**5.01 AIDING & ABETTING^1^ (18 U.S.C. § 2(a))**

A person may \[also\]^2^ be found guilty of (insert principal offense)
even if \[he\] \[she\] personally did not do every act constituting the
offense charged,^3^ if \[he\] \[she\] aided and abetted the commission
of (describe principal offense).

In order to have aided and abetted the commission of a crime a person
must \[, before or at the time the crime was committed,\]:^4^

> \(1\) have known (describe principal offense) was being committed or
> going to be committed; \[and\]
>
> \(2\) have knowingly acted in some way for the purpose of \[causing\]
> \[encouraging\] \[aiding\] the commission of (describe principal
> offense)\[.\] \[; and\]
>
> \[(3) have \[intended\] \[known\] (insert mental state required by
> principal offense).\]^5^

For you to find the defendant guilty of (insert principal offense) by
reason of aiding and abetting, the Government must prove beyond a
reasonable doubt that all of the elements of (describe principal
offense) were committed by some person or persons and that the defendant
aided and abetted the commission of that crime.

\[You should understand that merely being present at the scene of an
event, or merely acting in the same way as others or merely associating
with others, does not prove that a person has become an aider and
abettor. A person who has no knowledge that a crime is being committed
or about to be committed, but who happens to act in a way which advances
some offense, does not thereby become an aider and abettor.\]

**Notes on Use**

1\. Unless the principal offense is also submitted to the jury, this
instruction should be read together with the principal offense
instruction as one instruction. The Burden of Proof language of No. 3.09
should be deleted and the Burden of Proof language from No. 5.01 used.
If there is a self defense or entrapment defense, the appropriate
language from No. 3.09 must be included. The instruction should look
something like the following:

> The crime of \_\_\_\_\_\_\_\_ as charged in the indictment, has
> \_\_\_\_ elements, which are:
>
> *One*,
> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_;
>
> *Two*,
> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_;
> and
>
> *Etc.*,
> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_.
>
> A person may be found guilty of (insert principal offense) even if
> \[he\] \[she\] personally did not do every act constituting the
> offense charged, if \[he\] \[she\] aided and abetted the commission of
> (describe principal offense).
>
> In order to have aided and abetted the commission of a crime a person
> must \[, before or at the time the crime was committed,\]:
>
> \(1\) have known (describe principal offense) was being committed or
> going to be committed; \[and\]
>
> \(2\) have knowingly acted in some way for the purpose of \[causing\]
> \[encouraging\] \[aiding\] the commission of (describe principal
> offense)\[.\] \[; and\]
>
> \[(3) have \[intended\] \[known\] (insert mental state required by
> principal offense).\]
>
> For you to find the defendant guilty of (insert principal offense) by
> reason of aiding and abetting, the Government must prove beyond a
> reasonable doubt all of the elements of (describe principal offense)
> were committed by some person or persons and that the defendant aided
> and abetted that crime \[and must further prove beyond a reasonable
> doubt that the defendant was not \[entrapped\] \[acting in self
> defense\], \[acting in defense of \_\_\_\_\_\_\_\] \[as defined in
> Instruction No. \_\_\_\_\_\]\]; otherwise you must find the \[that
> particular\] defendant not guilty of this crime \[under Count
> \_\_\_\_\].

2\. Use if the defendant\'s guilt on the principal offense is also being
submitted to the jury.

3\. This instruction should be given only when the evidence in the case
shows that more than one person has performed acts necessary for the
commission of an offense. In other words, a person cannot aid and abet
himself in the commission of a crime.

4\. Use only if there is a disputed issue with respect to whether the
defendant acted before the crime was completed. This language has been
repeatedly approved. *See* *United States v. Jarboe*, 513 F.2d 33, 36
(8th Cir. 1975).

5\. If the principal offense requires a particular mental state, the
aider and abettor must share in that mental state. *United States v.
Lard*, 734 F.2d 1290, 1298 (8th Cir. 1984); *Jarboe*. The instruction
must include that mental state. *See* *United States v. Burkhalter*, 583
F.2d 389, 391 (8th Cir. 1978) \[knowledge that the item transferred was
a firearm required, but knowledge that the principal was unlicensed was
not required.\] *United States v. Powell*, 929 F.2d 724 (D.C. Cir.
1991).

**Committee Comments**

~~*See* 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 18.01 (5th ed. 2000); Fifth Circuit Pattern
Jury Instructions: Criminal § 2.06 (1997); Seventh Circuit Federal Jury
Instructions: Criminal § 5.06 (1999); Ninth Cir. Crim. Jury Instr. 5.1
(1997); *United States v. Roan Eagle*, 867 F.2d 436 (8th Cir. 1989).
*See generally* West Key \# \"Criminal Law\" 59(5), 67, 814(19),
815(12), 823(16).~~

Subsection 2(a) of 18 United States Code applies to the entire Criminal
Code. *United States v. Sopczak*, 742 F.2d 1119, 1121 (8th Cir. 1984).

> To be guilty of aiding and abetting is to be guilty as if one were a
> principal of the underlying offense. Aiding and abetting is not a
> separate crime but rather is linked to the underlying offense and
> shares the requisite intent of the offense.

*United States v. Roan Eagle*, 867 F.2d 436, ~~at~~ 445 (8^th^ Cir.
1989). ~~The appellate courts are divided as to whether accomplice
liability applies to the continuing criminal enterprise (CCE) offense,
21 U.S.C. § 848(a). *United States v. Amen*, 831 F.2d 373, 381-82 (2d
Cir. 1987) (CCE offense cannot be aided and abetted. *See also* *United
States v. Benevento*, 836 F.2d 60 (2d Cir. 1987). *United States v.
Ambrose*, 740 F.2d 505, 508 (7th Cir. 1984) (CCE offense can be
committed by aiders and abettors). *See also* *United States v.
Pino-Perez*, 870 F.2d 1230, 1231 (7th Cir. 1989) to the same effect. The
Eighth Circuit touched on the issue in a footnote in *United States v.
O\'Connell*, 841 F.2d 1408, 1425 n.9 (8th Cir. 1988), and assumed that
an aiding and abetting instruction could be given in a CCE charge, but
was not required to resolve that issue on appeal. The issue is discussed
in a student article at 58 U. Chi. L. Rev. 391 (1991). The Committee
takes no position on the recommendations contained in the article. The
same issue may arise in conspiracy cases.~~

The elements of aiding and abetting are generally "(1) that the
defendant ~~must have 1)~~ associated himself with the unlawful venture;
(2) that he participated in it as something he wished to bring about;
and (3) that he sought by his actions to make it succeed." ~~*See*
*United States v. Lanier*, 838 F.2d 281, 284 (8th Cir. 1988); *United
States v. Rodriguez*, 812 F.2d 414, 416 (8th Cir. 1987); *United States
v. Sopczak*, 742 F.2d 1119, 1121-22 (8th Cir. 1984); *United States v.
Brim*, 630 F.2d 1307, 1311 (8th Cir. 1980); *United States v. Hudson*,
717 F.2d 1211, 1214 n.2 (8th Cir. 1983); *Nye & Nissen v. United
States*, 336 U.S. 613, 619 (1949).~~ *United States v. Santana*, \_\_\_
F.3d \_\_\_, \_\_\_, No. 07-1172 (8^th^ Cir. May 5, 2008) (quoting
*United States v. McCracken*, 110 F.3d 535, 540 (8^th^ Cir. 1997)).

Association with the offense has been interpreted as meaning sharing in
the state of mind of the principal. *United States v. Roan Eagle*, 867
F.2d at 445 n.15. Accordingly the instruction has provided for inserting
the intent or knowledge required for the principal offense, if any
particular state of mind is required. *See* Note 4, *supra*.

A defendant may be convicted on the theory of aiding and abetting even
where the indictment does not charge him on that theory. *United States
v. Beardslee*, 609 F.2d 914 (8th Cir. 1979). This instruction covers
either situation.

A person may be convicted of an offense on the theory of aiding and
abetting even if the alleged principal has earlier been acquitted.
*Standefer v. United States*, 447 U.S. 10 (1980).

> In order to sustain the conviction of a defendant who has been charged
> as an aider and abettor, it is necessary that there be evidence
> showing an offense to have been committed by a principal and that the
> principal was aided or abetted by the accused, although it is not
> necessary that the principal be convicted or even that the identity of
> the principal be established.

*Ray v. United States*, 588 F.2d 601, 603-04 (8th Cir. 1978); *Pigman v.
United States*, 407 F.2d 237, 239 (8th Cir. 1969). *See also* *United
States v. Hudson*, 717 F.2d at 1214.

There must be knowing participation in the activity. *United States v.
Roan Eagle*, 867 F.2d at 445. *See also* *United States v. Powell*, 929
F.2d 724 (D.C. Cir. 1991) for discussion of what must be known to aid
and abet a violation of 18 U.S.C. § 924(c).

**5.06F CONSPIRACY: MULTIPLE OFFENSES^1^**

The indictment charges a conspiracy to commit \[two\] \[three, etc.\]
separate crimes or offenses. It is not necessary for the Government to
prove a conspiracy to commit \[*both*\] \[*all*\] of those offenses. It
would be sufficient if the Government proves, beyond a reasonable doubt,
a conspiracy to commit *one* of those offenses; but, in that event, in
order to return a verdict of guilty, you must unanimously agree upon
*which* of the \[two\] \[three, etc.\] offenses was the subject of the
conspiracy. If you cannot agree in that manner, you ~~must~~ cannot find
the defendant ~~not~~ guilty of this offense. \[In this case, you must
decide which of the controlled substances, if any, \[each\] defendant
conspired to \[manufacture\] \[distribute\] \[possess with intent to
distribute\] and record your unanimous verdict on the form
provided.\]^2^

**Notes on Use**

1\. For use only where the indictment has charged a conspiracy with
multiple objects.

2\. Where evidence at trial shows two alternative drugs were involved in
a multi-drug conspiracy, a special verdict form is required, otherwise,
the sentencing court must use the relevant drug conversion which yields
the most favorable sentencing result for the defendants. *United States
v. Baker*, 16 F.3d 854, 858 (8th Cir. 1994) (citing the principle as
also applying to 21 U.S.C. § 856); *United States v. Page-Bey*, 960 F.2d
724, 727-28 (8th Cir. 1992) (no plain error given the evidence at trial
and the fact that it would have made no difference in the sentence if
the jury had found that the defendant was involved with only one of the
charged substances); *United States v. Watts*, 950 F.2d 508, 515 (8th
Cir. 1991).

**Committee Comments**

*See* Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) §
11.2 (1997).

*United States v. Ballard*, 663 F.2d 534, 544 (5th Cir. 1981), *reh'g
denied*, 680 F.2d 352 (5th Cir. 1982) requires this instruction in order
to assure a unanimous verdict when a single conspiracy embraces multiple
alleged objects.

**5.06J CONSPIRACY: \"CO-CONSPIRATOR LIABILITY\" (PINKERTON CHARGE)**

Each member of a conspiracy is responsible for crimes committed by other
members of the conspiracy, if the government proves each of the
following elements beyond a reasonable doubt:

One, (Name of person) committed the crime of \[e.g. kidnaping\], \[as
set forth in instruction number \_\_\];

Two, (Name of person) was a member of \[the\] the conspiracy at the time
the \[e.g. kidnaping\] was committed;

Three, (Name of person) committed the crime of \[e.g. kidnaping\] in
furtherance of the conspiracy;

Four, the \[e.g., kidnaping\] was within the scope of the conspiracy, or
was reasonably foreseeable [as a necessary or natural consequence of the
conspiracy;]{.mark}[^1] []{.mark}and

Five, (Name of Defendant) was also a member of the conspiracy at the
time of the \[e.g. kidnaping\].

\[Insert paragraph describing Government's burden of proof; *see*
Instruction 3.09 *supra*\]

**Notes on Use**

1\. Use when the government pursues a theory of coconspirator liability.
Where this instruction is appropriate, it should be given in conjunction
with other applicable conspiracy instructions under this chapter.

**Committee Comments**

This instruction incorporates the Pinkerton principle of co-conspirator
liability. *Pinkerton v. United States*, 328 U.S. 640, 645-47 (1946).
This instruction is supported by *U.S. v. Pierce*, 479 F.3d 546 (8^th^
Cir. 2006); *United States v. Navarrete-Barron*, 192 F.3d 786, 792-793
(8^th^ Cir. 1999); *United States v. Golter*, 880 F.2d 91, 93 (8th
Cir.1989).

**6.18.876(c) MAILING THREATENING COMMUNICATIONS**

The crime of mailing threatening communications, as charged in
\[Count\_\_ of\] the indictment has \[three\]\[four\] essential
elements, which are:

*One*, the defendant mailed or caused to be delivered a \[specify form
of communication: e.g., letter\] to another person;

Two, the \[e.g., letter\] contained a threat to \[kidnap\]\[injure\] the
person of the addressee or of another; \[and\]

*Three*, under the circumstances in which the communication was made, a
reasonable person would foresee that it would be understood by persons
hearing or reading it as a serious expression of an intention to
\[kidnap\]\[injure\]; \[and\]

*Four*, the communication was mailed to a \[United States
judge\]\[Federal law enforcement officer\]\[government official\].

"Government official" means an officer or employee of the United States
or of any agency in any branch of the United States Government
(including any member of the uniformed services) while such officer or
employee is engaged in or on account of the performance of official
duties, or any person assisting such an officer or employee in the
performance of such duties or on account of that assistance.

**Notes On Use**

1\. Element Four should be added if the status of the addressee or
intended recipient is alleged in the indictment.

2\. The definition of "government official" is found at 18 U.S.C. §
1114.

**6.18.1071 Concealing a Person from Arrest (18 U.S.C. § 1071)**

The crime of concealing a person from arrest as charged in \[Count of\]
the indictment, has four essential elements, which are:

*One*, a federal warrant had been issued for the arrest of (name of the
person named in the arrest warrant) \[for the crime of (specify
offense)\] \[after conviction of (specify offense)\];

*Two*, the defendant knew the warrant had been issued;

*Three*, with that knowledge, the defendant harbored or concealed (name
of the person named in the arrest warrant); and

*Four*, the defendant intended to prevent the discovery or arrest of
(name of the person named in the arrest warrant).

(Insert paragraph describing Government's burden of proof; *see*
Instruction 3.09, *supra*.)

**Notes on use**

**Committee Comments**

A similar instruction was cited with approval by the Eighth Circuit in
*United States v. Hayes*, 518 F.3d 989 (8^th^ Cir. 2008). It remains an
open question whether merely lying about a fugitive's whereabouts is
sufficient to support a conviction for this offense. *Id.*

**6.18.1956E MONEY LAUNDERING \-- MOVEMENT OF MONETARY**

**INSTRUMENTS AND FUNDS TO CONCEAL PROCEEDS (18 U.S.C. §
1956(a)(2)(B)(i))**

The crime of illegally \[attempting to\] \[transport\[ing\]\]
\[transmit\[ting\]\] \[transfer\[ring\]\] a monetary instrument as
charged in \[Count\[s\] \_\_\_\_ of\] the indictment has four elements
which are:

*One*, on or about (date),^1^ \[the defendant\] \[defendant\[s\]
(name\[s\])\] knowingly \[attempted to\]^2^ \[transport\[ed\]\]
\[transmit\[ted\]\] \[transfer\[red\]\]^3^ \[a\] \[monetary
instrument\[s\]\]^4^ \[funds\];^5^

*Two*, at the time of the \[attempted\] act described in element one,
above, the defendant\[s\] knew^6^ the \[monetary instrument\[s\]\]
\[funds\] represented the proceeds^7^ of some form of unlawful
activity^8^\];

*Three*, at the same time, the defendant\[s\] knew^6^ that the
\[attempted\] act was designed in whole or in part to conceal or
disguise the nature, location, source, ownership or control of the
proceeds of (describe the specified unlawful activity);^9^ and

*Four*, the \[attempted\] act was \[from a place in the United States to
or through a place outside the United States\] \[to a place in the
United States from or through a place outside the United States\].

\[A defendant may be found to have attempted to \[transport\]
\[transmit\] \[transfer\] \[\[a\] \[monetary instrument\[s\]\] \[funds\]
if \[he\] \[she\] intended to commit the offense and voluntarily and
intentionally carried out some act which was a substantial step toward
conducting that offense, even if the \[transportation\] \[transmission\]
\[transfer\] was never completed.\]^10^

\[You are further instructed regarding the crime\[s\] charged in
\[Count\[s\] \_\_\_\_ of\] the indictment that the following definitions
apply: (Insert applicable portions of Instruction 6.18.1956J, unless the
indictment charges multiple money laundering violations and there will
be no confusion in adding the definitions common to all counts after all
of the substantive money laundering instructions).\]^11^

\[You may find that \[the defendant\] \[defendant\[s\] (name\[s\])\]
knew the purpose of the \[attempted\] act was to conceal or disguise the
nature, location, source, ownership or control of the proceeds of
(describe the specified unlawful activity)^9^ if you find beyond a
reasonable doubt that (insert appropriate language from Instruction
7.04).\]^12^

(Insert paragraph describing Government\'s burden of proof; *see*
Instruction 3.09, *supra*.)

**Notes on Use**

1\. The statutes and implementing regulations have been amended
frequently. The date of the offense is critical in verifying that the
criminal conduct charged was covered by the statute and regulation in
effect on that date. Additionally, changes in reporting requirements
under Treasury regulations (31 C.F.R.) may affect offenses charged under
sections 1956(a)(1)(B)(ii) and 1956(a)(2)(B)(ii).

> a\. The Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, Title I,
> Subtitle H (Money Laundering Control Act of 1986), § 1352(a), 100
> Stat. 3207-18 to 22, added sections 1956 and 1957 to Title 18 of the
> United States Code. The Anti-Drug Abuse Act of 1986, including the
> newly added sections 1956 and 1957 of Title 18, became effective on
> October 27, 1986.
>
> b\. The Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Title VI, §§
> 6183, 6465, 6469(a)(1) and 6471(a)-(b), and Title VII, § 7031, 102
> Stat. 4354, 4375, 4377, 4378 and 4398 became effective on November 18,
> 1988. *Inter alia* it added a new offense, section 1956(a)(1)(A)(ii),
> conducting a financial transaction with intent to engage in violations
> of the tax code (26 U.S.C. §§ 7201 or 7206), expanded the scope of
> section 1956(a)(2), added a \"sting\" section, 1956(a)(3), and added a
> number of \"specified unlawful activity\" predicate offenses as
> defined in section 1956(c)(7).
>
> c\. The Crime Control Act of 1990, Pub. L. No. 101-647, Title I, §§
> 105-108, Title XII, § 1205(j), Title XIV, §§ 1402 and 1404, Title XXV,
> § 2506 and Title XXXV, § 3557, 104 Stat. 4791-92, 4831, 4835, 4862 and
> 4927 became effective November 29, 1990. *Inter alia* it amended the
> provisions of section 1956(a)(2)(B) to permit the government to
> establish the defendant\'s knowledge of the illegality of his actions
> through the law enforcement officer\'s representations and the
> defendant\'s subsequent statements or actions indicating the defendant
> believed the representation, added violations of foreign law to the
> definition of \"unlawful activity\" (18 U.S.C. § 1956(c)(1)), amended
> the definition of \"financial transaction\" (section 1956(c)(4)) and
> \"monetary instruments\" (section 1956(c)(5)) to emphasize the
> alternative means of meeting the definitions, revised and expanded the
> scope of the term \"specified unlawful activity\" (SUA) (sections
> 1956(c)(7)(A) and (D), added as predicate SUA several
> \"environmental\" offenses (section 1956(c)(7)(E)), added a new
> section, 1956(c)(8), defining \"state,\" and added agencies authorized
> to investigate section 1956 violations. *See* Instruction
> 6.18.1956J(7) (Specified Unlawful Activity), *infra*.
>
> d\. Effective October 28, 1992, Pub. L. 102-550, Title XV, §§ 1504(c),
> 1524, 1526(a), 1527(a), 1530, 1531, 1534 and 1536, 106 Stat. 4055 and
> 4064-67 added, *inter alia*, use of a safe deposit box to the
> definition of \"transaction\" (section 1956(c)(3)), added transfer of
> title to real property, vehicles, vessels or aircraft to the
> definitions of \"financial transaction\" (section 1956(c)(4)),
> expanded the scope of the term \"specified unlawful activity\"
> regarding offenses against foreign nations (section 1956(c)(7)(B)),
> deleted and added several predicate SUA offenses (section
> 1956(c)(7)(D)) and created the offense of conspiracy to violate
> sections 1956 or 1957, carrying the same penalties as the object
> offenses. Instead of a statutory five-year maximum under 18 U.S.C. §
> 371, a conspiracy to violate 18 U.S.C. 1956 now carries a 20-year
> statutory maximum. *See* 18 U.S.C. § 1956(g). Prior to the amendment,
> the five-year statutory maximum for conspiracy would have precluded
> imposition of a sentence corresponding to the sentencing guideline
> range for the defendants who conspired to launder large sums or who
> had significant prior criminal histories. *See* United States
> Sentencing Guideline § 2S1.1 and Chapter 5, Part A (Sentencing Table).

2\. *See* Note 2, Instruction 6.18.1956A, *supra*.

3\. The terms \"transmit\" and \"transfer\" were added, effective
November 18, 1988. *See* Note 2, *supra*. Prior to that time at least
one circuit had held that an international wire transfer constituted
\"transportation\" of funds within the meaning of 1956(a)(2). *United
States v. Monroe*, 943 F.2d 1007, 1015-16 (9th Cir. 1991).

4\. *See* 18 U.S.C. § 1956(c)(5). *See also* Instruction 6.18.1956J(4)
(Monetary Instrument), *infra*. The present definition became effective
November 29, 1990. Although not listed in section 1956(c)(5), cashier\'s
checks are negotiable instruments in \"such form that title thereto
passes upon delivery.\" S. Rep. No. 433, 99th Cong., 2d Sess. 13 (1986).
This definition was explicitly clarified, effective May 8, 1987, when
\"cashier\'s checks\" was added to the definition of \"monetary
instruments\" in 31 C.F.R. § 103.11(j)(iii). *See* 52 Fed. Reg. 11436
(1987) (Final Rule).

5\. *See* Instruction 6.18.1956J(3) (Funds), *infra*.

6\. *See* Note 8, Instruction 6.18.1956A, *supra*; Instruction
6.18.1956J(8) (Knowledge), *infra*. *See, generally*, *Cuellar v. United
States*, 553 U.S.\_\_, 128 S. Ct. 1994 (2008), wherein the Court held
that a conviction under this statute requires proof that the
transportation's purpose \-- not merely its effect \-- was to conceal or
disguise, in whole or in part, one of the listed attributes (the funds'
nature, location, source, ownership, or control). The Court held that
the prosecution did not have to prove that a defendant intended to
create the appearance of legitimate wealth. ~~Effective November 29,
1990, section 1956(a)(2) was amended to permit the defendant\'s
\"knowledge\" to be established by \"proof that a law enforcement
officer represented the matter specified in subparagraph (B) as true,
and the defendant\'s subsequent statements or actions indicate that the
defendant believed such representations to be true.\" This \"sting\"
provision for section 1956(a)(2) was added after Congress enacted
section 1956(a)(3) (\"sting\" provision regarding financial
transactions) effective November 18, 1988. The term \"represented\" is
not defined in section 1956(a)(2), but has been in section 1956(a)(3)
since November 18, 1988, and was specifically made applicable to section
1956(a)(2) on November 29, 1990. The representation must be made by a
law enforcement officer or by another person, e.g., an informant or
cooperating witness at the direction of a federal official authorized to
investigate or prosecute section 1956 violations.~~

The defendant need not have known the actual source of the monetary
instruments or funds, as long as the defendant knew that they
represented \"some form of unlawful activity.\" 18 U.S.C. § 1956(a)(1).
Section 1956(c)(1) defines the term broadly to require only that \"the
person knew the property involved in the transaction represented
proceeds from some form, though not necessarily which form, of activity
that constitutes a felony under State, Federal, or foreign law,
regardless of whether or not such activity is specified in paragraph
\[1956(c)\](7).\" Although the most common situation will be that the
defendant\'s knowledge and the actual source of the proceeds coincide,
where the evidence shows that the defendant thought that the property
was proceeds from a different unlawful activity, the instruction should
be tailored to reflect the defendant\'s knowledge, e.g., \"at the time
the defendant transmitted the funds, he believed that the money he used
represented the proceeds of unlawful \[prostitution\] \[dogfighting\]
\[gambling\].\" *See*, *e.g.*, *United States v. Long*, 977 F.2d 1264,
1277 (8th Cir. 1992) (discussing the laundering of \"any proceeds from a
myriad of specified unlawful activities,\" and how that results in
different offense levels under section 2S1.1 of the Sentencing
Guidelines).

If the monetary instrument or funds were not actually proceeds of some
form of unlawful activity but were represented as such in a \"sting\" by
law enforcement officers, this Instruction 6.18.1956E should be modified
appropriately to address the meaning and method of proof that the
defendant \"knew\" the source of the monetary instrument or funds and
the purpose of their actual or attempted transportation, transmission or
transfer. *See* Instructions 6.18.1956G, H & I, *infra*; *see also* Note
12, Instruction 6.18.1956B, *supra* (situations where Instruction 7.04,
*infra*, on willful blindness is appropriate).

7\. *See* Instruction 6.18.1956J(3) (Funds), *infra*.

8\. *See* Note 7, Instruction 6.18.1956A, *supra*, and 6.18.1956J(7)
(Specified Unlawful Activity), *infra*.

9\. *See* Note 8, Instruction 6.18.1956B, *supra*.

10\. *See* Instruction 8.01, *infra*.

11\. *See* Note 11, Instruction 6.18.1956A, *supra*.

12\. *See* Note 12, Instruction 6.18.1956B, *supra*.

**Committee Comments**

*See* Ninth Cir. Crim. Jury Instr. 8.33.4 (1997). *See generally United
States v. Cruz*, 993 F.2d 164 (8th Cir. 1993); *United States v. Peery*,
977 F.2d 1230, 1234 (8th Cir. 1992); *United States v. Turner*, 975 F.2d
490, 497 (8th Cir. 1992); *United States v. Posters \'N\' Things Ltd.*,
969 F.2d 652, 661 (8th Cir. 1992), *aff\'d on other grounds,* 511 U.S.
513 (1994); *United States v. Davila*, 964 F.2d 778, 782 (8th Cir.
1992); *United States v. Sutera*, 933 F.2d 641, 644-46 (8th Cir. 1991);
*United States v. Martin*, 933 F.2d 609, 610 (8th Cir. 1991); *United
States v. Lucas*, 932 F.2d 1210, 1214 n.3, 1219 (8th Cir. 1991); *United
States v. Blackman*, 904 F.2d 1250, 1257 (8th Cir. 1990); *United States
v. Lee*, 886 F.2d 998, 1002-03 (8th Cir. 1989). *See also* U.S. Dept. of
Justice, *Money Laundering Federal Prosecution Manual* (Feb. 1992).

*See* Instruction 6.18.1956J, *infra*, for additional instructions which
should be given in most cases.

**6.18.1956J SUPPLEMENTAL INSTRUCTIONS^1^**

**(1) FINANCIAL TRANSACTION**

\[The phrase \"financial transaction,\" as used in \[this\]
\[Instruction\[s\] \_\_\_\_\_\] means^2^

\[a transaction which in any way or degree affects interstate or foreign
commerce

\[involving the movement of funds by wire or other means.\]

\[involving one or more monetary instruments.\]^3^

\[involving the transfer of title to any \[real property\] \[vehicle\]
\[vessel\] \[aircraft.\]\]^4^

\[a transaction involving the use of a financial institution^5^ which is
engaged in, or the activities of which affect, interstate or foreign
commerce in any way or degree.\]^6^

The term \"transaction,\" as used above, means^7^

\[a purchase, sale, loan, pledge, gift, transfer, delivery, or other
disposition of property\]

\[with respect to a financial institution, a deposit, withdrawal,
transfer between accounts, exchange of currency, loan, extension of
credit, purchase or sale of any stock, bond, certificate of deposit, or
other monetary instrument, \[use of a safe deposit box\]^8^ or any other
payment, transfer, or delivery by, through, or to a financial
institution, by whatever means.\]\]

**(2) INTERSTATE AND FOREIGN COMMERCE**

\[The phrase \"interstate commerce,\" as used above, means commerce
between any combination of states, territories, and possessions of the
United States, including the District of Columbia.\]^9^

\[The phrase \"foreign commerce,\" as used above, means commerce between
any state, territory or possession of the United States and a foreign
country.\]^9^

\[The term \"commerce\" includes, among other things, travel, trade,
transportation and communication.\]^10^

\[It is not necessary for the government to show that \[the defendant\]
\[defendant\[s\] (name\[s\])\] actually intended or anticipated an
effect on interstate or foreign commerce. All that is necessary is that
interstate or foreign commerce was affected as a natural and probable
consequence of \[the defendant\'s\] \[defendant\[s\]
(name\[\'s\]\[s\'\])\] actions.\]^11^

\[You may find an effect on \[interstate\] \[foreign\] commerce has been
proven if you find from the evidence beyond a reasonable doubt:
(describe government\'s evidence at trial of effect on interstate or
foreign commerce, *e.g.* that currency is printed in Washington D.C.,
that the gemstones came from another country.)\]^12^

\[It is not necessary for the government to show that \[the
defendant\'s\] \[defendant\[s\] (name\[\'s\]\[s\'\])\] transaction with
a financial institution, that is with (name institution) itself affected
interstate or foreign commerce. All that is necessary is that at the
time of the alleged offense (name institution) was engaged in or had
other activities which affected interstate or foreign commerce in any
way or degree.\]^13^

\[You may find that the transaction involved the use of a financial
institution which engaged in or the activities of which affected
interstate or foreign commerce in any way or degree if you find from the
evidence beyond a reasonable doubt: (describe government\'s evidence at
trial that the financial institution engaged in or affected interstate
or foreign commerce, *e.g.*, that it sent checks for clearing to another
state or transferred funds to another country).\]\]^14^

**(3) FUNDS**

\[The term funds includes (specify the property involved which the court
determines constitutes \"funds\" under the statute).\]^15^

**(4) MONETARY INSTRUMENT**

\[The phrase \"monetary instrument,\" means, among other things, \[coin
or currency of the United States \[or of any other country\]\]
\[traveler\'s checks\] \[cashier\'s checks\] \[personal checks\] \[bank
checks\] \[money orders\] \[investment securities\] \[\[negotiable
instruments\] in bearer form or otherwise in such form that title
thereto passes upon delivery.\]^16^

**(5) FINANCIAL INSTITUTION**

\[The phrase \"financial institution,\" means, among other things,
(insert applicable definitions from 31 U.S.C. § 5312(a)(2)(A)-(Y) and 31
C.F.R. § 103.11(i).\]^17^

\[The phrase \"financial institution,\" includes each agent, agency,
branch or office within the United States of any person doing business,
whether or not on a regular basis or as an organized business concern,
as a\[n\] (insert appropriate reference from 31 C.F.R. § 103.11(i)).\]
\[Individuals, groups of individuals, and businesses not formally
established as financial institutions, may in fact be a financial
institution if they act in one of the capacities I have listed.\]^18^
\[In this case, the government alleges that (name of individual, group
or entity) was a financial institution in that (name) acted in the
capacity of (insert one of the categories from 31 C.F.R. § 103.11(i)).
If you find beyond a reasonable doubt that (name of individual, group or
entity) did act as a (insert appropriate reference from 31 C.F.R. §
103.11(i)), whether or not (name) did so on a regular basis or as an
organized business concern, then you may find that the government has
established that the transaction in this case involved a financial
institution.\]\]^19^

**(6) PROCEEDS**

\[The term \"proceeds\" means any property, or any interest in property,
that someone acquires or retains as a result of the commission of
(describe the specified unlawful activity).^20^ \[Proceeds can be any
kind of property, not just money. It can include personal property, like
a car or a piece of jewelry, or real property, like an interest in
land.\]^21^ \[So, for example:\] \[If someone robs a bank, the money he
takes from the teller is the proceeds of the bank robbery.\] \[If
someone steals a car, the car is the proceeds of the theft.\] \[If
someone commits a fraud scheme and thereby acquires an interest in land,
or shares of stock, or a joint interest in a bank account, that
interest, whatever it may be, is the proceeds of the crime.\] \[If
someone sells drugs for cash and uses the cash to buy a cashier\'s
check, the cash received is proceeds and the cashier\'s check is still
proceeds of the crime.\]^21^

\[It does not matter whether or not the person who committed the
underlying crime, and thereby acquired or retained the proceeds, was
\[the\] \[a\] defendant. It is a crime to \[conduct a financial
transaction\] \[transport, transmit or transfer monetary instruments or
funds\]^22^ involving property that is the proceeds of a crime, even if
that crime was committed by another person, as long as all of the
elements of the offense are satisfied.\]^23^

\[The government is not required to trace the property it alleges to be
proceeds of (describe the specified unlawful activity) to a particular
underlying offense. It is sufficient if the government proves that the
property was the proceeds of (describe the specified unlawful activity)
generally.^24^ \[For example, in a case involving alleged drug proceeds,
the government would not have to trace the money to a particular drug
offense, but could satisfy the requirement by proving that the money was
the proceeds of drug trafficking generally.\]^25^

\[The government need not prove that all of the property involved in the
\[transaction\] \[transportation, transmission or transfer\]^22^ was the
proceeds of (describe the unlawful activity). It is sufficient if the
government proves that at least part of the property represents such
proceeds.\]\]^26^

**(7) SPECIFIED UNLAWFUL ACTIVITY**

\[The phrase \"specified unlawful activity,\" means any one of a large
variety of offenses defined by statute. I instruct you as a matter of
law that (describe the specified unlawful activity) falls within the
definition. To assist you in determining whether someone \[committed\]
\[attempted to commit\] (describe the specified unlawful activity), you
are advised that the elements of (name offense) are: (set out
elements).\]^27^

**(8) KNOWLEDGE**

\[The phrase \"knew the (describe property) represented the proceeds of
some form of unlawful activity,\" means that \[the defendant\]
\[defendant\[s\] (name\[s\])\] knew the property involved in the
transaction represented proceeds from some form, though not necessarily
which form, of activity that constitutes a felony offense under \[State
or Federal\] \[or\] \[foreign\] law.^28^ Thus, the government need not
prove that the defendant specifically knew that the (describe property)
involved in the financial transaction represented the proceeds of
(describe the specified unlawful activity which is the predicate
offense) or any other specific offense; it need only prove that \[he\]
\[she\] \[they\] knew it represented the proceeds of some form, though
not necessarily which form, of felony under \[state\] \[or\] \[federal\]
\[or\] \[foreign\] law. \[I instruct you as a matter of law (describe
offense) is a felony under (insert applicable jurisdiction) law.\]\]

**Notes on Use**

1\. The Committee recommends the Court explain the terms set forth in
this instruction which are applicable to the section 1956 count\[s\] in
the indictment. They should, of course, be tailored to the facts of the
particular case.

2\. *See* 18 U.S.C. § 1956(c)(4).

> Section 1956(c)(4) defines the term \"financial transaction\" very
> broadly. Because of the broad definition of the term \"transaction\"
> \[*see* Note 6, *infra*\] in section \[1956\](c)(3), the term
> \"financial transaction\" is not limited to transactions involving
> financial institutions. It includes all forms of commercial activity.
> The only requirement is that the transaction must \"affect interstate
> or foreign commerce\" or be conducted through or by a financial
> institution \"which is engaged in or the activities of which affect
> interstate or foreign commerce,\" in any way or degree.

S. Rep. No. 433, 99th Cong. 2d Sess 13 (1986).

3\. Use where the transaction involves monetary instruments.
\"Transaction\" includes the purchase, sale or disposition of any kind
of property as long as the disposition involves a monetary instrument.
*See United States v. Blackman*, 904 F.2d 1250, 1257 (8th Cir. 1990);
*United States v. Lee*, 886 F.2d 998, 1002-03 (8th Cir. 1989). A
\"financial transaction\" includes transferring cash from one person to
another without involvement of a financial institution, as long as it
affects interstate or foreign commerce. *See United States v. Kaufmann*,
985 F.2d 884, 892 n.3 (7th Cir. 1993) (\"financial transaction\" found
for cash sale of car); *United States v. Isabel*, 945 F.2d 1193, 1201
(1st Cir. 1991) (giving a check in exchange for cash); *United States v.
Hamilton*, 931 F.2d 1046, 1051-52 (5th Cir. 1991) (sending cash through
the mail); *United States v. Gallo*, 927 F.2d 815, 822 (5th Cir. 1991)
(transfer of a box of currency between individuals). It may also include
merely writing a check. *See United States v. Jackson*, 935 F.2d 832,
841 (7th Cir. 1991); *United States v. Blackman*, 904 F.2d 1250, 1257
(8th Cir. 1990).

Although not listed in section 1956(c)(5), cashier\'s checks are
negotiable instruments in \"\[s\]uch form that title thereto passes upon
delivery.\" S. Rep. No. 433, 99th Cong., 2d Sess. 13 (1986). This
definition was explicitly clarified, effective May 8, 1987, when
\"cashier\'s checks\" was added to the definition of \"monetary
instruments\" in 31 C.F.R. § 103.11(j)(iii). *See* 52 Fed. Reg. 11436
(1987) (Final Rule).

4\. This third alternative definition involving the transfer of titles
became effective October 28, 1992. Previously, only the other two types
of transactions affecting interstate or foreign commerce applied. *See*
Note 1, Instruction 6.18.1956A, *supra*.

5\. *See* Notes 17-19, *infra*. The term \"financial institution\" is
generally defined for purposes of Title 18 in 18 U.S.C. § 20. However,
18 U.S.C. § 1956(c)(6) specifically incorporates for section 1956
purposes the somewhat different definition found in 31 U.S.C. §
5312(a)(2) *and* its implementing regulations, *e.g.* 31 C.F.R. §
103.11(i). The scope is quite broad and includes insurance companies,
pawnbrokers, travel agencies, vehicle dealers, realtors, the United
States Postal Service and a number of other entities which a lay person
might not consider to be a financial institution. Because of the
periodic amendments to section 5312(a)(2) and to 31 C.F.R. § 103.11 the
Committee recommends reviewing the versions applicable at the time of
the alleged transaction.

6\. As defined in 18 U.S.C. § 1956(c)(4), the financial transaction may
itself affect interstate or foreign commerce. Alternatively, the
transaction, regardless of whether it itself has such a nexus, may
involve the use of a \"financial institution\" which supplies the nexus.
Section 1956(a)(1) does not require that the use of the financial
institution, i.e., the financial transaction, with the interstate
commerce nexus, be a part of or even contribute to or facilitate the
requisite design to conceal the nature, ownership or source of the
proceeds. *See United States v. Koller*, 956 F.2d 1408, 1412 (7th Cir.
1992) (the defendant purchased money order at a bank which he then took
to the probation officer to satisfy his girlfriend\'s restitution).

7\. *See* 18 U.S.C. § 1956(c)(3). According to the legislative history,
the term \"also includes activities not involving banks such as the
purchase, sale or other disposition of property of all kinds . . . .
\[E\]ach transaction involving \"dirty money\" is intended to be a
separate offense.\" S. Rep. No. 433, 99th Cong., 2d Sess. 13 (1986). The
history uses the example of a drug dealer who takes \$1 million in cash
from drug sales, deposits portions in ten different banks, withdraws
some and then uses the money withdrawn to purchase a luxury item. There
are twelve violations, ten for the deposits, one for the withdrawal and
one for the purchase. *Id.*

8\. Until the October 28, 1992, amendments, merely depositing money in a
safe deposit box in a financial institution was not a transaction. *See*
Instruction 6.18.1956A, *supra*, Note 1; *United States v. Bell*, 936
F.2d 337, 340-41 (7th Cir. 1991) (holding that use of a safe deposit box
to hold the proceeds of specified unlawful activity did not constitute a
\"transaction\"). Since that date, mere \"use of a safe deposit box\"
with respect to a financial institution is explicitly included.

9\. *See* 18 U.S.C. § 10; 18 U.S.C. § 1951(b)(3); 18 U.S.C. § 1956(c)(8)
(definition of \"state\"); Fifth Circuit Criminal Instructions 1.37 -
1.39 (West 1991). The terms \"interstate,\" \"foreign\" and \"commerce\"
are not specifically defined in 18 U.S.C. § 1956. The statutory
definitions in other portions of Title 18 define them consistently with
the ordinary meanings of the terms. Optional definitions are included
for use if the facts of the case raise an issue in this regard or if the
jury should have a question.

10\. The term \"commerce\" as used throughout Title 18 was intended to
avoid the narrower connotation of the word \"transportation.\" 18 U.S.C.
§ 10, Revision Notes.

11\. Use where the transaction itself affected interstate or foreign
commerce. *See United States v. Evans*, 272 F.3d 1069 (8^th^ Cir. 2001).
The legislative history of section 1956 indicates that the phrase was
derived from the Hobbs Act, 18 U.S.C. § 1951, and \"intended to reflect
the full exercise of Congress\'s power under the Commerce Clause.\" S.
Rep. No. 433, 99th Cong. 2d Sess. 13 (1986). *See also United States v.
Perez*, 402 U.S. 146, 154 (1971) (loan sharking).

12\. Because there is no clear requirement that the commerce nexus be
alleged in the detail required under the Hobbs Act, the wording of
Instruction 6.18.1951, *supra*, is different. If this instruction does
not precede a paragraph describing the government\'s burden of proof,
the Committee recommends adding \"otherwise, you must find \[the\]
\[that particular\] defendant not guilty \[under Count\[s\]
\_\_\_\_\].\" *See* Instruction 3.09, *supra*.

13\. *See* 18 U.S.C. § 1956(c)(4). Use when a \"financial institution\"
\[*see* Note 5, *supra*\] is involved, regardless of whether the
transaction itself had an effect on interstate or foreign commerce.

14\. Because the requirement under the Hobbs Act is somewhat different,
the wording of Instruction 6.18.1951, *supra*, is different. If this
instruction does not precede a paragraph describing the government\'s
burden of proof, the Committee recommends adding, \"\[o\]therwise, you
must find \[the\] \[that particular\] defendant not guilty \[under
Count\[s\] \_\_\_\_\].\" The Committee has been unable to find a
definition specifically applicable to sections 1956 and 1957.

15\. *See generally* Black\'s Law Dictionary 673 (6th ed. 1990)
(\"monies and much more, such as notes, bills, checks, drafts, stocks
and bonds\....\") For use where the financial transaction involved the
movement of funds rather than monetary instruments or the transfer of
title to property. *See* Notes 2-4, *supra*.

16\. For use where the financial transaction involved the use of a
monetary instrument. *See* Notes 2-4, *supra*.

17\. *See* Note 5, *supra*. For use in response to a question by the
jury or where the nature of the financial institution is not intuitive.
Section 5312(a)(2) was already in effect on October 27, 1986, and was
amended November 18, 1988. Section 103.11 was effective October 27,
1986, and amended May 8, 1987, *inter alia* adding cashier checks to the
definition of \"monetary instruments.\"

18\. *See* 31 C.F.R. § 103.11(a). This portion of the regulation was
already in effect on October 27, 1986. *See* 50 Fed. Reg. 42691 (1985)
and corrected at 50 Fed. Reg. 47390 (1985) (Final Rule). On May 8, 1987,
the definition was expanded to include persons whether or not on a
regular basis or as an organized business concern. *See* 52 Fed. Reg.
11436 (1987) (Final Rule). *See also United States v. Tannebaum*, 934
F.2d 8, 11-12 (2d Cir. 1991) (an individual can be a financial
institution); *United States v. Gollott*, 939 F.2d 255, 258 (5th Cir.
1991) (group of individuals laundering cash for undercover agent was a
financial institution required to file Currency Transaction Reports).

19\. This optional expansion of the instruction may be given when this
is an issue.

20\. \"Proceeds\" is not a term defined in 18 U.S.C. § 1956(c)(1)-(8).
In defining criminally derived property, 18 U.S.C. § 1957(f)(2) refers
to \"any property *constituting*, or derived from, proceeds obtained
from a criminal offense . . .\" (emphasis added). However, in *United
States v. Santos,* 553 U.S. \_\_\_, 128 S. Ct. 2020 (2008), involving an
illegal lottery operator's payments to his winners and runners using the
receipts from his lottery operation, a plurality of the Supreme court
found that the term proceeds in § 1956(a)(1)(A)(i) applies only to
criminal profits, not criminal receipts. Justice Stevens, in a
concurring opinion which was the determinative opinion, concluded that
the term "proceeds" does not include revenue used to pay essential
operating expenses in a gambling business, but it does include gross
revenue from the sale of contraband and the operation of organized crime
syndicates.

~~This~~ The statutory definition is virtually identical to the scope of
property subject to criminal forfeiture set forth in 21 U.S.C. §
853(a)(1): \"any property *constituting*, or derived from any proceeds
the person obtained, directly or indirectly, as the result of such
\[predicate drug\] violation;\" (emphasis added). Thus in the closest
analogous statutes, property and proceeds may be the same when the
property *constitutes* proceeds. For purposes of section 853,
\"property\" includes: \"(1) real property, including things growing on,
affixed to, and found in land; and (2) tangible and intangible personal
property, including rights, privileges, interests, claims and
securities.\" 21 U.S.C. § 853(b).

The limited case law construing the term, specifically as applied to
section 1956, holds that \"proceeds\" \"can include \'property\' other
than money or cash equivalents, even if that \'property\' has not been
purchased with the monetary \'proceeds\' of unlawful activity.\" *United
States v. Werber*, 787 F. Supp. 353, 357 (S.D.N.Y. 1992). In *Werber*,
the defendants allegedly uttered counterfeit bank cashier\'s checks to
purchase automobiles and then sold those automobiles. The financial
transaction was the sale of the automobiles which, the government
alleged, represented the \"proceeds\" of the uttered counterfeit checks.
The defendants argued unsuccessfully that \"proceeds\" was restricted to
money or cash equivalents. 787 F. Supp. at 356.

Prior to the above cases, at least one commentator argued for a narrower
definition, based on a construction of the legislative history. *See* G.
Richard Strafer, *Money Laundering: The Crime of the \'90\'s*, 27 Amer.
Crim. L. Rev. 149, 182-85 (1989). In *Werber*, the Court rejected the
defendant\'s reliance on legislative history. The Court found that the
express language of the statute (section 1956(a)(1)) was clear without
citation to dictionaries, that there was no clear legislative history
contradicting the plain meaning of the word \"proceeds\" and that
Congress\' failure to mention factual situations such as the counterfeit
cashier\'s check and subsequent sale of automobiles scheme did not
preclude the automobiles from being proceeds. 787 F. Supp. at 356-57. In
a typical case where the proceeds are cash or a monetary instrument, the
Committee recommends the use of the definition shown. More complex
situations may require briefing by the parties to update this evolving
area of the law.

21\. These optional expansions of the definition should be tailored to
the facts of a specific case. For an example where the court found that
proceeds can include other than money or cash equivalents, even where
that property was not purchased with the monetary proceeds of unlawful
activity, *see United States v. Werber*, 787 F. Supp. 353, 357 (S.D.N.Y.
1992).

22\. Use with Instructions 6.18.1956D, E & F (18 U.S.C. § 1956(a)(2)).

23\. *See United States v. Atterson*, 926 F.2d 649, 656 (7th Cir. 1991)
(the defendant was girlfriend of a drug dealer who wired cash for him);
*United States v. Isabel*, 945 F.2d 1193, 1202-03 (1st Cir. 1991) (the
defendant issued false paycheck in return for cash received from person
who said he was a drug dealer).

24\. The statute merely requires that the transaction \"involves\" the
proceeds. *See United States v. Blackman*, 904 F.2d 1250, 1257 (8th Cir.
1990); *accord United States v. Jackson*, 983 F.2d 757, 766 (7th Cir.
1993) (citing *Blackman*); *United States v. Isabel*, 945 F.2d 1193,
1201 (1st Cir. 1991) (citing *Blackman* and *United States v. Jackson*,
935 F.2d 832, 840 (8th Cir. 1991)).

25\. This optional example, which should be tailored to the facts of the
case, is based on facts in *United States v. Blackman*, 904 F.2d 1250,
1257 (8th Cir. 1990).

26\. The requirement that the financial transaction \"involves the
proceeds\" of unlawful activity does not require that the government
prove that the transaction involved only illegally derived proceeds. The
sanction of the statute cannot be avoided by commingling funds. *See
United States v. Jackson*, 983 F.2d 757, 765 (7th Cir. 1993) (citing
*United States v. Jackson*, 935 F.2d 832, 840 (7th Cir. 1991)). Nor need
the evidence of criminally derived funds be direct. *See United States
v. Turner*, 975 F.2d 490, 497 (8th Cir. 1992) (reasonable for jury to
infer that money used to purchase and renovate a building came from drug
sales, where there was extensive testimony about the defendant\'s drug
operations and evidence that his expenses far exceeded his income). *But
Cf. United States v. Baker*, 985 F.2d 1248, 1254, 1261-62 (4th Cir.
1993) (reversal of jury\'s verdict in absence of specific evidence
identifying the boat purchased by a third party, identifying the
defendant as the owner or possessor of the boat, showing that the money
used by the third party belonged to the defendant and that the money was
the product of drug transactions).

27\. Throughout these instructions, the plain description of the offense
has been substituted for the phrase \"specified unlawful activity\"
(SUA) which is a term of art specifically defined in 18 U.S.C. §
1956(c)(7), and which incorporates *inter alia* most of 18 U.S.C. §
1961(1). If the indictment is read to the jury and contains the phrase,
any inquiry by the jury as to whether a particular offense is
\"specified unlawful activity\" can be answered as a matter of law.
Section 1956(c)(7) as originally enacted effective October 27, 1986, was
amended on November 18, 1988, on November 29, 1990, and on October 28,
1992. *See* Note 1, Instruction 6.18.1956A, *supra*. The provisions of
section 1956(c)(7) used should correspond to the alleged date of the
offense. Further, many of the most common SUAs, such as drug
trafficking, are derived from the definition of \"racketeering
activity,\" contained in 18 U.S.C. § 1961(1). That statute has also been
amended since October 27, 1986, on November 10, 1986, November 18, 1988,
and on November 29, 1990. Therefore, when determining whether an offense
qualifies as an SUA, the applicable provisions of section 1961(1) should
also be reviewed. *NOTE:* Although the general trend of amendments to
section 1956(c)(7) has been to *expand* the statute, the 1990 amendment
added violations of sections 1341 and 1343 (mail and wire fraud)
\"affecting a financial institution.\" Because all RICO (18 U.S.C. §
1961) predicates, including sections 1341 and 1343, were already
incorporated within section 1956(c)(7), it is unclear whether Congress
intended to *restrict* section 1956(c)(7) and exclude section 1341 and
1343 offenses *not* affecting a financial institution after November 29,
1990. *See United States v. Taylor*, 984 F.2d 298, 301-02 (9th Cir.
1993). This ambiguity was eliminated, effective October 28, 1992, when
the questionable references to sections 1341 and 1343 (as well as the
section 1344 relating to bank fraud) were deleted. Where the substantive
offense constituting the SUA is not also charged in the indictment, the
Committee recommends that, upon request of either party, the jury be
instructed as to the elements of the SUA\[s\] alleged in the money
laundering counts. *See*, *e.g.*, Instruction 5.06C, *supra*.

28\. The financial transaction (or transportation, transmission or
transfer, in the case of 18 U.S.C. § 1956(a)(2)) must have involved
proceeds from \"specified\" unlawful activity, as defined in 18 U.S.C. §
1956(c)(7); however, the defendant need not have known the actual source
of the proceeds, as long as the defendant knew that the proceeds
represented \"some form of unlawful activity.\" 18 U.S.C. § 1956(a)(1).
Section 1956(c)(1) defines the term broadly to require only that \"the
person knew the property involved in the transaction represented
proceeds from some form, though not necessarily which form, of activity
that constitutes a felony under State, Federal, or foreign law,
regardless of whether or not such activity is specified in paragraph
\[1956(c)\](7).\" Although the most common situation will be that the
defendant\'s knowledge and the actual source of the proceeds coincide,
where the evidence shows that the defendant thought that the property
used in the transaction was proceeds from a different unlawful activity,
the instruction should be tailored to reflect the defendant\'s
knowledge, *e.g.* \"at the time the defendant conducted the financial
transaction, he believed that the money he used in the financial
transaction represented the proceeds of unlawful \[prostitution\]
\[dogfighting\] \[gambling\].\" *See*, *e.g.*, *United States v. Long*,
977 F.2d 1264, 1277 (8th Cir. 1992) (discussing the laundering of \"any
proceeds from a myriad of specified unlawful activities,\" and how that
results in different offense levels under section 2S1.1 of the
Sentencing Guidelines).

**Committee Comments**

*See* Committee Comments and Notes on Use, Instructions 6.18.1956A
through I, *supra*.

**6.18.2423A TRANSPORTATION OF MINOR TO ENGAGE IN**

**CRIMINAL SEXUAL ACTIVITY (18 U.S.C. §2423(a))^1^**

The crime of \[interstate\] \[foreign\] transportation of anyone under
eighteen (18) years of age to engage in \[prostitution\] \[(any sexual
activity for which a person can be charged with a criminal offense)\] as
charged in \[Count \_\_\_ of\] the indictment has \[three\]^2^
\[four\]^3^ elements, which are:

*One*, the defendant knowingly \[transported\] \[attempted to
transport\] (name of person alleged in indictment) across a state line
or national border; and

*Two*, the defendant \[transported\] \[attempted to transport\] the
person with the intent such person engage in \[prostitution\]
\[(describe sexual activity charged in indictment)\]; and

\[*Three*, ~~\[if the sexual activity had occurred\] \[based upon the
sexual activity that occurred\] the defendant could have been charged
with~~ \[prostitution\] \[describe sexual activity charged in
indictment\] a criminal offense under the law of (identify state);
and\]^4^

\[*Three*\]^5^ \[*Four*\] \[(name of person alleged in indictment) was
under the age of eighteen (18) years\]^6^ \[the defendant believed such
individual was under the age of eighteen (18) years ~~of age~~\]^7^.
\[the defendant knew such individual was (under the age of \_\_\_) (was
\_\_\_ years of age) (and defendant was over \_\_\_ years of age)\].^8^

\[Prostitution means (set out elements of crime of prostitution from
jurisdiction in which act occurred or would have occurred).\]^6^

\[(Set out elements of applicable Federal or State law) \[is\] \[are\]
\[a crime\] \[crimes\] under the laws of \[the United States\] \[the
State of (identify the state).\]^7^

\[A person may be found guilty of an attempt if \[he\] \[she\] intended
to (describe attempted act, i.e., transport Jane Doe across a state line
with the intent that Jane Doe engage in prostitution) and voluntarily
and intentionally carried out some act which was a substantial step^8^
toward that (describe attempted act).\]^9^

(Insert paragraph describing Government's burden of proof; *see*
Instruction 3.09, *supra*.)

\[It is not necessary of the Government to prove that the defendant knew
that (name of person alleged in indictment) was, in fact, less than
eighteen (18) years of age.\]^13^

\[It is not necessary for the Government to prove that the individual
was, in fact, less than eighteen (18) years of age; but it is necessary
for the Government to prove the defendant believed such individual to be
under that age.\]^14^

**Notes on Use**

1\. Title 18 U.S.C. § 2423(e) authorizes the charging of an attempt or
conspiracy under this statute. If a conspiracy is charged, modify
instruction accordingly.

2\. Use when the defendant is charged with transporting a minor to
engage in prostitution.

3\. Use when the defendant is charged with transporting a minor to
engage in any sexual activity for which a person can be charged with a
criminal offense.

4\. Use when the defendant is charged with transporting a minor to
engage in any sexual activity for which a person can be charged with a
criminal offense.

5\. Use when the defendant is charged with transporting a minor to
engage in prostitution.

6\. Use when the defendant is charged with the actual transportation of
the victim.

7\. Use when defendant is charged with the attempted transportation and
the "victim" is an undercover officer.

8\. Use when the defendant is charged with transporting a minor to
engage in any sexual activity for which a person can be charged with a
criminal offense and mistake of age is a defense to such offense.

~~6.~~ 9. Use when the defendant is charged with transporting a minor to
engage in prostitution.

~~7.~~ 10. Use when the defendant is charged with transporting a minor
to engage in any sexual activity for which a person can be charged with
a criminal offense.

~~8.~~ 11. An instruction defining "substantial step" may be given.
*See* Instruction 8.01, Notes on Use, n.2, *infra*.

~~9.~~ 12. Use when the defendant is charged with an attempt. *See
generally*, Instruction 8.01, *infra*.

13\. Use when defendant is charged with the actual transportation of the
victim and the charge does not involve a sexual offense to which mistake
of age is a defense.

14\. Use when defendant is charged with the attempted transportation and
the "victim"is an undercover officer.

**Committee Comments**

The Eighth Circuit has held that a defendant may be convicted of
violating 18 U.S.C. § 2423(b) if he or she travels in interstate
commerce with the purpose of engaging in criminal sexual conduct with a
person believed to be a minor regardless of whether such person is
actually a minor. *United States v. Hicks*, 457 F.3d. 838, 841 (8^th^
Cir. 2006).

[^1]: United States v. Lucas, 932 F.2d 1210 (8^th^ Cir. 1991)