intent to defraud. However, a defendant’s belief that the victims of the fraud will be paid in the future or will sustain no economic loss is no defense to the crime.
Materiality is an essential element of the crime of bank fraud. Neder v. United States, 527 U.S. 1 (1999). The common law test for materiality in the false statement statutes, as reflected in the third element of this instruction, is the preferred formulation. United States v. Peterson, 538 F.3d 1064, 1072 (9th Cir.2008).
In Loughrin v. United States, 573 U.S.351 (2014), the defendant used a forged, stolen check to buy merchandise from a store, which he immediately returned for cash. On appeal he contended there was no evidence he intended to defraud a bank, only evidence that he intended to defraud the store. The Supreme Court held that the government need not prove the defendant intended to defraud a bank, and that Section 1344(2)’s "by means of" language is satisfied when "the defendant’s false statement was the mechanism naturally inducing a bank (or custodian of bank property) to part with money in its control." Id. at 363.
The government need not prove the defendant knowingly made false representations directly to a bank. United States v. Cloud, 872 F.2d 846, 851 n.5 (9th Cir.1989).
For a definition of "financial institution," see 18 U.S.C. § 20.
Approved 6/2021
8.128 ATTEMPTED BANK FRAUD—SCHEME TO DEFRAUD BY FALSE PROMISES
(18 U.S.C. § 1344)
The defendant is charged in [Count _______ of] the indictment with attempted bank fraud in violation of Section 1344 of Title 18 of the United States Code. 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 knowingly devised a plan or scheme to obtain money or property from the [specify financial institution] by false promises or statements;
Second, the promises or statements were material; that is, they had a natural tendency to influence, or were capable of influencing, a financial institution to part with money or property;
Third, the defendant acted with the intent to defraud;
Fourth, the defendant did something that was a substantial step toward carrying out the plan or scheme and that strongly corroborated the defendant’s intent to commit that crime; and
Fifth, [specify financial institution] was federally [chartered] [insured].
Mere preparation is not a substantial step toward committing the crime. To constitute a substantial step, a defendant’s act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.
Comment
In United States v. Molinaro, 11 F.3d 853, 863 (9th Cir. 1993), the Ninth Circuit approved the following instruction in a case involving the crime of bank fraud:
You may determine whether a defendant had an honest, good faith belief in the truth of the specific misrepresentations alleged in the indictment in determining whether or not the defendant acted with intent to defraud. However, a defendant's belief that the victims of the fraud will be paid in the future or will sustain no economic loss is no defense to the crime.
The government need not prove the defendant knowingly made false representations directly to a bank. United States v. Cloud, 872 F.2d 846, 851 n.5 (9th Cir. 1989).
Materiality is an essential element of the crime of bank fraud. Neder v. United States, 527 U.S. 1 (1999). The common law test for materiality in the false statement statutes, as reflected in the second element of this instruction, is the preferred formulation. United States v. Peterson, 538 F.3d 1064, 1072 (9th Cir. 2008).
For a definition of "financial institution," see 18 U.S.C. § 20.
"To constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances." United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (internal quotations omitted).
The "strongly corroborated" language in this instruction comes from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) ("A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent") and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).
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).
"[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime." United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).
Approved 6/2021
8.128A HEALTH CARE FRAUD
(18 U.S.C. § 1347)
The defendant is charged in [Count _______ of] the indictment with health care fraud in violation of Section 1347 of Title 18 of the United States Code. 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 knowingly and willfully [executed][attempted to execute] a scheme or plan to [defraud a health care benefit program][obtain [money][property] [owned by][under the custody or control of] a health care benefit program by means of material false or fraudulent [pretenses][representations][promises]];
Second, the defendant acted with the intent to defraud;
Third, [name of victim or attempted victim] was a health care benefit program; and
Fourth, the [scheme][plan] was executed in connection with the [delivery][payment] for health care [benefits][items][services].
Comment
See Instructions 5.5 (Willfully) and 5.7 (Knowingly—Defined); see also Instruction 5.8 (Deliberate Ignorance). In United States v. Hong, 938 F.3d 1040 (9th Cir. 2019), the Ninth Circuit discussed when it might be appropriate to give a deliberate ignorance (or willful blindness) instruction in the context of a charge of health care fraud.
"Health care benefit program" means any public or private plan or contract, affecting commerce, under which any medical benefit, item, or service is provided to any individual, and includes any individual or entity who is providing a medical benefit, item, or service for which payment may be made under the plan or contract. 18 U.S.C. § 24(b).
The required showing regarding a defendant’s intent may be satisfied by circumstantial evidence that he acted with reckless indifference to the truth or falsity of his statements. United States v. Dearing, 504 F.3d 897, 902 (9th Cir. 2007).
Approved 12/2019
8.128B SOLICITING OR RECEIVING KICKBACKS IN CONNECTION WITH
MEDICARE OR FEDERAL HEALTH CARE PROGRAM PAYMENTS
(42 U.S.C. § 1320a-7b(b)(1)(A))
The defendant is charged in [Count ______ of] the indictment with [soliciting] [receiving] kickbacks in connection with [Medicare] [federal health care program] payments in violation of Section 1320a-7b(b)(1)(A), of Title 42 of the United States Code. 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 knowingly and willfully [solicited] [received] [specify remuneration alleged];
Second, the [specify remuneration alleged] was [solicited] [paid] primarily in order to [induce] [and] [or] [in exchange for] the referral of a patient insured by [Medicare] [specify federal health care program ] for [furnishing] [arranging for the furnishing] of an item or service;
[and]
Third, the patient’s items or services [furnished] [arranged to be furnished] were covered, in whole or in part, by [Medicare] [specifiy federal health care program]; [and]
[Fourth, [Medicare] [specify federal health care program] is a federal health care program.]
Comment
This instruction is largely based on the Eighth Circuit’s Model Criminal Instruction 6.42.1320, as modified per the Ninth Circuit’s decision in United States v. Hong, 938 F.3d 1040, 1048-49 (9th Cir. 2019).
Approved 12/2019
8.129 OBSTRUCTION OF JUSTICE—INFLUENCING JUROR
(18 U.S.C. § 1503)
The defendant is charged in [Count _____ of] the indictment with obstruction of justice in violation of Section 1503 of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, [name of juror] was a [prospective] [grand] juror;
Second, the defendant tried to influence, intimidate, or impede [name of juror] in the discharge of [his] [her] duties as a [grand] juror; and
Third, the defendant acted corruptly, or by threats or force, or by any threatening communication, with the intent to obstruct justice.
[The government need not prove that the defendant’s sole or even primary intention was to obstruct justice so long as the government proves beyond a reasonable doubt that one of the defendant’s intentions was to obstruct justice. The defendant’s intention to obstruct justice must be substantial.]
Comment
See Comment at Instruction 3.15 (Corruptly—Defined).
If the corrupt act at issue involved the making of a false statement, materiality of the false statement is a required element of the crime. See United States v. Thomas, 612 F.3d 1107, 1123-24 (9th Cir.2010).
As used in Section 1503, "corruptly" means that the act must be done with the purpose of obstructing justice. United States v. Rasheed, 663 F.2d 843, 851 (9th Cir.1981).
Include the last paragraph if the evidence shows the defendant may have had more than one intention when engaging in the challenged conduct. See United States v. Smith, 831 F.3d 1207, 1218 (9th Cir.2016).
18 U.S.C. § 1503 also applies to venire members who have not been sworn or selected as jurors and are prospective jurors. United States v. Russell, 255 U.S. 138 (1921).
Approved 6/2021
8.130 OBSTRUCTION OF JUSTICE—INJURING JUROR
(18 U.S.C. § 1503)
The defendant is charged in [Count _______ of] the indictment with obstruction of justice in violation of Section 1503 of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, [name of juror] was a [grand] juror [who assented to a [verdict] [indictment]]; and
Second, the defendant injured [name of juror] [or [his] [her] property] on account of [his] [her] having [been] [assented to the [verdict] [indictment] as] a [grand] juror.
Comment
See Comment to Instruction 8.129 (Obstruction of Justice—Influencing Juror).
Approved 6/2021
8.131 OBSTRUCTION OF JUSTICE—OMNIBUS CLAUSE OF 18 U.S.C. § 1503
The defendant is charged in [Count _______ of] the indictment with obstruction of justice in violation of Section 1503 of Title 18 of the United States Code. 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 influenced, obstructed, or impeded, or tried to influence, obstruct, or impede the due administration of justice; and
Second, the defendant acted corruptly, or by threats or force, or by any threatening communication, with the intent to obstruct justice.
[The government need not prove that the defendant’s sole or even primary intention was to obstruct justice so long as the government proves beyond a reasonable doubt that one of the defendant’s intentions was to obstruct justice. The defendant’s intention to obstruct justice must be substantial.]
Comment
See Comment at Instruction 3.15 (Corruptly–Defined).
If the corrupt act at issue involved the making of a false statement, materiality of the false statement is a required element of the crime. See United States v. Thomas, 612 F.3d 1107, 1123-24 (9th Cir.2010).
As used in § 1503, "corruptly" means that the act must be done with the purpose of obstructing justice. United States v. Rasheed, 663 F.2d 843, 851 (9th Cir.1981).
Include the last paragraph if the evidence shows the defendant may have had more than one intention when engaging in the challenged conduct. See United States v. Smith, 831 F.3d 1207, 1218 (9th Cir.2016).
"The ‘omnibus clause’ of § 1503, . . . provides: ‘Whoever . . . corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be [punished] . . .’" United States v. Aguilar, 515 U.S. 593, 609-10 (1995).
Approved 6/2021
8.131A OBSTRUCTION OF JUSTICE—DESTRUCTION, ALTERATION OR FALSIFICATION
OF RECORDS IN FEDERAL INVESTIGATIONS AND BANKRUPTCY
(18 U.S.C. § 1519)
The defendant is charged in [Count _____ of] the indictment with obstruction of justice in violation of Section 1519 of Title 18 of the United States Code. 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 knowingly altered, destroyed, concealed or falsified a record, document or tangible object; and
Second, the defendant acted with the intent to impede, obstruct or influence an actual or contemplated investigation of a matter within the jurisdiction of any department or agency of the United States.
[The government need not prove that the defendant’s sole or even primary intention was to obstruct justice so long as the government proves beyond a reasonable doubt that one of the defendant’s intentions was to obstruct justice. The defendant’s intention to obstruct justice must be substantial.]
Comment
For a definition of "knowingly," see Instructions 5.7 (Knowingly—Defined) and 5.8 (Deliberate Ignorance).
Include the last paragraph if the evidence shows the defendant may have had more than one intention when engaging in the challenged conduct. See United States v. Smith, 831 F.3d 1207, 1218 (9th Cir.2016).
Reports prepared by law enforcement officers qualify as "records" or "documents" under § 1519. United States v. Gonzalez, 906 F.3d 784, 794 (9th Cir. 2018).
To qualify as a "tangible object" under the meaning of § 1519, an item must be "one used to record or preserve information." Yates v. United States, 574 U.S. 528, 547-49 (2015) (holding that fisherman’s undersized fish were not "tangible objects" under § 1519).
Even when a defendant intends to obstruct justice, the government still must prove that the defendant actually altered, destroyed, concealed or falsified a record, document, or other tangible object used to record or preserve information, to secure a conviction under § 1519. United States v. Katakis, 800 F.3d 1017, 1030 (9th Cir. 2015) (affirming judgment of acquittal when government failed to prove that defendant who meant to delete emails successfully did so, and holding that moving emails into "deleted items" folder does not qualify as concealment under § 1519).
To sustain a conviction under § 1519, it is enough for the government to prove that the defendant intended to obstruct the investigation of any matter as long as that matter falls within the jurisdiction of a federal department or agency. The defendant need not know that the matter in question falls within the jurisdiction of a federal department or agency. Gonzalez, 906 F.3d at 794 (9th Cir. 2018).
Approved 6/2021
8.132 FRAUD—FORGED, COUNTERFEITED, ALTERED OR
FALSELY MADE IMMIGRATION DOCUMENT
(18 U.S.C. § 1546(a))
The defendant is charged in [Count _______ of] the indictment with fraud in the [use] [misuse] of an immigration document in violation of Section 1546(a) of Title 18 of the United States Code. 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 [[forged] [counterfeited] [altered] [falsely made]] [[an immigrant] [a non-immigrant]] [[visa] [permit] [border crossing card] [alien registration receipt card] [other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States]]; and
Second, the defendant acted knowingly.
Comment
See Comment to Instruction 8.133 (Fraud–Use or Possession of Immigration Document Procured by Fraud).
Use this instruction with respect to a crime charged under 18 U.S.C. § 1546(a), first paragraph, first clause. Use Instruction 8.133 (Fraud—Use or Possession of Immigration Document Procured by Fraud), for an instruction as to a crime charged under 18 U.S.C. § 1546(a), first paragraph, second clause. Use Instruction 8.134 (Fraud—False Statement on Immigration Document), for an instruction as to a crime charged under 18 U.S.C. § 1546(a), fourth paragraph.
Approved 6/2021
8.134 FRAUD—USE OR POSSESSION OF IMMIGRATION DOCUMENT PROCURED BY FRAUD
(18 U.S.C. § 1546(a))
The defendant is charged in [Count _______ of] the indictment with fraud in the [use] [misuse] of an immigration document in violation of Section 1546(a) of Title 18 of the United States Code. 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 knowingly [[uttered] [used] [attempted to use] [possessed] [obtained] [accepted] [received]] [[an immigrant] [a non-immigrant]] [[visa] [permit] [border crossing card] [alien registration receipt card] [other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States]]; and
Second, the defendant knew the document [[to be [forged] [counterfeited] [altered] [falsely made]] [[to have been [procured by means of any false claim or statement] [otherwise procured by fraud] [unlawfully obtained]].
Comment
Use this instruction with respect to a crime charged under 18 U.S.C. § 1546(a), first paragraph, second clause. Use Instruction 8.132 (Fraud—Forged, Counterfeited, Altered, or Falsely Made Immigration Document) for an instruction as to a crime charged under 18 U.S.C. § 1546(a), first paragraph, first clause. Use Instruction 8.134 (Fraud—False Statement on Immigration Document), for an instruction as to a crime charged under 18 U.S.C. § 1546(a), fourth paragraph.
In United States v. Krstic, 558 F.3d 1010 (9th Cir.2009), the Ninth Circuit held the first paragraph, second clause of the statute criminalizes both the possession of authentic immigration documents procured unlawfully and the possession of forged or other falsely made immigration documents.
The statute reaches documents that may be insufficient, in and of themselves, to authorize entry into the United States, when they are plainly prescribed by law as a prerequisite thereof. United States v. Ryan-Webster, 353 F.3d 353, 361-62 (4th Cir. 2003).
Mistake or ignorance of the law is no defense to a charge of "knowingly . . . accept[ing], or receiv[ing]" forged documents in violation of 18 U.S.C. § 1546(a). United States v. De Cruz, 82 F.3d 856, 867 (9th Cir. 1996).
Approved 6/2021
8.134 FRAUD—FALSE STATEMENT ON IMMIGRATION DOCUMENT
(18 U.S.C. § 1546(a))
The defendant is charged in [Count _______ of] the indictment with a false statement on an immigration document in violation of Section 1546(a) of Title 18 of the United States Code. 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 [made] [subscribed as true] a false statement;
Second, the defendant acted with knowledge that the statement was untrue;
Third, the statement was material to the activities or decisions of the [specify immigration agency]; that is, it had a natural tendency to influence, or was capable of influencing, the agency’s decisions or activities;
Fourth, the statement was made under [oath] [penalty of perjury]; and
Fifth, the statement was made on an [application] [affidavit] [other document] required by immigration laws or regulations.
Comment
Use this instruction in connection with crimes charged under 18 U.S.C. § 1546(a), fourth paragraph.
The term "oath" as used in Section 1546 should be construed the same as "oath" as used in the perjury statute, 18 U.S.C. § 1621, United States v. Chu, 5 F.3d 1244, 1247 (9th Cir. 1993).
Materiality is a requirement of visa fraud under subsection (a) and presents a mixed question of fact and law to be decided by the jury. United States v. Matsumaru, 244 F.3d 1092, 1101 (9th Cir. 2001). The common law test for materiality in the false statement statutes, as reflected in the third element of this instruction, is the preferred formulation. United States v. Peterson, 538 F.3d 1064, 1072 (9th Cir.2008). A statement need not have actually influenced the agency decision in order to meet the materiality requirement. Matsumaru, 244 F.3dat1101 (citing United States v. Serv. Deli, Inc., 151 F.3d 938, 941 (9th Cir. 1998)).
Approved 6/2021
8.134A SEX TRAFFICKING OF CHILDREN OR BY FORCE
(18 U.S.C. § 1591(a)(1))
The defendant is charged in [Count ______ of] the indictment with engaging in sex trafficking [of children] [by force, fraud, or coercion] in violation of Section 1591 of Title 18 of the United States Code. 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 knowingly [recruited] [enticed] [harbored] [transported] [provided] [obtained] [advertised] [maintained] [patronized] [or] [solicited] a person to engage in a commercial sex act;
Second, the defendant [knew] [was in reckless disregard of the fact] that [means of force, threats of force, fraud, coercion or any combination of such means would be used to cause the person to engage in a commercial sex act] [or] [that the person had not attained the age of 18 years and would be caused to engage in a commercial sex act]; and
Third, the defendant’s acts were [in or affecting interstate or foreign commerce] [within the special maritime and territorial jurisdiction of the United States].
Comment
"Coercion" is defined in 18 U.S.C. § 1591(e)(2).
The "force, fraud, or coercion" elements may be applied for victims who are not minors.
The "reckless disregard" standard applies only to advertising.
"[T]he listed alternatives—"means of force, threats of force, fraud coercion . . . or any combination of such means"—are not elements but rather possible means to commit the crime of human trafficking." United States v. Mickey, 897 F.3d 1173, 1181 (9th Cir. 2018). A special verdict form that subdivides an element of a crime into its possible components is ill-advised because it has potential to create jury confusion, require further instruction, and cause the jury to "lose sight of what facts it is meant to find." Id. at 1182.
In instructing the jury regarding the defendant’s knowledge that the victim had not attained the age of 18, this court has impliedly accepted a "reckless disregard" standard and a "reasonable opportunity to observe" standard. See United States v. Davis, 854 F.3d 601, 604 (9th Cir. 2017).
Approved 6/2021
8.134B SEX TRAFFICKING OF CHILDREN OR BY FORCE, FRAUD OR COERCION
—BENEFITTING FROM PARTICIPATION IN VENTURE
(18 U.S.C. § 1591(a)(2))
The defendant is charged in [Count ______ of] the indictment with engaging in sex trafficking [of children] [by force, fraud, or coercion] in violation of Section 1591 of Title 18 of the United States Code. 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 benefitted [financially] [or] [by receiving anything of value] from participation in a venture that [recruited] [enticed] [harbored] [transported] [provided] [obtained] [advertised ] [maintained] [patronized] [or] [solicited] a person to engage in a commercial sex act;
Second, the defendant [knew] [was in reckless disregard of the fact] that [means of force, threats of force, fraud, coercion or any combination of such means would be used to cause the person to engage in a commercial sex act] [or] [that the person had not attained the age of 18 years and would be caused to engage in a commercial sex act]; and
Third, the defendant’s acts were [in or affecting interstate or foreign commerce] [within the special maritime and territorial jurisdiction of the United States].
Comment
"Coercion" is defined in 18 U.S.C. § 1591(e)(2).
The "force, fraud, or coercion" elements may be applied for victims who are not minors.
The "reckless disregard" standard applies only to advertising.
In instructing the jury regarding the defendant’s knowledge that the victim had not attained the age of 18, the Ninth Circuit has impliedly accepted a "reckless disregard" standard and a "reasonable opportunity to observe" standard. See United States v. Davis, 854 F.3d 601, 604 (9th Cir. 2017).
Approved 6/2021
8.135 PERJURY TESTIMONY
(18 U.S.C. § 1621)
The defendant is charged in [Count _______ of] the indictment with perjury in violation of Section 1621 of Title 18 of the United States Code. 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 testified under oath orally or in writing that [specify false testimony];
Second, the testimony was false[, with all of you agreeing as to which statement was false];
Third, the false testimony was material to the matters before [specify proceeding]; that is, the testimony had a natural tendency to influence, or was capable of influencing, the actions of [specify, for example, the grand jury]; and
Fourth, the defendant acted willfully, that is deliberately and with knowledge that the testimony was false.
The testimony of one witness is not enough to support a finding that the testimony of [name of defendant] was false. There must be additional evidence–either the testimony of another person or other evidence–which tends to support the testimony of falsity. The other evidence, standing alone, need not convince you beyond a reasonable doubt that the testimony was false. But after considering all the evidence on the subject, you must be convinced beyond a reasonable doubt that the testimony was false.
Comment
The bracketed language in the second element of this instruction should be given when the indictment charges that the defendant made more than one false statement. See Vitello v. United States, 425 F.2d 416, 423 (9th Cir.1970). See also Instruction 7.9 (Specific Issue Unanimity).
The Committee believes that what is "a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered" for purposes of Section 1621 is a question of law and need not be submitted to the jury.
The Supreme Court has held that materiality is a question of fact for the jury. Johnson v. United States, 520 U.S. 461, 465-66 (1997) (in context of perjury prosecution). Accordingly, it is necessary to include materiality as an element of the offense in this instruction. See, e.g., Instruction 8.73 (False Statement to Government Agency). The common law test for materiality in the false statement statutes, as reflected in the third element of this instruction, is the preferred formulation. United States v. Peterson, 538 F.3d 1064, 1072 (9th Cir.2008).
Because the jury must determine whether a statement is material under Johnson, the definition of materiality has been included in this instruction. United States v. McKenna, 327 F.3d 830, 839 (9th Cir.) (discussing the materiality of false statements in the context of perjury), cert. denied, 540 U.S. 941 (2003).
Whether a statement that may be literally true can support a conviction requires careful consideration. See United States v. Thomas, 612 F.3d 1107, 1121-23 (9th Cir.2010). If the defendant’s theory of defense is that his or her statement was literally true, some modification of the instruction may be appropriate. Id.
When the defendant is accused of multiple falsehoods, the jury must be unanimous on at least one of the charges in the indictment. Vitello, 425 F.2d at 423.
The last paragraph of the instruction concerning corroboration is worded to cover the case where the perjury is in the giving of testimony. Where the perjury consists of one or more false statements in a writing, such as an affidavit, it should be substituted for "testimony." This paragraph applies to a charge of perjury in violation of 18 U.S.C. § 1621 and to a charge of subornation of perjury in violation of 18 U.S.C. § 1622. See Instruction 8.136 (Subornation of Perjury). In the case of a Section 1622 charge, the name of the person alleged to have been suborned should be inserted.
A paragraph in the instruction concerning corroboration is not required when a defendant is accused of violating 18 U.S.C. § 1623. See Instruction 8.137 (False Declaration Before Grand Jury or Court).
When the alleged false testimony is proved by circumstantial evidence, corroboration is not required. Gebhard v. United States, 422 F.2d 281, 288 (9th Cir.1970).
Corroborative evidence may be circumstantial and need not be independently sufficient to establish the falsity of the testimony. United States v. Howard, 445 F.2d 821, 822 (9th Cir.1971); Arena v. United States, 226 F.2d 227, 233 (9th Cir.1955).
Approved 6/2021
8.136 SUBORNATION OF PERJURY
(18 U.S.C. § 1622)
The defendant is charged in [Count _______ of] the indictment with subornation of perjury in violation of Section 1622 of Title 18 of the United States Code. 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 voluntarily and intentionally persuaded [name of witness] to testify commit perjury;
Second, the defendant acted with the intent that [name of witness] would deceive the [court] [jury]; and
Third, [name of witness] committed perjury in that:
(a) [he] [she] testified under oath or affirmation at [describe proceeding] that [specify alleged false testimony];
(b) the testimony given was false[, with all of you agreeing at to which statement was false];
(c) at the time [name of witness] testified, [he] [she] knew the testimony was false; and
(d) the false testimony was material to the matter before the [court] [grand jury]; that is, the testimony had a natural tendency to influence, or was capable of influencing, the actions of [specify, for example: the grand jury].
Comment
See Comment to Instruction 8.135 (Perjury—Testimony).
The bracketed language in subpart (b) of the third element of this instruction should be given when the indictment charges that the defendant made more than one false statement. See Vitello v. United States, 425 F.2d 416, 423 (9th Cir.1970). See also Instruction 7.9 (Specific Issue Unanimity).
Language in the instruction concerning corroboration is not required where a defendant is accused of a violation of 18 U.S.C. § 1623, but is required under 18 U.S.C. § 1621. See Instruction 8.135 (Perjury–Testimony).
The Supreme Court has held that materiality is a question of fact for the jury. Johnson v. United States, 520 U.S. 461, 465-66 (1997) (discussing materiality of false statements in context of perjury). Accordingly, it is necessary to include materiality as an element of the offense in this instruction. The common law test for materiality in the false statement statutes, as reflected in the third element of this instruction, is the preferred formulation. United States v. Peterson, 538 F.3d 1064, 1072 (9th Cir.2008).
Because the jury must determine whether a statement is material under Johnson, the definition of materiality has been included in this instruction. United States v. McKenna, 327 F.3d 830, 839 (9th Cir.) (discussing materiality of false statements in context of perjury), cert. denied, 540 U.S. 941 (2003).
A perjury is an essential element of this offense. See Catrino v. United States, 176 F.2d 884, 886–87 (9th Cir.1949). The use of "any perjury" in Section 1622 evidences a Congressional intent that subornation of perjury is committed not only by one who procures another to commit perjury in violation of 18 U.S.C. § 1621, but also by one who procures another to make a false statement in violation of 18 U.S.C. § 1623. United States v. Gross, 511 F.2d 910, 915-16 (3d Cir.1975).
If the suborned testimony is in violation of 18 U.S.C. § 1621, the "two-witness" or "corroboration" rule applies. See Instruction 8.135 (Perjury–Testimony). However, corroboration is not required if the suborned testimony is in violation of 18 U.S.C. § 1623. See 18 U.S.C. § 1623(e); Gross, 511 F.2d at 915-16.
Approved 6/2021
8.137 FALSE DECLARATION BEFORE GRAND JURY OR COURT
(18 U.S.C. § 1623)
The defendant is charged in [Count _______ of] the indictment with having made a false declaration in violation of Section 1623 of Title 18 of the United States Code. 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 testified under oath in or ancillary to any [court] [grand jury] proceedings;
Second, the testimony was false[, with all of you agreeing as to which statement was false];
Third, the defendant knew that the testimony was false; and
Fourth, the false testimony was material to the matters before the [court] [grand jury]; that is, it had a natural tendency to influence, or was capable of influencing, the [court] [grand jury’s investigations].
Comment
See Comment to Instructions 8.135 (Perjury—Testimony) and 8.136 (Subornation of Perjury).
The testimony under oath may be in conjunction with a proceeding that is ancillary to the main proceeding involving the defendant. United States v. Brugnara, 856 F.3d 1198, 1209 (9th Cir. 2017) (involving false declaration made during a supervised release revocation hearing).
The bracketed language in the second element of this instruction should be given when the indictment charges that the defendant made more than one false statement. See Vitello v. United States, 425 F.2d 416, 423 (9th Cir. 1970). See Instruction 7.9 (Specific Issue Unanimity).
Materiality of the false declaration is an element of the offense and therefore an issue for the jury. Johnson v. United States, 520 U.S. 461, 465-66 (1997). The common law test for materiality in the false statement statutes, as reflected in the fourth element of this instruction, is the preferred formulation. United States v. Peterson, 538 F.3d 1064, 1072 (9th Cir. 2008). The government must present evidence from an earlier trial to prove that the statements were material; "simply offering the defendant’s statement itself is not enough." See United States v. Leon-Reyes,177 F.3d 816, 819 (9th Cir. 1999).
Because the jury must determine whether a statement is material under Johnson, the definition of materiality has been included in this instruction. United States v. McKenna, 327 F.3d 830, 839 (9th Cir.) (discussing materiality of false statements in context of perjury).
Whether a statement that may be literally true can support a conviction requires careful consideration. See United States v. Thomas, 612 F.3d 1107, 1121-23 (9th Cir. 2010). If the defendant’s theory of defense is that his or her statement was literally true, some modification of the instruction may be appropriate. Id.
Note that Section 1623 applies only to "any proceeding before or ancillary to any court or grand jury of the United States." An "ancillary proceeding" is "an action conducted by a judicial representative or an action conducted pursuant to explicit statutory or judicial procedures." United States v. Tibbs, 600 F.2d 19, 21 (6th Cir. 1979). See also United States v. Krogh, 366 F. Supp. 1255, 1256 (D.D.C.1973) (discussing sworn deposition in ancillary proceeding).
Section 1623(c) authorizes a person to be accused of having "made two or more declarations, which are inconsistent to the degree that one of them is necessarily false," and the government is not required to specify which declaration is false.
Approved 6/2021
8.138 MAIL THEFT
(18 U.S.C. § 1708)
The defendant is charged in [Count _______ of] the indictment with mail theft in violation of Section 1708 of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, there was [[a letter] [a postal card] [a package] [a bag] [mail]] [[in the mail] [in a private mail box] [at a post office] [in a letter box] [in a mail receptacle] [in a mail route] [in an authorized depository for mail matter] [in possession of a letter or mail carrier]];
Second, the defendant took the [letter] [postal card] [package] [bag] [mail] from the [mail] [post office] [letter box] [a private mail box] [mail receptacle] [mail route] [authorized depository for mail matter] [mail carrier]; and
Third, at the time the defendant took the [letter] [postal card] [package] [bag] [mail], the defendant intended to deprive the owner, temporarily or permanently, of its use and benefit.
Comment
A jury may infer that the defendant stole an item of mail if a properly addressed and recently mailed item was never received by the addressee and was found in the defendant's possession. See United States v. Ellison, 469 F.2d 413, 415 (9th Cir.1972).
Approved 6/2021
8.139 ATTEMPTED MAIL THEFT
(18 U.S.C. § 1708)
The defendant is charged in [Count _______ of] the indictment with attempted mail theft in violation of Section 1708 of Title 18 of the United States Code. 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 intended to steal mail from a [post office] [letter box] [a private mail box] [mail receptacle] [mail route] [authorized depository for mail matter] [mail carrier]; and
Second, the defendant did something that was a substantial step toward stealing the mail and that strongly corroborated the defendant’s intent to commit 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 unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.
Comment
“To constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances.” United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (internal quotations omitted).
The “strongly corroborated” language in this instruction comes from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) (“A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent”) and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).
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).
“[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime.” United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).
Approved 6/2021
8.140 POSSESSION OF STOLEN MAIL
(18 U.S.C. § 1708)
The defendant is charged in [Count _______ of] the indictment with possession of stolen mail in violation of Section 1708 of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, [a letter] [a postal card] [a package] [a bag] [mail] was stolen from the [mail] [post office] [letter box] [a private mail box] [mail receptacle] [mail route] [authorized depository for mail matter] [mail carrier].
Second, the defendant possessed the [letter] [postal card] [package] [bag] [mail] [or specify an article or thing contained therein]; and
Third, the defendant knew that the [letter] [postal card] [package] [bag] [mail] was stolen.
Comment
See Instruction 8.138 (Mail Theft).
It is not necessary that the defendant knew the matter was stolen from the mail so long as the defendant knew that it was stolen. Barnes v. United States, 412 U.S. 837, 847 (1973).
Approved 6/2021
8.141 EMBEZZLEMENT OF MAIL BY POSTAL EMPLOYEE
(18 U.S.C. § 1709)
The defendant is charged in [Count _______ of] the indictment with embezzling mail in violation of Section 1709 of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, while working as a Postal Service employee, the defendant [was entrusted with] [came into possession of] the [letter] [postal card] [package] [bag] [mail];
Second, the [letter] [postal card] [package] [bag] [mail] was intended to be conveyed by mail; and
Third, the defendant stole the [letter] [postal card] [package] [bag] [mail] [or specify an article or thing contained therein].
Comment
The government need not prove in a prosecution under 18 U.S.C. § 1709 that a defendant had the specific intent permanently to deprive the owner of the property. United States v. Monday, 614 F.3d 983, 985-86 (9th Cir. 2010).
Approved 6/2021
8.141A ECONOMIC ESPIONAGE
(18 U.S.C. § 1831)
The defendant is charged in [Count_____ of] the indictment with economic espionage in violation of Section 1831 of Title 18 of the United States Code. 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 [intended] [knew] that his actions would benefit any [foreign government] [foreign instrumentality] [foreign agent];
Second, the defendant knowingly:
[[stole] [without authorization [appropriated] [took] [carried away] [concealed]] [obtained by fraud] [obtained by artifice] [obtained by deception] a trade secret];
or
[without authorization [copied] [duplicated] [sketched] [drew] [photographed] [downloaded] [uploaded] [altered] [destroyed] [photocopied] [replicated] [transmitted] [delivered] [sent] [mailed] [communicated] [conveyed] a trade secret];
or
[[received] [bought] [possessed] a trade secret, knowing the same to have been [stolen] [appropriated without authorization] [obtained without authorization] [converted without authorization]].
Comment
Use this instruction "when there is evidence of foreign government sponsored or coordinated intelligence activity" involving "any manner of benefit." United States v. Liew, 856 F.3d 585, 597 (9th Cir. 2017).
The term "foreign instrumentality," as used in these instructions, means any agency, bureau, ministry, component, institution, association, or any legal, commercial, or business organization, corporation, firm, or entity that is substantially owned, controlled, sponsored, commanded, managed, or dominated by a foreign government. 18 U.S.C. § 1839(1). A "foreign agent" is any officer, employee, proxy, servant, delegate, or representative of a foreign government. 18 U.S.C. § 1839(2).
If the indictment charges conspiracy to commit economic espionage (18 U.S.C. § 1831(a)(5)), the jury should be instructed that it is not necessary for the government to prove that the information the alleged conspirators intended to misappropriate was, in fact, a trade secret. What is required is proof beyond a reasonable doubt that the defendant and at least one other member of the conspiracy knowingly agreed to misappropriate information that they reasonably believed was a trade secret and did so for the benefit of a foreign government or foreign instrumentality. This is because a defendant’s guilt or innocence on this charge depends on what he believed the circumstances to be, not what they actually were. United States v. Liew, 856 F.3d 585, 594, 600 (9th Cir. 2017); United States v. Nosal, 844 F.3d 1024, 1044-45 (9th Cir. 2016).
Similarly, if the indictment charges attempt to commit economic espionage (18 U.S.C. § 1831(a)(4)), the jury should be instructed that the government is not required to prove that the information the defendant is alleged to have attempted to misappropriate was, in fact, a trade secret. However, the government is required to prove the defendant reasonably believed that the information the defendant intended to misappropriate was a trade secret. Id.
Approved 6/2021
8.141B THEFT OF TRADE SECRETS
(18 U.S.C. § 1832)
The defendant is charged in [Count______ of] the indictment with theft of trade secrets in violation of Section 1832 of Title 18 of the United States Code. 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 intended to convert a trade secret to the economic benefit of someone other than the owner of that trade secret;
Second, the trade secret is related to a [[product] [service]] [[used in] [intended for use in]] [[interstate] [foreign]] commerce;
Third, the defendant [intended] [knew] that the offense would injure any owner of that trade secret;
Fourth, the defendant knowingly:
[[stole] [without authorization [appropriated] [took] [carried away] [concealed]] [obtained by fraud] [obtained by artifice] [obtained by deception] such information];
or
[without authorization [copied] [duplicated] [sketched] [drew] [photographed] [downloaded] [uploaded] [altered] [destroyed] [photocopied] [replicated] [transmitted] [delivered] [sent] [mailed] [communicated] [conveyed] such information];
or
[[received] [bought] [possessed] such information, knowing the same to have been [stolen] [appropriated without authorization] [obtained without authorization] [converted without authorization]].
Comment
Use this instruction in “general trade secrets” cases in which the benefit is “economic,” and not for the benefit of a foreign government or instrumentality. United States v. Liew, 856 F.3d 585, 597 (9th Cir. 2017).
If the indictment charges conspiracy to commit theft of trade secrets (18 U.S.C.
§ 1832(a)(5)), the jury should be instructed that it is not necessary for the government to prove that the information the alleged conspirators intended to convert was, in fact, a trade secret. What is required is proof beyond a reasonable doubt that the defendant and at least one other member of the conspiracy knowingly agreed to convert information that they reasonably believed was a trade secret and did so for the economic benefit of anyone other than the owner. This is because a defendant’s guilt or innocence on this charge depends on what he believed the circumstances to be, not what they actually were. United States v. Liew, 856 F.3d 585, 594, 600 (9th Cir. 2017); United States v. Nosal, 844 F.3d 1024, 1044-45 (9th Cir. 2016).
Similarly, if the indictment charges attempt to commit theft of trade secrets (18 U.S.C.
§ 1832(a)(4)), the jury should be instructed that the government is not required to prove that the information the defendant is alleged to have attempted to convert was, in fact, a trade secret. However, the government is required to prove the defendant reasonably believed that the information the defendant intended to convert was a trade secret. Id.
Approved 6/2021
8.141C TRADE SECRET—DEFINED
(18 U.S.C. § 1839(3))
The term "trade secret" means all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, programs, devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing, if:
(1) the information is actually secret because it is not generally known to or readily ascertainable through proper means by another person who can obtain economic value from the disclosure or use of the information;
(2) the owner thereof has taken reasonable measures to keep such information secret; and
(3) the information derives independent economic value, actual or potential, from being secret.
In addition, facts and information acquired by an employee, whether by memorization or some other means, in the course of his or her employment may potentially be trade secrets, but only if they meet the definition of a trade secret set forth above. However, the personal skills, talents or abilities that an employee develops at his place of employment are not trade secrets.
The term "trade secret" can include compilations of public information when combined or compiled in a novel way, even if a portion or every individual portion of that compilation is generally known. Combinations or compilations of public information from a variety of different sources, when combined or compiled in a novel way, can be a trade secret. In such a case, if a portion of the trade secret is generally known or even if every individual portion of the trade secret is generally known, the compilation or combination of information may still qualify as a trade secret if it meets the definition of a trade secret set forth in the preceding paragraph.
Comment
The three elements of the definition of "trade secret" were set forth in United States v. Chung, 659 F.3d 815, 824-25 (9th Cir. 2011). After Chung, 18 U.S.C. § 1839(3) was amended to change the language from "the public" to the current "another person who can obtain economic value from the disclosure or use of the information." United States v. Liew, 856 F.3d 585, 597 (9th Cir. 2017).
To establish the second element, the government must prove that the trade secret owner took "reasonable measures to guard" the secret. The government is not required to "prove a negative" that the trade secret was never disclosed. Id. at 601.
"[A]n employee’s personal skills, talents or abilities . . . are not trade secrets . . . . [F]acts and information acquired during employment can only be trade secrets if they meet the given definition." Id. at 594. "[I]ndividuals can independently develop technology through proper means and [an employee] is free to leave an employer and use non-trade secret information and skills gained through that employment." Id. at 599.
The term "owner," with respect to a trade secret, means the person or entity in whom or in which rightful legal or equitable title to, or license in, the trade secret is reposed. 18 U.S.C. § 1839(4).
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First, the defendant [[induced] [intended to induce]] [name of victim] to part with property by the wrongful use of actual or threatened force, violence, or fear;
Second, the defendant obtained the property with [name of victim]’s consent;
Third, the defendant acted with the intent to obtain the property; [and]
Fourth, commerce from one state to another [was] [would have been] affected in some way[.] [; and]
[Fifth, the defendant did something that was a substantial step toward committing the crime and that strongly corroborated the defendant’s intent to commit 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 unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.]
Comment
For an instruction on extortion or attempted extortion by nonviolent threat, see Instruction 8.142A (Hobbs Act—Extortion or Attempted Extortion by Nonviolent Threat)
For a definition of “affecting interstate commerce,” see Instruction 8.143B (Hobbs Act—Affecting Interstate Commerce).
Only a de minimis effect on interstate commerce is required to establish jurisdiction under the Hobbs Act, and the effect need only be probable or potential, not actual. United States v. Lynch, 437 F.3d 902, 908-09 (9th Cir. 2006) (en banc). The interstate nexus may arise from either direct or indirect effects on interstate commerce. Id. at 909-10. When the effects are only indirect it may be appropriate to measure the adequacy of proof of interstate nexus by applying the test articulated in United States v. Collins, 40 F.3d 95, 100 (5th Cir. 1994).
“Property” under the Hobbs Act is not limited to tangible things; it includes the right to make business decisions and to solicit business free from coercion. United States v. Hoelker, 765 F.2d 1422, 1425 (9th Cir. 1985) (citing United States v. Zemek, 634 F.2d 1159, 1174 (9th Cir. 1980)). The Hobbs Act is not limited to lawful property and includes contraband. United States v. Cortes, 732 F.3d 1078, 1093 (9th Cir. 2013).
Actual or threatened force standing alone does not violate the statute. “We conclude that Congress did not intend to create a freestanding physical violence offense in the Hobbs Act. It did intend to forbid acts or threats of physical violence in furtherance of a plan or purpose to engage in what the statute refers to as robbery or extortion (and related attempts or conspiracies).” Scheidler v. Nat’l Org. for Women, Inc. 547 U.S. 9, 23 (2006).
A defendant’s claim of right to the property is not a defense. “‘Congress meant to punish as extortion any effort to obtain property by inherently wrongful means, such as force or threats of force . . . regardless of the defendant’s claim of right to the property . . . .’” United States v. Daane, 475 F.3d 1114, 1120 (9th Cir. 2007) (quoting with approval from United States v. Zappola, 677 F.2d 264, 268-69 (2d Cir. 1982)). There is an exception to this proposition, but it is confined to cases involving certain types of labor union activity. Id. at 1119-20.
The bracketed language stating an additional element applies only when the charge is an attempt. In attempt cases, “[t]o constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances.” United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (internal quotations omitted).
The “strongly corroborated” language in this instruction comes from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) (“A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent”) and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).
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).
“[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime.” United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).
It is unclear whether 18 U.S.C. § 1951 requires specific intent as an element. In United States v. Ornelas, 906 F.3d 1138 (9th Cir. 2018), the Ninth Circuit discussed the intent element in statutory offenses that appear to “simply punish” common law crimes. In footnote 2, however, the Ninth Circuit distinguished federal statutes that “simply punish” a common law offense (thus requiring importation of common law elements) from federal statutes that provide their own elements (and thus not requiring importation of common law elements). Ornelas, 906 F.3d at 1143 n.2. The circuits are currently split as to whether the Hobbs Act requires specific intent to steal. Compare United States v. Thomas, 8 F.3d 1552, 1562–63 (11th Cir.1993), with United States v. Nedley, 255 F.2d 350, 355 (3d Cir.1958).
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8.142 HOBBS ACT—EXTORTION OR ATTEMPTED EXTORTION BY NONVIOLENT THREAT
(18 U.S.C. § 1951)
The defendant is charged in [Count _______ of] the indictment with [attempted] extortion by threat of [economic harm] [specify other nonviolent harm] in violation of Section 1951 of Title 18 of the United States Code. 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 [[induced] [intended to induce]] [name of victim] to part with property by wrongful threat of [economic harm] [specify other nonviolent harm];
Second, the defendant acted with the intent to obtain property;
Third, commerce from one state to another [was] [would have been] affected in some way[.] [; and]
[Fourth, the defendant did something that was a substantial step toward committing the crime and that strongly corroborated the defendant’s intent to commit 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 unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.]
A threat is wrongful [if it is unlawful] [or] [if the defendant knew [he] [she] was not entitled to obtain the property].
Comment
See generally Comment to Instruction 8.142 (Hobbs Act—Extortion or Attempted Extortion by Force).
A nonviolent threat is prohibited by the Hobbs Act if it is “wrongful.” 18 U.S.C. § 1951(b)(2) (defining extortion as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened . . . fear” (emphasis added)); United States v. Villalobos,748 F.3d 953 (9th Cir. 2014) (error for jury instruction to essentially read out § 1951’s “wrongful” element). “[T]hreats of sham litigation, which are made to obtain property to which the defendant knows he has no lawful claim, are ‘wrongful’ under the Hobbs Act.” United States v. Koziol, 993 F.3d 1160, 1170 (9thCir. 2021).
If a nonviolent threat is to be carried out by unlawful means, then the Hobbs Act’s “wrongful” requirement is satisfied, regardless of whether the defendant had a lawful claim of right to the property demanded. Villalobos, 748 F.3d at 957-58. For example, threats to cooperate with, or alternatively, impede an ongoing investigation, contingent on payment, are unlawful and therefore clearly wrongful. Id.
A nonviolent threat is prohibited by the Hobbs Act if it is “wrongful.” 18 U.S.C. § 1951(b)(2) (defining extortion as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened . . . fear” (emphasis added)); United States v. Villalobos,748 F.3d 953 (9th Cir. 2014) (error for jury instruction to essentially read out § 1951’s “wrongful” element).
If a nonviolent threat is to be carried out by unlawful means, then the Hobbs Act’s “wrongful” requirement is satisfied, regardless of whether the defendant had a lawful claim of right to the property demanded. Id. at 957-58. For example, a defendant’s threat to cooperate with, or alternatively, impede an ongoing investigation, contingent upon payment are unlawful and therefore clearly wrongful. Id.
If, on the other hand, a nonviolent threat is to be carried out by lawful means (for example, a threat of economic harm), a claim of right instruction is necessary. See United States v. Dischner, 974 F.2d 1502, 1515 (9th Cir. 1992) (holding that wrongfully obtaining property by threat of economic harm is sufficient to convict of extortion under Hobbs Act and noting that “[o]btaining property is generally ‘wrongful’ if the alleged extortionist has no lawful claim to that property” (citing United States v. Enmons, 410 U.S. 396, 400 (1973))), overruled on other grounds by United States v. Morales, 108 F.3d 1031 (9th Cir. 1997).
It is unclear whether the claim of right instruction to be given in lawful-threat cases must require that the defendant knew he or she was not entitled to obtain the property. At least one other circuit so requires, see United States v. Sturm, 870 F.2d 769, 773-74 (1st Cir. 1989), but the Ninth Circuit has yet to impose such a requirement. See United States v. Greer, 640 F.3d 1011, 1019 n.4 (9th Cir. 2011) (“Because the district court’s instructions satisfied the First Circuit’s requirement in Sturm, we need not decide whether to adopt Sturm as the law of this circuit.”); Dischner, 974 F.2d at 1515 (declining to “decide whether the government must prove that the defendant knew he had no entitlement” to property because district court’s jury instructions necessarily required such finding); Koziol, 993 F.3d at 1170 n.10 (“We do not decide whether the Hobbs Act imposes liability absent proof that the defendant knew he was not entitled to the property.”). Until the Ninth Circuit decides the question, the Committee recommends the above instruction, which requires the government to prove that the defendant knew he or she was not entitled to obtain the property.
A general instruction that the defendant need not have known that his or her conduct was unlawful does not negate the instruction in lawful-threat cases that a threat is wrongful if the defendant knew he or she was not entitled to obtain the property. Knowledge that one has no entitlement to property is distinguishable from knowledge that an act violates the Hobbs Act. Greer, 640 F.3d at 1019-20.
The bracketed language stating an additional element applies only when the charge is an attempt. In attempt cases, “[t]o constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances.” United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (internal quotations omitted).
The “strongly corroborated” language in this instruction comes from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) (“A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent”) and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).
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).
“[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime.” United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).
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8.143 HOBBS ACT—EXTORTION OR ATTEMPTED EXTORTION
UNDER COLOR OF OFFICIAL RIGHT
(18 U.S.C. § 1951)
The defendant is charged in [Count _______ of] the indictment with [attempted] extortion under color of official right in violation of Section 1951 of Title 18 of the United States Code. 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 was a public official;
Second, the defendant [[obtained] [intended to obtain]] [specify property] that the defendant knew [he] [she] was not entitled to receive;
[Third, the defendant knew that the [specify property] [[was] [would be]] given in return for [taking] [withholding] some official action; [and]]
or
[Third, the defendant knew that the [specify property] [[was] [would be]] given in return for an express promise to perform a particular official action; and]
Fourth, commerce or the movement of an article or commodity in commerce from one state to another [was] [would have been] affected in some way[.] [; and]
[Fifth, the defendant did something that was a substantial step toward committing the crime and that strongly corroborated the defendant’s intent to commit 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 unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.]
[The acceptance by a public official of a campaign contribution does not, in itself, constitute a violation of law even though the donor has business pending before the official. However, if a public official demands or accepts [money] [property] [some valuable right] in exchange for a specific requested exercise of official power, such a demand or acceptance does constitute a violation regardless of whether the payment is made in the form of a campaign contribution.]
Comment
If the defendant is not a public official, then this instruction should be modified to include a requirement that the government prove that the defendant either conspired with a public official or aided and abetted a public official. United States v. McFall, 558 F.3d 951, 960 (9th Cir. 2009). A Hobbs Act conspiracy may exist even if some members of the conspiracy are not public officials and thus cannot complete the offense. Ocasio v. United States, 136 S.Ct. 1423, 1429-32 (2016). The object of the conspiracy need not be to get property from a person outside the conspiracy; it is sufficient that the property comes from another member of the conspiracy. Id. at 1434-35.
If there is any question in the case about the "official" character of the action sought by the defendant, give Instruction 8.11A (Official Action—Defined). When using that instruction in connection with Instruction 8.143, the court should change the term "official act" to "official action."
When the property is not a campaign contribution, the government need only show that the public official obtained payment to which he or she was not entitled knowing that the payment was made in exchange for some official act. See United States v. Kincaid-Chauncey, 556 F.3d 923, 937-38 (9th Cir. 2009). In such a case the first version of the third element should be used and the final paragraph should not be included.
The second version of the third element, and the final paragraph should be included in cases involving an alleged campaign contribution. See McCormick v. United States, 500 U.S. 257 (1991); Kincaid-Chauncey, 556 F.3d at 936. The express promise need not actually be carried out. It is sufficient if the promise to act is given in exchange for the property. See Evans v. United States, 504 U.S. 255, 267 (1992).
The bracketed language stating a fifth element applies only when the charge is an attempt. In attempt cases, "[t]o constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances." United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (internal quotations omitted).
The "strongly corroborated" language in this instruction comes from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) ("A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent") and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).
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).
"[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime." United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).
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8.143A HOBBS ACT—ROBBERY OR ATTEMPTED ROBBERY
(18 U.S.C. § 1951)
The defendant is charged in [Count ______ of] the indictment with [attempted] robbery in violation of Section 1951 of Title 18 of the United States Code. 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 knowingly [obtained] [attempted to obtain] money or property from or in the presence of [name of victim];
Second, the defendant [did so] [attempted to do so] by means of robbery;
Third, the defendant believed that [name of victim] [parted] [would part] with the money or property because of the robbery; [and]
Fourth, the robbery [affected] [would have affected] interstate commerce[; and][.]
[Fifth, the defendant did something that was a substantial step toward committing the crime and that strongly corroborated the defendant’s intent to commit 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 unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.]
“Robbery” means the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence [or fear of injury, immediate or future, to his person or property, or to property in his custody or possession, or to the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining].
Comment
Give the bracketed language appropriate to either a completed crime or an attempt. Only that portion of the definition of robbery that is relevant to the issues in the trial should be given to the jury.
For a definition of “affecting interstate commerce,” see Instruction 8.143B (Hobbs Act—Affecting Interstate Commerce). Only a de minimis effect on interstate commerce is required to establish jurisdiction under the Hobbs Act, and the effect need only be probable or potential, not actual. United States v. Lynch, 437 F.3d 902, 908-09 (9th Cir. 2006) (en banc). The interstate nexus may arise from either direct or indirect effects on interstate commerce. Id. at 909-10. When the effects are only indirect it may be appropriate to measure the adequacy of proof of interstate nexus by applying the test articulated in United States v. Collins, 40 F.3d 95, 100 (5th Cir. 1994).
When the defendant has been charged with robbing or attempting to rob a drug dealer, the government satisfies the “affecting commerce” element of this crime if it shows that the defendant robbed or attempted to rob a drug dealer of drugs or drug proceeds. Taylor v. United States, 136 S. Ct. 2074 (2016). See also United States v. Woodberry, 987 F.3d 1231, 1235 (9th Cir. 2021) (applying Taylor’s holding to robbery of licensed marijuana dispensary). “[T]he Government need not show that the drugs that a defendant stole or attempted to steal either traveled or were destined for transport across state lines.” Taylor, 136 S. Ct. at 2081.
The bracketed language stating an additional element applies only when the charge is an attempt. In attempt cases, “[t]o constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances.” United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (internal quotations omitted).
The “strongly corroborated” language in this instruction comes from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) (“A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent”) and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).
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).
“[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime.” United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).
18 U.S.C. § 1951 requires specific intent as an element. In United States v. Dominguez, the Ninth Circuit reiterated its prior holding that “criminal intent—acting ‘knowingly or wilingly’—is an implied and necessary element that the government must prove for a Hobbs Act conviction.” 954 F.3d 1251, 1261 (9th Cir. 2020) (quoting United States v. Du Bo, 186 F.3d 1177, 1179 (9th Cir. 1999)). In Dominguez, the Ninth Circuit held that evidence was sufficient to support defendant’s conviction of attempted Hobbs Act robbery because it “overwhelmingly showed that [defendant] had the specific intent.
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8.143B HOBBS ACT—AFFECTING INTERSTATE COMMERCE
Comment
To convict the defendant of [specify crime], the government must prove that the defendant’s conduct affected or could have affected interstate commerce. Conduct affects interstate commerce if it in any way involves, interferes with, changes, or alters the movement or transportation or flow of goods, merchandise, money, or other property in commerce between or among the states or between the United States and a foreign country. The effect can be minimal.
It is not necessary for the government to prove that the defendant knew or intended that [his][her] conduct would affect commerce; it must prove only that the natural consequences of [his][her] conduct affected commerce in some way. Also, you do not have to find that there was an actual effect on commerce. The government must show only that the natural result of the offense would be to cause an effect on interstate commerce to any degree, however minimal or slight.
See United States v. Woodberry, 987 F.3d 1231, 1235 (9th Cir. 2021); see generally United States v. Tuan Ngoc Luong, 965 F.3d 973, 986 (9th Cir. 2020) (holding that district court did not err by instruction that “[a]n effect on interstate commerce is established by proof of an actual impact, however small, or in the absence of an actual impact, proof of a probable or potential impact. This impact can be slight, but not speculative.”).
Approved 6/2021
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. 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 and that strongly corroborated the defendant’s intent to commit 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.
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.]
Comment
In United States v. Nader, 542 F.3d 713, 722 (9th Cir. 2008), 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.
In attempt cases, “[t]o constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances.” United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (internal quotations omitted).
The “strongly corroborated” language in this instruction comes from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) (“A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent”) and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).
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).
“[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime.” United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).
Approved 6/2021
8.145 ILLEGAL GAMBLING BUSINESS
(18 U.S.C. § 1955)
The defendant is charged in [Count _______ of] the indictment with [conducting] [financing] [managing] [supervising] [directing] [owning] an illegal gambling business in violation of Section 1955 of Title 18 of the United States Code. 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 [conducted] [financed] [managed] [supervised] [directed] [owned] a business consisting of [specify illegal gambling business];
Second, [specify illegal gambling business] is illegal gambling in [specify state or political subdivision];
Third, the business involved five or more persons who [conducted] [financed] [managed] [supervised] [directed] [owned] all or part of the business; and
Fourth, the business [had been in substantially continuous operation by five or more persons for more than thirty days] [had a gross revenue of $2,000 in any single day].
Comment
Where jurors could find from the evidence two separate thirty-day periods, the jury must be instructed that they must unanimously agree on the same period. United States v. Gilley, 836 F.2d 1206, 1211-12 (9th Cir.1988).
Approved 6/2021
8.146 Financial Transaction or Attempted Transaction to Promote Unlawful Activity (18 U.S.C. § 1956(a)(1)(A))
The defendant is charged in [Count _______ of] the indictment with [conducting] [attempting to conduct] a financial transaction to promote [unlawful activity] in violation of Section 1956(a)(1)(A) of Title 18 of the United States Code. 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 [conducted] [intended to conduct] a financial transaction involving property that represented the proceeds of [specify prior, separate criminal activity];
Second, the defendant knew that the property represented the proceeds of [specify prior, separate criminal activity]; [and]
Third, the defendant acted with the intent to promote the carrying on of [specify unlawful activity being promoted][.] [; and]
[Fourth, the defendant did something that was a substantial step toward committing the crime and that strongly corroborated the defendant’s intent to commit 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 unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.]
A financial transaction is a transaction involving [the movement of funds by wire or other means that] [one or more monetary instruments that] [the use of a financial institution that is engaged in, or the activities of which] affect[s] interstate or foreign commerce in any way.
Comment
See United States v. Sayakhom, 186 F.3d 928, 940 (9th Cir. 1999), approving a similar version of this instruction.
For cases involving conduct on or after May 20, 2009, “proceeds” means “any property derived from or obtained or retained, directly or indirectly, through some form of unlawful activity, including the gross receipts of such activity.” 18 U.S.C. § 1956(c)(9) (subsection (c)(9) was added by Pub. L. 111-21, 123 Stat. 1618). For cases involving conduct prior to May 20, 2009, consider United States v. Santos, 553 U.S. 507, 513-14 (2008) (plurality opinion) (stating that when prior, separate criminal activity is gambling, “proceeds” must be defined as “profits.”), and United States v. Van Alstyne, 584 F.3d 803, 814 (9th Cir. 2009) (“We therefore view the holding that commanded five votes in Santos as being that ‘proceeds’ means ‘profits’ where viewing ‘proceeds’ as ‘receipts’ would present a ‘merger’ problem of the kind that troubled the plurality and concurrence in Santos.”).
With respect to the second element, the government must prove that the defendant knew that the property represented the proceeds of the specific prior, separate criminal activity but need not prove that the defendant knew that the act of laundering the proceeds was unlawful. See United States v. Deeb, 175 F.3d 1163, 1167 (9th Cir. 1999).
Because it is a specific intent crime, it is reversible error to give Instruction 5.7 (Knowingly—Defined) in a money laundering case. United States v. Stein, 37 F.3d 1407, 1410 (9th Cir. 1994). See also United States v. Turman, 122 F.3d 1167, 1170 (9th Cir. 1997) (applying Stein retroactively).
In attempt cases, “[t]o constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances.” United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (internal quotations omitted).
The “strongly corroborated” language in this instruction comes from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) (“A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent”) and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).
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).
“[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime.” United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).
Approved 6/2021
8.147 LAUNDERING OR ATTEMPTING TO LAUNDER MONETARY INSTRUMENTS
(18 U.S.C. § 1956(a)(1)(B))
The defendant is charged in [Count _______ of] the indictment with [laundering] [attempting to launder] money in violation of Section 1956(a)(1)(B) of Title 18 of the United States Code. 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 [conducted] [intended to conduct] a financial transaction involving property that represented the proceeds of [specify prior, separate criminal activity];
Second, the defendant knew that the property represented the proceeds of some form of unlawful activity; and
Third, the defendant knew that the transaction was designed in whole or in part [to conceal or disguise the [nature] [location] [source] [ownership] [control] of the proceeds] [to avoid a transaction reporting requirement under state or federal law][.] [; and]
[Fourth, the defendant did something that was a substantial step toward committing the crime and that strongly corroborated the defendant’s intent to commit 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 unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.]
A financial transaction is a transaction involving [the movement of funds by wire or other means that] [one or more monetary instruments that] [the use of a financial institution that is engaged in, or the activities of which] affect[s] interstate or foreign commerce in any way.
The phrase “knew that the property represented the proceeds of some form of unlawful activity” means that the defendant knew that the property involved in the transaction represented proceeds from some form, though not necessarily which form, of activity that constitutes a felony. I instruct you that [specify relevant unlawful activity] is a felony.
[The laws of the [United States] [State of _______] require the reporting of [specify reporting requirement].]
Comment
“Proceeds” means “any property derived from or obtained or retained, directly or indirectly, through some form of unlawful activity, including the gross receipts of such activity.” 18 U.S.C. § 1956(c)(9) (subsection (c)(9) was added by Pub. L. 111-21, 123 Stat. 1618 on May 20, 2009).
For cases involving conduct before May 20, 2009, consider United States v. Santos, 553 U.S. 507, 513-14 (2008) (plurality opinion) (stating that when prior, separate criminal activity is gambling, “proceeds” must be defined as “profits.”), and United States v. Van Alstyne, 584 F.3d 803, 814 (9th Cir. 2009) (“We therefore view the holding that commanded five votes in Santos as being that ‘proceeds’ means ‘profits’ where viewing ‘proceeds’ as ‘receipts’ would present a ‘merger’ problem of the kind that troubled the plurality and concurrence in Santos.”). See also United States v. Webster, 623 F.3d 901, 906 (9th Cir. 2010) (reading Santos as holding that where money laundering count is based on transfers among co-conspirators of money from sale of drugs, “proceeds” includes all “receipts” from such sales).
If the defendant is charged with laundering a monetary instrument other than cash, see 18 U.S.C. § 1956(c)(5), the instruction should be modified accordingly.
Because it is a specific intent crime, it is reversible error to give Instruction 4.8 (Knowingly) in a money laundering case. United States v. Stein, 37 F.3d 1407, 1410 (9th Cir. 1994). See also United States v. Turman, 122 F.3d 1167, 1169 (9th Cir. 1997) (applying Stein retroactively).
The government is required to prove “that the defendant knew that the underlying acts which provided the sources of the laundered proceeds were illegal,” but not that “the defendant knew that his money-laundering acts were illegal.” United States v. Golb, 69 F.3d 1417, 1428 (9th Cir. 1999).
With respect to the third element of the instruction, see Cuellar v. United States, 553 U.S. 550,561-68 (2008) (stating that evidence of how money was moved insufficient to prove knowledge); see also United States v. Wilkes, 662 F.3d 524, 547 (9th Cir. 2011) (stating that evidence that defendant’s transactions were “convoluted” rather than “simple transactions that can be followed with relative ease, or transactions that involve nothing but the initial crime,” was sufficient to prove transaction designed to conceal) (citation omitted); United States v. Singh, 995 F.3d 1069 (9th Cir. 2021) (hawala operation used to transfer and launder drug trafficking proceeds).
The “nexus with interstate commerce is both a jurisdictional requirement and an essential element of the offense.” United States v. Bazuaye, 240 F.3d 861, 863 (9th Cir. 2001) (quoting United States v. Ladum, 141 F.3d 1328, 1339 n.2 (9th Cir. 1998)). “But the connection need not be extensive; the prosecution need only show that the transaction affected interstate or foreign commercie ‘in any way or degree.’” United States v. Costanzo, 956 F.3d 1091 (9th Cir. 2020) (quoting 18 U.S.C. § 1956(c)(4)).
The bracketed language regarding reporting requirements in the last paragraph of the instruction only applies if the defendant is charged with laundering funds to avoid a transaction reporting requirement under state or federal law.
The bracketed language stating an additional element applies only when the charge is an attempt. In attempt cases, “[t]o constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances.” United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (internal quotations omitted).
The “strongly corroborated” language in this instruction comes from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) (“A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent”) and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).
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).
“[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime.” United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).
Revised 6/2021
8.148 TRANSPORTING OR ATTEMPTING TO TRANSPORT
FUNDS TO PROMOTE UNLAWFUL ACTIVITY
(18 U.S.C. § 1956(a)(2)(A))
The defendant is charged in [Count _______ of] the indictment with [transporting] [attempting to transport] funds to promote unlawful activity in violation of Section 1956(a)(2)(A) of Title 18 of the United States Code. 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 [transported] [intended to transport] money [from a place in the United States to or through a place outside the United States] [to a place in the United States from or through a place outside the United States]; [and]
Second, the defendant acted with the intent to promote the carrying on of [specify criminal activity charged in the indictment][.] [; and]
[Third, the defendant did something that was a substantial step toward committing the crime and that strongly corroborated the defendant’s intent to commit 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 unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.]
Comment
The bracketed language stating an additional element applies only when the charge is an attempt. In attempt cases, “[t]o constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances.” United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (internal quotations omitted).
The “strongly corroborated” language in this instruction comes from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) (“A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent”) and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).
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).
“[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime.” United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).
Approved 6/2021
8.149 TRANSPORTING OR ATTEMPTING TO TRANSPORT MONETARY
INSTRUMENTS FOR THE PURPOSE OF LAUNDERING
(18 U.S.C. § 1956(a)(2)(B))
The defendant is charged in [Count _______ of] the indictment with [transporting] [attempting to transport] money for the purpose of laundering in violation of Section 1956(a)(2)(B) of Title 18 of the United States Code. 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 [transported] [intended to transport] money [from a place in the United States to or through a place outside the United States] [to a place in the United States from or through a place outside the United States];
Second, the defendant knew that the money represented the proceeds of [specify prior, separate criminal activity]; [and]
Third, the defendant knew the transportation was designed in whole or in part [to conceal or disguise the [nature] [location] [source] [ownership] [control] of the proceeds of [specify criminal activity charged in the indictment]] [to avoid a transaction reporting requirement under state or federal law][.] [; and]
[Fourth, the defendant did something that was a substantial step toward committing the crime and that strongly corroborated the defendant’s intent to commit the crime.
Mere preparation is not a substantial step toward committing the crime of transporting money for the purpose of laundering. To constitute a substantial step, a defendant’s act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.]
[The laws of the [United States] [State of _______] require the reporting of [reporting requirement].]
Comment
For cases involving conduct on or after May 20, 2009, "proceeds" means "any property derived from or obtained or retained, directly or indirectly, through some form of unlawful activity, including the gross receipts of such activity." 18 U.S.C. § 1956(c)(9) (subsection (c)(9) was added by Pub. L. 111-21, 123 Stat. 1618).
For cases involving conduct before May 20, 2009, consider United States v. Santos, 553 U.S. 507, 513-14 (2008) (plurality opinion) (discussing where prior, separate criminal activity is gambling, "proceeds" must be defined as "profits."), and United States v. Van Alstyne, 584 F.3d 803, 814 (9th Cir. 2009) ("We therefore view the holding that commanded five votes in Santos as being that ‘proceeds’ means ‘profits’ where viewing ‘proceeds’ as ‘receipts’ would present a ‘merger’ problem of the kind that troubled the plurality and concurrence in Santos."). See also United States v. Phillips, 704 F.3d 754 (9th Cir. 2012) (stating when money laundering activity did not further predicate criminal scheme or occur during normal course of running scheme, "proceeds" were correctly defined as "gross receipts" under 18 U.S.C. § 1957); United States v. Webster, 623 F.3d 901, 906 (9th Cir. 2010) (reading Santos as holding that when money laundering count is based on transfers among co-conspirators of money from sale of drugs, "proceeds" includes all "receipts" from such sales).
Because it is a specific intent crime, it is reversible error to give Instruction 5.7 (Knowingly–Defined) in a money laundering case. United States v. Stein, 37 F.3d 1407, 1410 (9th Cir. 1994). See also United States v. Turman, 122 F.3d 1167, 1169 (9th Cir. 1997) (applying Stein retroactively).
The elements of this instruction follow the language of the statute, although in most cases the crime described in each element would be the same. See United States v. Jenkins, 633 F.3d 788, 806-07 (9th Cir. 2011).
With respect to the second element of the instruction, the government must prove that the defendant knew that the property represented the proceeds of the specific prior, separate criminal activity but need not prove that the defendant knew that the act of laundering the proceeds was unlawful. See United States v. Deeb, 175 F.3d 1163, 1167 (9th Cir. 1999).
With respect to the third element of the instruction, see Cuellar v. United States, 553 U.S. 550, 561-68 (2008) (evidence of how money was moved insufficient to prove knowledge).
The bracketed language stating an additional element applies only when the charge is an attempt. In attempt cases, "[t]o constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances." United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (internal quotations omitted).
The "strongly corroborated" language in this instruction comes from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) ("A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent") and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).
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).
"[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime." United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).
Approved 6/2021
8.150 MONEY LAUNDERING
(18 U.S.C. § 1957)
The defendant is charged in [Count _______ of] the indictment with money laundering in violation of Section 1957 of Title 18 of the United States Code. 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 knowingly engaged or attempted to engage in a monetary transaction;
Second, the defendant knew the transaction involved criminally derived property;
Third, the property had a value greater than $10,000;
Fourth, the property was, in fact, derived from [describe the specified unlawful activity alleged in the indictment]; and
Fifth, the transaction occurred [[in the [United States] [special maritime and territorial jurisdiction of the United States]] [specify defendant’s status which qualifies under 18 U.S.C. § 1957(d)(2)].
The term "monetary transaction" means the [deposit] [withdrawal] [transfer] or [exchange], in or affecting interstate commerce, of funds or a monetary instrument by, through, or to a financial institution. [The term "monetary transaction" does not include any transaction necessary to preserve a person’s right to representation as guaranteed by the Sixth Amendment to the Constitution.]
The term "financial institution" means [identify type of institution listed in 31 U.S.C. § 5312 as alleged in the indictment].
The term "criminally derived property" means any property constituting, or derived from, the proceeds of a criminal offense. The government must prove that the defendant knew that the property involved in the monetary transaction constituted, or was derived from, proceeds obtained by some criminal offense. The government does not have to prove that the defendant knew the precise nature of that criminal offense, or knew the property involved in the transaction represented the proceeds of [specified unlawful activity as alleged in the indictment].
Although the government must prove that, of the property at issue more than $10,000 was criminally derived, the government does not have to prove that all the property at issue was criminally derived.
Comment
The above definition of "criminally derived property" refers to the "proceeds" of a criminal offense. For cases involving conduct on or after May 20, 2009, "proceeds" means "any property derived from or obtained or retained, directly or indirectly, through some form of unlawful activity, including the gross receipts of such activity." 18 U.S.C. § 1957(f)(3); 18 U.S.C. § 1956(c)(9) (§ 1957 subsection (f)(3) was modified by Pub. L. 111-21, 123 Stat. 1618, which also added § 1956 subsection (c)(9)). For cases involving conduct before May 20, 2009, "proceeds" means "gross receipts" unless the money laundering transactions were a "central component" of the criminal scheme. United States v. Phillips, 704 F.3d 754 (9th Cir. 2012); see also United States v. Van Alstyne, 584 F.3d 803, 814 (stating that when defining "proceeds" as "gross receipts" would present a merger problem, "proceeds" means "profits"). See Instruction 8.149.
The term "specified unlawful activity" in 18 U.S.C. § 1957 has the same meaning as that term is given in 18 U.S.C. § 1956. See 18 U.S.C. § 1957(f)(3). In § 1956(c)(7)(B)(iv), the "specified unlawful activity" of bribery "should be interpreted to take the ordinary, contemporary, common meaning" of that word at the time Congress enacted the statute. See United States v. Chi, 936 F.3d 888, 893 (9th Cir. 2019) (applying term "bribery" to include bribery under foreign law and not restricted to federal bribery statute, 18 U.S.C. § 201, or foreign law that mirrors federal bribery statute).
Approved 6/2021
8.151 VIOLENT CRIME OR ATTEMPTED VIOLENT CRIME
IN AID OF RACKETEERING ENTERPRISE
(18 U.S.C. § 1959)
The defendant is charged in Count _______ of the indictment with [committing] [threatening to commit] [attempting to commit] [conspiring to commit] a crime of violence, specifically, [specify crime of violence] in aid of a racketeering enterprise in violation of Section 1959 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, on or about the time period described in Count _______, an enterprise affecting interstate commerce existed;
Second, the enterprise engaged in racketeering activity;
Third, the defendant [committed] [threatened to commit] [attempted to commit] [conspired to commit] the following crime of violence: [specify crime of violence] as defined in [specify jury instruction stating all elements of predicate crime of violence]; [and]
Fourth, the defendant’s purpose in [[committing] [threatening to commit] [attempting to commit] [conspiring to commit]] [specify crime of violence] was to gain entrance to, or to maintain, or to increase [his] [her] position in the enterprise[.] [and]
[Fifth, the defendant did something that was a substantial step toward committing the crime and that strongly corroborated the defendant’s intent to commit 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 unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.]
Comment
Use this instruction in conjunction with Instructions 8.152 (Racketeering Enterprise—Enterprise Affecting Interstate Commerce—Defined), 8.153 (Racketeering Activity—Defined), 8.154 (Racketeering Enterprise—Proof of Purpose); and an instruction setting forth the elements of the predicate crime of violence. When the charge alleges an attempt or conspiracy to commit a crime of violence, include an appropriate instruction as to attempt or conspiracy. See Instruction 5.3 (Attempt) and Instruction 8.20 (Conspiracy—Elements).
In United States v. Banks, 514 F.3d 959, 964 (9th Cir. 2008), the Ninth Circuit summarized existing case law that identified the four elements necessary for a conviction of committing violent crimes in aid of racketeering activity (VICAR):
The VICAR statute provides that ‘[w]hoever, . .. for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity, murders [or] . . . assaults with a dangerous weapon . . . in violation of the laws of any State or the United States, or attempts or conspires so to do, shall be punished.’ 18 U.S.C. § 1959(a) (emphasis added). In our prior decisions we have identified four elements required for a conviction under this statute: ‘(1) that the criminal organization exists; (2) that the organization is a racketeering enterprise; (3) that the defendant[ ] committed a violent crime; and (4) that [the defendant] acted for the purpose of promoting [his] position in a racketeering enterprise.’ United States v. Bracy, 67 F.3d 1421, 1429 (9th Cir. 1995); see also United States v. Fernandez, 388 F.3d 1199, 1220 (9th Cir. 2004).
In United States v. Houston,648 F.3d 806, 819-20 (9th Cir. 2011), the Ninth Circuit held it was not error to refuse to instruct on second degree murder as a lesser predicate to VICAR first degree murder.
A charge under Section 1959 also applies to violent crimes committed "as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value from an enterprise engaged in racketeering activity." If that is the basis of the charged crime, the fourth element of the instruction should be modified accordingly. See United States v. Concepcion, 983 F.2d 369, 384 (2d Cir. 1992) (Section 1959 is sufficiently inclusive to encompass actions of an "independent contractor," as it reaches not only those who seek to maintain or increase their positions within a RICO enterprise, but also those who perform violent crimes as consideration for the receipt of anything of pecuniary value from such an enterprise).
The bracketed language stating an additional element applies only when the charge is an attempt. In attempt cases, "[t]o constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances." United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (internal quotations omitted).
The "strongly corroborated" language in this instruction is taken from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) ("A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent") and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).
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).
"[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime." United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).
Approved 4/2019
8.152 RACKETEERING ENTERPRISE—ENTERPRISE AFFECTING INTERSTATE COMMERCE—DEFINED
(18 U.S.C. § 1959)
With respect to the first element in Instruction _______ [insert cross reference to pertinent instruction, e.g., Instruction 8.151], the government must prove that an "enterprise" existed that was engaged in or had an effect on interstate commerce. An enterprise is a group of people who have associated together for a common purpose of engaging in a course of conduct over a period of time. This group of people, in addition to having a common purpose, must have an ongoing organization, either formal or informal. The personnel of the enterprise, however, may change and need not be associated with the enterprise for the entire period alleged in the indictment. This group of people does not have to be a legally recognized entity, such as a partnership or corporation. This group may be organized for a legitimate and lawful purpose, or it may be organized for an unlawful purpose. [The name of the organization itself is not an element of the offense and does not have to be proved.]
Therefore, the government must prove beyond a reasonable doubt that this was a group of people (1) associated for a common purpose of engaging in a course of conduct; (2) that the association of these people was an ongoing formal or informal organization, and (3) the group was engaged in or had an effect upon interstate or foreign commerce. The government need not prove that the enterprise had any particular organizational structure.
Interstate commerce includes the movement of goods, services, money and individuals between states. These goods can be legal or illegal. Only a minimal effect on commerce is required and the effect need only be probable or potential, not actual. It is not necessary to prove that the defendant’s own acts affected interstate commerce as long as the enterprise’s acts had such effect.
Comment
Use this instruction in conjunction with Instructions 8.151 (Violent Crime in Aid of Racketeering Enterprise), 8.153 (Racketeering Activity—Defined), and 8.154 (Racketeering Enterprise—Proof of Purpose).
Definitions of "enterprise" are found in 18 U.S.C. §§ 1959(b)(2) and 1961(4). See also United States v. Turkette, 452 U.S. 576, 583 (1981); Odom v. Microsoft Corp., 486 F.3d 541, 550-52 (9th Cir.2000); United Energy Owners Committee, Inc. v. United States Energy Management System, Inc., 837 F.2d 356, 362 (9th Cir.1988).
8.153 RACKETEERING ACTIVITY—DEFINED
(18 U.S.C. § 1959)
With respect to the second element in Instruction _______ [insert cross reference to pertinent instruction, e.g. Instruction 8.151], the government must prove that the enterprise was engaged in racketeering activity. "Racketeering activity" means the commission of certain crimes. These include [insert applicable statutory definitions of state or federal crimes at issue as listed in 18 U.S.C. § 1961.]
The government must prove beyond a reasonable doubt that the enterprise was engaged in [at least one of] the crime[s] named above.
Comment
Use this instruction in conjunction with Instructions 8.151 (Violent Crime in Aid of Racketeering Enterprise), 8.152 (Racketeering Enterprise—Enterprise Affecting Interstate Commerce—Defined), and 8.154 (Racketeering Enterprise—Proof of Purpose).
For a definition of "racketeering activity," see 18 U.S.C. § 1959(b)(1), which states that term has the meaning set forth in 18 U.S.C. § 1961(1). See also United States v. Banks, 514 F.3d 959, 968 (9th Cir.2008).
8.154 RACKETEERING ENTERPRISE—PROOF OF PURPOSE
(18 U.S.C. § 1959)
With respect to the fourth element in Instruction _______ [insert cross reference to pertinent instruction, e.g. Instruction 8.151], the government must prove beyond a reasonable doubt that the defendant’s purpose was to gain entrance to, or to maintain, or to increase [his] [her] position in the enterprise.
It is not necessary for the government to prove that this motive was the sole purpose, or even the primary purpose of the defendant in committing the charged crime. You need only find that enhancing [his] [her] status in [name of enterprise] was a substantial purpose of the defendant or that [he] [she] committed the charged crime as an integral aspect of membership in [name of enterprise].
In determining the defendant’s purpose in committing the alleged crime, you must determine what [he] [she] had in mind. Since you cannot look into a person’s mind, you have to determine purpose by considering all the facts and circumstances before you.
Comment
Use this instruction in conjunction with Instructions 8.151 (Violent Crime in Aid of Racketeering Enterprise), 8.152 (Racketeering Enterprise—Enterprise Affecting Interstate Commerce—Defined), and 8.153 (Racketeering Activity—Defined). See Comment to Instruction 8.151. If the fourth element of Instruction 8.151 is modified, this instruction should also be modified.
"[T]he purpose element is met if ‘the jury could properly infer that the defendant committed his violent crime because he knew it was expected of him by reason of his membership in the enterprise or that he committed it in furtherance of that membership.’" United States v. Banks, 514 F.3d 959, 965 (9th Cir. 2008) (quoting United States v. Pimentel, 346 F.3d 285, 295-96 (2d Cir. 2003)).
"VICAR’s purpose element is satisfied even if the maintenance or enhancement of his position in the criminal enterprise was not the defendant’s sole or principal purpose." Banks, 514 F.3d at 965. The law, however, requires a defendant’s purpose be "more than merely incidental." Id. at 969. Although the gang or racketeering enterprise purpose does not have to be "the only purpose or the main purpose" of a murder or assault, it does have to be a substantial purpose. Id. at 970. "Murder while a gang member is not necessarily a murder for the purpose of maintaining or increasing position in a gang, even if it would have the effect of maintaining or increasing position in a gang." Id.
The Ninth Circuit held that it was not error to instruct on an alternate Pinkerton theory (co-conspirator’s liability), even though under Pinkerton it is not necessary that the defendant personally act for the purpose of maintaining his position in the enterprise provided that he had that intent when he joined the conspiracy. United States v. Houston, 648 F.3d 806, 818-19 (9th Cir. 2011).
In United States v. Smith, 831 F.3d 1207, 1217-18 (9th Cir. 2016), the Ninth Circuit considered whether it was error for the lower court to state that the purpose "must be more than merely incidental." The Smith Court noted this phrasing could imply the standard was too low, which could result in error. Id. at 1219. The Court noted, however, that the instruction should not use the word dominant because it "has a flavor" "suggest[ing] that the standard is very high." Id. Ultimately the court declined to weigh on which word should be used but said "substantial" "would convey the idea with more precision." Id.
Approved 1/2019
8.155 RICO—RACKETEERING ACT—CHARGED AS SEPARATE COUNT IN INDICTMENT
(18 U.S.C. § 1961(1))
The crimes of [specify crimes charged] charged in Counts _______ of the indictment are racketeering acts. If you find the defendant guilty of [at least two of] the crimes charged in Counts _______ you must then decide whether those counts formed a pattern of racketeering activity.
All of you must agree on the same two crimes which form a pattern of racketeering activity.
Comment
Unanimity as to the crimes forming a pattern of racketeering activity is appropriate under the reasoning of Richardson v. United States, 526 U.S. 813 (1999) (in continuing criminal enterprise prosecution, there must be unanimity as to the specific violations which make up the "continuing series of violations"). See also Instruction 7.9 (Specific Issue Unanimity).
8.156 RICO—RACKETEERING ACT—NOT CHARGED AS SEPARATE COUNT IN INDICTMENT
(18 U.S.C. § 1961(1))
The crime of [specify crime charged] is a racketeering act. In order for you to find that the defendant [committed] [aided and abetted others in committing] the crime of [specify crime charged], the government must prove each of the following elements beyond a reasonable doubt:
[Specify elements of the crime.]
[All of you must agree on the same two racketeering acts that the defendant [committed] [aided and abetted in committing].]
Comment
There is no requirement that the defendant must have been convicted of the crime constituting an act of racketeering activity before the act can be used as part of the pattern of racketeering activity. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985). Even though a defendant has previously been acquitted of a crime in a state court, he or she can still be charged with the same crime in a RICO charge. United States v. Licavoli, 725 F.2d 1040, 1047 (6th Cir.1984).
A pattern of racketeering activity requires at least two acts of racketeering activity. 18 U.S.C. § 1961(5). More than one crime may be charged as a racketeering act.
8.157 RICO—PATTERN OF RACKETEERING ACTIVITY
(18 U.S.C. § 1961(5))
To establish a pattern of racketeering activity, the government must prove each of the following beyond a reasonable doubt:
First, at least two acts of racketeering were committed within a period of ten years of each other;
Second, the acts of racketeering were related to each other, meaning that there was a relationship between or among the acts of racketeering; and
Third, the acts of racketeering amounted to or posed a threat of continued criminal activity.
With respect to the second element, acts of racketeering are related if they embraced the same or similar purposes, results, participants, victims, or methods of commission, or were otherwise interrelated by distinguishing characteristics.
Sporadic, widely separated, or isolated criminal acts do not form a pattern of racketeering activity.
Two racketeering acts are not necessarily enough to establish a pattern of racketeering activity.
Comment
In determining whether two racketeering activities occurred within ten years, any period of imprisonment after the commission of a prior act must be excluded.
See United States v. Camez, 839 F.3d 871, 876 (9th Cir. 2016) (pattern of racketeering activity requires at least two predicate acts, one of which may have occurred while defendant was minor if criminal conduct in issue continued past age of majority); Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 n.14 (1985) (although at least two acts are necessary under the definition of "pattern of racketeering activity," two acts may not be sufficient to constitute a pattern). See also H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 239 (1989) (pattern of racketeering activity requires a "showing that the racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity"); Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1535-36 (9th Cir. 1992) (applying Northwestern Bell); Ikuno v. Yip, 912 F.2d 306, 309 (9th Cir. 1990) (same); see also United States v. Rodriguez, 971 F.3d 1007, 1013-14 (9th Cir. 2020) (pattern of racketeering activity extends to attempts and conspiracies, even if no racketeering offense is completed)..
Approved 1/2019
8.158 RICO—USING OR INVESTING INCOME FROM RACKETEERING ACTIVITY
(18 U.S.C. § 1962(a))
The defendant is charged in [Count _______ of] the indictment with using or investing income from racketeering activity in violation of Section 1962(a) 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 received income, directly or indirectly, from a pattern of racketeering activity, or through collection of an unlawful debt;
Second, the defendant used or invested, directly or indirectly, any part of that income or the proceeds of such income to [buy an interest or invest in] [establish] [operate] [specify enterprise]; and
Third, [specify enterprise] was engaged in or its activities in some way affected commerce between one state and [an]other state[s], or between the United States and a foreign country.
Comment
When the predicate racketeering acts are charged as separate counts in the indictment, use this instruction in combination with Instructions 8.155 (RICO—Racketeering Act—Charged as Separate Count in Indictment) and 8.157 (RICO—Pattern of Racketeering Activity). When the predicate racketeering acts are not charged as separate counts in the indictment, use this instruction in combination with Instructions 8.156 (RICO—Racketeering Act—Not Charged as Separate Count in Indictment) and 8.157 (RICO—Pattern of Racketeering Activity).
Unlike a case in which a corporation is charged under 18 U.S.C. § 1962(c), "where a corporation engages in racketeering activities and is the direct or indirect beneficiary of the pattern of racketeering activity, it can be both the ‘person’ and the ‘enterprise’ under section 1962(a)." Schreiber Distrib. Co. v. Serv–Well Furniture Co., 806 F.2d 1393, 1396 (9th Cir.1986).
Approved 12/2016
8.159 RICO—ACQUIRING INTEREST IN ENTERPRISE
(18 U.S.C. § 1962(b))
The defendant is charged in [Count _______ of] the indictment with acquiring or maintaining an interest in or control of an enterprise in violation of Section 1962(b) 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, directly or indirectly, acquired or maintained an interest in or control of [specify enterprise];
Second, the defendant did so through a pattern of racketeering activity or through collection of an unlawful debt; and
Third, [specify enterprise] engaged in or its activities in some way affected commerce between one state and [an]other state[s] or the United States and a foreign country.
Comment
When the predicate racketeering acts are charged as separate counts in the indictment, use this instruction in combination with Instructions 8.155 (RICO—Racketeering Act—Charged as Separate Count in Indictment) and 8.157 (RICO—Pattern of Racketeering Activity). When the predicate racketeering acts are not charged as separate counts in the indictment, use this instruction in combination with Instructions 8.156 (RICO—Racketeering Act—Not Charged as Separate Count in Indictment) and 8.157 (RICO—Pattern of Racketeering Activity).
The enterprise in which a defendant invests must be an entity distinct from the defendant.
RICO predicate acts only require a de minimus impact on interstate commerce. United States v. Fernandez, 388 F.3d 1199, 1218 (9th Cir.2004); United States v. Juvenile Male, 118 F.3d 1344, 1347 (9th Cir.1997).
Control under § 1962(b) does not require "formal control." Ikuno v. Yip, 912 F.2d 306, 310 (9th Cir.1990).
8.160 RICO—CONDUCTING AFFAIRS OF COMMERCIAL
ENTERPRISE OR UNION
(18 U.S.C. § 1962(c))
The defendant is charged in [Count _______ of] the indictment with having [conducted] [participated in the conduct of] the affairs of [specify enterprise or union] through a pattern of racketeering activity in violation of Section 1962(c) 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 was employed by or associated with [specify enterprise or union];
Second, the defendant [conducted] [participated, directly or indirectly, in the conduct of] the affairs of [specify enterprise or union] through a pattern of racketeering activity or collection of unlawful debt. To conduct or participate means that the defendant had to be involved in the operation or management of the [specify enterprise or union]; and
Third, [specify enterprise or union] engaged in or its activities in some way affected commerce between one state and [an]other state[s], or the United States and a foreign country.
Comment
When racketeering acts are charged as separate counts in the indictment, use this instruction in combination with Instructions 8.155 (RICO—Racketeering Act—Charged as Separate Count in Indictment) and 8.157 (RICO—Pattern of Racketeering Activity). When the racketeering acts are not charged as separate counts in the indictment, use this instruction in combination with Instructions 8.156 (RICO—Racketeering Act—Not Charged as Separate Count in the Indictment) and 8.157 (RICO—Pattern of Racketeering Activity).
As defined in 18 U.S.C. § 1961(4), an enterprise "includes any individual, partnership, corporation, association, or other legal entity, and any union"; therefore, the name of the legal entity should be used.
The enterprise cannot also be the RICO defendant when the charge is that the defendant violated 18 U.S.C. § 1962(c).
See United States v. Shryock, 342 F.3d 948, 985-86 (9th Cir. 2003) (defining "conducts or participates" in the affairs of the enterprise).
See Reves v. Ernst & Young, 507 U.S. 170, 184 (1993) (holding that liability under section 1962 may also extend to lower rung participants who are under the direction of upper management).
Approved 1/2019
8.161 CONDUCTING AFFAIRS OF ASSOCIATION–IN–FACT
(18 U.S.C. § 1962(c))
The defendant is charged in [Count _______ of] the indictment with having [conducted] [participated in the conduct of] the affairs of an enterprise through a pattern of racketeering activity in violation of Section 1962(c) 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, there was an on-going enterprise with some sort of formal or informal framework for carrying out its objectives consisting of a group of persons associated together for a common purpose of engaging in a course of conduct;
Second, the defendant was employed by or associated with the enterprise;
Third, the defendant [conducted] [participated, directly or indirectly, in the conduct of] the affairs of the enterprise through a pattern of racketeering activity or collection of unlawful debt. To conduct or participate means that the defendant had to be involved in the operation or management of the enterprise; and
Fourth, the enterprise engaged in or its activities in some way affected commerce between one state and [an]other state[s], or between the United States and a foreign country.
An enterprise need not be a formal entity such as a corporation and need not have a name, regular meetings, or established rules.
Comment
When racketeering acts are charged as separate counts in the indictment, use this instruction in combination with Instructions 8.155 (RICO–Racketeering Act–Charged as Separate Count in Indictment) and 8.157 (RICO–Pattern of Racketeering Activity). When the racketeering acts are not charged as separate counts in the indictment, use this instruction in combination with Instructions 8.156 (RICO–Racketeering Act–Not Charged as Separate Count in the Indictment) and 8.157 (RICO–Pattern of Racketeering Activity).
RICO requires that an association-in-fact enterprise must have a structure, but the word "structure" need not be used in the jury instruction. Boyle v. United States, 556 U.S. 938, 946 (2009). The definition of "enterprise" in the first element of the instruction is based on Boyle, 556 U.S. at 944, and United States v. Turkette, 452 U.S. 576, 583 (1981).
For RICO purposes, an association in fact "need not have a name, regular meetings, dues, established rules and regulations, disciplinary procedures, or induction or initiation ceremonies." Boyle, 556 U.S. at 948.
Defendants in RICO actions must have had "some knowledge of the nature of the enterprise . . . to avoid an unjust association of the defendant[s] with the crimes of others," but the requirement of a common purpose may be met so long as the defendants were "each aware of the essential nature and scope of [the] enterprise and intended to participate in it." United States v. Christensen, 828 F.3d 763, 781 (9th Cir.2015), as amended on denial of reh’g (July 8, 2016). A RICO enterprise is not defeated even when some of the enterprise’s participants lack detailed knowledge of all of the other participants or their activities. Instead, "it is sufficient that the defendant know the general nature of the enterprise and know that the enterprise extends beyond his individual role." Id.
See United States v. Shryock, 342 F.3d 948, 985-86 (9th Cir.2003) (defining "conducts or participates" in the affairs of the enterprise).
Approved 12/2015
8.162 BANK ROBBERY
(18 U.S.C. § 2113(a), (d))
The defendant is charged in [Count _______ of] the indictment with [armed] bank robbery in violation of Section 2113 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, through force and violence or intimidation, [took ] [obtained by extortion] [[property] [money] [something of value]] belonging to or in the care, custody, control, management or possession of [specify financial institution];]
or
[First, the defendant entered [specify financial institution] intending to commit [insert applicable crime] affecting [specify financial institution];]
Second, the deposits of [specify financial institution] were then insured by the [Federal Deposit Insurance Corporation] [National Credit Union Administration Board][.] [; and]
[Third, the defendant intentionally [[struck or wounded [name of victim]] [made a display of force that reasonably caused [name of victim] to fear bodily harm] by using a [specify dangerous weapon or device]. [A weapon or device is dangerous if it is something that creates a greater apprehension in the victim and increases the likelihood that police or bystanders would react using deadly force.]
Comment
Choose the applicable first element of the instruction depending on which portion of 18 U.S.C. § 2113(a) the defendant is charged under. When the second option of the first element is used, a companion instruction may be necessary to define the applicable crime.
The third element should be used when a violation of 18 U.S.C. § 2113(d) for use of a dangerous weapon is charged. When the § 2113(d) offense is predicated on an underlying § 2113(b) offense, substitute for the first element in this instruction the first element in Instruction 8.162A.
Frequently, the weapon used is a firearm, in which case there is not likely to be an issue about whether a dangerous weapon was used. In such cases, the last bracketed sentence in the fourth element might be omitted. A “dangerous weapon” is required for both the “assault” and “display of force” options of § 2113(d). See Simpson v. United States, 435 U.S. 6, 13 n.6 (1978), superseded by statute on other grounds as stated in United States v. Beierle, 77 F.3d 1199, 1201 n.1 (9th Cir. 1996).
There may be cases in which a jury must decide whether the weapon or device is dangerous. In such cases the bracketed last sentence in the third element should be used. The definition of dangerous weapon is derived from a discussion in United States v. Pike, 473 F.3d 1053, 1060 (9th Cir. 2007), which did not involve a dangerous weapon issue. The Ninth Circuit explained that its previous decisions in United States v. Taylor, 960 F.2d 115, 116-17 (9th Cir. 1992), and United States v. Boyd, 924 F.2d 945, 947 (9th Cir. 1991), had held devices to be dangerous because the device increased victim apprehension and increased the likelihood of police or bystanders responding with deadly force. Pike, 473 F.3d at 1060.
To constitute “use” of a dangerous weapon, the weapon must be actively employed rather than inadvertently displayed. United States v. Bain, 925 F.3d 1172, 1178 (9th Cir. 2019)
(holding that inadvertent placement of closed pocket knife on bank counter does not constitute use of dangerous weapon); see also United States v. Odom, 329 F.3d 1032, 1033 (9th Cir. 2003) (“[A] bank robber with a concealed gun who never mentions or insinuates having one, but who displays it inadvertently [cannot] be convicted of armed bank robbery.”)
To convict a defendant for armed bank robbery under an aiding and abetting theory, the Ninth Circuit requires the government to show beyond a reasonable doubt both that the defendant knew that the principal had and intended to use a dangerous weapon during the robbery, and that the defendant intended to aid in that endeavor. United States v. Dinkane, 17 F.3d 1192, 1195 (9th Cir. 1994). Failure to properly instruct the jury on this issue constitutes reversible error. Id.
Armed bank robbery under § 2113(d) “requires that ‘the robber knowingly made one or more victims at the scene of the robbery aware that he had a gun, real or not.’” United States v. Henry, 984 F.3d 1343, 1356 (9th Cir. 2021) (quoting United States v. McDuffy, 890 F.3d 796, 799 (9th Cir. 2018)).
Bank robbery is a general intent crime. See Carter v. United States, 530 U.S. 255, 268 (2000).
Approved 3/2021
8.162A BANK ROBBERY
(18 U.S.C. § 2113(b), (c))
The defendant is charged in [Count _______ of] the indictment with bank robbery in violation of Section 2113 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 [took and carried away with intent to steal or purloin] [received, possessed, concealed, stored, bartered, sold, or disposed of] [[property] [money] [something of value]] belonging to or in the care, custody, control, management or possession of [specify financial institution];
Second, what the defendant [took and carried away] [received, possessed, concealed, bartered, sold, or disposed of] had a value [greater than $1000] [of $1000 or less]; [and]
[Third, the defendant knew that what the defendant received, possessed, concealed, stored, bartered, sold or disposed of had been stolen; and]
or
[Third] [Fourth], the deposits of [specify financial institution] were then insured by the [Federal Deposit Insurance Corporation] [National Credit Union Administration Board].
Comment
Use the third element concerning the defendant’s knowledge when the defendant is charged under 18 U.S.C. § 2113(c) and adjust the number of the last element accordingly.
See also Instructions 8.162 and 8.162B.
Approved 6/2015
8.162B BANK ROBBERY
(18 U.S.C. § 2113 (e))
The defendant is charged in [Count _______ of] the indictment with bank robbery in violation of Section 2113 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 [took] [obtained by extortion] [[property] [money] [something of value]] belonging to or in the care, custody, control, management or possession of [specify financial institution], using force and violence or intimidation in doing so.]
or
[First, the defendant entered [specify financial institution], intending to commit [insert applicable crime] affecting [specify financial institution];]
or
[First, the defendant took and carried away, with intent to steal or purloin, [[property] [money] [something of value]] belonging to or in the care, custody, control, management or possession of [specify financial institution];]
or
[First, the defendant received, possessed, concealed, stored, bartered, sold, or disposed of [[property] [money] [something of value]] belonging to, or in the care, custody, control, management or possession of [specify financial institution], knowing that the [[property] [money] [item]] was stolen;]
or
[First, the defendant [took] [obtained by extortion] [[property] [money] [something of value]] belonging to, or in the care, custody, control, management or possession of [specify financial institution], using force and violence or intimidation in doing so [and intentionally struck or wounded a person] [and intentionally made a display of force that reasonably caused another person to fear bodily harm by] using [specify dangerous weapon or device];]
or
[First, the defendant entered [specify financial institution] intending to commit [insert applicable crime] affecting [specify financial institution], using force and violence or intimidation in doing so and intentionally [struck or wounded a person] [made a display of force that reasonably caused another person to fear bodily harm by] using [specify dangerous weapon or device];]
Second, while doing so, the defendant [killed [name of victim]] [forced [name of victim] to accompany the defendant without the consent of such person. A defendant "forces a person to accompany" the defendant when the defendant forces that person to go somewhere with the defendant, even if the movement occurs entirely within a single building or over a short distance]; and
Third, the deposits of [specify financial institution] were then insured by the [Federal Deposit Insurance Corporation] [National Credit Union Administration Board].
Comment
Depending on which crime(s) from 18 U.S.C. § 2113 are charged in the indictment, select the appropriate "First" option(s).
The "forced" language in the second element should be used when a violation of 18 U.S.C. § 2113(e) for kidnapping a person in connection with a robbery is charged. See Whitfield v. United States, 135 S. Ct. 785 (2015) (§ 2113(e) does not require defendant to force someone to accompany defendant over "substantial distance"; movement may occur "entirely within a single building or over a short distance"); United States v. Strobehn, 421 F.3d 1017, 1019 (9th Cir. 2005) ("On its face, the enhancing elements are that a defendant (1) in the course of committing a bank robbery (2) forces a person (3) to accompany him (4) without that person’s consent. While ‘kidnaping’ works as a shorthand description because § 2113(e) contemplates moving someone by force to someplace he doesn’t want to go, the statute plainly, and only, requires accompaniment that is forced and without consent").
Approved 6/2015
8.163 ATTEMPTED BANK ROBBERY
(18 U.S.C. § 2113)
The defendant is charged in [Count _______ of] the indictment with attempted bank robbery in violation of Section 2113 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 intended to use force and violence or intimidation to take money that belonged to [specify financial institution];
Second, the deposits of [specify financial institution] were then insured by the [Federal Deposit Insurance Corporation] [National Credit Union Administration Board]; and
Third, the defendant did something that was a substantial step toward committing the crime and that strongly corroborated the defendant’s intent to commit the crime.
Mere preparation is not a substantial step toward the committing the crime. To constitute a substantial step, a defendant’s act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of the crime.
Comment
"To constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances." United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (internal quotations omitted).
The "strongly corroborated" language in this instruction is taken from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) ("A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent") and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).
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).
"[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime." United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).
Approved 4/2019
8.164 AGGRAVATED SEXUAL ABUSE
(18 U.S.C. § 2113 (e))
The defendant is charged in [Count _______ of] the indictment with aggravated sexual abuse in violation of Section 2241(a) 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 knowingly [used force] [threatened or placed [name of victim] in fear that some person would be subject to death, serious bodily injury or kidnapping] to cause [name of victim] to engage in a sexual act; and
Second, the offense was committed at [specify place of federal jurisdiction].
In this case, "sexual act" means [specify statutory definition].
Comment
See 18 U.S.C. § 2246(2) for the definition of sexual act referred to in the last paragraph of the instruction.
For a definition of "knowingly," see Instruction 5.6 (Knowingly–Defined).
Whether the crime alleged occurred at a particular location is a question of fact. Whether the location is within the special maritime and territorial jurisdiction of the United States, a federal prison or a facility where federal detainees are held pursuant to a contract is a question of law. United States v. Mujahid, ___F.3d___, 2015 WL 5040196 (9th Cir. August 27, 2015); see also United States v. Gipe, 672 F.2d 777, 779 (9th Cir.1982).
Approved 9/2015
8.165 ATTEMPTED AGGRAVATED SEXUAL ABUSE
(18 U.S.C. § 2241(a))
The defendant is charged in [Count _______ of] the indictment with attempted aggravated sexual abuse in violation of Section 2241(a) 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 intended to [use force] [threaten or place [name of victim] in fear that some person would be subjected to death, serious bodily injury, or kidnapping] to cause [name of victim] to engage in a sexual act;
Second, the defendant did something that was a substantial step toward committing the crime and that strongly corroborated the defendant’s intent to commit the crime; and
Third, the offense was committed at [specify place of federal jurisdiction].
In this case, "sexual act" means [specify statutory definition].
Mere preparation is not a substantial step toward committing the crime. To constitute a substantial step, a defendant’s act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.
Comment
See Comment to Instruction 8.164 (Aggravated Sexual Abuse).
See 18 U.S.C. § 2246(2) for the definition of sexual act referred to in the penultimate paragraph of the instruction.
"To constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances." United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (internal quotations omitted).
The "strongly corroborated" language in this instruction is taken from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) ("A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent") and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).
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).
"[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime." United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).
Approved 4/2019
8.166 AGGRAVATED SEXUAL ABUSE—ADMINISTRATION OF DRUG,
INTOXICANT OR OTHER SUBSTANCE
(18 U.S.C. § 2241(b)(2))
The defendant is charged in [Count _______ of] the indictment with aggravated sexual abuse in violation of Section 2241(b)(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 each of the following elements beyond a reasonable doubt:
First, the defendant knowingly administered a drug, intoxicant or other similar substance to [name of victim] [by force or threat of force] [without the knowledge or permission of [name of victim]];
Second, as a result, [name of victim]’s ability to judge or control conduct was substantially impaired;
Third, the defendant then engaged in a sexual act with [name of victim]; and
Fourth, the offense was committed at [specify place of federal jurisdiction].
In this case, "sexual act" means [specify statutory definition].
Comment
See Comment to Instruction 8.164 (Aggravated Sexual Abuse).
8.167 ATTEMPTED AGGRAVATED SEXUAL ABUSE—ADMINISTRATION
OF DRUG,INTOXICANT OR OTHER SUBSTANCE
(18 U.S.C. § 2241(b)(2))
The defendant is charged in [Count _______ of] the indictment with attempted aggravated sexual abuse in violation of Section 2241(b)(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 each of the following elements beyond a reasonable doubt:
First, the defendant intended to engage in a sexual act with [name of victim] after substantially impairing [name of victim]’s ability to judge or control conduct by administering a drug, intoxicant or other similar substance either by force or threat of force or without the knowledge or permission of [name of victim];
Second, the defendant did something that was a substantial step toward committing the crime of aggravated sexual abuse and that strongly corroborated the defendant’s intent to commit that crime; and
Third, the offense was committed at [specify place of federal jurisdiction].
In this case, "sexual act" means [specify statutory definition].
Mere preparation is not a substantial step toward committing the crime. To constitute a substantial step, a defendant’s act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.
Comment
See Comment to Instruction 8.164 (Aggravated Sexual Abuse).
"To constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances." United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (internal quotations omitted).
The "strongly corroborated" language in this instruction is taken from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) ("A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent") and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).
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).
"[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime." United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).
Approved 4/2019
8.168 AGGRAVATED SEXUAL ABUSE OF CHILD
(18 U.S.C. § 2241(c))
The defendant is charged in [Count _______ of] the indictment with aggravated sexual abuse of a child in violation of Section 2241(c) 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 knowingly engaged in a sexual act with [name of victim];
Second, at the time, [name of victim] was under the age of twelve years; and
Third, [the defendant crossed a state line with the intent to engage in a sexual act with a person who was under the age of twelve years] [the offense was committed at [specify place of federal jurisdiction]].
The government need not prove that the defendant knew that the other person engaging in the sexual act was under the age of twelve years.
In this case, "sexual act" means [specify statutory definition].
Comment
See Comment to Instruction 8.164 (Aggravated Sexual Abuse).
The Ninth Circuit, analyzing the mandatory life sentencing enhancement under the last sentence of the statute, has held that a conviction under § 2241(c) "depend[s] on the commission of a ‘sexual act.’" United States v. Etimani, 328 F.3d 493, 503 (9th Cir. 2003) (defining sexual act as "skin-to-skin touching" and finding that sentencing enhancement did not apply where previous conviction was pursuant to statute allowing conviction for touching over clothes).
Although the Committee has not found any Ninth Circuit case explicitly holding that proof of a sexual act is an element of the offense under the first clause of 18 U.S.C. § 2241(c), the court, when analyzing the mandatory life sentencing enhancement under the last sentence of the statute, stated a conviction under § 2241(c) "depend[s] on the commission of a ‘sexual act.’" (defining sexual act as "skin-to-skin touching"). United States v. Etimani, 328 F.3d 493, 503 (9th Cir. 2003).
See 18 U.S.C. § 2241(d), as to the penultimate paragraph of the instruction. See 18 U.S.C. § 2246(2) for the definition of sexual act referred to in the last paragraph of the instruction.
An alleged mistake as to the victim’s age is not a defense to a charge of aggravated sexual abuse under a statute prohibiting anyone from knowingly engaging in sexual contact with another person who has not attained the age of 12 years. United States v. Juvenile Male, 211 F.3d 1169, 1171 (9th Cir. 2000).
Approved 1/2019
8.169 ATTEMPTED AGGRAVATED SEXUAL
ABUSE OF CHILD
(18 U.S.C. § 2241(c))
The defendant is charged in [Count _______ of] the indictment with attempted aggravated sexual abuse of a child in violation of Section 2241(c) 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 intended to engage in a sexual act with [name of victim];
Second, [name of victim] was under the age of twelve years;
Third, the defendant did something that was a substantial step toward committing the crime and that strongly corroborated the defendant’s intent to commit the crime; and
Fourth, [the defendant crossed a state line with the intent to engage in a sexual act with a person who was under the age of twelve years] [the offense was committed at [specify place of federal jurisdiction]].
The government need not prove that the defendant knew that the other person with whom the defendant intended to engage in a sexual act was under the age of twelve years.
In this case, "sexual act" means [specify statutory definition].
Mere preparation is not a substantial step toward committing the crime. To constitute a substantial step, a defendant’s act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.
Comment
See Comment to Instruction 8.164 (Aggravated Sexual Abuse).
The Ninth Circuit, analyzing the mandatory life sentencing enhancement under the last sentence of the statute, has held that a conviction under § 2241(c) "depend[s] on the commission of a ‘sexual act.’" United States v. Etimani, 328 F.3d 493, 503 (9th Cir. 2003) (defining sexual act as "skin-to-skin touching" and finding that sentencing enhancement did not apply where previous conviction was pursuant to statute allowing conviction for touching over clothes).
See 18 U.S.C. § 2241(d), as to the sixth paragraph of the instruction. See 18 U.S.C. § 2246(2) for the definition of sexual act referred to in the seventh paragraph of the instruction.
"To constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances." United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (internal quotations omitted).
The "strongly corroborated" language in this instruction is taken from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) ("A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent") and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).
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).
"[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime." United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).
Approved 4/2019
8.170 SEXUAL ABUSE—BY THREAT
(18 U.S.C. § 2242(1))
The defendant is charged in [Count _______ of] the indictment with sexual abuse in violation of Section 2242(1) 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 knowingly caused [name of victim] to engage in a sexual act by threatening or placing [name of victim] in fear; and
Second, the offense was committed at [specify place of federal jurisdiction].
In this case, "sexual act" means [specify statutory definition].
Comment
See Comment to Instruction 8.164 (Aggravated Sexual Abuse).
This instruction is appropriate when the defendant has placed the victim in fear of something other than death, serious bodily injury or kidnapping.
8.171 ATTEMPTED SEXUAL ABUSE—
BY THREAT
(18 U.S.C. § 2242(1))
The defendant is charged in [Count _______ of] the indictment with attempted sexual abuse in violation of Section 2242(1) 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 intended to cause [name of victim] to engage in a sexual act by threatening or placing [name of victim] in fear;
Second, the defendant did something that was a substantial step toward committing the crime of sexual abuse and that strongly corroborated the defendant’s intent to commit that crime; and
Third, the offense was committed at [specify place of federal jurisdiction].
In this case, "sexual act" means [specify statutory definition].
Mere preparation is not a substantial step toward committing the crime. To constitute a substantial step, a defendant’s act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.
Comment
See Comment to Instruction 8.164 (Aggravated Sexual Abuse).
"To constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances." United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (internal quotations omitted).
The "strongly corroborated" language in this instruction is taken from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) ("A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent") and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).
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).
"[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime." United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).
Approved 4/2019
8.172 SEXUAL ABUSE—INCAPACITY OF VICTIM
(18 U.S.C. § 2242(2))
The defendant is charged in [Count _______ of] the indictment with sexual abuse in violation of Section 2242(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 each of the following elements beyond a reasonable doubt:
First, the defendant knowingly engaged in a sexual act with [name of victim];
Second, [name of victim] was [incapable of appraising the nature of the conduct] [physically incapable of declining participation in, or communicating unwillingness to engage in that sexual act]; and
Third, the offense was committed at [specify place of federal jurisdiction].
In this case, "sexual act" means [specify statutory definition].
[A person need not be physically helpless to be physically incapable of declining participation in or communicating unwillingness to engage in sexual act.]
Comment
See Comment to Instruction 8.164 (Aggravated Sexual Abuse).
For purposes of a charge under § 2242(2)(B), establishing that a victim was physically incapable of declining participation in or communicating unwillingness to engage in the sexual act does not require proof that the victim was "physically helpless." U.S. v. James, 810 F.3d 674, 679 (9th Cir. 2016).
Approved 1/2019
8.173 ATTEMPTED SEXUAL ABUSE—
INCAPACITY OF VICTIM
(18 U.S.C. § 2242(2))
The defendant is charged in [Count _______ of] the indictment with attempted sexual abuse in violation of Section 2242(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 each of the following elements beyond a reasonable doubt:
First, the defendant intended to engage in a sexual act with a person who was [incapable of appraising the nature of the conduct] [physically incapable of declining participation in or communicating unwillingness to engage in that sexual act];
Second, the defendant did something that was a substantial step toward committing the crime of sexual abuse and that strongly corroborated the defendant’s intent to commit that crime; and
Third, the offense was committed at [specify place of federal jurisdiction].
Mere preparation is not a substantial step toward committing the crime. To constitute a substantial step, a defendant’s act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.
In this case, "sexual act" means [specify statutory definition].
Comment
See Comment to Instruction 8.164 (Aggravated Sexual Abuse).
"To constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances." United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (internal quotations omitted).
The "strongly corroborated" language in this instruction is taken from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) ("A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent") and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).
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).
"[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime." United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).
Approved 4/2019
8.174 SEXUAL ABUSE OF MINOR
(18 U.S.C. § 2243(a))
The defendant is charged in [Count _______ of] the indictment with sexual abuse of a minor in violation of Section 2243(a) 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 knowingly engaged in a sexual act with [name of victim];
Second, [name of victim] had reached the age of twelve years but had not yet reached the age of sixteen years;
Third, [name of victim] was at least four years younger than the defendant; and
Fourth, the offense was committed at [specify place of federal jurisdiction].
The government need not prove that the defendant knew the age of [name of victim] or that the defendant knew that [name of victim] was at least four years younger than the defendant.
In this case, "sexual act" means [specify statutory definition].
Comment
See Comment to Instruction 8.164 (Aggravated Sexual Abuse).
See 18 U.S.C. § 2243(d), as to the penultimate paragraph of the instruction. See 18 U.S.C. § 2246(2) for the definition of sexual act referred to in the last paragraph of the instruction.
Sexual abuse of a minor is not a lesser included offense of aggravated sexual assault. United States v. Rivera, 43 F.3d 1291, 1297 (9th Cir.1995).
8.175 ATTEMPTED SEXUAL ABUSE OF MINOR
(18 U.S.C. § 2243(a))
The defendant is charged in [Count _______ of] the indictment with attempted sexual abuse of a minor in violation of Section 2243(a) 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 intended to engage in a sexual act with [name of victim], who had reached the age of twelve years but had not reached the age of sixteen years;
Second, [name of victim] was at least four years younger than the defendant;
Third, the defendant did something that was a substantial step toward committing the crime and that strongly corroborated the defendant’s intent to commit the crime; and
Fourth, the offense was committed at [specify place of federal jurisdiction].
Mere preparation is not a substantial step toward committing the crime. To constitute a substantial step, a defendant’s act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.
The government need not prove that the defendant knew the age of [name of victim] or that the defendant knew that [name of victim] was at least four years younger than the defendant.
In this case, "sexual act" means [specify statutory definition].
Comment
See Comment to Instruction 8.164 (Aggravated Sexual Abuse).
See 18 U.S.C. § 2243(d), as to the penultimate paragraph of the instruction. See 18 U.S.C. § 2246(2) for the definition of sexual act referred to in the last paragraph of the instruction.
"To constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances." United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (internal quotations omitted).
The "strongly corroborated" language in this instruction is taken from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) ("A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent") and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).
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).
"[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime." United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).
Approved 4/2019
8.176 SEXUAL ABUSE OF PERSON IN OFFICIAL DETENTION
(18 U.S.C. § 2243(b))
The defendant is charged in [Count _______ of] the indictment with sexual abuse of a person in official detention in violation of Section 2243(b) 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 knowingly engaged in a sexual act with [name of victim];
Second, at the time, [name of victim] was in official detention at [specify place of federal jurisdiction]; and
Third, at the time [name of victim] was under the custodial, supervisory or disciplinary authority of the defendant.
In this case, "sexual act" means [specify statutory definition].
In this case, "official detention" means [official detention definition].
Comment
See Comment to Instruction 8.164 (Aggravated Sexual Abuse).
"Official detention" is defined in 18 U.S.C. § 2246(5). “Official detention” includes a minor who is being held in a facility who has been served with a Notice to Appear in Immigration Court, and who has been placed into removal proceedings. United States v. Pacheco, 977 F.3d 764, 766 (9th Cir. 2020).
Approved 12/2020
8.177 ATTEMPTED SEXUAL ABUSE OF PERSON IN OFFICIAL DETENTION
(18 U.S.C. § 2243(b))
The defendant is charged in [Count _______ of] the indictment with attempted sexual abuse of a person in official detention in violation of Section 2243(b) 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 intended to engage in a sexul act with [name of victim], who at the time was in official detention at [specify place of federal jurisdiction] and was under the custodil, supervisory, or disciplinary authority of the defendant; and
Second, the defendant did something that was a substantial step toward committing the crime and that strongly corroborated the defendant’s intent to commit 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 unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.
Jurors do not need to agree unanimously as to which particular acts or actions constituted a substantial step toward the commission of a crime.
In this case, “sexual act” means [specify statutory definition].
In this case, “official detention” means [specify official detention definition].
Comment
See Comment to Instructipn 8.164 (Aggravated Sexual Abuse).
"Offical detention" is defined in 18 U.S.C. § 2245(5). "Official detention" includes a minor who is being held in a facility who has been served with a Notice to Appear in Immigration Court, and who has been placed into removal proceedings. United States v. Pachecho, 977 F.3d 764, 766 (9th Cir. 2020).
“To constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances.” United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (internal quotations omitted).
The “strongly corroborated” language in this instruction is taken from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) (“A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent”) and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).
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).
“[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime.” United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).
Approved 12/2020
8.178 SEXUAL ABUSE—DEFENSE OF REASONABLE BELIEF OF MINOR’S AGE (18 U.S.C. § 2243(c)(1))
It is a defense to the charge of [attempted] sexual abuse of a minor that the defendant reasonably believed that the minor had reached the age of sixteen. The defendant has the burden of proving that it is more probably true than not true that the defendant reasonably believed that the minor had reached the age of sixteen.
If you find that the defendant reasonably believed that the minor had reached the age of sixteen, you must find the defendant not guilty.
Comment
This defense applies only to offenses under 18 U.S.C. § 2243(a); see Instructions 8.174 (Sexual Abuse of Minor) and 8.175 (Attempted Sexual Abuse of Minor).
8.179 ABUSIVE SEXUAL CONTACT—GENERAL
(18 U.S.C. § 2244(a))
Comment
The offenses defined in 18 U.S.C. §§ 2241, 2242 and 2243 as sexual abuse become abusive sexual contact under 18 U.S.C. § 2244 if there was not a "sexual act" but there was a "sexual contact." Those terms are defined in Sections 2246(2) and (3). Accordingly, when it is necessary to instruct a jury on abusive sexual contact, the appropriate sexual abuse instruction should be used with "a sexual contact" substituted for "a sexual act."
Section 2244 does not make it a crime to attempt a sexual contact.
8.180 ABUSIVE SEXUAL CONTACT—WITHOUT PERMISSION
(18 U.S.C. § 2244(b))
The defendant is charged in [Count _______ of] the indictment with abusive sexual contact in violation of Section 2244(b) 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 knowingly had sexual contact with [name of victim];
Second, the sexual contact was without [name of victim]’s permission; and
Third, the offense was committed at [specify place of federal jurisdiction].
In this case, "sexual contact" means [specify statutory definition].
Comment
See United States v. Price, 980 F.3d 1211, 1217-1224 (9th Cir. 2020) (approving instruction). In this case, the Ninth Circuit held that the government must prove beyond a reasonable doubt that the defendant knowingly had sexual contact with the victim and that the sexual contact was without the victim’s permission. “Permission” includes both explicit and implicit permission and may be proven by either direct or circumstantial evidence. The government is not required to prove that the defendant subjectively knew that the sexual contact was without the victim’s permission. Id.
Acts that fall within the meaning of "sexual contact"are listed in 18 U.S.C. § 2246(3).
Whether the crime alleged occurred at a particular location is a question of fact. Whether the location is within the special maritime and territorial jurisdiction of the United States or a federal prison is a question of law. See United States v. Gipe, 672 F.2d 777, 779 (9th Cir.1982).
"Special maritime and territorial jurisdiction of the United States" includes, to the extent permitted by international law, a crime occurring on a foreign vessel during a voyage having a scheduled departure from or arrival in the United States where the offense was committed by or against a United States national. United States v. Neil, 312 F.3d 419, 422 (9th Cir.2002) (crime of sexual contact with a minor in violation of 18 U.S.C. § 2244(a) by noncitizen defendant on a cruise ship in Mexican territorial waters was within special maritime and territorial jurisdiction where ship departed from and arrived in the United States and victim was a United States citizen).
Approved 12/2020
8.181 SEXUAL EXPLOITATION OF CHILD
(18 U.S.C. § 2251(a))
The defendant is charged in [Count _______ of] the indictment with sexual exploitation of a child in violation of Section 2251(a) 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, at the time, [name of victim] was under the age of eighteen years;
Second, the defendant
[[employed] [used] [persuaded] [coerced] [name of victim] to take part in sexually explicit conduct]
or
[had [name of victim] assist any other person to engage in sexually explicit conduct]
or
[transported [name of victim] [[across state lines] [in foreign commerce] [in any Territory or Possession of the United States]] with the intent that [name of victim] engage in sexually explicit conduct]
for the purpose of producing a visual depiction of such conduct; and
Third,
[the defendant knew or had reason to know that the visual depiction would be mailed or transported across state lines or in foreign commerce.]
or
[the visual depiction was produced using materials that had been mailed, shipped, or transported across state lines or in foreign commerce.]
or
[the visual depiction was mailed or actually transported across state lines or in foreign commerce.]
or
[the visual depiction affected interstate commerce.]
In this case, "sexually explicit conduct" means [specify statutory definition].
In this case, "producing" means [specify statutory definition].
In this case, "visual depiction" means [specify statutory definition].
Comment
"Sexually explicit conduct" is defined in 18 U.S.C. § 2256(2).
"Producing" is defined in 18 U.S.C. § 2256(3).
"Visual depiction" is defined in 18 U.S.C. § 2256(5).
This instruction does not address that portion of the statute that prohibits "transmitting a live visual depiction." If that is the charge before the court, this instruction should be modified accordingly.
Knowledge of the age of the minor victim is not an element of the offense. United States v. United States District Court, 858 F.2d 534 (9th Cir. 1988). See also United States v. X–Citement Video, Inc., 513 U.S. 64, 76 n. 5 (1994) ("[P]roducers may be convicted under § 2251(a) without proof they had knowledge of age . . .") (dicta). But see Instruction 8.186 (Sexual Exploitation of a Child—Defense of Reasonable Belief of Age).
Transportation in interstate or foreign commerce can be accomplished by any means, including by a computer. 18 U.S.C. § 2251(b). For a definition of computer, see 18 U.S.C. §§ 1030(e) and 2256(6).
See United States v McCalla, 545 F.3d 750, 756 (9th Cir. 2008) (holding that applying § 2251(a) to noncommercial intrastate production did not violate Commerce Clause; Congress had broad interest in preventing interstate sexual exploitation of children and it was rational for Congress "to conclude that homegrown child pornography affects interstate commerce").
A defendant who simply possesses, transports, reproduces, or distributes child pornography does not sexually exploit a minor in violation of 18 U.S.C. § 2251, even though the materials possessed, transported, reproduced, or distributed "involve" such sexual exploitation by the producer. The defendant must also have been "directly involved in the actual sexual abuse or exploitation of minors." See United States v. Kemmish, 120 F.3d 937, 941-42 (9th Cir. 1997).
The term "used" in the second element of the instruction means "to put into action or service," "to avail oneself of," or "[to] employ." United States v. Laursen, 847 F.3d 1026, 1032 (9th Cir. 2017).
The third element of the instruction reflects § 2251(a)’s three alternative grounds for federal jurisdiction. Only the first of the three grounds requires a particular mental state of the defendant. The "knows or has reason to know" language from the statute’s first jurisdictional clause does not impute a knowledge requirement to the other two clauses. United States v. Sheldon, 755 F.3d 1047 (9th Cir. 2014) (testimony at trial that video recorder used in Montana was manufactured in China sufficient to satisfy jurisdictional element of § 2251(a)).
Approved 4/2019
8.182 SEXUAL EXPLOITATION OF CHILD—PERMITTING
OR ASSISTING BY PARENT OR GUARDIAN
(18 U.S.C. § 2251(b))
The defendant is charged in [Count _______ of] the indictment with sexual exploitation of a child in violation of Section 2251(b) 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, at the time, [name of victim] was under the age of eighteen years;
Second, the defendant was a [parent] [legal guardian] [person having custody or control] of [name of victim];
Third, the defendant knowingly permitted [name of victim] to [engage in sexually explicit conduct] [assist any other person to engage in sexually explicit conduct] for the purpose of producing a visual depiction of such conduct; and
Fourth,
[the defendant knew or had reason to know that the visual depiction would be mailed or transported across state lines or in foreign commerce.]
or
[the visual depiction was produced using materials that had been mailed, shipped, or transported across state lines or in foreign commerce.]
or
[the visual depiction was actually mailed or transported across state lines or in foreign commerce.]
or
[the visual depiction affected interstate commerce.]
The term "custody or control" includes temporary supervision over or responsibility for a minor, whether legally or illegally obtained.
In this case, "sexually explicit conduct" means [specify statutory definition].
In this case, "producing" means [specify statutory definition].
In this case, "visual depiction" means [specify statutory definition].
Comment
"Sexually explicit conduct" is defined in 18 U.S.C. § 2256(2).
"Producing" is defined in 18 U.S.C. § 2256(3).
"Visual depiction" is defined in 18 U.S.C. § 2256(5).
"Custody or control" is defined in 18 U.S.C. § 2256(7).
This instruction does not address that portion of the statute that prohibits "transmitting a live visual depiction." If that is the charge before the court, this instruction should be modified accordingly.
Transportation in interstate or foreign commerce can be accomplished by any means, including by a computer. 18 U.S.C. § 2251(b). For a definition of computer, see 18 U.S.C. §§ 1030(e) and 2256(6).
See United States v McCalla, 545 F.3d 750, 756 (9th Cir. 2008) (holding that applying § 2251(a) to noncommercial intrastate production did not violate Commerce Clause; Congress had broad interest in preventing interstate sexual exploitation of children and it was rational for Congress "to conclude that homegrown child pornography affects interstate commerce").
A defendant who simply possesses, transports, reproduces, or distributes child pornography does not sexually exploit a minor in violation of 18 U.S.C. § 2251, even though the materials possessed, transported, reproduced, or distributed "involve" such sexual exploitation by the producer. The defendant must also have been "directly involved in the actual sexual abuse or exploitation of minors." See United States v. Kemmish, 120 F.3d 937, 941-42 (9th Cir. 1997).
Approved 4/2019
8.182A SEXUAL EXPLOITATION OF CHILD—TRANSPORTATION
OF VISUAL DEPICTION INTO UNITED STATES
(18 U.S.C. § 2251(c))
The defendant is charged in [Count ______ of] the indictment with sexual exploitation of a child in violation of Section 2251(c) 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, at the time, [name of victim] was under the age of eighteen years;
Second, the defendant [[employed] [used] [persuaded] [induced] [enticed] [coerced]] [insert name of victim] to engage in sexually explicit conduct or assist any other person to engage in sexually explicit conduct outside of the United States, its territories, or possessions, for the purpose of producing a visual depiction of such conduct; and
Third, the defendant
[intended that the visual depiction be mailed or transported into the United States, its territories, or possessions by any means, including by using any means or facility of interstate commerce or mail.]
or
[actually mailed or transported the visual depiction into the United States, its territories, or possessions by any means, including by using any means or facility of interstate commerce or mail.]
In this case, "sexually explicit conduct" means [specify applicable statutory definition].
In this case, "producing" means [specify applicable statutory definition].
In this case, "visual depiction" means [specify applicable statutory definition].
Comment
"Sexually explicit conduct" is defined in 18 U.S.C. § 2256(2).
"Producing" is defined in 18 U.S.C. § 2256(3).
"Visual depiction" is defined in 18 U.S.C. § 2256(5).
Transportation into the United States, its territories, or possessions can be accomplished by any means. 18 U.S.C. § 2251(c).
The age of the victim is a strict liability element; thus, a defendant may be properly convicted of a completed violation of § 2251(c) without a finding by the jury that the defendant knew or should have known that the victim was a minor. United States v. Jayavarman, 871 F.3d 1050, 1058 (9th Cir. 2017).
A defendant may be properly convicted of an attempt to violate § 2251(c) if the defendant believes the victim is a minor, even if the victim is actually an adult. Jayavarman, 871 F.3d at 1059.
Approved 4/2019
8.183 SEXUAL EXPLOITATION OF CHILD—NOTICE OR
ADVERTISEMENT SEEKING OR OFFERING
(18 U.S.C. § 2251(d))
The defendant is charged in [Count _______ of] the indictment with sexual exploitation of a child in violation of Section 2251(d) 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, at the time, [name of victim] was under the age of eighteen years;
Second, the defendant knowingly [made] [printed] [published] [caused to be made] [caused to be printed] [caused to be published] a [notice] [advertisement];
Third, the [notice] [advertisement] [sought] [offered]
[to [receive] [exchange] [buy] [produce] [display] [distribute] [reproduce] any visual depiction, if the production of the visual depiction utilized [name of victim] engaging in sexually explicit conduct and such visual depiction is of such conduct; and]
or
[participation in any act of sexually explicit conduct [by] [with] [[name of victim]] for the purpose of producing a visual depiction of such conduct; and]
[Fourth, the defendant knew or had reason to know that the [notice] [advertisement] would be transported [using any means or facility of interstate commerce] [in or affecting interstate commerce] by any means including by computer or mailed.]
or
[Fourth, the [notice] [advertisement] was transported [using any means or facility of interstate commerce] [in or affecting interstate commerce] by any means including by computer or mailed.]
In this case, "sexually explicit conduct" means [sexually explicit conduct definition].
In this case, "producing" means [producing definition].
In this case, "visual depiction" means [specify statutory definition].
Comment
"Sexually explicit conduct" is defined in 18 U.S.C. § 2256(2).
"Producing" is defined in 18 U.S.C. § 2256(3).
"Visual depiction" is defined in 18 U.S.C. § 2256(5).
"Notice" and "advertisement" are not defined in the statute, but what constitutes a notice or advertisement is a factual question, not a legal one. See United States v. Brown, 859 F.3d 730 (9th Cir. 2017) (holding Sixth Amendment violated when trial court precluded defendant from arguing that charged postings, encrypted and on closed, password-protected online bulletin board, did not constitute notice or advertisement). One-to-one communication can satisfy the notice requirement under 18 U.S.C. § 2251(d)(1). See United States v. Cox, 963 F.3d 915, 922 (9th Cir. 2020).
See United States v. McCalla, 545 F.3d 750, 756 (9th Cir. 2008) (holding that applying § 2251(a) to noncommercial intrastate production did not violate Commerce Clause; Congress had broad interest in preventing interstate sexual exploitation of children and it was rational for Congress "to conclude that homegrown child pornography affects interstate commerce").
A defendant who simply possesses, transports, reproduces, or distributes child pornography does not sexually exploit a minor in violation of 18 U.S.C. § 2251, even though the materials possessed, transported, reproduced, or distributed "involve" such sexual exploitation by the producer. The defendant must also have been "directly involved in the actual sexual abuse or exploitation of minors." See United States v. Kemmish, 120 F.3d 937, 941-42 (9th Cir. 1997).
Under 18 U.S.C. § 2251(d)(1)(A) "[t]here is no requirement that a defendant personally produce child pornography in order for criminal liability to attach." United States v. Williams, 660 F.3d 1223, 1225 (9th Cir. 2011).
Approved 4/2019
8.184 SEXUAL EXPLOITATION OF CHILD—TRANSPORTATION
OF CHILD PORNOGRAPHY
(18 U.S.C. § 2252(a)(1))
The defendant is charged in [Count _______ of] the indictment with [shipping] [transporting] child pornography in violation of Section 2252(a)(1) 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, that the defendant knowingly [transported] [shipped] a visual depiction [using any means or facility of interstate commerce] [in or affecting interstate commerce] by any means including by computer or mail;
Second, that the production of such visual depiction involved the use of a minor engaging in sexually explicit conduct;
Third, that such visual depiction was of a minor engaged in sexually explicit conduct;
Fourth, that the defendant knew that such visual depiction was of sexually explicit conduct; and
Fifth, the defendant knew that at least one of the persons engaged in sexually explicit conduct in such visual depiction was a minor.
Comment
"Interstate commerce" is defined by 18 U.S.C. § 10.
"Sexually explicit conduct" is defined in 18 U.S.C. § 2256(2).
"Producing" is defined in 18 U.S.C. § 2256(3).
"Visual depiction" is defined in 18 U.S.C. § 2256(5).
"Computer" is defined in 18 U.S.C. §§ 1030(e) and 2256(6).
Although the term "knowingly" in the text of 18 U.S.C. § 2252(a)(1) and (2) appears only to modify the act of transportation or shipment, the United States Supreme Court has held that the knowledge requirement also applies to the sexually explicit nature of the material as well as the minority status of the persons depicted. See United States v. X–Citement Video, Inc., 513 U.S. 64, 78 (1994).
See United States v. McCalla, 545 F.3d 750, 756 (9th Cir. 2008) (holding that applying § 2251(a) to noncommercial intrastate production did not violate Commerce Clause; Congress had broad interest in preventing interstate sexual exploitation of children and it was rational for Congress "to conclude that homegrown child pornography affects interstate commerce").
Free Speech Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999), sets forth a legislative history of the various federal acts dealing with child pornography.
Approved 4/2019
8.185 SEXUAL EXPLOITATION OF CHILD—
POSSESSION OF CHILD PORNOGRAPHY
(18 U.S.C. § 2252(a)(4)(B))
The defendant is charged in [Count _______ of] the indictment with possession of child pornography in violation of Section 2252(a)(4)(B) 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, that the defendant knowingly possessed [books] [magazines] [periodicals] [films] [video tapes] [matters] that the defendant knew contained [a] visual depiction[s] of [a] minor[s] engaged in sexually explicit conduct;
Second, the defendant knew [each] [the] visual depiction contained in the [[books] [magazines] [periodicals] [films] [video tapes] [matters]] [[was of] [showed]] [a] minor[s] engaged in sexually explicit conduct;
Third, the defendant knew that production of such [a] visual depiction[s] involved use of a minor in sexually explicit conduct; and
Fourth, that [each] [the] visual depiction had been
[[mailed] [shipped] [transported] [using any means or facility of interstate commerce] [in or affecting interstate commerce]]
or
[produced using material that had been [mailed] [shipped] [transported] [using any means or facility of interstate commerce] [in or affecting interstate commerce] by any means including by computer].
"Visual depiction" includes undeveloped film and video tape, and data stored on a computer disk or data stored by electronic means and capable of conversion into a visual image.
A "minor" is any person under the age of 18 years.
"Sexually explicit conduct" means actual or simulated sexual intercourse, bestiality, masturbation, sadistic or masochistic abuse, or lascivious exhibition of the genitals or pubic area of any person.
"Producing" means producing, directing, manufacturing, issuing, publishing, or advertising.
Comment
Prior to 1998, 18 U.S.C. § 2252(a)(4) required the possession of at least three visual depictions before an offense had occurred. As part of the Protection of Children From Sexual Predators Act of 1998, Congress amended section 2252(a) to prohibit possession of one visual depiction. At the same time, Congress added 18 U.S.C. § 2252(c), which provides an affirmative defense when, under certain circumstances, the defendant possessed "less than three matters containing any visual depiction." If such a defense has been raised, care should be taken in revising the instruction so that the jury is not confused.
The definitions of "minor," "sexually explicit conduct," "producing," and "visual depiction" are derived from 18 U.S.C. § 2256(1), (2), (3) and (5), respectively. Interstate or foreign commerce is defined by 18 U.S.C. § 10. "Matter" is a physical medium capable of containing images such as a computer hard drive or disk. United States v. Lacey, 119 F.3d 742, 748 (9th Cir. 1997).
See Lacey, 119 F.3d at 748 (jury instruction for possession of child pornography must include as element whether defendant knew "matter" in question contained unlawful visual depictions; such depiction may be "produced" when defendant downloads visual depictions from Internet); see also United States v. Romm, 455 F.3d 990, 1002-05 (9th Cir. 2006).
See United States v. McCalla, 545 F.3d 750, 756 (9th Cir. 2008) (holding that applying § 2251(a) to noncommercial intrastate production did not violate Commerce Clause; Congress had broad interest in preventing interstate sexual exploitation of children and it was rational for Congress "to conclude that homegrown child pornography affects interstate commerce").
Free Speech Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999), sets forth a legislative history of the various federal acts dealing with child pornography.
The statute was unconstitutionally applied to a mother who possessed a family photo showing herself and her young daughter exposed because the photo was meant entirely for personal use, no economic or commercial use was intended, and such possession had no connection with, or effect on, the national or international commercial child pornography market. United States v. McCoy, 323 F.3d 1114, 1132 (9th Cir. 2003); but see United States v. McCalla, 545 F.3d 750, 756 (9th Cir. 2008) (holding that any reasoning in McCoy relying on local nature of activity was overruled by Gonzalez v. Raich, 545 U.S. 1 (2005).
Expert testimony is not required for the government to establish that the images depicted an actual minor (i.e., that the images were not computer generated). United States v. Salcido, 506 F.3d 729, 733-34 (9th Cir. 2007).
The simultaneous possession of different materials containing offending images at a single time and place constitutes a single violation of the statute. United States v. Chilaca, 909 F.3d 289, 295 (9th Cir. 2018).
Possession of materials involving the sexual exploitation of minors under § 2254(a)(4)(B) may be, but is not necessarily, a lesser-included offense of distribution of such materials under § 2252(a)(2). See United States v. McElmurry, 776 F.3d 1061, 1063-65 (9th Cir. 2015).However, possession is always a lesser-included offense of receiving child pornography, because "[i]t is impossible to ‘receive’ something without, at least at the very instant of ‘receipt,’ also ‘possessing’ it." United States v. Davenport, 519 F.3d 940, 943 (9th Cir. 2008). When possession is charged along with either receipt or distribution, the court should ensure that the "separate conduct" requirement under the Double Jeopardy Clause has been satisfied. This could be done either with an appropriate instruction directing that separate conduct be found or by providing the jury with a special verdict form that requires the jury to identify the conduct supporting each conviction. See United States v. Teague, 722 F.3d 1187, 1193 (9th Cir. 2013).
Approved 4/2019
8.186 SEXUAL EXPLOITATION OF CHILD—DEFENSE OF REASONABLE BELIEF OF AGE
It is a defense to a charge of sexual exploitation of a child that the defendant did not know, and could not reasonably have learned, that the child was under 18 years of age.
The defendant has the burden of proving by clear and convincing evidence—that is, that it is highly probable—that the defendant did not know and could not reasonably have learned that [name of victim] was under 18 years of age. Proof by clear and convincing evidence is a lower standard of proof than proof beyond a reasonable doubt.
If you find by clear and convincing evidence that the defendant did not know and could not reasonably have learned that the child was under 18 years of age, you must find the defendant not guilty of the charge of sexual exploitation of a child.
Comment
Although 18 U.S.C. § 2251 is silent on whether reasonable mistake of age may serve as an affirmative defense, the Ninth Circuit has held that the defense is required by the First Amendment. United States v. United States District Court, 858 F.2d 534, 540-42 (9th Cir.1988). The defendant must establish this defense by clear and convincing evidence. Id. at 543.
8.187 INTERSTATE TRANSPORTATION OF STOLEN
VEHICLE, VESSEL OR AIRCRAFT
(18 U.S.C. § 2312)
The defendant is charged in [Count _______ of] the indictment with transportation of a stolen [motor vehicle] [vessel] [aircraft] in [interstate] [foreign] commerce in violation of Section 2312 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 [motor vehicle] [vessel] [aircraft] was stolen;
Second, the defendant transported the [motor vehicle] [vessel] [aircraft] between [one state and another] [a foreign nation and the United States];
Third, the defendant knew the [motor vehicle] [vessel] [aircraft] had been stolen at the time the defendant transported it; and
Fourth, the defendant intended to permanently or temporarily deprive the owner of ownership of the [motor vehicle] [vessel] [aircraft].
[It is not necessary that the taking of the [motor vehicle] [vessel] [aircraft] be unlawful at the time of the taking. Even if possession is lawfully acquired, the [motor vehicle] [vessel] [aircraft] will be deemed "stolen" if the defendant thereafter forms the intent to deprive the owner of the rights and benefits of ownership, and keeps the [motor vehicle] [vessel] [aircraft] for the defendant's own use.]
Comment
The elements stated in this instruction were identified by the Ninth Circuit in United States v. Albuquerque, 538 F.2d 277, 278 (9th Cir. 1976), and Jones v. United States, 378 F.2d 340, 341 (9th Cir. 1967).
The terms "motor vehicle," "vessel," and "aircraft" are defined in 18 U.S.C. § 2311.
Where a person lawfully obtains possession of a motor vehicle and later forms an intention to convert it to that person’s own use, and in furtherance of that intention transports it across state boundaries, a violation of the statute has occurred. United States v. Miles, 472 F.2d 1145, 1146 (8th Cir. 1973) (per curiam).
Approved 4/2019
8.188 SALE OR RECEIPT OF STOLEN VEHICLE, VESSEL OR AIRCRAFT
(18 U.S.C. § 2313)
The defendant is charged in [Count _______ of] the indictment with [receiving] [possessing] [concealing] [storing] [bartering] [selling] [disposing of] a stolen [motor vehicle] [vessel] [aircraft] in violation of Section 2313 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 [motor vehicle] [vessel] [aircraft] was stolen;
Second, after being stolen, the [motor vehicle] [vessel] [aircraft] was transported in [interstate] [foreign] commerce, meaning between [one state and another] [a foreign nation and the United States];
Third, the defendant [received] [possessed] [concealed] [stored] [bartered] [sold] [disposed of] the [motor vehicle] [vessel] [aircraft] while it was in [interstate] [foreign] commerce; and
Fourth, the defendant knew that the [motor vehicle] [vessel] [aircraft] was stolen at the time [he] [she] acted.
The government need not prove the defendant knew the property was in [interstate] [foreign] commerce; it need only prove the defendant knew it was stolen.
Something enters [interstate] [foreign] commerce when its transportation begins in one [state] [country] and is intended to continue into another. Property does not continue to be in [interstate] [foreign] commerce indefinitely. It ordinarily ceases to be in [interstate] [foreign] commerce when delivered to its final destination, unless it is being held there for some improper purpose, such as disguising its nature as stolen property or preparing it for re-sale as legitimate property.
Comment
An instruction which used the elements in this instruction, but compressed the first and second elements into a single element was approved in United States v. Henderson, 721 F.2d 662, 666 n.3 (9th Cir. 1983). The defendant’s knowledge that the stolen property was in interstate commerce is not an element of the offense. Id. The four-element format is derived from United States v. Albuquerque, 538 F.2d 277, 278 (9th Cir. 1976) (stating elements of transporting a stolen motor vehicle in interstate commerce).
Whether property is in interstate commerce is a fact for the jury to determine under all of the circumstances. Henderson, 721 F.2d at 666. The time a stolen object remains in the destination state may indicate it has left interstate commerce, but other factors may negate this inference.
Approved 1/2019
8.189 INTERSTATE TRANSPORTATION OF STOLEN PROPERTY
(18 U.S.C. § 2314)
The defendant is charged in [Count _______ of] the indictment with the transportation of stolen property in [interstate] [foreign] commerce in violation of Section 2314 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 [transported] [transmitted] [transferred] stolen [specify property] between [one state and another] [a foreign nation and the United States];
Second, at the time of the [specify property] crossed the [state] [country] border, the defendant knew it was stolen;
Third, the defendant intended to deprive the owner of the ownership of the [specify property] temporarily or permanently; and
Fourth, the money or property was of the value of $5,000 or more.
The government need not prove who stole the [specify property].
Comment
The government need not show by direct evidence that the property was stolen. United States v. Drebin, 557 F.2d 1316, 1328 (9th Cir.1977).
In United States v. Albuquerque, 538 F.2d 277, 278 (9th Cir.1976), it was held that one of the elements of the offense of interstate transportation of a stolen vehicle was that the defendant intended to permanently or temporarily deprive the owner of ownership.
Section 2314 creates several distinct crimes. This instruction only applies to interstate or foreign movement of stolen property.
8.190 SALE OR RECEIPT OF STOLEN GOODS, SECURITIES AND OTHER PROPERTY
(18 U.S.C. § 2315)
The defendant is charged in [Count _______ of] the indictment with [receiving] [possessing] [concealing] [storing] [bartering] [selling] [disposing of] stolen [specify stolen property] in violation of Section 2315 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 [received] [possessed] [concealed] [stored] [bartered] [sold] [disposed of] [specify stolen property] that had crossed a [state] [United States] boundary after having been stolen;
Second, at the time defendant did so [he] [she] knew that the [specify stolen property] had been stolen; and
Third, the [specify stolen property] was of a value of $5,000 or more.
The government need not prove defendant knew the property was in interstate commerce; it need only prove defendant knew it was stolen.
Something enters [interstate] [foreign] commerce when its transportation begins in one [state] [country] and is intended to continue into another. Property does not continue to be in [interstate] [foreign] commerce indefinitely. It ordinarily ceases to be in [interstate] [foreign] commerce when delivered to its final destination[, unless it is being held there for some improper purpose such as disguising its nature as stolen property or preparing it for re-sale as legitimate property].
Comment
See Comment to Instruction 8.188 (Sale or Receipt of Stolen Vehicle,Vessel or Aircraft (18 U.S.C. § 2313)).
Section 2315 of Title 18 creates a variety of crimes in addition to those addressed in this instruction. Among them is the crime of pledging or accepting stolen property as security for a loan. When that is the crime charged, the value of the stolen property need be only $500. If one of the other crimes is charged, this Instruction should be modified.
8.191 TRANSPORTATION OR ATTEMPTED TRANSPORTATION
FOR PROSTITUTION OR SEXUAL ACTIVITY
(18 U.S.C. § 2421)
The defendant is charged in [Count _______ of] the indictment with [transporting] [attempting to transport] a person with intent that the person engage in [prostitution][sexual activity] in violation of Section 2421 of Title 18 of the United States Code. 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 knowingly [transported] [attempted to transport] a person in [interstate] [foreign] commerce; [and]
Second, the defendant [transported] [attempted to transport] a person with the intent that such person engage in [prostitution] [describe proposed sexual activity][.] [;] [; and]
[Third, that [if the sexual activity had occurred] [based upon the sexual activity that occurred], the defendant could have been charged with a criminal offense under the laws of [the United States] [insert state or territory]. [In [state or territory], it is a criminal offense to [describe proposed sexual activity]]
[Third/Fourth, the defendant did something that was a substantial step toward committing the crime and that strongly corroborated the defendant’s intent to commit 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 unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.]
Comment
The bracketed language setting forth the first option for the third element is to be used when the defendant is charged with persuading or coercing a minor to engage in “any sexual activity for which any person can be charged with a criminal offense.” Further, “[w]here a federal prosecution hinges on an interpretation or application of state law, it is the district court’s function to explain the relevant state law to the jury.” United States v. Lopez, 4 F.4th 706 (9th Cir. 2021) (quoting United States v. Davila-Nieves, 670 F.3d 1, 8 (1st Cir. 2012)). While the panel in Lopez considered a conviction under 18 U.S.C. § 2422(b), their findings with respect to the jury instructions are also applicable here. In Lopez, the evidence against the defendant implicated a sexual conduct offense in Guam. 4 F.4th 706. The panel found that while the district court was not required to instruct the jury on the elements of the particular predicate offense as if they were elements of the offense charged, the district court nonetheless erred in failing to instruct the jury on the applicable criminal laws of Guam against which the defendant’s proposed sexual conduct was to be evaluated. Id.
The bracketed language stating an additional element applies only when the charge is an attempt. In attempt cases, "[t]o constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances." United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (internal quotations omitted).
The "strongly corroborated" language in this instruction is taken from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) ("A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent") and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).
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).
"[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime." United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).
Approved 9/2021
8.192 PERSUADING OR COERCING TO TRAVEL TO ENGAGE
IN PROSTITUTION OR SEXUAL ACTIVITY
(18 U.S.C. § 2422(a))
The defendant is charged in [Count _______ of] the indictment with [persuading] [inducing] [enticing] [coercing] travel to engage in [prostitution] [sexual activity] in violation of Section 2422(a) of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove beyond a reasonable doubt:
[First, that [on] [between] [insert dates alleged] the defendant knowingly [persuaded] [induced] [enticed] [coerced] an individual to travel in [interstate] [foreign] commerce to engage in [prostitution] [describe proposed sexual activity][.][;and]
[Second, that [if the sexual activity had occurred] [based upon the sexual activity that occurred], the defendant could have been charged with a criminal offense under the laws of [the United States] [insert the state or territory]. [In [state or territory], it is a criminal offense to [describe proposed sexual activity]]].
or
[First, that [on] [between] [insert dates alleged] the defendant knowingly attempted to [persuade] [induce] [entice] [coerce] an individual to travel in [interstate] [foreign] commerce to engage in [prostitution] [describe proposed sexual activity]; and
[Second, that [if the sexual activity had occurred] [based upon the sexual activity that occurred], the defendant could have been charged with a criminal offense under the laws of [the United States] [insert the state or territory]. [In [state or territory], it is a criminal offense to [describe proposed sexual activity]
[Second/Third], the defendant did something that was a substantial step toward committing the crime and that strongly corroborated the defendant’s intent to commit 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 unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.]
Comment
Both 18 U.S.C. § 2422(a) and (b) use the common terms "persuade," "induce," and "entice." Those terms "have plain and ordinary meanings within the statute, and [a] court [has] no obligation to provide further definitions." See United States v. Dhingra, 371 F.3d 557, 567 (9th Cir. 2004) (Dhingra involved a prosecution under 18 U.S.C. § 2422(b)).
The fact that women desired to leave Russia and travel to the United States did not preclude the finding that defendant persuaded, induced, enticed or coerced them to do so. United States v. Rashkovski, 301 F.3d 1133, 1136–37 (9th Cir. 2002). The statutory language does not require defendant to "have created out of whole cloth the women’s desire to go to the United States; it merely requires that he have convinced or influenced [them] to actually undergo the journey, or made the possibility more appealing." Id. "[I]t is the defendant’s intent that forms the basis for his criminal liability, not the victims’." Id. at 1137.
The bracketed language setting forth the first option for the second element is to be used when the defendant is charged with persuading or coercing a minor to engage in “any sexual activity for which any person can be charged with a criminal offense.” Further, “[w]here a federal prosecution hinges on an interpretation or application of state law, it is the district court’s function to explain the relevant state law to the jury.” United States v. Lopez, 4 F.4th 706 (9th Cir. 2021) (quoting United States v. Davila-Nieves, 670 F.3d 1, 8 (1st Cir. 2012)). While the panel in Lopez considered a conviction under 18 U.S.C. § 2422(b), their findings with respect to the jury instructions are also applicable here. In Lopez, the evidence against the defendant implicated a sexual conduct offense in Guam. 4 F.4th 706. The panel found that while the district court was not required to instruct the jury on the elements of the particular predicate offense as if they were elements of the offense charged, the district court nonetheless erred in failing to instruct the jury on the applicable criminal laws of Guam against which the defendant’s proposed sexual conduct was to be evaluated. Id.
The bracketed language stating alternative elements applies only when the charge is an attempt. In attempt cases, "[t]o constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances." United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (internal quotations omitted).
The "strongly corroborated" language in this instruction is taken from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) ("A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent") and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).
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).
"[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime." United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).
Approved 12/2019
8.192A USING OR ATTEMPTING TO USE THE MAIL OR A MEANS OF
INTERSTATE COMMERCE TO PERSUADE OR COERCE A MINOR TO TRAVEL
TO ENGAGE IN PROSTITUTION OR SEXUAL ACTIVITY
(18 U.S.C. § 2422(b))
The defendant is charged in [Count ____ of] the indictment with Coercion and Enticement of a Minor in violation of Section 2422(b) of Title 18 of the United States Code. For the defendant to be found guilty of that charge the government must prove beyond a reasonable doubt:
First, that [on][between] [insert dates alleged] the defendant [used] [attempted to use] [the mail] [a means or facility of [interstate][foreign] commerce, that is [insert means or facility of interstate or foreign commerce]], to knowingly [persuade] [induce] [entice] [coerce] an individual to engage in [prostitution][describe proposed sexual activity]]; [and]
[Second, that [if the sexual activity had occurred] [based upon the sexual activity that occurred], the defendant could have been charged with a criminal offense under the laws of [the United States] [insert the state or territory]. [In [state or territory], it is a criminal offense to [describe proposed sexual activity]; [and]]
[[Second/Third], the individual the defendant [persuaded] [induced] [enticed] [coerced] was under the age of 18.]
or
[[Second/Third], the defendant believed that the individual [he][she] attempted to [persuade] [induce] [entice] [coerce] was under the age of 18; and
[[Third/Fourth],the defendant did something that was a substantial step toward committing the crime and that strongly corroborated the defendant’s intent to commit 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 unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.]
Comment
Both 18 U.S.C. § 2422(a) and (b) use the common terms "persuade," "induce," and "entice." Those terms "have plain and ordinary meanings within the statute, and [a] court [has] no obligation to provide further definitions." See United States v. Dhingra, 371 F.3d 557, 567 (9th Cir. 2004) (involving prosecution under 18 U.S.C. § 2422(b)).
The fact that a group of women desired to leave Russia and travel to the United States did not preclude the finding that defendant persuaded, induced, enticed or coerced them to do so. United States v. Rashkovski, 301 F.3d 1133, 1136–37 (9th Cir. 2002). The statutory language does not require defendant to "have created out of whole cloth the women’s desire to go to the United States; it merely requires that he have convinced or influenced [them] to actually undergo the journey, or made the possibility more appealing." Id. "[I]t is the defendant’s intent that forms the basis for his criminal liability, not the victims’." Id. at 1137.
The bracketed language setting forth the first option for the second element is to be used when the defendant is charged with persuading or coercing a minor to engage in “any sexual activity for which any person can be charged with a criminal offense.” Further, “[w]here a federal prosecution hinges on an interpretation or application of state law, it is the district court’s function to explain the relevant state law to the jury.” United States v. Lopez, 4 F.4th 706 (9th Cir. 2021) (quoting United States v. Davila-Nieves, 670 F.3d 1, 8 (1st Cir. 2012)). For instance, in Lopez, the evidence against the defendant implicated a sexual conduct offense in Guam. 4 F.4th 706. The panel found that while the district court was not required to instruct the jury on the elements of the particular predicate offense as if they were elements of the offense charged, the district court nonetheless erred in failing to instruct the jury on the applicable criminal laws of Guam against which the defendant’s proposed sexual conduct was to be evaluated. Id.
The bracketed language regarding an "attempt" or "substantial step" applies only when the charge is an attempt. In attempt cases, "[t]o constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances." United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (internal quotations omitted).
"[A]n actual minor victim is not required for an attempt conviction under 18 U.S.C. § 2422(b)." United States v. Meek, 366 F.3d 705, 717 (9th Cir. 2004) (internal quotations omitted).
The "strongly corroborated" language in this instruction is taken from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) ("A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent") and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).
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).
"[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime." United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).
Approved 9/2021
8.193 TRANSPORTATION OF MINOR FOR PROSTITUTION
(18 U.S.C. § 2423(a))
The defendant is charged in [Count _______ of] the indictment with transporting a minor with intent that [he] [she] engage in prostitution in violation of Section 2423(a) 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 knowingly transported [name of victim] from _______ to _______;
Second, the defendant did so with the intent that [name of victim] engage in prostitution; and
Third, [name of victim] was under the age of eighteen years at the time.
Comment
It is not a defense to the crime of transporting a minor for purposes of prostitution that the defendant was ignorant of the child’s age. United States v. Taylor, 239 F.3d 994, 997 (9th Cir. 2001). "If someone knowingly transports a person for the purposes of prostitution or another sex offense, the transporter assumes the risk that the victim is a minor, regardless of what the victim says or how the victim appears." Id.
Approved 1/2019
8.193A ENGAGING IN ILLICIT SEXUAL CONDUCT ABROAD
(18 U.S.C. § 2423(c))
The defendant is charged in [Count _______ of] the indictment with engaging in illicit sexual conduct while traveling in foreign commerce or residing in a foreign country in violation of Section 2423(c) 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 is a [United States citizen] [alien admitted for permanent residence];
Second, the defendant [traveled in foreign commerce] [resided, either temporarily or permanently, in a foreign country]; and
Third, while [traveling in foreign commerce] [residing in a foreign country] the defendant engaged in illicit sexual conduct.
[Illicit sexual conduct is a sexual act with a person under 18 years of age that would be illegal if it occurred in the United States, any commercial sex act with a person under 18 years of age, or the production of child pornography.]
Comment
Further definitions for "sexual act," "commercial sex act," and "child pornography" are referenced in the statute. See 18 U.S.C. § 2423(f).
The government is not required to prove that the defendant intended to engage in illicit sexual conduct while traveling. See United States v. Pepe, 895 F.3d 679, 689 n.4 (9th Cir. 2018) ("While § 2423(c) doesn’t itself require a mens rea, ‘illicit sexual conduct’ can be established through offenses that do.")
When a conviction under this section is based on travel in foreign commerce, the government must prove that "the illicit sexual conduct occurred while the defendant was traveling." Pepe, 895 F.3d at 691. Prior to Congress’ amendment of the statute to include persons who reside in a foreign country, the "and engages" language of this subsection was interpreted to include instances in which a defendant traveled to a foreign country and thereafter engaged in illicit sexual conduct. See id. at 685-88 (explaining that Ninth Circuit’s interpretation of § 2324(c) in United States v. Clark, 435 F.3d 1100 (9th Cir. 2006), is not controlling in light of Congressional amendment).
Approved 9/2018
8.194 FAILURE TO APPEAR
(18 U.S.C. § 3146(a)(1))
The defendant is charged in [Count _______ of] the indictment with failure to appear in violation of Section 3146(a)(1) 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 was released from custody under the Bail Reform Act;
Second, the defendant was required to appear in court or before a judicial officer on [date];
Third, the defendant knew of this required appearance; and
Fourth, the defendant intentionally failed to appear as required.
Comment
If the defendant becomes a fugitive prior to the hearing, the defendant’s release is no longer pursuant to the Bail Reform Act, and the defendant thus may not be convicted under § 3146(a). United States v. Castaldo, 636 F.2d 1169, 1172 (9th Cir. 1980). Vacating a hearing prior to its occurrence precludes satisfaction of the second element because the defendant is no longer "under . . . order to appear on any date certain"; this rule applies even where the hearing is vacated because the defendant has failed to appear at prior hearings. United States v. Fisher, 137 F.3d 1158, 1163 (9th Cir. 1998).
"When a defendant engages in a course of conduct designed to avoid notice of his trial date, the government is not required to prove the defendant’s actual knowledge of that date." Weaver v. United States, 37 F.3d 1411, 1413 (9th Cir. 1994).
"A deliberate decision to disobey the law . . . cannot be found beyond a reasonable doubt merely from nonappearance and notice of obligation to appear." United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
Approved 1/2019
8.195 FAILURE TO SURRENDER
(18 U.S.C. § 3146(a)(2))
The defendant is charged in [Count _______ of] the indictment with failure to surrender in violation of Section 3146(a)(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 each of the following elements beyond a reasonable doubt:
First, the defendant was sentenced to a term of imprisonment;
Second, the defendant was released from custody under the Bail Reform Act;
Third, the defendant was ordered to surrender for service of the sentence on [date];
Fourth, the defendant knew of the order to surrender; and
Fifth, the defendant intentionally failed to surrender as ordered.
Comment
See Comment to Instruction 8.194 (Failure to Appear (18 U.S.C. § 3146(a)(1))).
Approved 1/2019
8.196 FAILURE TO APPEAR OR SURRENDER—AFFIRMATIVE DEFENSE
(18 U.S.C. § 3146(c))
It is a defense to a charge of failure to [appear] [surrender] if uncontrollable circumstances prevented the person from [appearing] [surrendering]. In order to establish this defense, the defendant must prove that the following elements are more probably true than not true:
First, uncontrollable circumstances prevented the defendant from [appearing] [surrendering];
Second, the defendant did not contribute to the creation of the circumstances in reckless disregard of the requirement to [appear] [surrender]; and
Third, the defendant [appeared] [surrendered] as soon as the uncontrollable circumstances ceased to exist.
If you find that each of these elements is more probably true than not true, you must find the defendant not guilty.
Comment
See United States v. Springer, 51 F.3d 861, 866-68 (9th Cir.1995) (discussing the "uncontrollable circumstances" prong).
Links
[1] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.0_Introductory_Comment_criminal_0.wpd
[2] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.0A_criminal_revised_4-2019.wpd
[3] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.1_criminal_revised_4-2019.wpd
[4] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.2_criminal_0.wpd
[5] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.03_criminal_revised_4-2019.wpd
[6] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.04_criminal_revised_4-2019.wpd
[7] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.5_criminal_0.wpd
[8] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.6_criminal_revised_9-2016.wpd
[9] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.7_criminal_0.wpd
[10] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.07A_criminal_new_4-2019.wpd
[11] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.8_criminal_0.wpd
[12] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.9_criminal_0.wpd
[13] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.10_criminal_0.wpd
[14] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.10A_criminal_revised_4-2019.wpd
[15] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.10B_criminal_revised_4-2019.wpd
[16] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.11_criminal_revised_9-2020_0.wpd
[17] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.11A_criminal_rev_5-2020.wpd
[18] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.12_criminal_rev_12-2019.wpd
[19] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.13_criminal_rev_5-2020.wpd
[20] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.14_criminal_revised_4-2019.wpd
[21] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.15_criminal_revised_4-2019.wpd
[22] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.16_criminal_revised_4-2019.wpd
[23] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.17_criminal_revised_4-2019.wpd
[24] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.18_criminal_revised_4-2019.wpd
[25] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.19_criminal_0.wpd
[26] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.20_criminal_revised_1-2019.wpd
[27] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.21_criminal_revised_9-2020.wpd
[28] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.22_criminal_revised_6-2019.wpd
[29] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.23_criminal_revised_4-2019.wpd
[30] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.24_criminal_revised_4-2019.wpd
[31] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.25_criminal_rev_3_2021.docx
[32] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.26_criminal_revised_12-2017.wpd
[33] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.27_criminal_0.wpd
[34] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.28_criminal_revised_4-2019.wpd
[35] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.29_criminal_0.wpd
[36] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.30_criminal_0.wpd
[37] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.31_criminal_0.wpd
[38] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.32_criminal_1.wpd
[39] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.33_criminal_0.wpd
[40] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.34_criminal_revised_4-2019.wpd
[41] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.35_criminal_revised_4-2019.wpd
[42] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.35A_criminal_revised_4-2019.wpd
[43] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.36_criminal_revised_4-2019.wpd
[44] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.37_criminal_0.wpd
[45] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.38_criminal_0.wpd
[46] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.39_criminal_revised_9-2018.wpd
[47] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.40_criminal-revised_0.wpd
[48] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.41_criminal_0.wpd
[49] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.42_criminal_revised_9-2018.wpd
[50] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.43_criminal_0.wpd
[51] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.44_criminal_revised_9-2018.wpd
[52] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.45_criminal_revised_4-2019.wpd
[53] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.46_criminal_0.wpd
[54] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.47_criminal_revised_9-2018.wpd
[55] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.47A_criminal_revised_9-2021.docx
[56] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.47B_criminal.wpd
[57] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.48_criminal.wpd
[58] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.49_criminal-revised_0.wpd
[59] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.50_criminal_0.wpd
[60] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.51_criminal_0.wpd
[61] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.52_criminal_0.wpd
[62] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.53_criminal_rev-5-2020.wpd
[63] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.54_crimianl_rev_5-2020.wpd
[64] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.56_criminal_rev_12-2020.wpd
[65] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.57_criminal_rev_5-2020.wpd
[66] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.58_crimianl_rev_5-2020.wpd
[67] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.59_criminal_rev_5-2020.wpd
[68] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.61_criminal_rev_5-2020.wpd
[69] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.62_criminal_rev_5-2020.wpd
[70] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.63_criminal_rev_6_2021.docx
[71] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.64_criminal_rev_5-2020.wpd
[72] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.65_criminal_rev_5-2020.wpd
[73] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.65A_crimianl_rev_5-2020.wpd
[74] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.66_crimianl_rev_5-2020.wpd
[75] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.67_criminal_rev_5-2020.wpd
[76] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.68_criminal_rev_5-2020.wpd
[77] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.69_criminal_rev_5-2020.wpd
[78] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.70_criminal_rev_5-2020.wpd
[79] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.71_criminal_rev_6_2021.docx
[80] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.72_criminal_rev_6_2021.docx
[81] https://www.law.cornell.edu/uscode/text/18/921#a_35
[82] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/8.72A_criminal_6_2021.docx
[83] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.73_criminal_revised_9-2021.docx
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[86] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.76_criminal_0.wpd
[87] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.77_criminal_0.wpd
[88] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.78_criminal_0.wpd
[89] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.79_criminal_0.wpd
[90] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.80_criminal_0.wpd
[91] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.81_criminal_1.wpd
[92] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.82_criminal_0.wpd
[93] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.83_criminal_rev_3_2021.docx
[94] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.84_criminal_rev_3_2021.docx
[95] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.85_criminal_0.wpd
[96] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.86_criminal_0.wpd
[97] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.87_criminal_0.wpd
[98] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.88_criminal_0.wpd
[99] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.89_criminal_0.wpd
[100] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.90_criminal_rev_3_2021.docx
[101] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.91_criminal_revised_9-2018.wpd
[102] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.92_criminal_revised_9-2018.wpd
[103] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.93_criminal_0.wpd
[104] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.94_criminal_0.wpd
[105] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.94A_criminal_new_3-2017.wpd
[106] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.95_criminal_revised_6-2019.wpd
[107] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.96_criminal_revised_6-2019.wpd
[108] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.97_criminal_revised_6-2019.wpd
[109] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.98_criminal_0.wpd
[110] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.99_criminal_revised_6-2019.wpd
[111] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.100_criminal_revised_6-2019.wpd
[112] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.101_criminal_revised_6-2019.wpd
[113] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.102_criminal_revised_6-2019.wpd
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[116] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.105_criminal_revised_6-2019.wpd
[117] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.106_criminal_revised_6-2019.wpd
[118] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.107_criminal_revised_6-2019.wpd
[119] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.108_criminal_revised_6-2019.wpd
[120] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.108A_criminal_new_9-2019.wpd
[121] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.109_criminal_revised_6-2019.wpd
[122] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.110_criminal_revised_6-2019.wpd
[123] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.111_criminal_revised_6-2019.wpd
[124] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.112_criminal_revised_6-2019.wpd
[125] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.113_criminal_revised_6-2019.wpd
[126] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.114_criminal_revised_6-2019.wpd
[127] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.115_criminal_revised_6-2019.wpd
[128] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.116_criminal_revised_6-2019.wpd
[129] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.117_criminal_revised_6-2019.wpd
[130] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.118_criminal_revised_6-2019.wpd
[131] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.119_criminal_revised_6-2019.wpd
[132] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.120_criminal_revised_6-2019.wpd
[133] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.121_criminal_rev_6-2021.docx
[134] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.122_criminal_rev_6-2021.docx
[135] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.123_criminal_rev_6-2021.docx
[136] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.124_criminal_rev_6-2021.docx
[137] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.126_criminal_rev_6-2021.docx
[138] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.126A_criminal_rev_6-2021.docx
[139] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.127_criminal_rev_6-2021.docx
[140] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.128_criminal_rev_6-2021.docx
[141] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.128A_criminal_rev_12-2019.wpd
[142] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.128B_criminal_rev_6-2021.docx
[143] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.129_criminal_revised_3-2017.wpd
[144] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.130_criminal_rev_6-2021.docx
[145] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.131_criminal_rev_6-2021.docx
[146] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.131A_criminal_rev_6-2021.docx
[147] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.132_criminal_rev_6-2021.docx
[148] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.133_criminal_rev_6-2021.docx
[149] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.134_criminal_rev_6-2021.docx
[150] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.134A_criminal_rev_6-2021.docx
[151] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.134B_criminal_rev_6-2021.docx
[152] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.135_criminal_rev_6-2021.docx
[153] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.136_criminal_rev_6-2021.docx
[154] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.137_criminal_rev_6-2021.docx
[155] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.138_criminal_rev_6-2021.docx
[156] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.139_criminal_rev_6-2021.docx
[157] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.140_criminal_rev_6-2021.docx
[158] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.141_criminal_rev_6-2021.docx
[159] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.141A_criminal_rev_6-2021_0.docx
[160] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.141B_criminal_rev_6-2021_0.docx
[161] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.141C_criminal_rev_6-2021.docx
[162] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.142_criminal_rev_6_2021.docx
[163] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.142A_criminal_rev_6_2021_0.docx
[164] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.143_criminal_rev_6-2021.docx
[165] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.143A_criminal_rev_6_2021.docx
[166] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.143B_criminal_rev_6_2021_0.docx
[167] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.144_criminal_rev_6-2021.docx
[168] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.145_criminal_rev_6-2021.docx
[169] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.146_criminal_rev_6_2021.docx
[170] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.147_criminal_rev_6_2021.docx
[171] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.148_criminal_rev_6-2021.docx
[172] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.149_criminal_rev_6-2021.docx
[173] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.150_criminal_rev_6-2021.docx
[174] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.151_criminal_revised_4-2019.wpd
[175] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.152_criminal_0.wpd
[176] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.153_criminal_0.wpd
[177] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.154_criminal_revised_1-2019.wpd
[178] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.155_criminal_0.wpd
[179] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.156_criminal_0.wpd
[180] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.157_criminal_rev_12-2020.wpd
[181] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.158_criminal_revised_12-2016.wpd
[182] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.159_criminal_0.wpd
[183] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.160_criminal_revised_1-2019.wpd
[184] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.161_criminal_revised_12-2015.wpd
[185] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.162_criminal_rev_3_2021.docx
[186] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.162A_criminal.wpd
[187] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.162B_criminal.wpd
[188] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.163_criminal_revised_4-2019.wpd
[189] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.164_criminal-revised.wpd
[190] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.165_criminal_revised_4-2019.wpd
[191] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.166_criminal_0.wpd
[192] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.167_criminal_revised_4-2019.wpd
[193] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.168_criminal_revised_1-2019.wpd
[194] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.169_criminal_revised_4-2019.wpd
[195] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.170_criminal_0.wpd
[196] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.171_criminal_revised_4-2019.wpd
[197] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.172_criminal_revised_1-2019.wpd
[198] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.173_criminal_revised_4-2019.wpd
[199] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.174_criminal_0.wpd
[200] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.175_criminal_revised_4-2019.wpd
[201] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.176_criminal_rev_12-2020.wpd
[202] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.177_criminal_rev_12-2020_0.wpd
[203] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.178_criminal_0.wpd
[204] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.179_criminal_0.wpd
[205] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.180_criminal_rev_12-2020.wpd
[206] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.181_criminal_revised_4-2019.wpd
[207] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.182_criminal_revised_4-2019.wpd
[208] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.182A_criminal_revised_4-2019.wpd
[209] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.183_criminal_rev_12-2020.wpd
[210] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.184_criminal_revised_4-2019.wpd
[211] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.185_criminal_revised_4-2019.wpd
[212] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.186_criminal.wpd
[213] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.187_criminal_revised_4-2019.wpd
[214] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.188_criminal_revised_1-2019.wpd
[215] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.189_criminal_0.wpd
[216] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.190_criminal_0.wpd
[217] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.191_criminal_revised_9-2021.docx
[218] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.192_criminal_revised_9-2021.docx
[219] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.192A_criminal_revised_9-2021_0.docx
[220] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.193_criminal_revised_1-2019.wpd
[221] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.193A_criminal_new_9-2018.wpd
[222] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.194_criminal_revised_1-2019.wpd
[223] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.195_criminal_revised_1-2019.wpd
[224] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/8.196_criminal_0.wpd