5.1 AIDING AND ABETTING
A defendant may be found guilty of [specify crime charged], even if the defendant personally did not commit the act or acts constituting the crime but aided and abetted in its commission. To prove a defendant guilty of aiding and abetting, the government must prove beyond a reasonable doubt:
First, [specify crime charged] was committed by someone;
Second, the defendant aided, counseled, commanded, induced or procured that person with respect to at least one element of [specify crime charged];
Third, the defendant acted with the intent to facilitate [specify crime charged]; and
Fourth, the defendant acted before the crime was completed.
It is not enough that the defendant merely associated with the person committing the crime, or unknowingly or unintentionally did things that were helpful to that person, or was present at the scene of the crime. The evidence must show beyond a reasonable doubt that the defendant acted with the knowledge and intention of helping that person commit [specify crime charged].
A defendant acts with the intent to facilitate the crime when the defendant actively participates in a criminal venture with advance knowledge of the crime [and having acquired that knowledge when the defendant still had a realistic opportunity to withdraw from the crime].
The government is not required to prove precisely which defendant actually committed the crime and which defendant aided and abetted.
Use this instruction with an instruction on the elements of the underlying substantive crime.
The Supreme Court has stated that the federal aiding and abetting statute has two primary elements: "a person is liable under § 2 if (and only if) he (1) takes an affirmative act in furtherance of that offense, (2) with the intent of facilitating the offense’s commission." Rosemond v. United States,___ U.S. ___, 134 S. Ct. 1240, 1245 (2014). The defendant’s conduct need not facilitate each and every element of the crime; a defendant can be convicted as an aider and abettor even if the defendant’s conduct "relates to only one (or some) of a crime’s phases or elements." Id. at 1246-47. The intent requirement is satisfied when a person actively participates in a criminal venture with advance knowledge of the circumstances constituting the elements of the charged offense. Id. at 1248-49; see also United States v. Goldtooth, ___ F.3d ___, 2014 WL 2611276 (9th Cir. June 12, 2014) (reversing defendants’ convictions for aiding and abetting robbery on Indian reservation because there was no evidence that defendants had foreknowledge that robbery was to occur).
In Rosemond, the defendant was charged with aiding and abetting the crime of using a firearm during and in relation to a drug-trafficking crime in violation of 18 U.S.C. § 924(c). The Supreme Court held that the government need not necessarily prove that the defendant took action with respect to any firearm, so long as the government proves that the defendant facilitated another element—drug trafficking. Rosemond, 134 S. Ct. at 1247. It was necessary, however, that the government prove that the defendant had advance knowledge of the firearm. Id. at 1249-50. See Instruction 8.71 (Firearms—Using or Carrying in Commission of Crime of Violence or Drug Trafficking Crime).
If, as in Rosemond, there is an issue as to when the defendant learned of a particular circumstance that constitutes an element of the crime, the judge should further instruct the jury that the defendant must have learned of the circumstance at a time when the defendant still had a realistic opportunity to withdraw from the crime. See Rosemond, 134 S. Ct. at 1251-52 & n.10 (instruction telling jury to consider whether Rosemond "knew his cohort used a firearm" was erroneous because the instruction "failed to convey that Rosemond had to have advance knowledge . . . that a confederate would be armed" such that "he c[ould] realistically walk away").
Aiding and abetting is not a separate and distinct offense from the underlying substantive crime, but is a different theory of liability for the same offense. United States v. Garcia, 400 F.3d 816, 820 (9th Cir.2005). An aiding and abetting instruction is proper even when the indictment does not specifically charge that offense, because all indictments are read to embody that offense in each count. United States v. Vaandering, 50 F.3d 696, 702 (9th Cir.1995); United States v. Armstrong, 909 F.2d 1238, 1241-42 (9th Cir.1990); United States v. Jones, 678 F.2d 102, 104 (9th Cir.1982). See also United States v. Gaskins,849 F.2d 454, 459 (9th Cir.1988); United States v. Sayetsitty, 107 F.3d 1405, 1412 (9th Cir.1997).
A person may be convicted of aiding and abetting despite the prior acquittal of the principal. Standefer v. United States, 447 U.S. 10, 20 (1980); United States v. Mejia-Mesa, 153 F.3d 925, 930 (9th Cir.1998). Moreover, the principal need not be named or identified; it is necessary only that the offense was committed by somebody and that the defendant intentionally did an act to help in its commission. Mejia-Mesa, 153 F.3d at 930 (citing Feldstein v. United States, 429 F.2d 1092, 1095 (9th Cir.1970)).
No specific unanimity instruction on the issue of who acted as principal or aider and abettor is necessary, id., nor does the jury need to reach unanimous agreement on the manner (e.g., "procured," "aided," "abetted," "counseled," "induced," or "commanded") by which the defendant provided assistance. United States v. Kim, 196 F.3d 1079, 1083 (9th Cir.1999).
The last paragraph of this instruction has been expressly approved in Vaandering, 50 F.3d at 702. It may be unnecessary to give the last paragraph if there is no dispute as to the identity of the principal and the aider and abettor.
5.2 ACCESSORY AFTER THE FACT
The defendant is charged with having been an accessory after the fact to the crime of [specify crime charged]. 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 knew that [name of principal] had committed the crime of [specify crime charged]; and
Second, the defendant assisted [name of principal] with the specific purpose or design to hinder or prevent that person’s [apprehension] [trial] [or] [punishment].
When there is substantial evidence that the defendant participated in the principal offense before its completion, an instruction on this distinct offense need not be given. United States v. Panza, 612 F.2d 432, 441 (9th Cir.1979); United States v. Jackson, 448 F.2d 963, 971 (9th Cir.1971).
Knowledge that the principal committed the offense charged may be inferred from circumstantial evidence. United States v. Mills, 597 F.2d 693, 697 (9th Cir.1979). Accordingly, an instruction requiring "positive knowledge in contrast to imputed or implied knowledge" should not be given, but the jury should be instructed that the accessory after the fact must know of the principal’s actions and act with the "specific purpose or design" to hinder or prevent the principal’s apprehension, trial or punishment. Id.
The defendant is charged in the indictment with attempting to commit [specify crime charged]. 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 [specify elements of crime charged]; and
Second, 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.
Where this Manual provides a model instruction covering attempt to commit a specific offense, such instruction should be used instead of this generic attempt instruction. This instruction is appropriate only when a defendant is accused of attempting to commit a crime for which there is no specific model instruction.
This Manual contains model instructions for attempt to commit the following specific offenses:
Arson (Instruction 8.1);
Passing counterfeit obligations (Instruction 8.28);
Passing forged endorsement on check, bond or security of U.S. (Instruction 8.34);
Smuggling goods (Instruction 8.35);
Passing false papers though customhouse (Instruction 8.36);
Escape (Instruction 8.45);
Murder (Instruction 8.111);
Kidnapping (Instructions 8.117 and 8.119);
Bank fraud (Instructions 8.126 and 8.128);
Mail theft (Instruction 8.139);
Extortion (Instructions 8.142 and 8.143);
Interstate or Foreign Travel in Aid of Racketeering Enterprise (Instruction 8.144);
Financial transaction to promote unlawful activity (Instruction 8.146);
Laundering monetary instruments (Instruction 8.147);
Transporting funds to promote unlawful activity (Instruction 8.148);
Transporting monetary instruments for purpose of laundering (Instruction 8.149);
Violent Crime in Aid of Racketeering Enterprise (Instruction 8.151);
Bank robbery (Instruction 8.163);
Aggravated sexual abuse (Instructions 8.165, 8.167, and 8.169);
Sexual abuse (Instructions 8.171, 8.173, 8.175 and 8.177);
Transporting for prostitution; persuading to travel for prostitution (Instructions 8.191 and 8.192);
Offenses involving aliens–illegal transportation, harboring, and illegal reentry (Instructions 9.1, 9.2, 9.3, 9.5, and 9.7);
Controlled substance offenses (Instructions 9.17, 9.20, 9.22, 9.24 and 9.26); and
Forcible rescue of seized property (Instruction 9.43).
"To attempt a federal crime is not, of itself, a federal crime. Attempt is only actionable when a specific federal criminal statute makes it impermissible to attempt to commit the crime." United States v. Anderson, 89 F.3d 1306, 1314 (6th Cir.1996) (citations omitted). See also United States v. Hopkins, 703 F.2d 1102, 1104 (9th Cir.1983) ("There is no general federal ‘attempt’ statute. A defendant therefore can only be found guilty of an attempt to commit a federal offense if the statute defining the offense also expressly proscribes an attempt." (citations omitted)). However, many federal statutes defining crimes also expressly proscribe attempts.
"[A]ttempt is a term that at common law requires proof that the defendant had the specific intent to commit the underlying crime and took some overt act that was a substantial step toward committing that crime." United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1192 (9th Cir.2000) (en banc). To be a substantial step "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). 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.), cert. denied, 540 U.S. 977 (2003).
5.4 SPECIFIC INTENT
The Committee recommends avoiding instructions that distinguish between "specific intent" and "general intent." The Ninth Circuit has stated: "Both the manual [on jury trial procedures] accompanying the Model Instructions and our case law discourage the use of generic intent instructions." United States v. Bell, 303 F.3d 1187, 1191 (9th Cir.2002). The "preferred practice" is to give an intent instruction that reflects the intent requirements of the offense charged. Id.
If the statute at issue is silent regarding the necessary mens rea of the crime, the court should examine the statute’s legislative history. United States v. Nguyen, 73 F.3d 887, 891 (9th Cir.1995). See also United States v. Barajas-Montiel,185 F.3d 947, 952 (9th Cir.1999) (following Nguyen and holding that criminal intent is required for conviction of the felony offenses of 8 U.S.C. § 1324(a)(2)(B)). If the court perceives an ambiguity regarding Congress’s intent to require a mens rea, the court should read such a requirement into the statute. Nguyen, 73 F.3d at 890-91. Accord, United States v. Johal, 428 F.3d 823, 826 (9th Cir.2005) (requirement of some mens rea for conviction of a crime is "firmly embedded").
Most attempt crimes require specific intent. See United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1192 (9th Cir.2000) (en banc) (crime of attempted illegal reentry, for example, is a specific intent offense).
As the Supreme Court has observed, "willful" is a word of "many meanings" and "its construction [is] often . . . influenced by its context." Ratzlaf v. United States, 510 U.S. 135, 141 (1994). Accordingly, Ninth Circuit cases have defined "willful" in different terms depending on the particular crime charged. See, e.g.,United States v. Anguiano-Morfin, 713 F.3d 1208, 1210 (9th Cir.2013) (in prosecution for falsely claiming United States citizenship, defendant’s subjective belief is dispositive on issue of willfulness); United States v. Berry, 683 F.3d 1015, 1021 (9th Cir.2012) (in prosecution for social security fraud, "willfully" connotes "culpable state of mind"); United States v. Reyes, 577 F.3d 1069, 1080 (9th Cir.2009) (in prosecution for securities fraud, "willfully" means "intentionally undertaking an act that one knows to be wrongful; ‘willfully’ in this context does not require that the actor know specifically that the conduct was unlawful," quoting United States v. Tarallo, 380 F.3d 1174, 1188 (9th Cir.2004) (emphasis in original)). See also United States v. Easterday, 564 F.3d 1004, 1006 (9th Cir.2009) (for crime of failure to pay employee payroll taxes, "willful" defined as "a voluntary, intentional violation of a known legal duty"); United States v. Awad, 551 F.3d 930, 939 (9th Cir.2009) (in health care fraud case, "willful" act is one undertaken with "bad purpose" with knowledge that conduct was unlawful); but see United States v. Ajoku, 718 F.3d 882 (9th Cir.2013), judgment vacated, 134 S. Ct. 1872 (Mem.) (U.S. April 21, 2014). After the Solicitor General confessed error, the Supreme Court vacated the decision of the Ninth Circuit in Ajoku. As a result, in cases alleging a false statement to a government agency in violation of 18 U.S.C. § 1001, as well as cases alleging a false statement relating to health care matters in violation of 18 U.S.C. § 1035, the government must prove, among other things, that a defendant acted deliberately and with knowledge both that the statement was untrue and that his or her conduct was unlawful.
As the meaning of "willfully" necessarily depends on particular facts arising under the applicable statute, the Committee has not provided a generic instruction defining that term. In the context of tax crimes, however, see Instruction 9.42 (Willfully—Defined).
There is no uniform definition of the term "maliciously." When a statute provides a definition of a term, that definition controls. However, when a statute does not define a term, the term will generally be interpreted "by employing the ordinary, contemporary, and common meaning of the words that Congress used." United States v. Kelly, 676 F.3d 912, 917 (9th Cir. 2012), quoting United States v. Iverson, 162 F.3d 1015, 1022 (9th Cir. 1998). Furthermore, when a term "has accumulated settled meaning under . . . the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of the term." Kelly, 676 F.3d at 917 (in prosecution under 18 U.S.C. § 1363, government was not required to prove that defendant harbored any "malevolence or ill-will"). One acts "maliciously" when he or she has only the intent to do the prohibited act and has no justification or excuse. Id.
An act is done knowingly if the defendant is aware of the act and does not [act] [fail to act] through ignorance, mistake, or accident. [The government is not required to prove that the defendant knew that [his] [her] acts or omissions were unlawful.] You may consider evidence of the defendant’s words, acts, or omissions, along with all the other evidence, in deciding whether the defendant acted knowingly.
The second sentence of this instruction should not be given when an element of the offense requires the government to prove that the defendant knew that what the defendant did was unlawful. See United States v. Liu, 731 F.3d 982, 994-95 (9th Cir.2013) (criminal copyright infringement); United States v. Santillan, 243 F.3d 1125, 1129 (9th Cir.2001) (violation of Lacey Act); United States v. Turman, 122 F.3d 1167, 1169 (9th Cir.1997) (money laundering case).
5.7 DELIBERATE IGNORANCE
You may find that the defendant acted knowingly if you find beyond a reasonable doubt that the defendant:
1. was aware of a high probability that [e.g., drugs were in the defendant’s automobile], and
2. deliberately avoided learning the truth.
You may not find such knowledge, however, if you find that the defendant actually believed that [e.g. no drugs were in the defendant’s automobile], or if you find that the defendant was simply careless.
In United States v. Heredia, 483 F.3d 913 (9th Cir.2007) (en banc), the Ninth Circuit revived its decision in United States v. Jewell, 532 F.2d 697 (9th Cir.1976) (en banc), on which the language of this instruction is based. In so doing, the en banc court reiterated that in deciding whether to give a deliberate ignorance instruction along with an instruction on actual knowledge, "the district court must determine whether the jury could rationally find willful blindness even though it has rejected the government’s evidence of actual knowledge. If so, the court may also give a Jewell instruction." Heredia, 483 F.3d at 922; see also United States v. Ramos-Atondo, 732 F.3d 1113, 1120, 1124 (9th Cir.2013) (deliberate ignorance instruction may be given in conspiracy case); United States v. Yi, 704 F.3d 800, 805 (9th Cir. 2013) (approving modified version of Instruction 5.7 when defendant knew of high probability of asbestos in condominium ceilings and deliberately avoided learning truth).
In the event the court determines to give a Jewell instruction, "it must, at a minimum contain the two prongs of suspicion and deliberate avoidance." Heredia at 483 F.3d at 924. As the Ninth Circuit explained:
We conclude, therefore, that the two-pronged instruction given at defendant’s trial met the requirements of Jewell and, to the extent some of our cases have suggested more is required, see page 920 supra, they are overruled. A district judge, in the exercise of his discretion, may say more to tailor the instruction to the particular facts of the case. Here, for example, the judge might have instructed the jury that it could find Heredia did not act deliberately if it believed that her failure to investigate was motivated by safety concerns. Heredia did not ask for such an instruction and the district judge had no obligation to give it sua sponte. Even when defendant asks for such a supplemental instruction, it is within the district court’s broad discretion whether to comply.
Id. at 920-21. Accordingly, the government need not prove that the reason for the defendant’s deliberate avoidance was to obtain a defense against prosecution. Id.
The Committee recommends that extreme caution be used in instructing the jury regarding presumptions. "A jury instruction cannot relieve the State of the burden of proving beyond a reasonable doubt a crucial element of the criminal offense." Patterson v. Gomez, 223 F.3d 959, 962 (9th Cir.2000). Accordingly, "if a ‘reasonable juror could have given the presumption conclusive or persuasion-shifting effect,’ the instruction is unconstitutional." Id. (quoting Sandstrom v. Montana, 442 U.S. 510, 519 (1979)).
5.9 ADVICE OF COUNSEL
One element that the government must prove beyond a reasonable doubt is that the defendant had the unlawful intent to [specify applicable unlawful act]. Evidence that the defendant in good faith followed the advice of counsel would be inconsistent with such an unlawful intent. Unlawful intent has not been proved if the defendant, before acting, made full disclosure of all material facts to an attorney, received the attorney’s advice as to the specific course of conduct that was followed, and reasonably relied on that advice in good faith.
A defendant who reasonably relies on the advice of counsel may "not be convicted of a crime which involves wilful and unlawful intent." Williamson v. United States, 207 U.S. 425, 453 (1908). Advice of counsel is not a separate and distinct defense but rather is a circumstance indicating good faith which the trier of fact is entitled to consider on the issue of intent. Bisno v. United States, 299 F.2d 711, 719 (9th Cir.1961). A defendant is entitled to an instruction concerning the advice of counsel if it has some foundation in the evidence. United States v. Ibarra-Alcarez, 830 F.2d 968, 973 (9th Cir.1987). In order to assert advice of counsel, a defendant must have made a full disclosure of all material facts to his or her attorney, received advice as to the specific course of conduct that he or she followed, and relied on the advice in good faith. United States v. Munoz, 233 F.3d 1117, 1132 (9th Cir.2000).