8.35 SMUGGLING 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.
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.]
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. 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 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).