MANUAL OF

MODEL CRIMINAL

JURY INSTRUCTIONS

for the

DISTRICT COURTS OF THE

EIGHTH CIRCUIT

Prepared by

Judicial Committee on Model

Jury Instructions

for the Eighth Circuit

\_\_\_\_\_\_\_\_\_\_

2006 Edition

**TO THE JUDGES AND MEMBERS OF THE BAR OF**

**THE EIGHTH JUDICIAL CIRCUIT**

\_\_\_\_\_\_\_\_\_\_

The Eighth Circuit Judicial Committee on Model Jury Instructions
herewith submits its 2006 Edition of the Manual of Model Criminal Jury
Instructions. It supersedes all prior editions.

The purpose of this Manual is stated in its introduction. We recognize
that the manner of instructing a jury varies widely among judges, but
these models are offered as clear, brief and simple instructions
calculated to maximize jury comprehension. They are available to judges
and litigants to be used in their discretion in tailoring the
instructions in a particular case. These are intended to be model, not
mandatory, instructions and should be modified as appropriate to more
clearly and precisely present issues to the jury.

Although the Eighth Circuit cannot give prior approval to the
instructions, we are grateful for the support they have provided to us
in this endeavor. We are also grateful to the judges, lawyers,
prosecutors and federal practice committees throughout the Circuit who
assisted the Criminal Jury Instructions Subcommittee. This subcommittee
drafted the vast majority of these instructions, notes and committee
comments. They meet regularly and the substantial contribution they make
is obvious from the instructions which are included. The names and
addresses of the committee and subcommittee members are attached.

We also express special thanks to Kay Bode, secretary to Judge Knox, who
retyped many of the instructions and edited them for consistency with
the other published instructions. Her careful attention to detail was
essential in discovering and eliminating errors which might otherwise
have been included.

These instructions are available to you on computer disk from your clerk
of court and in this volume. They are also available on the Eighth
Circuit Jury Instructions Website at
[[http://www.juryinstructions.ca8.uscourts.gov/]{.underline}](http://www.juryinstructions.ca8.uscourts.gov/).
The Committee plans to continue in operation and to add instructions on
the substantive law for offenses that are frequently tried in the Eighth
Circuit. As these instructions are used, if a judge or lawyer believes
improvement can be made in the clarity of any instruction, or that a
particular instruction is in error, we would appreciate being advised.

The Committee sincerely hopes these instructions will be of some help to
judges in their communications with the jury, thereby improving the
quality of justice we all endeavor to attain.

This volume is dedicated to the Honorable Ross T. Roberts, who was
reporter for this project for many years. A dedication page is included
herein.

Respectfully submitted,

SCOTT O. WRIGHT

Chairman

**DEDICATION**

The Committee is honored to dedicate these instructions to Judge Ross T.
Roberts. Ross was the Reporter for the Committee and he was relied on
very heavily from the very outset in the formulation of these
instructions. Because Ross had such a brilliant legal mind, his work and
input on the Committee was highly valued by all of its members.

It is a great privilege for the Committee to recognize Ross\'s work on
the Instruction Committee and dedicate these Instructions to his memory.

**COMMITTEE ON MODEL JURY INSTRUCTIONS**

**EIGHTH CIRCUIT**

Hon. Scott O. Wright, Chairman

United States Senior District Judge

8662 U.S. Courthouse

400 E. Ninth Street

Kansas City, Missouri 64106

\(816\) 512-5700

\(816\) 512-5713 (fax)

Hon. Richard H. Battey

United States Senior District Judge

260 U.S. Courthouse

5l5 Ninth Street

Rapid City, South Dakota 57701

\(605\) 343-7784

\(605\) 343-1169 (fax)

Hon. Mark W. Bennett

United States Chief District Judge

313 U.S. Courthouse

320 Sixth Street

Sioux City, Iowa 51101-1210

\(712\) 233-3909

\(712\) 233-3913 (fax)

Hon. Patrick A. Conmy

United States Senior District Judge

160 U.S. Courthouse

220 E. Rosser Avenue

Bismarck, North Dakota 58501

\(701\) 530-2315

\(701\) 530-2318 (fax)

Hon. Ralph R. Erickson

United States District Judge

410 U.S. Courthouse

655 First Avenue N.

Fargo, N.D. 58102-4932

\(701\) 297-7080

\(701\) 297-7085 (fax)

Hon. William A. Knox

United States Magistrate Judge

204 U.S. Courthouse

131 West High Street

Jefferson City, Missouri 65101-1557

> \(573\) 634-3418
>
> \(573\) 636-5208 (fax)

Hon. Richard H. Kyle

United States District Judge

Warren E. Burger Federal Building

316 N. Robert Street

St. Paul, Minnesota 55101

> \(651\) 848-1160
>
> \(651\) 848-1162 (fax)

Hon. Nanette K. Laughrey

United States District Judge

307 U.S. Courthouse

131 W. High Street

Jefferson City, Missouri 65101-1557

> \(573\) 632-6623
>
> \(573\) 636-5108 (fax)

Hon. Ann D. Montgomery

United States District Judge

13-W U.S. Courthouse

300 S. Fourth Street

Minneapolis, Minnesota 55415

> \(612\) 664-5090
>
> \(612\) 664-5097 (fax)

Hon. James M. Moody

United States District Judge

381 U.S. Courthouse

600 W. Capitol Avenue

Little Rock, Arkansas 72201

> \(501\) 604-5150
>
> \(501\) 604-5373 (fax)

Hon. Rodney W. Sippel

United States District Judge

10-S U.S. Courthouse

111 S. Tenth Street

St. Louis, Missouri 63102-1116

\(314\) 244-7430

\(314\) 244-7439 (fax)

Hon. Warren K. Urbom

United States Senior District Judge

507 U.S. Courthouse

100 Centennial Mall N.

Lincoln, Nebraska 68508-3803

\(402\) 437-5231

\(402\) 437-5690 (fax)

Hon. Harold D. Vietor

United States Senior District Judge

485 U.S. Courthouse

123 E. Walnut Street

Des Moines, Iowa 50309-2035

\(515\) 284-6237

\(515\) 284-6460 (fax)

Hon. William R. Wilson, Jr.

United States District Judge

423 U.S. Courthouse

600 W. Capitol Avenue

Little Rock, Arkansas 72201

\(501\) 604-5140

\(501\) 604-5149 (fax)

**Subcommittee on Model Criminal Jury Instructions**

Hon. William A. Knox (Chairman)

United States Magistrate Judge

204 U.S. Courthouse

131 W. High Street

Jefferson City, Missouri 65101

\(573\) 634-3418

\(573\) 636-5208 (fax)

Hon. Terry I. Adelman

United States Magistrate Judge

15.174 U.S. Courthouse

111 S. Tenth Street

St. Louis, Missouri 63102

\(314\) 244-7550

\(314\) 244-7559 (fax)

J. Curt Bohling, Esq.

Assistant United States Attorney

400 E. Ninth Street, 5^th^ Floor

Kansas City, Missouri 64106

\(816\) 426-4296 (direct)

\(816\) 426-4322

Christopher C. Harlan, Esq.

10920 Ambassador Dr., Suite 500

Kansas City, Missouri 64153

\(816\) 880-0443

\(816\) 880-9393 (fax)

Jenniffer M. Horan

Federal Public Defender

1401 W. Capitol, Suite 490

Little Rock, Arkansas 72201

> \(501\) 324-6116
>
> \(501\) 324-6128 (fax)

Joseph M. Landolt, Esq.

Assistant United States Attorney

111 S. Tenth Street, 20^th^ Floor

St. Louis, Missouri 63102-1116

> \(314\) 539-2196
>
> \(314\) 539-2777 (fax)

Mary Jane Lyle, Esq.

1319 Webster Path Drive

St. Louis, Missouri 63119

> \(314\) 968-8029

Linda Parker Marshall

Asst. United States Attorney

400 E. Ninth Street, 5^th^ Floor

Kansas City, Missouri 64106

> \(816\) 426-4230 (direct)
>
> \(816\) 426-3126 (fax)

James R. Wyrsch, Esq.

Wyrsch Hobbs & Mirakian, P.C.

1000 Walnut Street, Suite 1600

Kansas City, Missouri 64106

> \(816\) 221-0080
>
> \(816\) 221-3280 (fax)

**Subcommittee on Model Death Penalty Jury Instructions**

Mary Jane Lyle, Esq.

1319 Webster Path Drive

St. Louis, Missouri 63119

\(314\) 968-8029

Kevin C. Curran

Asst. Federal Public Defender

1010 Market Street, Suite 200

St. Louis, Missouri 63101-2000

\(314\) 241-1255

\(314\) 421-3077 (fax)

Joseph M. Landolt

Asst. United States Attorney

111 S. Tenth Street, 20^th^ Floor

St. Louis, Missouri 63102-1116

\(314\) 539-2196 (direct)

\(314\) 539-2777 (fax)

Mark Miller

Asst. United States Attorney

400 E. Ninth Street, 5^th^ Floor

Kansas City, Missouri 64106

\(816\) 426-4110

\(816\) 426-4328 (fax)

Larry C. Pace

Asst. Federal Public Defender

818 Grand Avenue, Suite 300

Kansas City, Missouri 64106-1910

\(816\) 471-8282

\(816\) 471-8008 (fax)

Charles M. Rogers, Esq.

Wyrsch Hobbs & Mirakian, P.C.

1000 Walnut Street. Suite 1600

Kansas City, Missouri 64106-2140

> \(816\) 221-0080
>
> \(816\) 221-3280 (fax)

**INTRODUCTION**

These instructions have been prepared to help judges communicate more
effectively with juries. The Manual is meant to provide judges and
lawyers with models of clear, brief and simple instructions calculated
to maximize juror comprehension. They are not intended to be treated as
the only method of properly instructing a jury. *See* *United States v.
Ridinger*, 805 F.2d 818, 821 (8th Cir. 1986). \"The Model Instructions .
. . are not binding on the district courts of this circuit, but are
merely helpful suggestions to assist the district courts.\" *United
States v. Norton*, 846 F.2d 521, 525 (8th Cir. 1988). *See also* *United
States v. Jones*, 23 F.3d 1407 (8th Cir. 1994).

Every effort has been made to assure conformity with current Eighth
Circuit law, however, it cannot be assumed that all of these model
instructions in the form given will necessarily be appropriate under the
facts of a particular case. The Manual covers issues on which
instructions are most frequently given, but because each case turns on
unique facts, instructions should be drafted or adapted to conform to
the facts in each case.

In drafting instructions, the Committee has attempted to use simple
language, short sentences, and the active voice and omit unnecessary
words. We have tried to use plain language because giving the jury the
statutory language, or language from appellate court decisions, is often
confusing.

It is our position that instructions should be as brief as possible and
limited to what the jury needs to know for the case. We also recommend
sending a copy of the instructions as given to the jury room.

Counsel are reminded of the dictates of Criminal Rule 30(d) which
provides, "\[a\] party who objects to any portion of the instructions or
to a failure to give a requested instruction must inform the court of
the specific objection and the grounds for the objection before the jury
retires to deliberate." *See* *United States v. Hecht*, 705 F.2d 976,
978 (8th Cir. 1983). Simply offering instructions without making
specific objections does not satisfy Rule 30. *Id.* at 978-79. Moreover,
merely offering a requested instruction to the trial judge for his or
her consideration is not sufficient to preserve an error based on a
judge\'s failure to use the instruction. *Id.* at 978-79. A requested
instruction must set out a correct declaration of law and be supported
by the evidence. *United States v. Brake*, 596 F.2d 337, 339 (8th Cir.
1979).

**DIRECTIONS FOR USE**

The suggested instructions in this volume do not attempt to take into
account all of the variations of a particular statute or all of the
factual variations that may occur in a particular trial. The instruction
models detailed herein will have to be modified in particular cases to
reflect these variations.

In some of the Comments and Notes, the Committee has used terminology
such as \"should be given\" or \"should be defined.\" Unless there is
case law requiring such, this does not mean that it would be error not
to give or define the suggested instruction or that the suggested
instruction would be appropriate in every context. Rather, the use of
such terms simply means that it is the Committee\'s belief that to
achieve clarity, completeness or consistency, such an instruction would
be appropriately given.

Further, in some factual situations, it may be helpful to define certain
terms or concepts which the Committee has not defined. In this regard,
the Committee Comments may be helpful in finding proper definitions of
these terms and concepts.

The Committee Comments are meant to be helpful but not all inclusive. No
significance is to be given to the inclusion or exclusion of any matter
in the Comments.

Brackets \[ \] are used to indicate words, phrases or sentences which
should be used or eliminated in accordance with the actual charges in
the individual case. Example:

\"*One*, the defendant made a \[false\] \[fictitious\] \[fraudulent\]
\[statement\] \[representation\] in a matter, etc.\"

Where more than one manner of violating a statute is charged, the
disjunctive \"or\" should be used in the instructions:

\"*One*, the defendant made a false, fictitious or fraudulent statement
or representation in a matter, etc.\"

However, if the defendant was charged only with making false statements,
the instruction would read:

\"*One*, the defendant made a false statement in a matter, etc.\"

Parentheses ( ) are used to indicate a direction to insert some specific
matter at that point in the instruction. This is usually factual matter
particular to a given case.

**TABLE OF CONTENTS**

**1.00 PRELIMINARY INSTRUCTIONS BEFORE OPENING STATEMENTS\
(Introductory Comment)** [[1]{.underline}](#Generated)

1.01 GENERAL: NATURE OF CASE; NATURE OF INDICTMENT;\
BURDEN OF PROOF; PRESUMPTION OF INNOCENCE;\
DUTY OF JURY; CAUTIONARY [[2]{.underline}](#Generated)

1.02 ELEMENTS OF THE OFFENSE (PRELIMINARY) [[4]{.underline}](#Generated)

1.03 EVIDENCE; LIMITATIONS [[5]{.underline}](#Generated)

1.04 DIRECT AND CIRCUMSTANTIAL EVIDENCE [[7]{.underline}](#Generated)

1.05 CREDIBILITY OF WITNESSES [[8]{.underline}](#Generated)

1.06 NO TRANSCRIPT AVAILABLE \[NOTE-TAKING\]
[[9]{.underline}](#Generated)

1.06A QUESTIONS BY JURORS [[10]{.underline}](#Generated)

1.07 BENCH CONFERENCES AND RECESSES [[12]{.underline}](#Generated)

1.08 CONDUCT OF THE JURY [[13]{.underline}](#Generated)

1.09 OUTLINE OF TRIAL [[15]{.underline}](#Generated)

**2. INSTRUCTIONS FOR USE DURING TRIAL (Introductory Comment)**
[[16]{.underline}](#Generated)

2.01 DUTIES OF JURY: RECESSES [[17]{.underline}](#Generated)

2.02 STIPULATED TESTIMONY [[18]{.underline}](#Generated)

2.03 STIPULATED FACTS [[19]{.underline}](#Generated)

2.04 JUDICIAL NOTICE (Fed. R. Evid. 201) [[20]{.underline}](#Generated)

2.05 WIRETAP OR OTHER TAPE-RECORDED EVIDENCE
[[22]{.underline}](#Generated)

2.06 TRANSCRIPT OF TAPE-RECORDED CONVERSATION
[[23]{.underline}](#Generated)

2.06A TRANSCRIPT OF FOREIGN LANGUAGE\
TAPE-RECORDED CONVERSATION [[25]{.underline}](#Generated)

2.07 STATEMENT BY THE DEFENDANT [[26]{.underline}](#Generated)

2.08 THE DEFENDANT\'S PRIOR SIMILAR ACTS (Where Introduced to\
Prove an Issue Other Than Identity) (Fed. R. Evid. 404(b))
[[28]{.underline}](#Generated)

2.09 THE DEFENDANT\'S PRIOR SIMILAR ACTS (Where Introduced to\
Prove Identity) (Fed. R. Evid. 404(b)) [[31]{.underline}](#Generated)

2.10 CROSS-EXAMINATION OF THE DEFENDANT\'S CHARACTER WITNESS\
[[33]{.underline}](#Generated)

2.11 DISMISSAL, DURING TRIAL, OF SOME CHARGES\
AGAINST SINGLE DEFENDANT [[34]{.underline}](#Generated)

2.12 DISPOSITION, DURING TRIAL, OF ALL CHARGES\
AGAINST ONE OR MORE CODEFENDANT\[S\] [[35]{.underline}](#Generated)

2.13 DISPOSITION, DURING TRIAL, OF ONE OR MORE BUT LESS\
THAN ALL CHARGES AGAINST THE CODEFENDANT\[S\]
[[36]{.underline}](#Generated)

2.14 EVIDENCE ADMITTED AGAINST ONLY ONE DEFENDANT
[[37]{.underline}](#Generated)

2.15 STATEMENT OF ONE DEFENDANT IN MULTI-DEFENDANT TRIAL
[[38]{.underline}](#Generated)

2.16 THE DEFENDANT\'S TESTIMONY:\
IMPEACHMENT BY PRIOR CONVICTION [[39]{.underline}](#Generated)

2.17 THE DEFENDANT\'S TESTIMONY: IMPEACHMENT BY OTHERWISE\
INADMISSIBLE STATEMENT (Harris v. New York)
[[40]{.underline}](#Generated)

2.18 IMPEACHMENT OF WITNESS: PRIOR CONVICTION
[[41]{.underline}](#Generated)

2.19 WITNESS WHO HAS PLEADED GUILTY [[42]{.underline}](#Generated)

2.20 THE DEFENDANT\'S PREVIOUS TRIAL [[43]{.underline}](#Generated)

2.21 THE DEFENDANT\'S PHOTOGRAPHS: \"MUG SHOTS\"
[[44]{.underline}](#Generated)

2.22 DISCHARGE OF DEFENSE COUNSEL DURING TRIAL
[[45]{.underline}](#Generated)

**3.00 FINAL INSTRUCTIONS FOR USE IN EVERY TRIAL (BOILERPLATE)\
(Introductory Comment)** [[46]{.underline}](#Generated)

3.01 INTRODUCTION [[47]{.underline}](#Generated)

3.02 DUTY OF JURY [[48]{.underline}](#Generated)

3.03 EVIDENCE; LIMITATIONS [[49]{.underline}](#Generated)

3.04 CREDIBILITY OF WITNESSES [[51]{.underline}](#Generated)

3.05 DESCRIPTION OF CHARGE; INDICTMENT NOT EVIDENCE; PRESUMPTION\
OF INNOCENCE; BURDEN OF PROOF (SINGLE DEFENDANT, SINGLE COUNT)
[[55]{.underline}](#Generated)

3.06 DESCRIPTION OF CHARGES; INDICTMENT NOT EVIDENCE;\
PRESUMPTION OF INNOCENCE; BURDEN OF PROOF\
(SINGLE DEFENDANT, MULTIPLE COUNTS) [[57]{.underline}](#Generated)

3.07 DESCRIPTION OF CHARGES; INDICTMENT NOT EVIDENCE;\
PRESUMPTION OF INNOCENCE; BURDEN OF PROOF\
(MULTIPLE DEFENDANTS, SINGLE COUNT) [[59]{.underline}](#Generated)

3.08 DESCRIPTION OF CHARGES; INDICTMENT NOT EVIDENCE;\
PRESUMPTION OF INNOCENCE; BURDEN OF PROOF\
(MULTIPLE DEFENDANTS, MULTIPLE COUNTS) [[60]{.underline}](#Generated)

3.09 ELEMENTS OF OFFENSE; BURDEN OF PROOF [[62]{.underline}](#Generated)

Appendix A [[65]{.underline}](#Generated)

Appendix B [[66]{.underline}](#Generated)

3.10 LESSER INCLUDED OFFENSE [[67]{.underline}](#Generated)

3.11 REASONABLE DOUBT [[69]{.underline}](#Generated)

3.12 ELECTION OF FOREPERSON; DUTY TO DELIBERATE; PUNISHMENT NOT\
A FACTOR; COMMUNICATIONS WITH COURT; CAUTIONARY; VERDICT FORM
[[71]{.underline}](#Generated)

3.13 VENUE [[74]{.underline}](#Generated)

**4.00 FINAL INSTRUCTIONS: CONSIDERATION OF PARTICULAR KINDS\
OF EVIDENCE (Introductory Comment)** [[75]{.underline}](#Generated)

4.01 THE DEFENDANT\'S FAILURE TO TESTIFY [[76]{.underline}](#Generated)

4.02 CHARACTER AND REPUTATION, FOR\
TRUTHFULNESS, WITNESSES (INCLUDING THE DEFENDANT)
[[77]{.underline}](#Generated)

4.03 THE DEFENDANT\'S CHARACTER \"STANDING ALONE\"
[[79]{.underline}](#Generated)

4.04 TESTIMONY UNDER GRANT OF IMMUNITY OR PLEA BARGAIN
[[80]{.underline}](#Generated)

4.05 TESTIMONY OF ACCOMPLICE [[82]{.underline}](#Generated)

4.05A CREDIBILITY - COOPERATING WITNESS [[83]{.underline}](#Generated)

4.06 TESTIMONY OF INFORMER [[84]{.underline}](#Generated)

4.07 COMMON SCHEME - ACTS OR DECLARATIONS OF PARTICIPANT
[[85]{.underline}](#Generated)

4.08 EYEWITNESS TESTIMONY [[86]{.underline}](#Generated)

4.09 INFLUENCING WITNESS, ETC. [[89]{.underline}](#Generated)

4.10 OPINION EVIDENCE, EXPERT WITNESS [[90]{.underline}](#Generated)

4.11 DEMONSTRATIVE SUMMARIES NOT RECEIVED IN EVIDENCE
[[91]{.underline}](#Generated)

4.12 RULE 1006 SUMMARIES [[92]{.underline}](#Generated)

4.13 SPECIFIC INFERENCES [[94]{.underline}](#Generated)

4.14 SILENCE IN THE FACE OF ACCUSATION [[97]{.underline}](#Generated)

4.15 FALSE EXCULPATORY STATEMENTS [[99]{.underline}](#Generated)

4.16 MISSING WITNESS [[101]{.underline}](#Generated)

4.17 DIRECT AND CIRCUMSTANTIAL EVIDENCE [[103]{.underline}](#Generated)

**5.00 FINAL INSTRUCTIONS: CRIMINAL RESPONSIBILITY\
(Introductory Comment)** [[104]{.underline}](#Generated)

5.01 AIDING & ABETTING^1^ (18 U.S.C. § 2(a))
[[105]{.underline}](#Generated)

5.02 CAUSING AN OFFENSE TO BE COMMITTED (18 U.S.C. § 2(b))
[[109]{.underline}](#Generated)

5.03 CORPORATE RESPONSIBILITY [[110]{.underline}](#Generated)

5.04 PERSONAL RESPONSIBILITY OF CORPORATE AGENT
[[113]{.underline}](#Generated)

5.05 ACCESSORY AFTER THE FACT (18 U.S.C. § 3)
[[114]{.underline}](#Generated)

5.06A CONSPIRACY: ELEMENTS (18 U.S.C. § 371)
[[116]{.underline}](#Generated)

5.06B CONSPIRACY: \"AGREEMENT\" EXPLAINED
[[118]{.underline}](#Generated)

5.06C CONSPIRACY: SUBSTANTIVE OFFENSE: ELEMENTS
[[120]{.underline}](#Generated)

5.06D CONSPIRACY: \"OVERT ACT\" - EXPLAINED
[[121]{.underline}](#Generated)

5.06E CONSPIRACY: SUCCESS IMMATERIAL [[122]{.underline}](#Generated)

5.06F CONSPIRACY: MULTIPLE OFFENSES [[123]{.underline}](#Generated)

5.06G CONSPIRACY: SINGLE/MULTIPLE CONSPIRACIES
[[124]{.underline}](#Generated)

5.06H CONSPIRACY: WITHDRAWAL [[127]{.underline}](#Generated)

5.06I CONSPIRACY: CO-CONSPIRATOR ACTS AND STATEMENTS
[[129]{.underline}](#Generated)

**6.00 FINAL INSTRUCTIONS: ELEMENTS OF OFFENSES\
(Introductory Comment)** [[133]{.underline}](#Generated)

6.18.111 ASSAULT ON A FEDERAL OFFICER \[WITH A\
DANGEROUS OR DEADLY WEAPON\] (18 U.S.C. § 111)
[[134]{.underline}](#Generated)

6.18.152A BANKRUPTCY FRAUD (Concealment of Assets) (18 U.S.C. § 152(1))\
[[137]{.underline}](#Generated)

6.18.152B BANKRUPTCY FRAUD (Making a False Statement) (18 U.S.C. §
152(2-4))\
[[139]{.underline}](#Generated)

6.18.201A BRIBERY OF PUBLIC OFFICIAL (18 U.S.C. § 201(b)(1)
[[140]{.underline}](#Generated)

6.18.201B RECEIVING BRIBE BY PUBLIC OFFICIAL (18 U.S.C. § 201(b)(2))
[[142]{.underline}](#Generated)

6.18.201C BRIBING A WITNESS (18 U.S.C. § 201(b)(3))
[[144]{.underline}](#Generated)

6.18.201D SOLICITING BRIBE BY WITNESS (18 U.S.C. § 201(b)(4))
[[145]{.underline}](#Generated)

6.18.201E ILLEGAL GRATUITY TO PUBLIC OFFICIAL\
(18 U.S.C. § 201(c)(1)(A)) [[146]{.underline}](#Generated)

6.18.201F RECEIVING ILLEGAL GRATUITY BY\
PUBLIC OFFICIAL (18 U.S.C. § 201(c)(1)(B))
[[148]{.underline}](#Generated)

6.18.287 MAKING A FALSE CLAIM AGAINST\
THE UNITED STATES (18 U.S.C. § 287) [[150]{.underline}](#Generated)

6.18.471 COUNTERFEITING (18 U.S.C. § 471)
[[153]{.underline}](#Generated)

6.18.472 PASSING COUNTERFEIT OBLIGATIONS (18 U.S.C. § 472)
[[154]{.underline}](#Generated)

6.18.495A FORGERY (18 U.S.C. § 495) (First Paragraph)
[[156]{.underline}](#Generated)

6.18.495B UTTERING A FORGED WRITING (18 U.S.C. § 495) (Second
Paragraph)\
[[158]{.underline}](#Generated)

6.18.641 THEFT OF GOVERNMENT MONEY OR PROPERTY (18 U.S.C. § 641)\
[[160]{.underline}](#Generated)

6.18.656 EMBEZZLEMENT AND MISAPPLICATION\
OF BANK FUNDS (18 U.S.C. § 656) [[162]{.underline}](#Generated)

6.18.659A THEFT FROM INTERSTATE SHIPMENT (18 U.S.C. § 659) (First
Paragraph) [[165]{.underline}](#Generated)

6.18.659B PURCHASE, RECEIPT OR POSSESSION OF PROPERTY\
STOLEN FROM AN INTERSTATE SHIPMENT (18 U.S.C. § 659) (Second Paragraph)
[[168]{.underline}](#Generated)

6.18.666A THEFT CONCERNING A PROGRAM RECEIVING\
FEDERAL FUNDS (18 U.S.C. § 666(a)(1)(A)) [[171]{.underline}](#Generated)

6.18.666B SOLICITATION OR ACCEPTANCE OF A BRIBE BY AN AGENT\
OF A PROGRAM RECEIVING FEDERAL FUNDS (18 U.S.C. § 666(a)(1)(B))\
[[175]{.underline}](#Generated)

6.18.666C BRIBERY OF AN AGENT OF A PROGRAM RECEIVING\
FEDERAL FUNDS (18 U.S.C. § 666(a)(2)) [[179]{.underline}](#Generated)

6.18.751 ESCAPE FROM CUSTODY (18 U.S.C. § 751(a))
[[181]{.underline}](#Generated)

6.18.844i ARSON OF PROPERTY USED IN OR AFFECTING\
INTERSTATE COMMERCE \[No Personal Injury Involved\]
[[183]{.underline}](#Generated)

6.18.912 IMPERSONATION OF A FEDERAL OFFICER OR EMPLOYEE-\[ACTING\
AS\] \[DEMANDING SOMETHING OF VALUE\] (18 U.S.C. § 912)
[[185]{.underline}](#Generated)

6.18.922 FELON IN POSSESSION OF FIREARM (18 U.S.C. § 922(g))
[[187]{.underline}](#Generated)

6.18.922(G)(3) DRUG USER IN POSSESSION OF FIREARM (18 U.S.C. §
922(g)(3))\
[[190]{.underline}](#Generated)

6.18.924C FIREARMS -POSSESSION IN FURTHERANCE OF A\
CRIME OF VIOLENCE/ DRUG TRAFFICKING OFFENSE\
(18 U.S.C. § 924(c)) [[193]{.underline}](#Generated)

6.18.1001A CONCEALING A MATERIAL FACT\
FROM A GOVERNMENTAL AGENCY (18 U.S.C. § 1001)
[[199]{.underline}](#Generated)

6.18.1001B FALSE STATEMENT TO GOVERNMENTAL AGENCY (18 U.S.C. § 1001)
[[202]{.underline}](#Generated)

6.18.1001C USING A FALSE DOCUMENT (18 U.S.C. § 1001)
[[206]{.underline}](#Generated)

6.18.1005 FALSE ENTRY IN BANK RECORDS (18 U.S.C. § 1005) (Third
Paragraph)\
[[209]{.underline}](#Generated)

6.18.1006A FALSE ENTRIES IN FEDERAL CREDIT\
INSTITUTION RECORDS (18 U.S.C. § 1006) (First Paragraph)
[[213]{.underline}](#Generated)

6.18.1006B PARTICIPATION IN FEDERAL CREDIT\
INSTITUTION TRANSACTIONS (18 U.S.C. § 1006, Third Paragraph)
[[217]{.underline}](#Generated)

6.18.1014 FALSE STATEMENT TO A FINANCIAL INSTITUTION\
(18 U.S.C. § 1014) [[219]{.underline}](#Generated)

6.18.1111 INTRODUCTORY COMMENTS TO HOMICIDE INSTRUCTIONS
[[220]{.underline}](#Generated)

6.18.1111A MURDER, FIRST DEGREE, WITHIN SPECIAL\
MARITIME AND TERRITORIAL JURISDICTION\
OF THE UNITED STATES (18 U.S.C. § 1111) [[223]{.underline}](#Generated)

6.18.1111A-1 \"MALICE AFORETHOUGHT\" DEFINED
[[226]{.underline}](#Generated)

6.18.1111A-2 \"PREMEDITATION\" DEFINED [[227]{.underline}](#Generated)

6.18.1111A-3 HEAT OF PASSION OR SUDDEN QUARREL\
CAUSED BY ADEQUATE PROVOCATION, DEFINED [[228]{.underline}](#Generated)

6.18.1111B MURDER, SECOND DEGREE, WITHIN SPECIAL\
MARITIME AND TERRITORIAL JURISDICTION\
OF THE UNITED STATES (18 U.S.C. § 1111) [[230]{.underline}](#Generated)

6.18.1112A VOLUNTARY MANSLAUGHTER, WITHIN SPECIAL\
MARITIME AND TERRITORIAL JURISDICTION\
OF THE UNITED STATES (18 U.S.C. § 1112) [[232]{.underline}](#Generated)

6.18.1112B INVOLUNTARY MANSLAUGHTER, WITHIN SPECIAL\
MARITIME AND TERRITORIAL JURISDICTION\
OF THE UNITED STATES (18 U.S.C. § 1112) [[235]{.underline}]()

6.18.1114A MURDER, FIRST DEGREE, FEDERAL VICTIM\
(18 U.S.C. § 1114) [[237]{.underline}]()

6.18.1114B MURDER, SECOND DEGREE, FEDERAL VICTIM\
(18 U.S.C. § 1114) [[239]{.underline}]()

6.18.1114C VOLUNTARY MANSLAUGHTER, FEDERAL VICTIM\
(18 U.S.C. § 1114) [[240]{.underline}]()

6.18.1114D INVOLUNTARY MANSLAUGHTER, FEDERAL VICTIM\
(18 U.S.C. § 1114) [[241]{.underline}]()

6.18.1341 MAIL FRAUD (18 U.S.C. § 1341) [[242]{.underline}]()

6.18.1344 BANK FRAUD (18 U.S.C. § 1344) [[251]{.underline}]()

6.18.1503A CORRUPTLY ENDEAVORING TO INFLUENCE A JUROR\
(18 U.S.C. § 1503) [[253]{.underline}]()

6.18.1503B INFLUENCING A JUROR BY THREATS (18 U.S.C. § 1503)
[[259]{.underline}]()

6.18.1503C OBSTRUCTION OF JUSTICE (18 U.S.C. § 1503)
[[260]{.underline}]()

6.18.1510A OBSTRUCTION OF CRIMINAL INVESTIGATIONS (18 U.S.C. § 1510(a))
[[262]{.underline}]()

6.18.1512 TAMPERING WITH A WITNESS (18 U.S.C. § 1512(b)(1))
[[264]{.underline}]()

6.18.1513 RETALIATING AGAINST A WITNESS (18 U.S.C. § 1513)
[[266]{.underline}]()

6.18.1621 PERJURY (18 U.S.C. § 1621) [[267]{.underline}]()

6.18.1622 SUBORNATION OF PERJURY (18 U.S.C. § 1622)
[[271]{.underline}]()

6.18.1623 FALSE DECLARATION BEFORE\
COURT OR GRAND JURY (18 U.S.C. § 1623) [[273]{.underline}]()

6.18.1708A MAIL THEFT (18 U.S.C. § 1708) (First Paragraph)
[[276]{.underline}]()

6.18.1708B POSSESSION OF STOLEN MAIL (18 U.S.C. § 1708) (Third
Paragraph)\
[[277]{.underline}]()

6.18.1709A EMBEZZLEMENT OF MAIL (18 U.S.C. § 1709) (First Clause)
[[279]{.underline}]()

6.18.1709B THEFT OF MAIL BY POSTAL SERVICE EMPLOYEE\
(18 U.S.C. § 1709) (Second Clause) [[281]{.underline}]()

6.18.1951 INTERFERENCE WITH COMMERCE\
BY MEANS OF EXTORTION (18 U.S.C. § 1951) (Hobbs Act)
[[283]{.underline}]()

6.18.1955 ILLEGAL GAMBLING BUSINESS (18 U.S.C. § 1955)
[[287]{.underline}]()

6.18.1956A MONEY LAUNDERING \-- FINANCIAL TRANSACTION TO PROMOTE\
SPECIFIED UNLAWFUL ACTIVITY (18 U.S.C. § 1956(a)(1)(A)(i))
[[291]{.underline}]()

6.18.1956B MONEY LAUNDERING \-- FINANCIAL TRANSACTION\
TO CONCEAL PROCEEDS (18 U.S.C. § 1956(a)(1)(B)(i)) [[297]{.underline}]()

6.18.1956C MONEY LAUNDERING \-- FINANCIAL TRANSACTION TO\
AVOID REPORTING REQUIREMENTS (18 U.S.C. § 1956(a)(1)(B)(ii))
[[303]{.underline}]()

6.18.1956D MONEY LAUNDERING \-- MOVEMENT OF MONETARY\
INSTRUMENTS AND FUNDS TO PROMOTE SPECIFIED\
UNLAWFUL ACTIVITY (18 U.S.C. § 1956(a)(2)(A)) [[310]{.underline}]()

6.18.1956E MONEY LAUNDERING \-- MOVEMENT OF MONETARY\
INSTRUMENTS AND FUNDS TO CONCEAL PROCEEDS (18 U.S.C. § 1956(a)(2)(B)(i))
[[313]{.underline}]()

6.18.1956F MONEY LAUNDERING \-- MOVEMENT OF MONETARY INSTRUMENTS\
AND FUNDS TO AVOID REPORTING REQUIREMENTS (18 U.S.C. §
1956(a)(2)(B)(ii)) [[318]{.underline}]()

6.18.1956G MONEY LAUNDERING \"STING\" \-- FINANCIAL\
TRANSACTION WITH INTENT TO PROMOTE\
SPECIFIED UNLAWFUL ACTIVITY (18 U.S.C. § 1956(a)(3)(A))
[[323]{.underline}]()

6.18.1956H MONEY LAUNDERING \"STING\" \-- FINANCIAL TRANSACTION\
WITH INTENT TO CONCEAL NATURE OF PROPERTY (18 U.S.C. § 1956(a)(3)(B))
[[329]{.underline}]()

6.18.1956I MONEY LAUNDERING \"STING\" \-- FINANCIAL\
TRANSACTION WITH INTENT TO AVOID TRANSACTION\
REPORTING REQUIREMENT (18 U.S.C. § 1956(a)(3)(C)) [[335]{.underline}]()

6.18.1956J SUPPLEMENTAL INSTRUCTIONS [[341]{.underline}]()

6.18.1957 ENGAGING IN MONETARY TRANSACTIONS IN PROPERTY DERIVED\
FROM SPECIFIED UNLAWFUL ACTIVITY (18 U.S.C. § 1957)
[[351]{.underline}]()

6.18.1962A RICO-PARTICIPATION IN THE AFFAIRS THROUGH A\
PATTERN OF RACKETEERING ACTIVITY (18 U.S.C. § 1962(c))
[[354]{.underline}]()

6.18.1962B RICO - CONSPIRACY (18 U.S.C. § 1962(d)) [[358]{.underline}]()

6.18.1962C RICO- CONSPIRACY - AGREEMENT EXPLAINED [[361]{.underline}]()

6.18.1962D ENTERPRISE - DEFINITION [[363]{.underline}]()

6.18.1962E CONDUCT/PARTICIPATION -DEFINITION [[366]{.underline}]()

6.18.1962F RICO - PATTERN OF RACKETEERING [[368]{.underline}]()

6.18.1962G SAMPLE VERDICT FORM - RICO (18 U.S.C § 1962(c))
[[370]{.underline}]()

6.18.2113A BANK ROBBERY (18 U.S.C. § 2113(a)) (First Paragraph)
[[371]{.underline}]()

6.18.2113B BANK ROBBERY (18 U.S.C. § 2113(d)) [[373]{.underline}]()

6.18.2119A^1^ CARJACKING (No Serious Bodily Injury or Death) (18 U.S.C.
§ 2119(1))\
[[375]{.underline}]()

6.18.2119B ^1^ CARJACKING (Serious Bodily Injury) (18 U.S.C. §2119(2))
[[377]{.underline}]()

6.18.2119C ^1^ CARJACKING (Death Resulting) (18 U.S.C. § 2119(3))
[[379]{.underline}]()

6.18.2252A RECEIPT, POSSESSION OR DISTRIBUTION OF\
MATERIAL CONTAINING CHILD PORNOGRAPHY\
(18 U.S.C. §2252A(a)(2)(A) and (B) and (a)(5)(B)) [[380]{.underline}]()

6.18.2252A(1) "LASCIVIOUS" EXPLAINED [[383]{.underline}]()

6.18.2252A(2) "INTERSTATE COMMERCE" DEFINED [[384]{.underline}]()

6.18.2252A(3) "COMPUTER" DEFINED [[385]{.underline}]()

6.18.2312 INTERSTATE TRANSPORTATION OF\
STOLEN VEHICLE (18 U.S.C. §2312) [[386]{.underline}]()

6.18.2313 RECEIPT OR SALE OF A STOLEN\
MOTOR VEHICLE OR AIRCRAFT (18 U.S.C. § 2313) [[387]{.underline}]()

6.18.2314 INTERSTATE TRANSPORTATION OF\
STOLEN PROPERTY (18 U.S.C. § 2314) (First Paragraph)
[[389]{.underline}]()

6.21.841A CONTROLLED SUBSTANCES - POSSESSION\
WITH INTENT TO DISTRIBUTE (21 U.S.C. § 841(a)(1)) [[391]{.underline}]()

6.21.841A.1 (short) CONTROLLED SUBSTANCES - POSSESSION\
WITH INTENT TO DISTRIBUTE (21 U.S.C. § 841(a)(1))\
*APPRENDI*-AFFECTED POSSESSION [[394]{.underline}]()

6.21.841A.1 (long) CONTROLLED SUBSTANCES - POSSESSION\
WITH INTENT TO DISTRIBUTE (21 U.S.C. § 841(a)(1))\
*APPRENDI*-AFFECTED POSSESSION [[398]{.underline}]()

6.21.841A.1(a) VERDICT FORM; WITH LESSER INCLUDED OFFENSE
[[402]{.underline}]()

6.21.841A.1(b) SPECIAL VERDICT FORM\
(INTERROGATORIES TO FOLLOW FINDING OF GUILT) [[404]{.underline}]()

6.21.841B CONTROLLED SUBSTANCES - DISTRIBUTION (21 U.S.C. § 841(a)(1))\
[[405]{.underline}]()

6.21.843 CONTROLLED SUBSTANCES - USE OF A\
COMMUNICATIONS FACILITY (21 U.S.C. § 843(b)) [[406]{.underline}]()

6.21.846A CONSPIRACY (21 U.S.C. § 846) [[407]{.underline}]()

6.21.846A.1 CONSPIRACY (21 U.S.C. § 846)\
*APPRENDI*-AFFECTED CONSPIRACY [[409]{.underline}]()

6.21.846B ATTEMPT (21 U.S.C. § 846) [[413]{.underline}]()

6.21.848A CONTROLLED SUBSTANCES - CONTINUING\
CRIMINAL ENTERPRISE (21 U.S.C. § 848(c)) [[414]{.underline}]()

6.21.848B FELONY VIOLATIONS OF FEDERAL NARCOTIC LAWS\
(21 U.S.C. § 848(c)(1)) [[418]{.underline}]()

6.21.853 CRIMINAL FORFEITURE OF PROPERTY [[419]{.underline}]()

6.21.856A. ESTABLISHMENT OF MANUFACTURING OPERATIONS\
(Maintaining Any Place For Manufacturing)\
21 U.S.C. § 856(a)(1) [[425]{.underline}]()

6.21.856B ESTABLISHMENT OF MANUFACTURING OPERATIONS\
(Managing or Controlling a Manufacturing Place For Compensation)\
21 U.S.C. § 856 (a)(2) [[428]{.underline}]()

6.26.5861 FIREARMS\--POSSESSION OF\
UNREGISTERED FIREARMS (26 U.S.C. § 5861(d)) [[430]{.underline}]()

6.26.7201 TAX EVASION (26 U.S.C. § 7201) [[433]{.underline}]()

6.26.7203 FAILURE TO FILE TAX RETURN (26 U.S.C. § 7203)
[[438]{.underline}]()

6.26.7206 FALSE INCOME TAX RETURN (26 U.S.C. § 7206(1))
[[441]{.underline}]()

**7.00 FINAL INSTRUCTIONS: CONSIDERATION OF MENTAL STATE\
(Introductory Comment)** [[445]{.underline}]()

7.01 SPECIFIC INTENT [[446]{.underline}]()

7.02 WILLFULLY [[447]{.underline}]()

7.03 KNOWINGLY [[449]{.underline}]()

7.04 DELIBERATE IGNORANCE [[451]{.underline}]()

7.05 PROOF OF INTENT OR KNOWLEDGE [[454]{.underline}]()

**8.00 FINAL INSTRUCTIONS: DEFINITIONS (Introductory Comment)**
[[455]{.underline}]()

8.01 ATTEMPT [[456]{.underline}]()

8.02 POSSESSION: ACTUAL, CONSTRUCTIVE, SOLE, JOINT [[458]{.underline}]()

**9.00 FINAL INSTRUCTIONS: DEFENSES AND THEORIES OF DEFENSE\
(Introductory Comment)** [[459]{.underline}]()

9.01 ENTRAPMENT [[460]{.underline}]()

9.02 COERCION OR DURESS [[463]{.underline}]()

9.03 INSANITY (18 U.S.C. § 20) [[465]{.underline}]()

9.04 SELF DEFENSE; DEFENSE OF THIRD PERSON [[467]{.underline}]()

9.05 THEORY OF DEFENSE [[469]{.underline}]()

9.06 INTOXICATION; DRUG USE [[472]{.underline}]()

9.07 ALIBI [[474]{.underline}]()

9.08 GOOD FAITH (Income Tax and Fraud Cases) [[475]{.underline}]()

**10.00 SUPPLEMENTAL INSTRUCTIONS (Introductory Comment)**
[[480]{.underline}]()

10.01 RESPONSE TO QUESTIONS NECESSITATING\
SUPPLEMENTAL INSTRUCTIONS [[481]{.underline}]()

10.02 DUTY TO DELIBERATE (\"Allen\" Charge) [[483]{.underline}]()

10.03 RETURN TO DELIBERATIONS AFTER POLLING [[486]{.underline}]()

10.04 PARTIAL VERDICT [[487]{.underline}]()

**11.00 VERDICT FORMS (Introductory Comment)** [[488]{.underline}]()

11.01 GENERAL VERDICT [[489]{.underline}]()

11.02 GENERAL VERDICT; WITH LESSER INCLUDED OFFENSE
[[490]{.underline}]()

11.03 SAMPLE SPECIAL VERDICT FORM\
(INTERROGATORIES TO FOLLOW FINDING OF GUILT) [[492]{.underline}]()

**12.00 HOMICIDE - DEATH PENALTY - SENTENCING\
(18 U.S.C. §§ 3591 et seq.)** [[495]{.underline}]()

12.01 INTRODUCTION TO PRELIMINARY INSTRUCTIONS [[496]{.underline}]()

12.02 BURDEN OF PROOF [[502]{.underline}]()

12.03 EVIDENCE [[504]{.underline}]()

12.04 INTRODUCTION TO FINAL INSTRUCTIONS [[505]{.underline}]()

12.05 FINDING AS TO DEFENDANT'S AGE\
(18 U.S.C. § 3591) (Homicide) [[506]{.underline}]()

12.06 FINDING OF REQUISITE MENTAL STATE\
(18 U.S.C. § 3591) (Homicide) [[507]{.underline}]()

12.07 STATUTORY AGGRAVATING FACTORS\
(18 U.S.C. § 3592) (Homicide) [[511]{.underline}]()

12.07A DEATH OR INJURY RESULTING IN DEATH DURING THE\
COMMISSION OF AN OFFENSE LISTED UNDER 18 U.S.C. § 3592(c)(1)\
[[514]{.underline}]()

12.07B DEFENDANT'S PRIOR CONVICTION OF A VIOLENT FELONY\
INVOLVING A FIREARM (18 U.S.C. § 3592(c)(2)) [[517]{.underline}]()

12.07C DEFENDANT'S PRIOR CONVICTION OF AN OFFENSE RESULTING IN\
DEATH FOR WHICH A SENTENCE OF LIFE IMPRISONMENT OR DEATH\
WAS AUTHORIZED BY STATUTE (18 U.S.C. § 3592(c)(3), (d)(1))
[[518]{.underline}]()

12.07D DEFENDANT'S PRIOR CONVICTION OF TWO OR MORE\
OFFENSES INVOLVING THE INFLICTION OF SERIOUS BODILY\
INJURY OR DEATH (18 U.S.C. §§ 3592(c)(4), (d)(2)) [[519]{.underline}]()

12.07E CREATION OF A GRAVE RISK OF DEATH TO ONE OR\
MORE PERSONS IN ADDITION TO THE VICTIM\
(18 U.S.C. § 3592(c)(5); 21 U.S.C. § 848(n)(5)) [[520]{.underline}]()

12.07F COMMISSION OF THE OFFENSE IN AN ESPECIALLY\
HEINOUS CRUEL OR DEPRAVED MANNER\
(18 U.S.C. § 3592(c)(6)) [[522]{.underline}]()

12.07G PROCUREMENT OF COMMISSION OF THE OFFENSE BY\
PAYMENT OF SOMETHING OF PECUNIARY VALUE\
(18 U.S.C. § 3592(c)(7); 21 U.S.C. § 848(n)(6) and (7))
[[525]{.underline}]()

12.07H COMMISSION OF THE OFFENSE FOR PECUNIARY GAIN\
(18 U.S.C. § 3592(c)(8); 21 U.S.C. § 848(n)(7)) [[526]{.underline}]()

12.07I COMMISSION OF THE OFFENSE AFTER SUBSTANTIAL PLANNING\
AND PREMEDITATION (18 U.S.C. § 3592(c)(9); 21 U.S.C. § 848(n)(8))
[[528]{.underline}]()

12.07J DEFENDANT'S PRIOR CONVICTIONS FOR TWO OR MORE\
FELONY DRUG DISTRIBUTION OFFENSES\
(18 U.S.C. § 3592(c)(10), (d)(2); 21 U.S.C. § 848(n)(4))
[[529]{.underline}]()

12.07K VULNERABLE VICTIM\
(18 U.S.C. § 3592(c)(11); 21 U.S.C. § 848(n)(9)) [[530]{.underline}]()

12.07L PREVIOUS CONVICTION FOR A FEDERAL NARCOTICS VIOLATION\
FOR WHICH A SENTENCE OF FIVE OR MORE YEARS MAY BE IMPOSED, OR\
PRIOR CONVICTION FOR A CONTINUING CRIMINAL ENTERPRISE\
(18 U.S.C. § 3592(c)(12), (d)(3); 21 U.S.C. § 848(n)(10))
[[532]{.underline}]()

12.07M CONTINUING CRIMINAL ENTERPRISE INVOLVING DRUG\
SALES TO MINORS (18 U.S.C. §§ 3592(c)(13), (d)(5)(6) and (7);\
21 U.S.C. § 848(n)(11); 21 U.S.C. §§ 802(8) (11)) [[533]{.underline}]()

12.07N COMMISSION OF THE OFFENSE AGAINST A HIGH PUBLIC OFFICIAL\
[[534]{.underline}]()

12.07O DEFENDANT'S PREVIOUS CONVICTION FOR\
SEXUAL ASSAULT, CHILD MOLESTATION\
(18 U.S.C. § 3592(c)(15)) [[535]{.underline}]()

12.07P MULTIPLE KILLINGS OR ATTEMPTED KILLINGS\
(18 U.S.C. § 3592(c)(16); 18 U.S.C. § 3591(a)(2)(A))
[[536]{.underline}]()

12.08 NONSTATUTORY AGGRAVATING FACTORS [[538]{.underline}]()

12.09 MITIGATING FACTORS [[546]{.underline}]()

12.10 MITIGATING FACTORS ENUMERATED\
(18 U.S.C. § 3592(a)) [[549]{.underline}]()

12.11 WEIGHING AGGRAVATION AND MITIGATION [[551]{.underline}]()

12.12 CONSEQUENCES OF DELIBERATIONS\
(18 U.S.C. § 3594) [[554]{.underline}]()

12.13 JUSTICE WITHOUT DISCRIMINATION\
(18 U.S.C. § 3593(f)) [[556]{.underline}](#Generated)

12.14 DEFENDANT'S RIGHT NOT TO TESTIFY [[557]{.underline}](#Generated)

12.15 - 12.19 \[Reserved for Future Use\]
[[558]{.underline}](#Generated)

12.20 SPECIAL VERDICT\
(18 U.S.C. § 3593(d); 21 U.S.C. § 848(k), (q))
[[559]{.underline}](#Generated)

12.21 CONCLUDING INSTRUCTION [[560]{.underline}](#Generated)

12.22 SPECIAL VERDICT FORM [[561]{.underline}](#Generated)

**1.00 PRELIMINARY INSTRUCTIONS BEFORE OPENING STATEMENTS**

**(Introductory Comment)**

Preliminary instructions are given at the beginning of trial prior to
opening statements to help orient the jurors to their function in that
trial by explaining the nature and scope of the jury\'s duties, listing
some of the basic ground rules and identifying the issues to be decided.
*See generally* *United States v. Bynum*, 566 F.2d 914, 923-24 (5th Cir.
1978). Preliminary instructions are not a substitute for final
instructions. *United States v. Ruppel*, 666 F.2d 261, 274 (5th Cir.),
*reh. denied*, 671 F.2d 1378 (5th Cir. 1982).

In addition to the preliminary instructions set out in this manual,
other examples of preliminary instructions can be found in 1A Kevin F.
O'Malley, et al., *Federal Jury Practice and Instructions*: Criminal §§
10.01-.09 (5th ed 2000); Pattern Criminal Jury Instructions for the
District Courts of the First Circuit §§ 1.01-.09 (1998); Fifth Circuit
Pattern Jury Instructions (Criminal Cases) §§ 1.01, 1.02 ( 2001); Sixth
Circuit Pattern Criminal Jury Instructions §§ 1.01-.09 (1991); Pattern
Criminal Federal Jury Instructions for the Seventh Circuit §§ 1.01-.10
(1998); Ninth Circuit Criminal Jury Instructions § 1.1-.14 (2000);
Eleventh Circuit Pattern Jury Instructions: Criminal §§ 1.1, 1.2, 2.1,
2.2 (1997); Federal Judicial Center, Pattern Criminal Jury Instructions
§§ 1-4 (1988). Some of these cover matters not addressed in this manual,
such as sequestration, pretrial publicity, and questions from the jury.

**1.01 GENERAL: NATURE OF CASE; NATURE OF INDICTMENT;**

**BURDEN OF PROOF; PRESUMPTION OF INNOCENCE;**

**DUTY OF JURY; CAUTIONARY**

Ladies and gentlemen: I shall take a few moments now to give you some
initial instructions about this case and about your duties as jurors. At
the end of the trial I shall give you further instructions. I may also
give you instructions during the trial. Unless I specifically tell you
otherwise, all such instructions - both those I give you now and those I
give you later - are equally binding on you and must be followed.

This is a criminal case, brought against the defendant\[s\] by the
United States Government. The defendant\[s\] \[is\] \[are\] charged with
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_.^1^ \[That charge is\]
\[Those charges are\] set forth in what is called an indictment\[,\]
\[which reads as follows: (insert)\] \[which I will summarize as
follows: (insert)\] \[which I will ask the government attorney to
summarize for you\].^2^ You should understand that an indictment is
simply an accusation. It is not evidence of anything. The defendant\[s\]
\[has\] \[have\] pleaded not guilty, and \[is\] \[are\] presumed to be
innocent unless and until proved guilty beyond a reasonable doubt.^3^

It will be your duty to decide from the evidence whether \[the\]
\[each\] defendant is guilty or not guilty of the crime\[s\] charged.
From the evidence, you will decide what the facts are. You are entitled
to consider that evidence in the light of your own observations and
experiences in the affairs of life. You may use reason and common sense
to draw deductions or conclusions from facts which have been established
by the evidence. You will then apply those facts to the law which I give
you in these and in my other instructions, and in that way reach your
verdict. You are the sole judges of the facts; but you must follow the
law as stated in my instructions, whether you agree with it or not.

Do not allow sympathy or prejudice to influence you. The law demands of
you a just verdict, unaffected by anything except the evidence, your
common sense, and the law as I give it to you.

You should not take anything I may say or do during the trial as
indicating what I think of the evidence or what I think your verdict
should be.

Finally, please remember that only \[this defendant\] \[these
defendants\], not anyone else, \[is\] \[are\] on trial here, and that
\[this defendant\] \[these defendants\] \[is\] \[are\] on trial only for
the crime\[s\] charged, not for anything else.

**Notes on Use**

1\. The description of the offense should not track statutory language,
but rather should be a simple, general statement (e.g., \"unlawfully
importing cocaine;\" \"embezzling bank funds\"). Statutory citations are
unnecessary.

2\. Depending on the length and complexity of the indictment and the
individual practices of each district judge, the indictment may be read,
summarized by the court, summarized by the prosecutor or not read or
summarized depending on what is necessary to assist the jury in
understanding the issues before it.

3\. A brief summary of the defense may be included here if requested by
the defendant.

**Committee Comments**

*See* Introductory Comment, Section 1.00, *supra*.

**1.02 ELEMENTS OF THE OFFENSE (PRELIMINARY)**

\[In order to help you follow the evidence, I will now give you a brief
summary of the elements of the crime\[s\] charged, which the Government
must prove beyond a reasonable doubt to make its case:

*One*,
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

*Two*,
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
; and

Etc.,
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_.^1^

You should understand, however, that what I have just given you is only
a preliminary outline. At the end of the trial I shall give you a final
instruction on these matters. If there is any difference between what I
just told you, and what I tell you in the instructions I give you at the
end of the trial, the instructions given at the end of the trial must
govern you.\]

**Notes on Use**

1\. List the elements of the offense charged in the indictment. If more
than one offense is charged, each offense should be referred to
separately (e.g.: \"As to Count I, which charges
\_\_\_\_\_\_\_\_\_\_\_\_\_\_, the elements are:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\"). Statutory citations are
unnecessary. For guidance in framing the elements, *see* Instruction
3.09 and Section 6, *infra*.

**Committee Comments**

*See* 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 10.01 (5th ed. 2000); Federal Judicial Center,
Pattern Criminal Jury Instructions § 1, Commentary (1988); Pattern
Criminal Jury Instructions for the District Courts of the First Circuit
§ 1/04 (1998); Ninth Circuit Criminal Jury Instructions § 1.2 (2000)

This is an *optional* instruction; and some care should be exercised in
using it. The Committee recommends that it not be utilized unless there
has first been a discussion with counsel concerning any problems that it
might present.

**1.03 EVIDENCE; LIMITATIONS**

I have mentioned the word \"evidence.\" \"Evidence\" includes the
testimony of witnesses, documents and other things received as exhibits,
any facts that have been stipulated\--that is, formally agreed to by the
parties, and any facts that have been judicially noticed\--that is,
facts which I say you may, but are not required to, accept as true, even
without evidence.

Certain things are not evidence. I shall list those things for you now:

1\. Statements, arguments, questions and comments by lawyers
representing the parties in the case are not evidence.

2\. Objections are not evidence. Lawyers have a right to object when
they believe something is improper. You should not be influenced by the
objection. If I sustain an objection to a question, you must ignore the
question and must not try to guess what the answer might have been.

3\. Testimony that I strike from the record, or tell you to disregard,
is not evidence and must not be considered.

4\. Anything you see or hear about this case outside the courtroom is
not evidence, unless I specifically tell you otherwise during the trial.

Furthermore, a particular item of evidence is sometimes received for a
limited purpose only. That is, it can be used by you only for one
particular purpose, and not for any other purpose. I will tell you when
that occurs, and instruct you on the purposes for which the item can and
cannot be used.

Finally, some of you may have heard the terms \"direct evidence\" and
\"circumstantial evidence.\" You are instructed that you should not be
concerned with those terms. The law makes no distinction between direct
and circumstantial evidence. You should give all evidence the weight and
value you believe it is entitled to receive.

**Committee Comments**

*See* 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal §§ 11.03, 11.08, 11.09, 12.03, 12.04 (5th ed.
2000); Federal Judicial Center, Pattern Criminal Jury Instructions § 1
(1988); Pattern Criminal Jury Instructions for the District Courts of
the First Circuit § 1.05 (1998); Fifth Circuit Pattern Jury Instructions
(Criminal Cases) § 1.06 (2001); Sixth Circuit Pattern Criminal Jury
Instructions § 1.04 (1991); Pattern Criminal Federal Jury Instructions
for the Seventh Circuit §§ 1.02, 1.06 (1998); Ninth Circuit Criminal
Jury Instructions §§ 1.3, 1.4, 1.5, 1.7 (2000).

*See also* Instruction 3.03, *infra*.

Stipulated facts and judicially noticed facts are further explained in
Instructions 2.02, 2.03 and 2.04, *infra*. The Committee recommends
giving the appropriate one of those instructions the first time evidence
is received either by way of stipulation or judicial notice, even though
a brief definition is in this instruction.

**1.04 DIRECT AND CIRCUMSTANTIAL EVIDENCE**

\[*See* final paragraph of Instruction 1.03, *supra*.\]

**Committee Comments**

*See* Fifth Circuit Pattern Jury Instructions (Criminal Cases) § 1.07
(2001); Sixth Circuit Pattern Criminal Jury Instructions § 1.06 (1991);
Pattern Criminal Federal Jury Instructions for the Seventh Circuit §
1.05 (1998); Ninth Circuit Criminal Jury Instructions § 1.6 (2000) and
Federal Judicial Center, Pattern Criminal Jury Instructions § 1 (1988)
for examples of a direct and circumstantial evidence instruction as part
of the preliminary instructions. *See further* 1A Kevin F. O'Malley, et
al., *Federal Jury Practice and Instructions*: Criminal § 12.04 (5th ed.
2000), the substance of which was approved in *United States v. Kirk*,
534 F.2d 1262, 1279 (8th Cir. 1976). *See also* Fifth Circuit Pattern
Jury Instructions (Criminal Cases) § 1.07 (2001); Sixth Circuit Pattern
Criminal Jury Instructions § 1.06 (1991); Pattern Criminal Federal Jury
Instructions for the Seventh Circuit § 1.05 (1998); Eleventh Circuit
Pattern Jury Instructions: Criminal (Basic) §§ 4.1, 4.2 (1997).

The Committee believes that the last paragraph of Instruction 1.03 is
sufficient and that in the ordinary case it is unnecessary to attempt to
define or distinguish direct and circumstantial evidence.

**1.05 CREDIBILITY OF WITNESSES**

In deciding what the facts are, you may have to decide what testimony
you believe and what testimony you do not believe. You may believe all
of what a witness said, or only part of it, or none of it.

\[In deciding what testimony of any witness to believe, consider the
witness\'s intelligence, the opportunity the witness had to have seen or
heard the things testified about, the witness\'s memory, any motives
that witness may have for testifying a certain way, the manner of the
witness while testifying, whether that witness said something different
at an earlier time, the general reasonableness of the testimony, and the
extent to which the testimony is consistent with other evidence that you
believe\].^1^

**Notes on Use**

1\. Whether the court wishes to include this language or other
additional detail in its preliminary instructions is optional.

**Committee Comments**

*See* 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 15.01 (5th ed. 2000); Pattern Criminal Jury
Instructions for the District Courts of the First Circuit § 1.06 (1998);
Fifth Circuit Pattern Jury Instructions (Criminal Cases) § 1.08 (2001);
Sixth Circuit Pattern Criminal Jury Instructions § 1.07 (1991); Pattern
Criminal Federal Jury Instructions for the Seventh Circuit § 1.03
(1998); Ninth Circuit Criminal Jury Instructions § 1.8 (2000).

*See also* Instruction 3.04, *infra*.

For an approved instruction on the credibility of a child witness, *see
United States v. Butler*, 56 F.3d 941 (8th Cir. 1995).

A district court's credibility instruction will be affirmed if it
adequately calls to the jury's attention the factors which may impact a
witnesses' credibility. *United States v. Stevens*, 918 F.2d 1383, 1385
(8^th^ Cir. 1990). Special instructions dealing with factors such as
immunity agreements, prior convictions and government payments have been
approved. *United States v. Dierling*, 131 F. 3d 722, 734 (8^th^ Cir.
1997). The Eighth Circuit has also recognized a special instruction may
be appropriate in considering the testimony of addict - informants.
*United States v. Parker*, 32 F. 3d 395, 401 (8^th^ Cir. 1994)

**1.06 NO TRANSCRIPT AVAILABLE \[NOTE-TAKING\]**

At the end of the trial you must make your decision based on what you
recall of the evidence. You will not have a written transcript to
consult, and it may not be practical for the court reporter to read
\[play\]^1^ back lengthy testimony. You must pay close attention to the
testimony as it is given.

\[If you wish, however, you may take notes to help you remember what
witnesses said. If you do take notes, please keep them to yourself until
you and your fellow jurors go to the jury room to decide the case. And
do not let note-taking distract you so that you do not hear other
answers by the witness.\]

\[When you leave at night, your notes will be secured and not read by
anyone.\]^2^

**Notes on Use**

1\. Use the word \"play\" if electronic recording system is used and
testimony will be \"played\" back rather than read back to the jury.

2\. The court may wish to describe the method to be used for
safekeeping. In a high profile case, the court may want to give some
additional cautionary instructions.

**Committee Comments**

Both the unbracketed and bracketed portions of this instruction are
optional. The unbracketed portion may help keep jurors attentive and may
discourage requests for lengthy read-backs of testimony. The practice of
restricting the reading back of testimony is discretionary. *United
States v. Ratcliffe*, 550 F.2d 431, 434 (9th Cir. 1976).

Whether to permit note-taking is within the discretion of the trial
judge. *United States v. Bassler*, 651 F. 2d 600, 602 (8^th^ Cir.
1981*).* Note-taking is not a favored procedure*.* Some circuit judges
have expressed concern about letting jurors take notes. *See United
States v. Darden*, 70 F.3d 1507, 1536-37 (8th Cir. 1995).

*See* Fifth Circuit Pattern Jury Instructions (Criminal Cases) § 1.02
(2001); Ninth Circuit Criminal Jury Instructions § 1.10, 1.11 (2000);
*see also* 1 and 1A Kevin F. O'Malley, et al., *Federal Jury Practice
and Instructions*: Criminal §§ 5.11, 10.03 and 10.04 (5th ed. 2000);
Federal Judicial Center, Pattern Criminal Jury Instructions § 3 (1988);
Pattern Criminal Jury Instructions for the District Courts of the First
Circuit § 1.08 (1998); Eleventh Circuit Pattern Jury Instructions:
Criminal (Trial) §§ 1.2, 2.1, 2.2 (1997).

This instruction is identical to Model Instruction 1.04, Eighth Circuit
Model Civil Jury Instructions.

**1.06A QUESTIONS BY JURORS^1^**

When attorneys have finished their examination of a witness, you may ask
questions of the witness (describe procedure to be used here)^2^. If the
rules of evidence do not permit a particular question, I will so advise
you. Following your questions, if any, the attorneys may ask additional
questions.

**Notes on Use**

1\. This instruction may be used if the court permits questioning of
witnesses by jurors. Various procedures have been used for handling
jurors\' questions. Some judges require that the questions be in
writing, while others permit the jurors to state their questions orally.
The procedure employed for taking jurors\' questions, considering
objections, and posing the questions should be left to the discretion of
the judge. The jury should be advised of the procedure to be used.

2\. Different methods may be used. For example:

\(1\) When attorneys have finished their examination of a witness, you
may submit a written question or questions if you have not understood
something. I will review each question with the attorneys. You may not
receive an answer to your question because I may decide that the
question is not proper under the rules of evidence. Even if the question
is proper, you may not get an immediate answer to your question. For
instance, a later witness or an exhibit you will see later in the trial
may answer your question.

\(2\) Most of the testimony will be given in response to questions by
the attorneys. Sometimes I may ask questions of a witness. When the
attorneys have finished their questioning of a witness and I have
finished mine, I shall ask you whether you have any questions for that
witness. If you do, direct each of your questions to me, and if I decide
that it meets the legal rules, I shall ask it of the witness. After all
your questions for a witness have been dealt with, the attorneys will
have an opportunity to ask the witness further about the subjects raised
by your questions. When you direct questions to me to be asked of the
witness, you may state them either orally or in writing.

\(3\) The court will permit jurors to submit written questions during
the course of the trial. Such questions must be submitted to the court,
but, depending upon the court\'s ruling on the questions, the court may
not submit them to the witness. The court will endeavor to permit such
questions at the conclusion of a witness\' testimony.

**Committee Comments**

The Eighth Circuit has held that the practice of allowing juror
questions is a matter within the sound discretion of the district court
and is not prejudicial *per se. United States v. Taylor*, 900 F. 2d 145,
148 (8^th^ Cir. 1990). However the Eighth Circuit has strongly
discouraged this practice. *United States v. Welliver*, 976 F.2d 1148
(8th Cir. 1992). While some courts have found that it is advantageous
that jurors become more involved in the trial proceedings and are
permitted to address their particular concerns with respect to the
issues, *see* Hener and Penrod, *Increasing Juror's Participation with
Jury Notetaking and Question Asking, "* 12 Law & Human Behavior *231
(1988); "Toward More Active Juries: Taking Notes and Asking Questions,"
American* Judicature (1991), some courts have perceived dangers in the
practice and have strongly criticized the practice. *See*, *United
States v. Johnson,* 892 F. 2d 707 (8^th^ Cir. 1989) (Concurrence by Lay,
Chief Judge); *United States v. Land*, 877 F. 2d 17, 19 (8^th^ Cir.
1989); *United States v. Polowichak*, 783 F. 2d 410, 413 (4^th^ Cir.
1986); *DeBenedetto v. Goodyear Tire & Rubber Co.*, 754 F. 2d 512, 516
(4^th^ Cir. 1985). The Eighth Circuit has affirmed jury questioning
procedures used by courts when the jury is instructed that it should not
draw any factual conclusions from what it observed in the process
because it was the judge's job to determine what questions were proper.
*United States v. George*, 986 F. 2d 1176, 1178-79 (8^th^ Cir. 1993).
The Eighth Circuit will affirm a district court's procedure that
provides for debate of questions outside the hearing of the jury and the
rejection of any question found objectionable under the rule of
evidence. *Id.*

This instruction is identical to Instruction 1.04A, Eighth Circuit Model
Civil Jury Instructions.

**1.07 BENCH CONFERENCES AND RECESSES**

During the trial it may be necessary for me to talk with the lawyers out
of the hearing of the jury, either by having a bench conference here
while the jury is present in the courtroom, or by calling a recess.
Please understand that while you are waiting, we are working. The
purpose of these conferences is to decide how certain evidence is to be
treated under the rules of evidence, and to avoid confusion and error.
We will, of course, do what we can to keep the number and length of
these conferences to a minimum.

**Committee Comments**

*See* Federal Judicial Center, Pattern Criminal Jury Instructions § 1
(1988); Fifth Circuit Pattern Jury Instructions (Criminal Cases) § 1.01
( (2001); Ninth Circuit Criminal Jury Instructions § 2.2 (2000);
Eleventh Circuit Pattern Jury Instructions: Criminal (Trial) §§ 1.1, 1.2
(1997).

**1.08 CONDUCT OF THE JURY**

Finally, to insure fairness, you as jurors must obey the following
rules:

*First*, do not talk among yourselves about this case, or about anyone
involved with it, until the end of the case when you go to the jury room
to decide on your verdict.

*Second*, do not talk with anyone else about this case, or about anyone
involved with it, until the trial has ended and you have been discharged
as jurors.

*Third*, when you are outside the courtroom do not let anyone tell you
anything about the case, or about anyone involved with it \[until the
trial has ended and your verdict has been accepted by me\]. If someone
should try to talk to you about the case \[during the trial\], please
report it to me.

*Fourth*, during the trial you should not talk with or speak to any of
the parties, lawyers or witnesses involved in this case \-- you should
not even pass the time of day with any of them. It is important not only
that you do justice in this case, but that you also give the appearance
of doing justice. If a person from one side of the lawsuit sees you
talking to a person from the other side \-- even if it is simply to pass
the time of day \-- an unwarranted and unnecessary suspicion about your
fairness might be aroused. If any lawyer, party or witness does not
speak to you when you pass in the hall, ride the elevator or the like,
it is because they are not supposed to talk or visit with you.

*Fifth*, do not read any news stories or articles about the case, or
about anyone involved with it, or listen to any radio or television
reports about the case or about anyone involved with it. \[In fact,
until the trial is over I suggest that you avoid reading any newspapers
or news journals at all, and avoid listening to any TV or radio
newscasts at all. I do not know whether there might be any news reports
of this case, but if there are you might inadvertently find yourself
reading or listening to something before you could do anything about it.
If you want, you can have your spouse or a friend clip out any stories
and set them aside to give you after the trial is over. It is important
for you to understand that this case must be decided by the evidence
presented in the case and the instructions I give you\]^1^

*Sixth*, do not do any research or make any investigation on your own
about any matter involved in this case. By way of examples, that means
you must not read from a dictionary or a text book or an encyclopedia or
talk with a person you consider knowledgeable or go to the Internet for
information about some issue in this case. In fairness, learn about this
case from the evidence you receive here at the trial and apply it to the
law as I give it to you..

*Seventh*, do not make up your mind during the trial about what the
verdict should be. Keep an open mind until after you have gone to the
jury room to decide the case and you and your fellow jurors have
discussed the evidence.

**Notes on Use**

1\. Optional for those cases in which media coverage is expected.

**Committee Comments**

*See* Pattern Criminal Jury Instructions for the District Courts of the
First Circuit § 1.07 (1998); Pattern Criminal Federal Jury Instructions
for the Seventh Circuit § 1.01 (1998); Ninth Instr.Circuit Criminal Jury
Instructions § 1.9 (2000); 1A Kevin F. O'Malley, et al., *Federal Jury
Practice and Instructions*: Criminal §§ 11.01 and 11.02 (5th ed. 2000);
Federal Judicial Center, Pattern Criminal Jury Instructions § 1 (1988).

A similar instruction should be repeated before the first recess, and as
needed before other recesses (for example, before a weekend recess).
*See* Instruction 2.01, *infra*, for a form of instruction before
recesses. *See also* Committee Comments, Instruction 2.01, *infra*,
regarding the necessity of instructions relating to recesses.

**1.09 OUTLINE OF TRIAL**

The trial will proceed in the following manner:

First, the Government attorney will make an opening statement. \[Next
the defendant\'s attorney may, but does not have to, make an opening
statement.\]^1^ An opening statement is not evidence but is simply a
summary of what the attorney expects the evidence to be.

The Government will then present its evidence and counsel for the
defendant may cross-examine. \[Following the Government\'s case, the
defendant may, but does not have to, present evidence, testify or call
other witnesses. If the defendant calls witnesses, the Government
counsel may cross-examine them.\]^2^

After presentation of evidence is completed, the attorneys will make
their closing arguments to summarize and interpret the evidence for you.
As with opening statements, closing arguments are not evidence. The
court will instruct you further on the law. After that you will retire
to deliberate on your verdict.

**Notes on Use**

1\. This sentence may be omitted if the defendant so requests.

2\. These sentences may be omitted if the defendant so requests.

**Committee Comments**

*See* Pattern Criminal Jury Instructions for the District Courts of the
First Circuit § 1.09 (1998); Ninth Circuit Criminal Jury Instructions §
1.12 (2000); Eleventh Circuit Pattern Jury Instructions: Criminal
(Trial) §§ 1.1, 1.2 (1997); Federal Judicial Center, Pattern Criminal
Jury Instructions § 1 (1988); 1A Kevin F. O'Malley, et al., *Federal
Jury Practice and Instructions*: Criminal § 10.01 (5th ed 2000).

**2. INSTRUCTIONS FOR USE DURING TRIAL (Introductory Comment)**

The instructions included in this section are those the Committee felt
were most likely to be given *during* trial, to limit or explain
evidence, to advise the jury of its duties, or to cure or avoid
prejudice. An instruction bearing on the jury\'s duties during recesses
is contained in Instruction 2.01. Instructions explaining various kinds
of evidence include Instructions 2.02-2.07.

Limiting instructions must be given, if requested, where evidence is
admissible for one purpose, but not for another purpose, or against one
defendant but not another. Fed. R. Evid. 105. Although it may be the
better practice to give such an instruction *sua sponte*, this circuit
has made it clear that the district court is not required to give a
limiting instruction unless counsel requests one. *United States v.
Perkins*, 94 F.3d 429, 435 (8^th^ Cir. 1996). Generally, when neither
party requests a limiting instruction, the trial court's failure to give
a limiting instruction is reviewed for plain error. *Id.* A party who
declines a district court's offer to provide a limiting instruction or
who makes it clear that he does not want such a limiting instruction
waives the issue on appeal and cannot complain that such a failure
constituted plain error. *United States v. Haukass*, 172 F.3d 542, 545
(8^th^ Cir. 1999); *Arkansas State Highway Comm'n v. Arkansas River
Co.*, 27 F.3d 753, 760 (8^th^ Cir. 2001) (when error invited, there can
be no reversible error).

The district court has discretion in deciding whether to give limiting
instructions, but when it does, it should instruct the jury as to the
limited purpose for which the evidence is received. *United States v.
Larry Reid & Sons Partnership*, 280 F.3d 1212, 1215 (8^th^ Cir. 2002).
Limiting instructions include Instructions 2.08-2.19.

Curative instructions are used to avoid or cure possible prejudice that
may arise from a variety of situations occurring during trial. *United
States v. Flores*, 73 F.3d 826, 831 (8^th^ Cir. 1996). *See*, *e.g.*,
*United States v. Waddington*, 233 F.3d 1067, 1077 (8^th^ Cir. 2000)
\[reference to a co-defendant's conviction in the same underlying
case\]*; United States v. O'Dell,* 204 F.3d 1829, 1835 (8^th^ Cir. 2000)
\[improper prosecutor's argument that the government cannot force
someone to testify\]; *United States v. Sopczak*, 742 F.2d 1119, 1122
(8th Cir. 1984) \[witness mentioned the defendant had changed plea from
guilty to not guilty\]; *United States v. Martin*, 706 F.2d 263, 266
(8th Cir. 1983) \[court\'s reference to the defendants as \"pimps\"\];
*United States v. Singer*, 660 F.2d 1295, 1304-05 (8th Cir. 1981)
\[prosecutor\'s comments during closing argument\]; *United States v.
Smith*, 578 F.2d 1227, 1236 (8th Cir. 1978) \[the codefendant\'s
disruptive conduct at trial\]; *United States v. Leach*, 429 F.2d 956,
963 (8th Cir. 1970) \[witness characterized the defendant\'s remark as
\"vulgar\"\]. Curative instructions include Nos. 2.20-2.22.

The court has discretion to refuse a curative instruction where the
effect may be to amplify the event rather than dispel prejudice. *Long
v. Cottrell*, 265 F.3d 663, 665 (8^th^ Cir. 2001).

Other Instructions dealing with evidentiary matters are found in Section
4. Any of those evidentiary instructions may easily be adapted for use
during trial where appropriate.

Instructions given during trial may be repeated at the conclusion of
trial, if appropriate.

**2.01 DUTIES OF JURY: RECESSES^1^**

We are about to take \[our first\] \[a\] recess^2^ and I remind you of
the instruction I gave you earlier. During this recess or any other
recess, you must not discuss this case with anyone, including the other
jurors, members of your family, people involved in the trial, or anyone
else. If anyone tries to talk to you about the case, please let me know
about it immediately. \[Do not read, watch or listen to any news reports
of the trial. Finally, keep an open mind until all the evidence has been
received and you have heard the views of your fellow jurors.

I may not repeat these things to you before every recess, but keep them
in mind throughout the trial.\]

**Notes on Use**

1\. This instruction should be given before the first recess and at
subsequent recesses within the discretion of the court.

2\. This language should be modified for overnight or weekend recesses.

**Committee Comments**

*See* Instruction 1.08, *supra*.

The court has considerable discretion to separate a jury before it has
reached a verdict. *United States v. Dixon*, 913 F.2d 1305, 1312 (8^th^
Cir. 1990) (distinguishing separation of jury prior to and after
deliberations). However, the jury must be admonished as to their duties
and responsibilities when not in court. Such an instruction may be given
at the beginning of trial, before recesses and lunchtime, and most
importantly before separating for the evening. *Id.* *United States v.
Williams*, 635 F.2d 744, 745 (8^th^ Cir. 1990). Although failure to give
any instruction of this nature during the course of a trial which was
completed in one day has been held harmless error, *Morrow v. United
States*, 408 F.2d 1390 (8th Cir. 1969), it is prejudicial error to fail
to give a cautionary instruction at any stage of the trial prior to
separation. *See United States v. Williams*, 635 F.2d at 746; *cf.*,
*United States v. Lashley*, 251 F.3d 706, 712 (8^th^ Cir. 2001). The
jurors mistakenly left early during deliberations. The court held it was
not reversible error for the trial judge to contact the jurors by
telephone and admonish them not to speak to anyone about the case, where
such admonition had been given during trial. However, the failure to
give a cautionary instruction prior to an overnight separation was held
not reversible error, absent any other claim of prejudice where the jury
had been so cautioned on at least thirteen other occasions. *United
States v. Weatherd*, 699 F.2d 959, 962 (8th Cir. 1983). *See also*
*United States v. McGrane*, 746 F.2d 632 (8th Cir. 1984) holding that
the jury was adequately cautioned when they were so instructed on ten
occasions.

**2.02 STIPULATED TESTIMONY**

The Government and the defendant\[s\] have stipulated - that is, they
have agreed - that if (name of witness) were called as a witness
\[he\]\[she\] would testify in the way counsel have just stated. You
should accept that as being (name of witness)\'s testimony, just as if
it had been given here in court from the witness stand.

**Committee Comments**

*See* Seventh Circuit Federal Jury Instructions: Criminal § 1.02 (1997);
Ninth Cir. Crim. Jury Instr. 2.3 (1997). *See generally* Federal
Judicial Center, Pattern Criminal Jury Instructions § 11 (1988); West
Key \# \"Stipulations\" 14(10).

There is a difference between stipulating that a witness would give
certain testimony, and stipulating that certain facts are established.
*United States v. Lambert*, 604 F.2d 594, 595 (8th Cir. 1979).
Instruction 2.03, *infra*, covers stipulations of facts. By entering
into a stipulation as to a witness\'s testimony, calling that person as
a witness is avoided. *Osborne v. United States*, 351 F.2d 111, 120 (8th
Cir. 1965).

Where there is stipulation as to testimony, the parties may contest the
truth or accuracy of that testimony. *See* *United States v. Garcia*,
593 F.2d 77, 79 (8th Cir. 1979). In such a situation, it may be
appropriate to instruct the jury on the factual areas that remain
disputed. *See*, *e.g.*, *United States v. Renfro*, 600 F.2d 55, 59 (6th
Cir. 1979), for an example of such an instruction where only
authenticity was stipulated.

**2.03 STIPULATED FACTS**

The government \[prosecutor\] and the defendant\[s\] have stipulated \--
that is, they have agreed \-- that certain facts are as counsel have
just stated. You must therefore treat those facts as having been proved.

**Committee Comments**

When facts are stipulated, it is not error for the court to so instruct.
*United States v. Sims*, 529 F.2d 10, 11 (8th Cir. 1976). *See, e.g.,
United States v. Steeves*, 525 F.2d 33, 35 (8^th^ Cir. 1975). When the
parties stipulate to an element of an offense, it is not error to
instruct the jury as to that fact. \"Stipulations of fact fairly entered
into are controlling and conclusive and courts are bound to enforce
them.\" *Osborne v. United States*, 351 F.2d 111, 120 (8th Cir. 1965).

A case may be submitted on an agreed statement of facts and the
defendant may raise any defenses by stipulation. Such a practice, where
the essential facts in the case are uncontested, has been approved as a
practical and expeditious procedure. *United States v. Wray*, 608 F.2d
722, 724 (8th Cir. 1979). When facts which tend to establish guilt are
submitted on stipulation, the court must determine whether the
consequences of the admissions are understood by the defendant and
whether he consented to them. *Cox v. Hutto*, 589 F.2d 394, 396 (8th
Cir. 1979) (stipulation to prior convictions in habitual offender
action). An extensive examination before entry of a guilty plea under
Rule 11 is ordinarily not required. *United States v. Stalder*, 696 F.2d
59, 62 (8^th^ Cir. 1982). However, when a stipulation is entered that
leaves no fact to be tried, the court should determine that the
stipulation was voluntarily and intelligently entered into, and that the
defendant knew and understood the consequences of the stipulation. *Id.*

By agreeing to a stipulation, a defendant waives any right to argue
error on appeal. *United States v. Hawkins*, 215 F.3d 858, 860 (8^th^
Cir. 2000) (citing *Ohler v. United States*, 529 U.S. 753, 756 (2000)
(party introducing evidence cannot complain on appeal that the evidence
was erroneously admitted)).

**2.04 JUDICIAL NOTICE (Fed. R. Evid. 201)**

Even though no evidence has been introduced about it, I have decided to
accept as proved the fact that (insert fact noticed). I believe this
fact \[is of such common knowledge\] \[can be so accurately and readily
determined from (name accurate source)\] that it cannot reasonably be
disputed. You may therefore treat this fact as proved, even though no
evidence was brought out on the point. As with any fact, however, the
final decision whether or not to accept it is for you to make and you
are not required to agree with me.

**Committee Comments**

*See* Federal Judicial Center, Pattern Criminal Jury Instructions § 7
(1988); Ninth Cir. Crim. Jury Instr. 2.5 (1997); *United States v.
Deckard*, 816 F.2d 426, 428 (8th Cir. 1987). *See generally* 1A Kevin F.
O'Malley, et al., *Federal Jury Practice and Instructions*: Criminal §
12.03 (5th ed. 2000); Seventh Circuit Federal Jury Instructions:
Criminal § 1.02 (1999); Fed. R. Evid. 201; West Key \# \"Criminal Law\"
304.

The kinds of facts which may be judicially noticed are set out in Fed.
R. Evid. 201(b).

An instruction regarding judicial notice is appropriately given at the
time notice is taken. In *Deckard*, the jury was instructed at the time
notice was taken that it would be instructed at the close of the case on
what to do with facts judicially noticed. That part of the final charge
read as follows:

When the court declares it will take judicial notice of some fact or
event, you may accept the court\'s declaration as evidence, and regard
as proved the fact or event which has been judicially noticed, but you
are not required to do so since you are the sole judge of the facts.

816 F.2d at 428.

Fed. R. Evid. 201(g), requires that the jury in a criminal case be
instructed that it is not required to accept as conclusive any fact so
noticed. However, failure to so instruct does not rise to the level of
plain error if the defendant is not prejudiced. *United States v.
Berrojo*, 628 F.2d 368, 370 (5th Cir. 1980); *United States v. Piggie*,
622 F.2d 486, 488 (10th Cir. 1980).

Courts \"may take judicial notice of either legislative or adjudicative
facts, \[but\] only notice of the latter is subject to the strictures of
Rule 201. Although Rule 201 is frequently (albeit erroneously) cited in
cases that involve judicial notice of legislative facts, see II
\[Kenneth C.\] Davis & \[Richard J.\] Pierce, Jr., Administrative Law
Treatise § 10.6 at 155 (3d ed. 1994), \[courts\] recognize the
importance of this distinction and its clear basis in Rule 201(a) and
the advisory note thereon.\" *United States v. Hernandez-Fundora*, 58
F.3d 802, 812 (2d Cir. 1995). While the federal rule provides, in part,
that \"\[i\]n a criminal case, the court shall instruct the jury that it
may, but is not required to, accept as conclusive any fact judicially
noticed,\" the rule extends only to adjudicative, not legislative facts.
*United States v. Gould*, 536 F.2d 216 (8th Cir. 1976); *United States
v. Bowers*, 660 F.2d 527 (5th Cir. 1981) (per curiam). \"No rule deals
with judicial notice of \'legislative\' facts.\'\" *United States v.
Hernandez-Fundora*, 58 F.3d at 811.

Legislative facts are established truths, facts or pronouncements that
do not change from case to case but apply universally, while
adjudicative facts are those developed in a particular case. If the
court reaches a \"conclusion through an exercise in statutory
interpretation\" about a particular issue, the conclusion is a
legislative fact that need not be submitted to the jury. *United States
v. Gould*, 536 F.2d at 220 (instruction to jury that it could disregard
the judicially noticed fact that cocaine hydrochloride was a schedule II
controlled substance would have been inappropriate); *United States v.
Hernandez-Fundora*, 58 F.3d at 810 (resolution of territorial
jurisdiction issue required the determination of legislative facts with
the result that Rule 201(g) inapplicable); *United States v. Madeoy*,
912 F.2d 1486, 1494 (D.C. Cir. 1990) (\"public official\" for purposes
of bribery statute is a question of law for the court); *United States
v. Anderson*, 782 F.2d 908, 917 (11th Cir. 1986) (fact that violation of
Georgia arson statute is a felony for RICO purposes is a legislative
fact that can be judicially noticed but not instructed on).

**2.05 WIRETAP OR OTHER TAPE-RECORDED EVIDENCE**

\[You are about to hear \[have heard\] tape recordings of conversations.
These conversations were legally recorded, and you may consider the
recordings just like any other evidence.\]

**Committee Comments**

*See* Federal Judicial Center, Pattern Criminal Jury Instructions § 13
(1988); Ninth Cir. Crim. Jury Instr. 2.8 (1997). *See generally* 18
U.S.C. §§ 2510-2520.

The Committee recommends that this instruction be given only if a
question as to the propriety of the recording has been raised in the
jury\'s presence.

Note that when a transcript of a tape is offered and the tape is
available, the tape, rather than the transcript, controls. *See* Fed. R.
Evid. 1002. *United States v. Martinez*, 951 F.2d 887, 889 (8^th^ Cir.
1991). The trial court did not err in permitting the jury to listen to a
tape, which was arguably unintelligible, and follow along with the
transcript, when the court instructed the jury that only the tape and
not the transcript was to be considered when weighing the evidence. This
is covered in Instruction 2.06, *infra*. In situations where a
transcript is utilized together with the recording, Instruction 2.06
should be given immediately after this instruction.

In *United States v. McMillan*, 508 F.2d 101 (8th Cir. 1974), the Court
set forth the foundation requirements for use of tape recordings as
evidence. The *McMillan* foundation requirements are directed to the
government\'s use of recording equipment, but not to a recording found
in a defendant\'s possession. *United States v. O\'Connell*, 841 F.2d
1408 (8th Cir. 1988); *United States v. Kandiel*, 865 F.2d 967 (8th Cir.
1989). If the requirements are satisfied, a tape may be admitted even if
it is poor quality as long as the quality of the recording does not call
into question the trustworthiness of the tape. *United States v. Munoz*,
324 F.3d 987, 992 (8^th^ Cir. 2003); *Cf., United States v. Le,* 272
F.3d 530, 532 (8^th^ Cir. 2001). It is within the trial court's
discretion to exclude a tape when its quality renders it untrustworthy.

**2.06 TRANSCRIPT OF TAPE-RECORDED CONVERSATION**

As you have \[also\] heard, there is a typewritten transcript of the
tape recording \[I just mentioned\] \[you are about to hear\]. That
transcript also undertakes to identify the speakers engaged in the
conversation.

You are permitted to have the transcript for the limited purpose of
helping you follow the conversation as you listen to the tape recording,
and also to help you keep track of the speakers. Differences in meaning
between what you hear in the recording and read in the transcript may be
caused by such things as the inflection in a speaker\'s voice. It is
what you hear, however, and not what you read, that is the evidence.

\[You are specifically instructed that whether the transcript correctly
or incorrectly reflects the conversation or the identity of the speakers
is entirely for you to decide based upon what you have heard here about
the preparation of the transcript, and upon your own examination of the
transcript in relation to what you hear on the tape recording. If you
decide that the transcript is in any respect incorrect or unreliable,
you should disregard it to that extent.\]^1^

**Notes on Use**

1\. This paragraph should be given if the parties do not stipulate to
the transcript. In *United States v. Gonzalez*, 365 F.3d 656, 660 (8^th^
Cir. 2004), the court said: "\[W\]e believe that whenever the parties
intend to introduce a transcript at trial, they should first try 'to
produce an 'official' or 'stipulated' transcript, one which satisfies
all sides,' *United States v. Cruz*, 765 F.2d 1020, 1023 (11^th^ Cir.
1985) (quoting *United States v. Wilson*, 578 F.2d 67, 69-70 (5^th^ Cir.
1978)). If they are unable to do so, 'then each side should produce its
own version of a transcript or its own version of the disputed portions.
In addition, each side may put on evidence supporting the accuracy of
its version or challenging the accuracy of the other side's version.'
*Id.* (quoting *Wilson*, 578 F.2d at 69-70)." In the opinion of the
Committee, one transcript with bracketed alternatives can also be used
to aid the jury where the dispute only involves short disagreements.

**Committee Comments**

*See generally* *United States v. McMillan*, 508 F.2d 101 (8th Cir.
1974) (specifies the procedures for use of transcripts at trial).
*United States v. Calderin-Rodriquez*, 244 F.3d 979, 987 (8^th^ Cir.
2001), held that transcripts which provide voice identification and date
headings were properly admitted.

A jury may use transcripts of taped conversations during trial and jury
deliberations. *United States v. Delpit*, 94 F.3d 1134, 1147-48 (8^th^
Cir. 1996); *United States v. Foster*, 815 F.2d 1200, 1203 (8^th^ Cir.
1987), where the court held it was not error for the trial court to
permit the transcripts to be sent to the jury during deliberations when
the transcripts were admitted into evidence without objection, and the
jury was instructed that the tape is controlling. If the accuracy of the
transcript has been stipulated, the transcript may be admitted into
evidence without limiting instructions. *See* *United States v. Crane*,
632 F.2d 663, 664 (6th Cir. 1980).

The trial court has broad discretion in the use of transcripts. *See
e.g., United States v. Grajales-Montoya*, 117 F.3d 356, 367 (8^th^ Cir.
1997). The court held that the trial court did not abuse its discretion
by admitting transcripts of certain translations of tape recorded
conversations in Spanish. In *United States v. Delpit*, 94 F.3d 1134,
1147 (8^th^ Cir. 1996), the court held it was not error for the trial
court to allow the jury to use the transcripts of wire-tapped
conversations during trial and deliberations which included the
government's interpretation and translation, in brackets, of pig-Latin
codes used in tapes.

**2.06A TRANSCRIPT OF FOREIGN LANGUAGE**

**TAPE-RECORDED CONVERSATION** ^1^

Among the exhibits admitted during the trial were recordings that
contained conversations in the \_\_\_\_\_\_\_ language. You were also
provided English transcripts of those conversations. The transcripts
were provided to you \[by the government\] so that you can consider the
content of the conversations on the recordings. Whether a transcript is
an accurate translation, in whole or in part, is for you to decide. You
should not rely in any way on any knowledge you may have of the language
spoken on the recording; your consideration of the transcripts should be
based on the evidence introduced in the trial.^2^

\[In considering whether a transcript accurately describes the meaning
of a conversation, you should consider the testimony presented to you
regarding how, and by whom, the transcript was made. You may consider
the knowledge, training, and experience of the translator, as well as
the nature of the conversation and the reasonableness of the translation
in light of all the evidence in the case.\]^3^

**Notes on Use**

1\. This instruction should be given if the parties do not stipulate to
the transcript. In *United States v. Gonzalez*, 365 F.3d 656, 660 (8^th^
Cir. 2004), the court encouraged the parties to produce an official or
stipulated transcript, which satisfies all sides.If they are unable to
do so, "then each side should produce its own version of a transcript or
its own version of the disputed portions. In addition, each side may put
on evidence supporting the accuracy of its version or challenging the
accuracy of the other side's version." (quoting *United States v.
Wilson*, 578 F.2d 67, 69-70 (5^th^ Cir. 1978)). In the opinion of the
Committee, one transcript with bracketed alternatives can also be used
to aid the jury where the dispute only involves short disagreements.

2\. Jurors should be instructed to rely only on the English translation,
not on their own knowledge of the foreign language. United States v.
Gonzalez, 365 F.3d 656, 661-62 (8^th^ Cir. 2004). The court cited with
approval the Seventh Circuit Federal Criminal Jury Instruction § 3.18,
and encouraged district courts to "use an instruction similar to it when
introducing an English transcript of dialogue that originally was spoken
in another language." *Id.* at 662.

3\. This language may be included if desired. United States v. Gonzalez,
365 F.3d 656 (8^th^ Cir. 2004)

**2.07 STATEMENT BY THE DEFENDANT**

You have heard testimony that \[the defendant\] \[defendant (name)\]
made a statement to (name of person or agency). It is for you to decide:

*First*, whether \[the defendant\] \[defendant (name)\] made the
statement and

*Second*, if so, how much weight you should give to it. ^1^

\[In making these two decisions you should consider all of the evidence,
including the circumstances under which the statement may have been
made.\] ^2^

**Notes on Use**

1\. In a multi defendant trial this instruction should be followed by
Instruction 2.15, *infra*, unless the statement was made during the
course of a conspiracy or was otherwise adoptive.

2\. Use this sentence, if appropriate.

**Committee Comments**

*See generally* 18 U.S.C. § 3501 and *United States v. Dickerson*, 530
U.S. 428 (2000).

The instruction uses the word \"statement\" in preference to the word
\"confession.\" Not all statements are \"confessions,\" particularly
from a lay person\'s point of view.

Pursuant to 18 U.S.C. § 3501(a), the trial judge must first make a
determination as to the voluntariness of the statement (including
compliance with applicable *Miranda* requirements), outside the presence
of the jury. This may, of course, be done either pre-trial or out of the
jury\'s presence during trial. If done during trial, no reference to the
statement should be made in the jury\'s presence unless and until the
trial judge has made a determination that the statement is admissible.
If such a determination is made, the trial judge should then permit the
jury to hear evidence on the issue of voluntariness and give the present
instruction. The jury should *not* be advised that the trial judge has
made an independent determination that the statement was voluntary.
*United States v. Standing Soldier*, 538 F.2d 196, 203 (8th Cir. 1976);
*United States v. Bear Killer*, 534 F.2d 1253, 1258-59 (8th Cir. 1976).
The Committee concludes that it is not necessary to instruct the jury
with respect to the various specific factors enumerated in 18 U.S.C. §
3501(b).

The defendant may introduce evidence of the circumstances in which the
statement is made. *Crane v. Kentucky*, 476 U.S. 683 (1986); *United
States v. Blue Horse*, 856 F.2d 1037, 1039 n.3 (8th Cir. 1988).

If the voluntariness of the statement is not an issue, the defendant is
not entitled to this instruction. *United States v. Blue Horse*, 856
F.2d at 1039.

Even though the defendant\'s failure to request an instruction such as
this one may be a waiver of any error in the matter, *see* *United
States v. Houle*, 620 F.2d 164, 166 (8th Cir. 1980), the Committee
strongly recommends that if voluntariness is an issue, the instruction
be given even absent a request.

\"Informal\" voluntary statements - that is, in the language of 18
U.S.C. § 3501(d), those made \"without interrogation by anyone, or at
any time at which the person . . . was not under arrest or other
detention\" - do not require any instruction. *See* *United States v.
Houle*, 620 F.2d at 166.

**2.08 THE DEFENDANT\'S PRIOR SIMILAR ACTS (Where Introduced to**

**Prove an Issue Other Than Identity) (Fed. R. Evid. 404(b))**

You \[are about to hear\] \[have heard\] evidence that the defendant
(describe evidence the jury is about to hear or has heard). You may
consider this evidence only if you (unanimously) find it is more likely
true than not true. This is a lower standard than proof beyond a
reasonable doubt. If you find that this evidence is more likely true
than not true, you may consider it to help you decide (describe purpose
under 404(b) for which evidence has been admitted.)^1^ You should give
it the weight and value you believe it is entitled to receive. If you
find that it is not more likely true than not true, then you shall
disregard it.^2^

Remember, even if you find that the defendant may have committed \[a\]
similar \[act\] \[acts\] in the past, this is not evidence that \[he\]
\[she\] committed such an act in this case. You may not convict a person
simply because you believe \[he\] \[she\] may have committed similar
acts in the past. The defendant is on trial only for the crime\[s\]
charged, and you may consider the evidence of prior acts only on the
issue of (state proper purpose under 404(b), e.g., intent, knowledge,
motive.)^3^

**Notes on Use**

1\. Use care in framing the language to be used in specifying the
purpose for which the evidence can be used. *See* *United States v.
Mothershed*, 859 F.2d 585, 588-89 (8th Cir. 1988) (court should specify
which component of Rule 404(b) the prior similar act evidence is
relevant to and explain the relationship between the prior acts and
proof of that proper component).

2\. *See generally*, 1 L. Sand, J. Siffert, W. Loughlin, & S. Reiss,
*Modern Federal Jury Instructions: Criminal*, §5.10 (2000); *United
States v. Frazier*, 280 F.3d 835, 846 (8^th^ Cir. 2002).

3\. This paragraph should be given only upon request of the defendant.
This portion of the instruction explains that prior similar act evidence
is not admissible to prove propensity to commit crime, and the defendant
may want the jury so instructed. On the other hand, this portion of the
instruction repeats reference to the prior act\[s\]. The trade-off
between explanation and repetition should be made by the defendant in
the first instance.

**Committee Comments**

*See* Ninth Cir. Crim. Jury Instr. 2.10 (1997). *See also* 1A Kevin F.
O'Malley, et al., *Federal Jury Practice and Instructions*: Criminal §
17.08 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury
Instructions § 50 (1988); Fifth Circuit Pattern Jury Instructions:
Criminal § 1.30 (1997); Seventh Circuit Federal Jury Instructions:
Criminal § 3.04 (1999); Eleventh Circuit Pattern Jury Instructions:
Criminal (Special) § 4 (1997). *See generally* Fed. R. Evid. 404(b);
West Key \# \"Criminal Law\" 369-374, 673(5), 761(14), 783(1). *See
also* *United States v. Felix*, 867 F.2d 1068, 1075 (8th Cir. 1989)
(court satisfied that earlier, but nearly identical, version of this
instruction was correct as given).

*See also* Introductory Comment, Section 2.00, *supra*, concerning
limiting instructions.

The Supreme Court, in *Huddleston v. United States*, 485 U.S. 681, 691
(1988), acknowledged the unfair prejudice that can arise from the
admission of similar act evidence and noted that such prejudice could be
dealt with in part through a limiting instruction. Such an instruction
should be given when requested.

Prior act evidence is admissible when it is relevant to a material issue
in question other than the character of the defendant, the act is
similar in kind and reasonably close in time to the crime charged, there
is sufficient evidence to support a finding by the jury that the
defendant committed the prior act and the potential unfair prejudice
does not substantially outweigh the probative value of the evidence.
*United States v. Anderson*, 879 F.2d 369, 378 (8th Cir. 1989); *United
States v. Marin-Cifuentes*, 866 F.2d 988, 996 (8th Cir. 1989). This
circuit follows a rule of inclusion, wherein such evidence is admissible
unless it tends to prove only the defendant\'s criminal disposition.
*E.g.*, *United States v. Kandiel*, 865 F.2d 967, 972 (8th Cir. 1989);
*United States v. Mothershed*, 859 F.2d 585, 589 (8th Cir. 1988).

While other act evidence is generally admissible to prove intent,
knowledge, motive, etc., it is only admissible where such an issue is
material in the case. *Mothershed*, 859 F.2d at 589-90; *United States
v. Nichols*, 808 F.2d 660, 663 (8th Cir. 1987). In *United States v.
Carroll*, 207 F.3d 465, 467 (8^th^ Cir. 2000), the Court stated, "\[i\]n
some circumstances, a defendant's prior bad acts are part of a broader
plan or scheme relevant to the charged offense. . . . Evidence of past
acts may also be admitted . . . *as direct proof of a charged crime that
includes a plan or scheme element. . . .* In other circumstances . . .
the pattern and characteristics of the crimes are so unusual and
distinctive as to be like a signature. . . . In these cases, the
evidence goes to identity. . . . These 'plan' and 'identity' uses of
Rule 404(b) evidence are distinct from each other . . . . (Emphasis
added.) *See also United States v. LeCompte*, 99 F.3d 274 (8^th^ Cir.
1996). Where admission of other act evidence is sought, \"the proponent
of the evidence \[must\] articulate the basis for the relevancy of the
prior act evidence and . . . the court \[must\] \'specify which
components of the rule form the basis of its ruling *and* *why*.\'
*United States v. Harvey*, 845 F.2d 760, 762 (8th Cir. 1988) (emphasis
added).\" *United States v. Johnson*, 879 F.2d 331, 334 n.2 (8th Cir.
1989). Other act evidence is admissible during the Government's
case-in-chief where the defendant plans to present a general denial
defense, because the defendant, by pleading not guilty, puts the
Government to its proof on all elements of the charged crime. *United
States v. Miller*, 974 F.2d 953, 960 (8th Cir. 1992); *United States v.
Crouch*, 46 F.3d 871, 875 (8th Cir. 1995). See also Untied States v.
Carroll, 207 F.3d 465 (8^th^ Cir. 2000). For a discussion of the
stringent test which the defendant must meet to remove a state-of-mind
issue, *see United States v. Thomas*, 58 F.3d 1318, 1321-22 (8th Cir.
1995) and *United States v. Jenkins*, 7 F.3d 803, 806-07 (8th Cir. 1993)
(Rule 404(b) evidence inadmissible to show intent during rebuttal when
the defendant denied committing the criminal act).

This instruction is designed for use *only* in those situations where
the prior acts are to be utilized for one or more purposes covered by
Rule 404(b), \'such as proof of motive, opportunity, intent,
preparation, plan, knowledge, . . . or absence of mistake or accident .
. .\' but *not* for proof of identity or in sexual assault or child
molestation cases.

This instruction should *not* be used when the theory for admitting the
evidence is to show identity. When the evidence is to be used for this
purpose, use Instruction 2.09, *infra*. This instruction is also not
appropriate when evidence of similar crimes is introduced in sexual
assault and child molestation cases. Those cases are covered by Rules
413 and 414, Fed. R. Evid., which allow evidence of similar crimes to
show the defendant's propensity to commit such crimes as evidence that
he or she did commit the crime for which the defendant is on trial. It
is the opinion of the Committee that, in an appropriate case, evidence
otherwise admissible under Rules 413 and 414 may be excluded under Rule
403 if the danger of unfair prejudice or confusion of the issues
substantially outweighs the probative value of the evidence.

If the defendant\'s prior conviction has been admitted under Rule 609, a
different limiting instruction should be given. *See* Instruction 2.16,
*infra*; 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 15.08 (5th ed. 2000).

**2.09 THE DEFENDANT\'S PRIOR SIMILAR ACTS (Where Introduced to**

**Prove Identity) (Fed. R. Evid. 404(b))**

You \[are about to hear\] \[have heard\] evidence that the defendant
previously committed \[an act\] \[acts\] similar to \[the one\]
\[those\] charged in this case. You may use this evidence to help you
decide \[manner in which the evidence will be used to prove identity -
e.g., whether the similarity between the acts previously committed and
the one\[s\] charged in this case suggests that the same person
committed all of them\].^1^ \[If you find that the evidence of other
acts is not proven by the greater weight of the evidence, then you shall
disregard such evidence. To prove something by the greater weight of the
evidence is to prove that it is more likely true than not true. This is
a lower standard than proof beyond a reasonable doubt.\] ^2^

The defendant is on trial for the crime\[s\] charged and for \[that\]
\[those\] crime\[s\] alone. You may not convict a person simply because
you believe \[he\] \[she\] may have committed some act\[s\], even bad
act\[s\], in the past.^3^

**Notes on Use**

1\. The language here should specify whether the evidence is to be
considered to show a common pattern, scheme or plan or for another
permissible purpose relating to proof of the acts charged.

2\. *See* Notes on Use 2 and 3 to Instruction 2.08

3\. *See* Notes on Use 2 and 3 to Instruction 2.08.

**Committee Comments**

*See* S. Saltzburg & H. Perlman, FEDERAL CRIMINAL JURY INSTRUCTIONS §
2.14A (1985); Sand, et al., *Modern Federal Jury Instructions*, 5-26
(1994); *see generally* Fed. R. Evid. 404(b); West Key \# \"Criminal
Law\" 369.15, 372.

*See also* Introductory Comment, Section 2.00, *supra*, concerning
limiting instructions.

Evidence of prior crimes or acts may be admissible in some cases to
prove the crime charged. *See*, *e.g.*, *United States v. Calvert*, 523
F.2d 895, 905-07 (8th Cir. 1975); *United States v. Robbins*, 613 F.2d
688, 692-95 (8th Cir. 1979). For example, such evidence is admissible to
prove identity when the theory for admitting the evidence is to show a
common scheme, pattern or plan between the prior acts and the present
offense. *United States v. McMillian*, 535 F.2d 1035, 1038 (8th Cir.
1976); *United States v. Davis*, 551 F.2d 233, 234 (8th Cir. 1977);
*United States v. Weaver*, 565 F.2d 129, 133-35 (8th Cir. 1977); *United
States v. Mays*, 822 F.2d 793, 797 (8th Cir. 1987). Such evidence is
admissible where there is a \"peculiar similarity\" between the prior
acts and the crime charged. *United States v. Garbett*, 867 F.2d 1132,
1135 (8th Cir. 1989). This instruction is not appropriate when evidence
of similar crimes is introduced in sexual assault and child molestation
cases covered by Fed. R. Evid. 413 and 414.

Because similar act evidence tends not only to prove the commission of
the act but also has a tendency to show the defendant\'s bad or criminal
character, undue prejudice must be avoided. This instruction, which in
effect tells the jury to consider the evidence only on the issue of
identity and not on the issue of character, should be given on request.
*See United States v. Danzey*, 594 F.2d 905, 914-15 (2d Cir. 1979); *see
also* *United States v. McMillian*, 535 F.2d at 1038-39.

Where similar act evidence may be admissible both on the issue of
identity and for another proper purpose, Instruction 2.08, *supra*, and
this Instruction 2.09 may need to be adapted to meet the particular
situation.

**2.10 CROSS-EXAMINATION OF THE DEFENDANT\'S CHARACTER WITNESS**

You will recall that after witness (name) testified about the
defendant\'s \[reputation for\] \[character for\] \[reputation and
character for\] (insert character trait covered by testimony), the
prosecutor asked the witness some questions about whether \[he\] \[she\]
knew that (Describe in brief terms the subject of the cross-examination
on the character trait, e.g., the defendant was convicted of fraud on an
earlier occasion). Those questions were asked only to help you decide if
the witness really knew about the defendant\'s \[reputation for\]
\[character for\] \[reputation and character for\] (insert character
trait covered by the testimony). The information developed by the
prosecutor on that subject may not be used by you for any other purpose.

That the defendant \[committed\] \[may have committed\] (e.g., committed
fraud on an earlier occasion) is not evidence that \[he\] \[she\]
committed the crime charged in this case.

**Committee Comments**

*See* Introductory Comment, Section 2.00, *supra*, concerning limiting
instructions.

For a good treatment of this topic, *see* *Michelson v. United States*,
335 U.S. 469 (1948); *United States v. Monteleone*, 77 F.3d 1086,
1089-90 (8^th^ Cir. 1996).

Although character testimony is usually limited to the reputation of the
defendant, the government may challenge a defendant's character witness
by cross-examining the witness about the witness' knowledge of "relevant
specific instances" of a defendant's conduct. *United States v.
Monteleone*, 77 F.3d at 1089-90. This type of cross-examination is
discouraged, however, because it is fraught with danger and could form
the basis for a miscarriage of justice. *United States v. Knapp,* 815
F.2d 1183, 1186 (8^th^ Cir. 1989). The government may only use this type
of cross-examination if two requirements are met: (1) a good faith
factual basis for the incidents, which must be of a type likely to be a
matter of general knowledge in the community; and (2) the incidents must
be relevant to the character trait at issue. *United States v.
Monteleone*, 77 F.3d at 1089-90. With respect to community reputation
for a character trait, only reputation reasonably contemporaneous with
the acts charged is relevant. *Mullins v. United States*, 487 F.2d 581,
590 (8th Cir. 1973). Cross-examination must be limited to the particular
character trait placed in issue. *Michelson* *v. United States,* 335
U.S. at 475-76. *Cf., United States v. Smith*, 32 F.3d 1291, 1295 (8^th^
Cir. 1994), in which the court held it was harmless error to permit
cross-examination of the defendant's character witness on the
defendant's prior marijuana conviction when the jury was instructed that
the government's questions and the witness' responses were only to be
used to challenge the character witness' knowledge of the defendant's
reputation.

**2.11 DISMISSAL, DURING TRIAL, OF SOME CHARGES**

**AGAINST SINGLE DEFENDANT**

At the beginning of the trial I told you that the defendant was accused
of (insert number) different crimes: (Briefly describe the offenses
mentioned at the commencement of trial.)^1^ Since the trial started,
however, \[one\] \[two, etc.\] of these charges \[has\] \[have\] been
disposed of, the one(s) having to do with (describe offenses disposed
of).^2^ \[That charge\] \[Those charges\] \[is\] \[are\] no longer
before you, and the only crime\[s\] that the defendant is charged with
now \[is\] \[are\] (describe remaining offenses). You should not guess
about or concern yourselves with the reason for this disposition. You
are not to consider this fact when deciding if the \[government\]
\[prosecutor\] has proved, beyond a reasonable doubt, the count\[s\]
which remain, which are (list remaining count\[s\]).

\[The following evidence is now stricken by me, and is thus no longer
before you and may not be considered by you: (Describe stricken
evidence).\]^3^

**Notes on Use**

1\. If one or more counts of the same offense have been disposed of and
other counts of the same offense remain, the language of this
instruction should be modified.

2\. In some cases circumstances may require a more specific treatment of
the reasons for dismissal.

3\. If the evidence remains admissible the jury may be so instructed.
*See United States v. Kelley*, 152 F.3d 886, 888 (8^th^ Cir. 1998)
(citing with approval 8^th^ Cir. Model Crim. Jury Instruction 2.11).

**Committee Comments**

*See* Introductory Comment, Section 2.00, *supra*, concerning limiting
instructions.

Such an instruction is appropriate only on rare occasions and should
*not* be given unless requested by the defendant.

**2.12 DISPOSITION, DURING TRIAL, OF ALL CHARGES**

**AGAINST ONE OR MORE CODEFENDANT\[S\]**

At the beginning of the trial I told you that (insert name\[s\]) \[was\]
\[were\] \[a\] defendant\[s\] in this case. The charge\[s\] against
defendant\[s\] (insert name\[s\]) \[has\] \[have\] been disposed of, and
\[he\] \[she\] \[they\] \[is\] \[are\] no longer \[a\] \[defendant\[s\]
in this case. You should not guess about or concern yourselves with the
reason for this disposition. You are not to consider this fact when
deciding if the \[government\] \[prosecutor\] has proved, beyond a
reasonable doubt, its case against defendant\[s\] (name remaining
defendant\[s\]).

\[The following evidence is now stricken by me, and is thus no longer
before you and may not be considered by you (describe stricken
evidence).\]^1^

**Notes on Use**

1\. If the evidence remains admissible the jury may be so instructed.
*See United States v. Kelley*, 152 F.3d 886, 888 (8^th^ Cir. 1998).

**Committee Comments**

*See* Introductory Comment, Section 2.00, *supra*, concerning limiting
instructions.

The Eighth Circuit has held that the trial court properly instructed a
jury that the absence of the codefendants, who pled guilty after opening
statements during trial, should have no bearing upon the case of the
remaining defendant. Therefore a mistrial was not warranted due to the
pleas of the codefendants. *United States v. Daniele*, 886 F.2d 1046,
1055 (8^th^ Cir. 1989).

If a guilty plea of a codefendant is brought into trial, either directly
or indirectly, a trial court must ensure that it is not being offered as
substantive evidence of a defendant's guilt. One factor in determining
whether admission of such evidence is an abuse of a trial court's
discretion is whether a limiting instruction is given. *United States v.
Jones*, 145 F.3d 959, 963 (8^th^ Cir. 1998). However, if the
introduction of the evidence is invited by counsel or if defense counsel
requests no limiting instruction, failure to give a limiting instruction
may not constitute plain error. *Id.;* *United States v. Francisco*, 410
F.2d 1283, 1288-89 (8th Cir. 1969).

**2.13 DISPOSITION, DURING TRIAL, OF ONE OR MORE BUT LESS**

**THAN ALL CHARGES AGAINST THE CODEFENDANT\[S\]**

At the beginning of the trial I told you that \[both\] \[all\]
defendants were charged, among other things, with the crimes of
(describe crimes).^1^ The charges of (describe disposed of charges), as
against the defendant\[s\], \[has\] \[have\] been disposed of, and
\[he\] \[she\] \[they\] \[is\] \[are\] no longer \[a\] defendant\[s\] as
to \[that\] \[those\] charge\[s\]. You should not guess about or concern
yourselves with the reason for this disposition. You are not to consider
this fact when deciding if the \[government\] \[prosecutor\] has proved
beyond a reasonable doubt that defendant\[s\] (name remaining
defendant\[s\]) committed any of the crimes with which \[he\] \[she\]
\[they\] \[is\] \[are\] charged, or when deciding if the \[government\]
\[prosecutor\] has proved beyond a reasonable doubt that defendant\[s\]
(name remaining defendants) committed the remaining crime\[s\] with
which \[he\] \[she\] \[they\] \[is\] \[are\] charged.

\[The following evidence is now stricken by me, and is thus no longer
before you and may not be considered by you: (describe stricken
evidence).\]^2^

\[So far as this case is concerned, you will continue to be concerned
with the following charges: (describe charges).\]^3^

**Notes on Use**

1\. If one or more counts of the same offense have been disposed of and
other counts of the same offense remain, the language of this
instruction should be modified.

2\. If the evidence remains admissible the jury may be so instructed.
*See United States v. Kelley*, 152 F.3d 886, 888 (8^th^ Cir. 1998).

3\. Optional for use when there are a number of charges, and the court
feels it would be helpful to \"re-cap\" those remaining for the jury.

**Committee Comments**

*See* Introductory Comment, Section 2.00, *supra*, and Committee
Comments, Instruction 2.12, *supra*.

**2.14 EVIDENCE ADMITTED AGAINST ONLY ONE DEFENDANT**

As you know, there are (insert number) defendants on trial here: (name
each defendant). Each defendant is entitled to have \[his\] \[her\] case
decided solely on the evidence which applies to \[him\] \[her\]. Some of
the evidence in this case is limited under the rules of evidence to one
of the defendants, and cannot be considered against the others.

The \[testimony\] \[exhibit about which\] you \[are about to hear\]
\[just heard\], (describe testimony or exhibit), can be considered only
in the case against defendant (name). You must not consider that
evidence when you are deciding if the \[government\] \[prosecutor\] has
proved, beyond a reasonable doubt, its case against defendant\[s\]
(name\[s\]).

**Committee Comments**

*See* Introductory Comment, Section 2.00, *supra*, concerning limiting
instructions.

Limiting instructions informing the jury of proper use of the evidence
are sufficient, unless the defendant shows that his defense is
irreconcilable with the other defendants' defenses or the jury cannot
compartmentalize the evidence. *United States v. Bordeaux*, 84 F.3d
1544, 1547 (8^th^ Cir. 1996). A district court, in admitting Rule 404(b)
type evidence, need not issue a limiting instruction *sua sponte*.
*United States v. Perkins,* 94 F.3d 429, 435-36 (8^th^ Cir. 1996). In
the absence of a specific defense request, no limiting instruction is
required where the evidence is relevant to an issue in the case. *United
States v. Conley*, 523 F.2d 650, 654 n.7 (8^th^ Cir. 1975). Where
evidence was admissible against one defendant but not admissible to
three other defendants, a trial court did not err in failing to give a
limiting instruction where none was requested by defense counsel and
before retiring, the jury was instructed that "\[e\]ach defendant is
entitled to have his case decided solely on the evidence which applies
to him." *United States v. Ortiz*, 125 F.3d 630, 633 (8^th^ Cir. 1997).
*United States v. Bell*, 99 F.3d 870, 881 (8^th^ Cir. 1996).

**2.15 STATEMENT OF ONE DEFENDANT IN MULTI-DEFENDANT TRIAL**

You may consider the statement of defendant (name) only in the case
against \[him\] \[her\], and not against the other defendant\[s\]. You
may not consider or discuss that statement in any way when you are
deciding if the \[government\] \[prosecutor\] has proved, beyond a
reasonable doubt, its case against the other defendant\[s\].

**Committee Comments**

*See* Introductory Comment, Section 2.00, *supra*, concerning limiting
instructions.

*Bruton v. United States*, 391 U.S. 123 (1968), held that nontestifying
codefendant confessions used in a joint trial which implicate another
defendant on their face are so \"devastating\" that their effect cannot
be limited by jury instructions to consider that confession only against
the codefendant. Unless directly admissible, *Bruton* holds such
confessions to be barred by the Confrontation Clause. The *Bruton* rule
has been extended to apply to a nontestifying codefendant\'s confession
in cases in which the confession of the defendant has been admitted,
even where the confessions are \"interlocking,\" *Cruz v. New York*, 481
U.S. 186, 191-93 (1987). However the fact that the confessions
\"interlock\" may be considered in assessing whether the statements are
supported by sufficient indicia of reliability to be directly admissible
against the defendant. *Id.* at 193-94.

In some cases, a nontestifying codefendant\'s confession may be admitted
with a proper limiting instruction where the confession is redacted to
eliminate the defendant\'s name and any reference to his or her
existence or where the statement provides only \"evidentiary linkage\"
to the defendant on trial. *See* *Richardson v. Marsh*, 481 U.S. 200,
211 (1987).

This instruction should *not* be used in connection with coconspirator
declarations admitted under Fed. R. Evid. 801(d)(2)(E). *See*, *e.g.*,
*United States v. Roth*, 736 F.2d 1222, 1229 (8th Cir. 1984), or in any
situation in which the codefendant\'s statement may be directly
admissible against the defendant. *See* *Cruz v. New York*, 481 U.S. at
193-94 (citing *Lee v. Illinois*, 476 U.S. 530 (1986)). However, a
limiting instruction is appropriate when an out-of-court statement of a
co-conspirator is admitted not for the truth of the matter stated but
rather to explain the actions of an agent. *Garrett v. United States*,
78 F.3d 1296, 1303 (8^th^ Cir. 1995). ("We have previously noted that
'if a conspirator statement is both permissible background and highly
prejudicial, otherwise hearsay, fairness demands that the government
find a way to get the background into evidence without hearsay.
(Citations omitted.) The trial court should instruct the jury as to the
limited purpose of any hearsay statements that cannot be avoided.
Without such procedures, there is a strong risk that while the statement
may be offered as background for the agents' actions, they will
inevitably be used as direct evidence of the defendant's guilt.")

**2.16 THE DEFENDANT\'S TESTIMONY:**

**IMPEACHMENT BY PRIOR CONVICTION**

You \[are about to hear\] \[have heard\] evidence that defendant (name)
was previously convicted of \[a\] crime\[s\]. You may use that evidence
only to help you decide whether to believe \[his\] \[her\] testimony and
how much weight to give it. That evidence does not mean that \[he\]
\[she\] committed the crime charged here, and you must not use that
evidence as any proof of the crime charged in this case.

\[That evidence may not be used in any way at all in connection with the
other defendant\[s\]\].^1^

**Notes on Use**

1\. For use in a multiple defendant case.

**Committee Comments**

*See* Introductory Comment, Section, 2.00, *supra*, concerning limiting
instructions.

If past crimes of the defendant are to be used to establish intent,
motive or other mental element, and not for the purpose of impeachment,
Instruction 2.08 should be used rather than this Instruction. If the
past crimes are to be used to show a common pattern, scheme or plan as
between the prior acts and present offense, or to show the defendant\'s
identity, Instruction 2.09, *supra*, should be used. For impeachment by
prior conviction of a witness other than the defendant, *see*
Instruction 2.18, *infra*.

**2.17 THE DEFENDANT\'S TESTIMONY: IMPEACHMENT BY OTHERWISE**

**INADMISSIBLE STATEMENT (Harris v. New York)**

There has been evidence that defendant (name) was questioned at a time
prior to trial, and made certain statements. You may use that evidence
only to help you decide whether \[he\] \[she\] made a statement before
trial and whether what \[he\] \[she\] said here in court was true.

**Committee Comments**

*See* Introductory Comment, Section 2.00, *supra*, concerning limiting
instructions.

A statement obtained in violation of *Miranda* may constitutionally be
used for impeachment purposes if it was voluntary and trustworthy.
*Oregon v. Hass*, 420 U.S. 714 (1975); *Harris v. New York*, 401 U.S.
222 (1971); *Clark v. Wood*, 823 F.2d 1241, 1246 (8th Cir. 1987). The
trial judge should stress that the government cannot use the prior
statement to prove the defendant\'s guilt; it can only use it to
impeach. The statement can only be used if the defendant takes the stand
and testifies contrary to the prior statement. Where the statement is
used for impeachment, the standard for admissibility is voluntariness.
*Oregon v. Elstad*, 470 U.S. 298, 307-08 (1985). If the defendant raises
a voluntariness issue with respect to the prior statement, it will also
be necessary upon the defendant\'s request to instruct the jury
appropriately on that issue (*see* Committee Comments, Instruction 2.07,
*supra*). However, absent a request and a clear invocation of 18 U.S.C.
§ 3501(a) at trial, such an instruction is not required. *United States
v. Diop*, 546 F.2d 484, 485-86 (2d Cir. 1976). Presumably in those
circumstances it would also be necessary, pursuant to 18 U.S.C. § 3501,
for the trial judge to conduct a hearing out of the presence of the
jury, and make a finding on the issue, before allowing the prior
statement to be used even for impeachment purposes.

Use of a defendant's voluntary statement to an agent may be used for
impeachment purposes if a proper limiting instruction is given. *United
States v. Tucker*, 137 F.3d 1016, 1035 (8^th^ Cir. 1998).

**2.18 IMPEACHMENT OF WITNESS: PRIOR CONVICTION**

You have heard evidence that the witness (name) was once convicted of a
crime. You may use that evidence only to help you decide whether to
believe the witness and how much weight to give \[his\] \[her\]
testimony.

**Committee Comments**

*See* Introductory Comment, Section 2.00, *supra*, concerning limiting
instructions.

Where the witness is the defendant, Instruction 2.16, *supra*, should be
used.

**2.19 WITNESS WHO HAS PLEADED GUILTY**

You have heard evidence that the witness (name) has \[pled\] \[pleaded\]
guilty to a crime which arose out of the same events for which the
defendant is on trial here. You must not consider that guilty plea as
any evidence of this defendant\'s guilt. You may consider that
witness\'s guilty plea only for the purpose of determining how much, if
at all, to rely upon that witness\'s testimony.^1^

**Notes on Use**

1\. Such evidence may also be used to show the witness\' acknowledgment
of participation in the offense. *United States v. Roth*, 736 F.2d 1222,
1226 (8th Cir. 1984). If admitted for that purpose, the instruction
should be so modified .

**Committee Comments**

*See* Introductory Comment, Section 2.00, *supra*, and Committee
Comments, Instruction 2.12, *supra*, concerning a codefendant\'s guilty
plea.

Evidence that a codefendant has pleaded guilty may not be used as
substantive proof of a defendant\'s guilt. However, such evidence is
admissible to impeach, to show the witness\'s acknowledgment of
participation in the offense, or to reflect on his credibility. In such
circumstances the jury should be instructed that the evidence is
received for one or more of these purposes alone, and that the jurors
are not to infer the guilt of the defendant. *United States v. Lundrum*,
898 F.2d 635, 640 n.10 (8^th^ Cir. 1990) (noting with approval 8^th^
Cir. Model Crim. Jury Instruction 2.19); *United States v. Roth*, 736
F.2d 1222, 1226 (8th Cir. 1984). *See also Gerberding v. United States*,
471 F.2d 55, 60 (8th Cir. 1973); *United States v. Wiesle*, 542 F.2d 61,
62-63 (8th Cir. 1976); *Wallace v. Lockhart*, 701 F.2d 719, 725-26 (8th
Cir. 1983).

However, the admission of such evidence without a limiting instruction
is not reversible error if defense counsel did not request an
instruction and if the evidence was introduced and used for a proper
purpose. *Gerberding v. United States*, 471 F.2d at 60; *United States
v. Wiesle*, 542 F.2d at 63; *United States v. Roth*, 736 F.2d at
1226-27. In *Roth* it was held that a proper purpose of disclosing the
plea agreement and cooperation is to diffuse any attempt to show bias on
cross-examination.

For a discussion of impeachment of a witness by a prior inconsistent
statement which also incriminates the defendant and appropriate limiting
instructions, *see* *United States v. Rogers*, 549 F.2d 490, 494-98 (8th
Cir. 1976).

**2.20 THE DEFENDANT\'S PREVIOUS TRIAL**

You have heard that there was a previous trial of the defendant\[s\] for
the crime\[s\] charged here. Keep in mind, however, that you must decide
this case solely on the evidence presented to you in this trial. The
fact of a previous trial must have no effect on your consideration of
this case.

**Committee Comments**

*See* 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 10.08 (5th ed. 2000); Federal Judicial Center,
Pattern Criminal Jury Instructions § 14 (1988); Ninth Cir. Crim. Jury
Instr. § 2.09 (1997). *See also* *United States v. Hykel*, 461 F.2d 721,
726 (3d Cir. 1972); *Carsey v. United States*, 392 F.2d 810, 812 (D.C.
Cir. 1967). *See generally*, West Key \# \"Criminal Law\" 713, 768(1).

*See also* Introductory Comment, Section 2.00, *supra*, concerning
curative instructions.

This instruction should not be given unless the jury has been informed
of the previous trial and the instruction has been specifically
requested by the defense.

**2.21 THE DEFENDANT\'S PHOTOGRAPHS: \"MUG SHOTS\"**

The witness has testified that \[he\] \[she\] viewed a photograph of
defendant (name) which was shown to \[him\] \[her\] by the police. The
police collect pictures of many people from many different sources and
for many different purposes. The fact that the police had the
defendant\'s picture does not mean that \[he\] \[she\] committed this or
any other crime, and it must have no effect on your consideration of the
case.

**Committee Comments**

*See* Federal Judicial Center, Pattern Criminal Jury Instructions § 15
(1988); Ninth Cir. Crim. Jury Instr. § 2.11 (1997). *See generally*
*United States v. Runge*, 593 F.2d 66, 69 (8th Cir. 1979).

*See also* Introductory Comment, Section 2.00, *supra*, concerning
curative instructions.

This instruction should not be given unless specifically requested by
the defense.

**2.22 DISCHARGE OF DEFENSE COUNSEL DURING TRIAL**

Even though defendant (name) was at first represented by a lawyer,
\[he\] \[she\] has decided to continue the trial representing
\[himself\] \[herself\] and not to use the services of a lawyer. \[He\]
\[She\] has a right to do that. \[His\] \[Her\] decision has no bearing
on whether \[he\] \[she\] is guilty or not guilty, and it must have no
effect on your consideration of the case.

**Committee Comments**

*See* Federal Judicial Center, Pattern Criminal Jury Instructions § 6
(1988).

*See also* Introductory Comment, Section 2.00, *supra*, concerning
curative instructions.

**3.00 FINAL INSTRUCTIONS FOR USE IN EVERY TRIAL (BOILERPLATE)**

**(Introductory Comment)**

The instructions included in this section are \"boilerplate\"
instructions which would generally be part of the final charge in any
trial regardless of the particular offense or issues.

**3.01 INTRODUCTION**

Members of the jury, the instructions I gave you at the beginning of the
trial and during the trial remain in effect. I now give you some
additional instructions.

You must, of course, continue to follow the instructions I gave you
earlier, as well as those I give you now. You must not single out some
instructions and ignore others, because [all]{.underline} are important.
\[This is true even though some of those I gave you \[at the beginning
of\] \[during\] trial are not repeated here.\]

^1^\[The instructions I am about to give you now \[as well as those I
gave you earlier\] are in writing and will be available to you in the
jury room.\] \[I emphasize, however, that this does not mean they are
more important than my earlier instructions. Again, *all* instructions,
whenever given and whether in writing or not, must be followed.\]

**Notes on Use**

1\. Optional for use when the final instructions are to be sent to the
jury room with the jury. The Committee recommends that practice.

**Committee Comments**

*See* 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 12.01 (5th ed. 2000); Seventh Circuit Federal
Jury Instructions: Criminal § 1.01 (1999); Ninth Cir. Crim. Jury Instr.
3.1 (1997). *See generally* West Key \# \"Criminal Law\" 887.

**3.02 DUTY OF JURY**

It is your duty to find from the evidence what the facts are. You will
then apply the law, as I give it to you, to those facts. You must follow
my instructions on the law, even if you thought the law was different or
should be different.

Do not allow sympathy or prejudice to influence you. The law demands of
you a just verdict, unaffected by anything except the evidence, your
common sense, and the law as I give it to you.

**Committee Comments**

*See* 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 12.01 (5th ed. 2000); Seventh Circuit Federal
Jury Instructions: Criminal § 1.01 (1999); Ninth Cir. Crim. Jury Instr.
3.1 (1997).

**3.03 EVIDENCE; LIMITATIONS**

I have mentioned the word \"evidence.\" The \"evidence\" in this case
consists of the testimony of witnesses \[the documents and other things
received as exhibits\] \[the facts that have been stipulated \-- this
is, formally agreed to by the parties,\] \[the facts that have been
judicially noticed \-- this is, facts which I say you may, but are not
required to, accept as true, even without evidence\].^1^

You may use reason and common sense to draw deductions or conclusions
from facts which have been established by the evidence in the case.^2^

Certain things are not evidence. I shall list those things again for you
now:

l\. Statements, arguments, questions and comments by lawyers
representing the parties in the case are not evidence.

2\. Objections are not evidence. Lawyers have a right to object when
they believe something is improper. You should not be influenced by the
objection. If I sustained an objection to a question, you must ignore
the question and must not try to guess what the answer might have been.

3\. Testimony that I struck from the record, or told you to disregard,
is not evidence and must not be considered.

4\. Anything you saw or heard about this case outside the courtroom is
not evidence.^3^

Finally, if you were instructed that some evidence was received for a
limited purpose only, you must follow that instruction.^4^

**Notes on Use**

1\. The bracketed material should be given only if there has been
documentary or exhibit evidence, stipulated evidence or judicially
noticed evidence. Rule 201(g) of the Federal Rules of Evidence requires
that the court instruct the jury that \"it may, but is not required to,
accept as conclusive any fact judicially noticed.\" *See* Instruction
2.04, *supra*.

2\. *See* 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 12.05 (5th ed. 2000). *See generally* West Key
\# \"Criminal Law\" 305-325.

In certain situations it may be appropriate to instruct the jury with
respect to a specific inference it may make. *See* Instructions 4.13 and
4.15, *infra*, for instructions and comments on specific inferences.

3\. This paragraph should not be given, of course, if there has been an
inspection or testimony taken outside the courtroom.

4\. *See* Instructions 2.08-.20, *supra*.

**Committee Comments**

*See* 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal §§ 12.03, 12.08 (5th ed. 2000); Fifth Circuit
Pattern Jury Instructions: Criminal § 1.07 (1997); Ninth Cir. Crim. Jury
Instr. 3.4, 3.5 (1997); Eleventh Circuit Pattern Jury Instructions:
Criminal (Basic) §§ 4.1-4.2 (1997).

*See also* Instructions 1.03, 2.02, 2.03, 2.04, *supra*.

**3.04 CREDIBILITY OF WITNESSES**

In deciding what the facts are, you may have to decide what testimony
you believe and what testimony you do not believe. You may believe all
of what a witness said, or only part of it, or none of it.

In deciding what testimony to believe, consider the witness\'s
intelligence, the opportunity the witness had to have seen or heard the
things testified about, the witness\'s memory, any motives that witness
may have for testifying a certain way, the manner of the witness while
testifying, whether that witness said something different at an earlier
time,^1^ the general reasonableness of the testimony, and the extent to
which the testimony is consistent with any evidence that you believe.

\[In deciding whether or not to believe a witness, keep in mind that
people sometimes hear or see things differently and sometimes forget
things. You need to consider therefore whether a contradiction is an
innocent misrecollection or lapse of memory or an intentional falsehood,
and that may depend on whether it has to do with an important fact or
only a small detail.\]

\[You should judge the testimony of the defendant in the same manner as
you judge the testimony of any other witness.\]^2^

**Notes on Use**

1\. With respect to the use of prior inconsistent statements (second
paragraph of this instruction), Fed. R. Evid. 105 gives a party the
right to require a limiting instruction explaining that the use of this
evidence is limited to credibility. Note, however, that such a limiting
instruction should not be given if the prior inconsistent statement was
given under oath in a prior trial, hearing or deposition, because such
prior sworn testimony of a witness is not hearsay and may be used to
prove the truth of the matters asserted. Fed. R. Evid. 801(d)(1)(A).

2\. To be given only if the defendant has testified. *See Taylor v.
United States*, 390 F.2d 278, 282 (8th Cir. 1968).

**Committee Comments**

*See* Ninth Cir. Crim. Jury Instr. 3.7 (1997); 1A Kevin F. O'Malley, et
al., *Federal Jury Practice and Instructions*: Criminal §§ 15.01, 15.02
(5th ed. 2000); Fifth Circuit Pattern Jury Instructions: Criminal § 1.08
(1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Basic) § 5
(1997); *United States v. Hastings*, 577 F.2d 38, 42 (8th Cir. 1978).
*See generally* West Key \# \"Criminal Law\" 785 (1-16).

*See also* Instruction 1.05, *supra*.

The form of a credibility instruction is within the discretion of the
trial court. *Clark v. United States*, 391 F.2d 57, 60 (8th Cir. 1968);
*United States v. Merrival*, 600 F.2d 717, 719 (8th Cir. 1979). In
*Clark*, the court held that the following instruction given by the
trial court correctly set out the factors to be considered by the jury
in determining the credibility of the witnesses:

You are instructed that you are the sole judges of the credibility of
the witnesses and of the weight and value to be given to their
testimony. In determining such credibility and weight you will take into
consideration the character of the witness, his or her demeanor on the
stand, his or her interest, if any, in the result of the trial, his or
her relation to or feeling toward the parties to the trial, the
probability or improbability of his or her statements as well as all the
other facts and circumstances given in evidence.

391 F.2d at 60. In *Merrival*, the court held that the following general
credibility instruction provided protection for the accused:

You, as jurors, are the sole judges of the truthfulness of the witnesses
and the weight their testimony deserves.

You should carefully study all the testimony given, the circumstances
under which each witness has testified, and every matter in evidence
which tends to show whether a witness is worthy of belief. Consider each
witness\'s ability to observe the matters as to which he or she has
testified and whether each witness is either supported or contradicted
by other evidence in the case.

600 F.2d at 720 n.2.

The general credibility instruction given in *United States v.
Phillips*, 522 F.2d 388, 391 (8th Cir. 1975) covers other details:

The jurors are the sole judges of the weight and credibility of the
testimony and of the value to be given to each and any witness who has
testified in the case. In reaching a conclusion as to what weight and
value you ought to give to the testimony of any witness who has
testified in the case, you are warranted in taking into consideration
the interest of the witness in the result of the trial; take into
consideration his or her relation to any party in interest; his or her
demeanor upon the witness stand; his or her manner of testifying; his or
her tendency to speak truthfully or falsely, as you may believe, the
probability or improbability of the testimony given; his or her
situation to see and observe; and his or her apparent capacity and
willingness to truthfully and accurately tell you what he or she saw and
observed; and if you believe any witness testified falsely as to any
material issue in this case, then you must reject that which you believe
to be false, and you may reject the whole or any part of the testimony
of such witness. (Emphasis omitted.)

The instruction in the text is basically a paraphrase of Ninth Cir.
Crim. Jury Instr. 3.7 (1997) and former 1 Edward J. Devitt, et al.,
*Federal Jury Practice and Instructions*: Civil and Criminal § 17.01
(now 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 15.01 (5th ed. 2000)), as approved in *United
States v. Hastings*, 577 F.2d at 42. However any factors set out in the
*Phillips*, *Clark*, or *Merrival* instructions, may be inserted when
relevant to the case.

A general instruction on the credibility of witnesses is in most cases
sufficient. Whether a more specific credibility instruction is required
with respect to any particular witness or class of witnesses is
generally within the discretion of the trial court. Some of the most
common situations are covered in Instructions 4.04 (Testimony under
Grant of Immunity or Plea Bargain), 4.05 (Testimony of Accomplice), 4.06
(Testimony of Informer), and 4.08 (Eye Witness Testimony), *infra*.

As to the credibility of a \"perjurer,\" *see* *United States v.
Koonce*, 485 F.2d 374, 378 n.8 (8th Cir. 1973); *United States v.
Spector*, 793 F.2d 932, 939 (8th Cir. 1986); *United States v. Reda*,
765 F.2d 715, 718-19 (8th Cir. 1985); 1A Kevin F. O'Malley, et al.,
*Federal Jury Practice and Instructions*: Criminal § 15.10 (5th ed.
2000); Seventh Circuit Federal Jury Instructions: Criminal § 1.03
(1999); Ninth Cir. Crim. Jury Instr. 4.8 (1997). Both *Koonce* and
*Reda* supported the trial court\'s rejection of a "*falsus in uno,
falsus in omnibus*\" instruction.

Some instructions specifically address the credibility of a defendant in
terms of his interest in the case. *See*, *e.g.*, 1A Kevin F. O'Malley,
et al., *Federal Jury Practice and Instructions*: Criminal § 15.12 (5th
ed. 2000). This circuit has repeatedly criticized the use of such an
instruction because it has the effect of singling out the defendant in
the jury charge. *United States v. Bear Killer*, 534 F.2d 1253, 1260
(8th Cir. 1976). *See also* *Taylor v. United States*, 390 F.2d 278, 282
(8th Cir. 1968); *United States v. Brown*, 453 F.2d 101, 107 (8th Cir.
1971); *United States v. Standing Soldier*, 538 F.2d 196, 204 (8th Cir.
1976).

The credibility of a child witness is covered in 1A Kevin F. O'Malley,
et al., *Federal Jury Practice and Instructions*: Criminal § 15.13 (5th
ed. 2000). Seventh Circuit Federal Jury Instructions: Criminal § 3.23
(1999) and Ninth Cir. Crim. Jury Instr. 4.14 (1997) recommend that no
\"child witness\" instruction be given. This Committee joins in those
comments.

The testimony of police officers is addressed in *Golliher v. United
States*, 362 F.2d 594, 604 (8th Cir. 1966).

Instructions on the credibility of rape victims are usually rejected.
*United States v. Merrival*, 600 F.2d 717, 719 (8th Cir. 1979); *United
States v. Vik*, 655 F.2d 878 (8th Cir. 1981); *United States v. Bear
Ribs*, 722 F.2d 420 (8th Cir. 1983).

Factors to be taken into account in determining whether a special
instruction is warranted with respect to a drug user are discussed in
*United States v. Johnson*, 848 F.2d 904, 905-06 (8th Cir. 1988).
Addict-Informers are covered in Committee Comments Instruction 4.06,
*infra*.

Impeachment evidence is also related to credibility. Instructions
2.16-.19, *supra*, cover this concept in the form of limiting
instructions. Impeachment by prior inconsistent statement is covered in
this instruction. *See United States v. Rogers*, 549 F.2d 490 (8th Cir.
1976). *See also* impeachment instructions in Ninth Cir. Crim. Jury
Instr. 4.6-4.8 (1997); 1A Kevin F. O'Malley, et al., *Federal Jury
Practice and Instructions*: Criminal §§ 15.07, 15.09 (5th ed. 2000);
Fifth Circuit Pattern Jury Instructions: Criminal §§ 1.10-1.13 (1997);
Eleventh Circuit Pattern Jury Instructions: Criminal (Basic) §§ 6.1-6.7
(1997).

Whether a party is entitled to a more specific instruction on witness
bias is also generally left to the discretion of the trial court. *See*
1A Kevin F. O'Malley, et al., *Federal Jury Practice and Instructions*:
Criminal § 15.01 (5th ed. 2000); *United States v. Ashford*, 530 F.2d
792, 799 (8th Cir. 1976).

**3.05 DESCRIPTION OF CHARGE; INDICTMENT NOT EVIDENCE; PRESUMPTION**

**OF INNOCENCE; BURDEN OF PROOF (SINGLE DEFENDANT, SINGLE COUNT)**

The indictment in this case charges that the defendant committed the
crime of (insert offense).^1^ The defendant has pleaded not guilty to
that charge.

As I told you at the beginning of the trial, an indictment is simply an
accusation. It is not evidence of anything. To the contrary, the
defendant is presumed to be innocent. Thus the defendant, even though
charged, begins the trial with no evidence against \[him\] \[her\]. The
presumption of innocence alone is sufficient to find the defendant not
guilty and can be overcome only if the Government proves, beyond a
reasonable doubt, each element of the crime charged.

\[There is no burden upon a defendant to prove that \[he\] \[she\] is
innocent.\] \[Accordingly, the fact that \[a\] defendant did not testify
must not be considered by you in any way, or even discussed, in arriving
at your verdict.\]^2^

**Notes on Use**

1\. The description of the offense should be the same as that utilized
with Instruction 1.01.

2\. The sentences in this paragraph should be given only if the
defendant so requests. The Committee recommends that the court require
the defense to make this request on the record.

**Committee Comments**

*See* 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal §§ 13.01-13.04, 12.10 (5th ed. 2000). *See
generally* West Key \# \"Criminal Law\" 308, 317, 778 (3-4,6), 857(1).

An instruction on the \"presumption of innocence\" is one means of
protecting the accused\'s constitutional right to be judged solely on
the basis of the proof adduced at trial. *Taylor v. Kentucky*, 436 U.S.
478, 486 (1978). Failure to give such an instruction may be evaluated as
a due process violation. *Kentucky v. Whorton*, 441 U.S. 786, 790 (per
curiam), *reh\'g denied*, 444 U.S. 887 (1979).

Federal Judicial Center, Pattern Criminal Jury Instructions § 9 (1988),
Seventh Circuit Federal Jury Instructions: Criminal § 2.03 (1999) and
Ninth Cir. Crim. Jury Instr. 3.2.1 (1997) all contain more abbreviated
versions of the presumption of innocence. In *United States v.
Hollister*, 746 F.2d 420, 424 (8th Cir. 1984), however, the Eighth
Circuit criticized former Fifth Circuit Basic Instruction 3A as \"too
abbreviated\" and urged the continued use of former 1 Edward J.
Devitt,et al., *Federal Jury Practice and Instructions*: Civil and
Criminal § 11.13 (now 1A Kevin F. O'Malley, et al., *Federal Jury
Practice and Instructions*: Criminal § 13.04 (5th ed. 2000)), holding:
\"The clarity of the Devitt & Blackmar instruction renders it preferable
to other preference instructions.\" *Hollister* further cited *Taylor*,
which held that former § 11.14 (now 1A Kevin F. O'Malley, et al.,
*Federal Jury Practice and Instructions*: Criminal § 12.10 (5th ed.
2000)) \"appears to have been well suited to forestalling the jury\'s
consideration of extraneous matters \* \* \*.\" 463 U.S. at 488 n.16.

**3.06 DESCRIPTION OF CHARGES; INDICTMENT NOT EVIDENCE;**

**PRESUMPTION OF INNOCENCE; BURDEN OF PROOF**

**(SINGLE DEFENDANT, MULTIPLE COUNTS)**

The indictment in this case charges the defendant with (insert number)
different crimes. Under Count\[s\] I \[\_\_\_\], the indictment charges
that the defendant committed the crime of (describe offense).^1^

\[Under Count\[s\] \_\_ \[\_\_\_\], the indictment charges that the
defendant committed the crime of (describe offense). (Continue as
necessary.)\] The defendant has pleaded not guilty to each of those
charges.

As I told you at the beginning of the trial, an indictment is simply an
accusation. It is not evidence of anything. To the contrary, the
defendant is presumed to be innocent. Thus the defendant, even though
charged, begins the trial with no evidence against \[him\] \[her\]. The
presumption of innocence alone is sufficient to find the defendant not
guilty and can be overcome only if the Government proves, beyond a
reasonable doubt, each element of the crime charged.

Keep in mind that each count charges a separate crime. You must consider
each count separately, and return a separate verdict for each count.

\[There is no burden upon a defendant to prove that he or she is
innocent.\] \[Accordingly, the fact that \[a\] defendant did not testify
must not be considered by you in any way, or even discussed, in arriving
at your verdict.\]^2^

**Notes on Use**

1\. The description of the offense should be the same as that utilized
with Instruction 1.01.

2\. The sentences in this paragraph should be given only if the
defendant so requests. The Committee recommends the court require the
defense make this request on the record.

**Committee Comments**

*See* 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal §§ 13.01-13.04, 12.10, 12.12 (5th ed. 2000).
*See generally* West Key \# \"Criminal Law\" 308, 317, 778(3-4,6),
857(1).

*See also* Committee Comments, Instruction 3.05, *supra*.

When the counts are satisfactorily distinguished in the jury charge, it
will be presumed that the jury followed the instructions and thus did
not confuse the evidence pertinent to the individual counts. This
instruction will also help avoid prejudicial error resulting from
misjoinder of offenses. *See* Fed. R. Crim. P. 14; *Opper v. United
States*, 348 U.S. 84, 95 (1954); *United States v. Brim*, 630 F.2d 1307,
1310 (8th Cir. 1980); *United States v. Wedelstedt*, 589 F.2d 339, 343
n.4 (8th Cir. 1978); *United States v. Jines*, 536 F.2d 1255, 1257 (8th
Cir. 1976); *Fisher v. United States*, 324 F.2d 775, 781 (8th Cir.
1964).

**3.07 DESCRIPTION OF CHARGES; INDICTMENT NOT EVIDENCE;**

**PRESUMPTION OF INNOCENCE; BURDEN OF PROOF**

**(MULTIPLE DEFENDANTS, SINGLE COUNT)**

The indictment in this case charges that the defendants committed the
crime of (describe offense).^1^

As I told you at the beginning of trial, an indictment is simply an
accusation. It is not evidence of anything. To the contrary, each
defendant is presumed to be innocent. Thus each defendant, even though
charged, begins the trial with no evidence against \[him\] \[her\]. The
presumption of innocence alone is sufficient to find the defendant not
guilty and can be overcome only if the Government proves, beyond a
reasonable doubt, each element of the crime charged.

Keep in mind that you must give separate consideration to the evidence
about each individual defendant. Each defendant is entitled to be
treated separately, and you must return a separate verdict for each
defendant.

\[There is no burden upon a defendant to prove that he or she is
innocent.\] \[Accordingly, the fact that \[a\] defendant did not testify
must not be considered by you in any way, or even discussed, in arriving
at your verdict.\]^2^

**Notes on Use**

1\. The description of the offense should be the same as that utilized
with Instruction 1.01.

2\. The sentences in this paragraph should be given only if the
defendant so requests. The Committee recommends the court require the
defense make this request on the record.

**Committee Comments**

*See* 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal §§ 13.01-13.04, 12.10, 12.12, 12.13 (5th ed.
2000). *See generally* West Key \# \"Criminal Law\" 308, 317, 778(3-4,
6), 857(1).

*See also* Committee Comments, Instructions 3.05 and 3.06, *supra*.

**3.08 DESCRIPTION OF CHARGES; INDICTMENT NOT EVIDENCE;**

**PRESUMPTION OF INNOCENCE; BURDEN OF PROOF**

**(MULTIPLE DEFENDANTS, MULTIPLE COUNTS)**

The charges in this case are as follows:

Under Count\[s\] I \[\_\_\_\], the indictment charges that
defendant\[s\] (insert name\[s\]) committed the crime of (describe
offense).^1^

\[Under Count\[s\] \_\_ \[\_\_\_\], the indictment charges that
defendant\[s\] (insert name\[s\]) committed the crime of (describe
offense). (Continue as necessary). Each defendant has pleaded not guilty
to each crime with which \[he\] \[she\] is charged.

As I told you at the beginning of trial, an indictment is simply an
accusation. It is not evidence of anything. To the contrary, each
defendant is presumed to be innocent. Thus each defendant, even though
charged, begins the trial with no evidence against \[him\] \[her\]. So
the presumption of innocence alone is sufficient to find the defendant
not guilty and can be overcome only if the Government proves, beyond a
reasonable doubt, each element of the crime charged.

Keep in mind that you must give separate consideration to the evidence
about each individual defendant. Each defendant is entitled to be
treated separately, and you must return a separate verdict for each
defendant. Also keep in mind that you must consider, separately, each
crime charged against each individual defendant, and must return a
separate verdict for each of those crimes charged.

\[There is no burden upon a defendant to prove that he or she is
innocent.\] \[Accordingly, the fact that \[a\] defendant did not testify
must not be considered by you in any way, or even discussed, in arriving
at your verdict.\]^2^

**Notes on Use**

1\. The description of the offense should be the same as that utilized
with Instruction 1.01.

2\. The sentences in this paragraph should be given only if the
defendant so requests. The Committee recommends the court require the
defense make this request on the record.

**Committee Comments**

*See* 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal §§ 13.01-13.04, 12.10, 12.12, 12.13 (5th ed.
2000). *See generally* West Key \# \"Criminal Law\" 308, 317, 778(3-4,
6), 857(1).

*See also* Committee Comments, Instructions 3.05 and 3.06, *supra*.

In *United States v. Nabors*, 762 F.2d 642, 652 (8th Cir. 1985), the
Court held that the following instruction sufficiently informed the jury
that it was deciding the guilt or innocence of two separate individuals
on two separate counts:

Each offense, and the evidence pertaining to it, should be considered
separately. The fact that you may find some or all of the accused guilty
or not guilty of one of the offenses charged should not control your
verdict as to any other offense charged against any of the defendants.

**3.09 ELEMENTS OF OFFENSE; BURDEN OF PROOF**

The crime of \_\_\_\_\_\_\_\_\_^1^, as charged in \[Count \_\_\_ of\]
the indictment, has \_\_\_\_ elements, which are:

*One*,
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_;

*Two*,
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_;
and

*Etc.*,
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_.

If all of \[these\] \[the\]^2^ elements have been proved beyond a
reasonable doubt as to \[the defendant\] \[defendant (name)\] \[and if
it has further been proved beyond a reasonable doubt that \[the
defendant) \[defendant (name)\] was not \[entrapped\] \[acting in self
defense\], \[acting in defense of \_\_\_\_\_\_\_\_\] \[as defined in
Instruction No. \_\_\_\_\]\];^3^ then you must find \[the defendant\]
\[defendant (name)\] guilty of the crime charged \[under Count
\_\_\_\_\_\]; otherwise you must find \[the defendant\] \[defendant
(name)\] not guilty of this crime \[under Count \_\_\_\_\].^4^

**Notes on Use**

1\. The description of the offense should be the same as that utilized
with Instructions 1.01 and 3.05, 3.06, 3.07 or 3.08. There may be
occasions, however, when the trial judge prefers not to repeat the
description of the charge. In that event, the opening clause of this
instruction should be modified to read as follows:

The crime charged in \[Count \_\_\_ of\] the indictment has \_\_\_\_
elements, which are:

2\. Use \"the\" when the instruction does not immediately follow the
enumeration of the elements, such as in a multiple-offense case.

3\. If the evidence in the case is sufficient to support submission of
one of the so-called \"affirmative defenses\" other than insanity,
coercion or withdrawal from conspiracy, this or similar language should
be used in this instruction, *United States v. Norton*, 846 F.2d 521,
524-25 (8th Cir. 1988), and the appropriate affirmative defense
instruction from Section 9 should be given separately. Other defenses
which the government has the burden of disproving can be handled in a
similar fashion as those set out in Section 9.

The *Norton* case addressed the 1986 edition of these instructions in
which the affirmative defense was placed in the elements section of this
instruction. The Committee believes that it is consistent with *Norton*
to place the affirmative defense in the verdict directing paragraph of
this instruction as has been done here since an affirmative defense is
not technically a negative element. However, *Norton* does allow the
affirmative defense to be placed in the instruction as a negative
element.

If the defense of insanity or coercion is in issue, the last paragraph
of this instruction 3.09 should be changed to read as follows:

If all of these elements have been proved beyond a reasonable doubt, you
must find the defendant *guilty*, *unless* you also find that the
defendant was \[insane\] \[coerced\] at the time of the crime, \[as
defined in Instruction No. \_\_\_\] in which case \[he\] \[she\] must be
found *not guilty by reason of \[insanity\] \[coercion\]*. The defendant
has the burden of proving, \[by clear and convincing evidence, that
\[he\] \[she\] was insane\] \[by the greater weight of the evidence,
that \[he\] \[she\] was coerced\] at the time of the crime. The
Government does not have the burden of proving that the defendant was
\[sane\] \[not coerced\].

Instruction 9.03, defining insanity, \[or 9.02, defining coercion,\]
should immediately follow.

4\. In many of the elements instructions set out in Section 6 of this
Manual it is recommended that certain evidentiary matter be inserted to
make the instruction more specific to the case. For example, instead of
the word \"property,\" it is suggested that the property be specifically
described. This procedure works best in cases in which not more than one
violation of any statute is charged. However, in multi count cases
charging more than one violation of the same statute, a separate
elements instruction for each count would be required to accomplish such
specificity. Where the court wishes to avoid giving a series of almost
identical elements instructions pertaining to the same statutory
violation, various alternatives can be used.

One suggestion would be to generalize the elements instruction, i.e.,
use \"property\" instead of a specific description of the property, and
make the one instruction applicable to all counts charging violations of
the same statute. *See* Appendix A. In cases in which there are more
factual variables between counts, the element which changes may be
restated for each count and the elements which do not change given only
once. *See* Appendix B.

In districts or courts in which the practice requires a separate
elements instruction for each count, if the written instructions are to
be sent to the jury room, and if the written elements instruction (this
instruction 3.09) for each count is written out in full, the Committee
believes it is safe if the trial judge, in reading the instructions to
the jury, reads only the first such instruction in full and thereafter,
as to the same kind of offense in subsequent counts, explains that the
elements are the same as those previously read, except with respect to
the element which is different, then reading in full only that element.

In multi-count or multi-defendant cases the jury should be instructed to
consider each count or each defendant separately. *See* 1A Kevin F.
O'Malley, et al., *Federal Jury Practice and Instructions*: Criminal §§
12.12 and 12.13 (5th ed. 2000).

**Committee Comments**

*See* 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 12.10 (5th ed. 2000). *See generally* West Key
\# \"Criminal Law,\" 772, 811(3), 814(5), 815(4), 822(6), 823(4),
825(2), 829(3), 834(3).

The Committee has prepared an elements instruction for many of the most
commonly encountered offenses. For other offenses not covered by this
effort, the Committee suggests a review of the statute and controlling
case law to determine the elements of an offense, followed by a careful
effort to state those elements in language which is as simple and direct
as possible.

This instruction 3.09 is designed for use in any case, regardless of the
number of defendants or counts in the indictment. The bracketed phrases
set forth the language alternatives necessary where the case involves
multiple defendants, or multiple counts, or both. Without any of the
bracketed phrases, the instruction serves for a single defendant, single
count case. The same thing is true of the elements instructions in
Section 6. If the indictment involves two or more different statutory
violations, a separate elements instruction will be necessary for each
violation. If two or more counts charge violations of the same statute,
the elements instruction can be handled in various ways. *See* Note 4,
*supra*.

**Appendix A**

The crime of interstate transportation of stolen securities, as charged
in Counts II-IX of the indictment, has four elements, which are:

*One*, the security, which in each of Counts II-IX is alleged to be a
separate John Doe Company bond, was stolen;

*Two*, the security then had a value of \$5,000.00 or more;

*Three*, after the security was stolen, the defendant caused it to be
moved across a state line; and

*Four*, at the time he caused the security to be moved across a state
line, the defendant knew that it had been stolen.

If all of \[these\] \[the\] elements have been proved beyond a
reasonable doubt as to \[the defendant\] \[defendant (name)\] \[and if
it has further been proved beyond a reasonable doubt that \[the
defendant\] \[defendant (name)\] was not \[entrapped\] \[acting in self
defense\], \[acting in defense of \_\_\_\_\_\_\_\_\] \[as defined in
Instruction No. \_\_\_\_\]\]; then you must find \[the defendant\]
\[defendant (name)\] guilty of the crime charged \[under Count
\_\_\_\_\_\]; otherwise you must find \[the defendant\] \[defendant
(name)\] not guilty of this crime \[under Count \_\_\_\_\].

(Insert an instruction advising the jury to consider each count
separately. *See* 1A Kevin F. O'Malley, et al., *Federal Jury Practice
and Instructions*: Criminal § 12.12 (5th ed. 2000).)

**Appendix B**

The crime of distribution of cocaine, as charged in Counts II, III, and
IV of the indictment, has three elements, which are:

*One*, that as to Count II, on or about March 2, 1983, in the District
of Nebraska, R. Roe knowingly or intentionally did unlawfully distribute
cocaine;

that as to Count III, on or about March 22, 1983, in the District of
Nebraska, R. Roe knowingly or intentionally did unlawfully distribute
cocaine;

that as to Count IV, on or about April 11, 1983, in the District of
Nebraska, R. Roe knowingly or intentionally did unlawfully distribute
cocaine;

*Two*, that such distribution was being carried out in furtherance of
the conspiracy alleged in Count I; and

*Three*, that such distribution was at a time when the defendant was a
member of the conspiracy alleged in Count I.

If all of \[these\] \[the\] elements have been proved beyond a
reasonable doubt as to \[the defendant\] \[defendant (name)\] \[and if
it has further been proved beyond a reasonable doubt that \[the
defendant\] \[defendant (name)\] was not \[entrapped\] \[acting in self
defense\], \[acting in defense of \_\_\_\_\_\_\_\_\] \[as defined in
Instruction No. \_\_\_\_\]\]; then you must find \[the defendant\]
\[defendant (name)\] guilty of the crime charged \[under Count
\_\_\_\_\_\]; otherwise you must find \[the defendant\] \[defendant
(name)\] not guilty of this crime \[under Count \_\_\_\_\].

(Insert an instruction advising the jury to consider each count and each
defendant separately. *See* 1A Kevin F. O'Malley, et al., *Federal Jury
Practice and Instructions*: Criminal § 12.13 (5th ed. 2000).)

**3.10 LESSER INCLUDED OFFENSE**

If your verdict under Instruction No. \_\_\_ \[as to any particular
defendant charged\] \[under Count \_\_\_\] is not guilty, or if, after
all reasonable efforts, you are unable to reach a verdict \[as to that
defendant\] on Instruction No. \_\_\_, you should record that decision
on the verdict forms and go on to consider whether \[that\] defendant is
guilty of the crime of (describe lesser included offense) under this
instruction. The crime of (describe lesser included offense), \[a lesser
included offense of the crime charged in \[Count \_\_\_ of\] the
indictment,\]^1^ has \_\_\_\_\_ elements, which are:

*One*,
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_;

*Two*,
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_;
and

*Etc.*,
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_.

For you to find \[a\] defendant guilty of this crime \[, a lesser
included offense,\] \[under Count \_\_\_\], the Government must prove
all of these elements beyond a reasonable doubt \[as to that
defendant\]; otherwise you must find the \[that particular\] defendant
not guilty of this crime \[,a lesser included offense,\] \[under Count
\_\_\_\].^2^

**Notes on Use**

1\. The bracketed language describing the offense as a lesser included
offense is optional.

2\. If a lesser included offense is submitted to the jury using this
instruction, which allows a guilty verdict on the lesser included
offense, and if the jury finds the defendant not guilty of the greater
offense or is unable to reach a verdict on the greater offense, the
verdict form should be modified to reflect that option.

**Committee Comments**

*See* 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 20.05 (5th ed. 2000); Federal Judicial Center,
Pattern Criminal Jury Instructions § 48 (1988); Seventh Circuit Federal
Jury Instructions: Criminal § 2.02 (1999); Ninth Cir. Crim. Jury Instr.
3.13 (1997).

*See generally* Fed. R. Crim. P. 31(c); West Key \# \"Criminal Law,\"
763(9), 795, 814(20), 815(13), 822(17), 824(3), 829(3).

In *Catches v. United States*, 582 F.2d 453 (8th Cir. 1978), the Eighth
Circuit adopted the Second Circuit\'s holding in *United States v.
Tsanas*, 572 F.2d 340, 346 (2d Cir. 1978), that is was not \"wrong as a
matter of law\" to require a unanimous verdict of not guilty on the
greater offense before the jury could consider a lesser included
offense, but also approved an alternative instruction permitting the
jury to consider the lesser included offense \"if after all reasonable
efforts it is unable to reach a verdict on the greater.\" The Eighth
Circuit concurred with the rule that \"if the defendant seasonable
expresses a preference for \[this\] alternative instruction, the
district court should give that form of instruction.\" This approach is
followed in *United States v. Hanson*, 618 F.2d 1261, 1265 (8th Cir.
1980) and *United States v. Roy*, 843 F.2d 305, 309 (8th Cir.1988).

The Committee recommends the use of an instruction such as this one,
which presents both alternatives.

A five-part test for determining whether a lesser included instruction
should be given as been enunciated frequently. *See*, *e.g.*, *United
States v. Neiss*, 684 F.2d 570, 571 (8th Cir. 1982). In *United States
v. Roy*, 843 F.2d at 310, the court set out a four-part test which does
not include the \"mutuality\" factor of the five-part test.

The Supreme Court has settled a conflict among the circuits and adopted
an \"elements\" test to determine when one offense is necessarily
included in another.

Under this test, one offense is not necessarily included in another
unless the elements of the lesser offense are a subset of the elements
of the charged offense. Where the lesser offense requires an element not
required for the greater offense, no instruction is to be given under
Rule 31(c).

*Schmuck v. United States*, 489 U.S. 705, 715 (1989).

In a simple case with only one defendant, the lesser included offense
instruction could start with the phrase, \"\[i\]f you do not find the
defendant guilty of \_\_\_ under Instruction No. \_\_\_, then you must
consider whether he is guilty of \_\_\_\_ under this instruction.\" The
instruction should then continue with an elements instruction and burden
of proof instruction for the lesser included offense.

**3.11 REASONABLE DOUBT**

A reasonable doubt is a doubt based upon reason and common sense, and
not the mere possibility of innocence. A reasonable doubt is the kind of
doubt that would make a reasonable person hesitate to act. Proof beyond
a reasonable doubt, therefore, must be proof of such a convincing
character that a reasonable person would not hesitate to rely and act
upon it. However, proof beyond a reasonable doubt does not mean proof
beyond all possible doubt.

**Committee Comments**

*See* *United States v. Conley*, 523 F.2d 650, 655 (8th Cir. 1975); 1A
Kevin F. O'Malley, et al., *Federal Jury Practice and Instructions*:
Criminal § 12.10 (5th ed. 2000); Federal Judicial Center, Pattern
Criminal Jury Instructions § 21 (1988); *see also* Fifth Circuit Pattern
Jury Instructions: Criminal § 1.05 (1997); Ninth Cir. Crim. Jury Instr.
3.3 (1997); Eleventh Circuit Pattern Jury Instruction: Criminal (Basic)
§ 3 (1997). *See generally* West Key \# \"Criminal Law\" 789 (1-18),
822(16), 823(15), 824(12), 829(18), 834(5).

The instruction must be couched in terms of hesitation to act. *United
States v. Conley*, 523 F.2d at 655; *United States v. Jensen*, 561 F.2d
1297, 1300-01 (8th Cir. 1977), and cases cited therein.

Some jurisdictions define \"beyond a reasonable doubt\" as \"firmly
convinced.\" *See* Federal Judicial Center, Pattern Criminal Jury
Instructions § 21 (1988).

The instruction approved in *Conley* is as follows:

It is not required that the Government prove guilt beyond all possible
doubt. The test is one of reasonable doubt. A reasonable doubt is a
doubt based upon reason and common sense\--the kind of doubt that would
make a reasonable person hesitate to act. Proof beyond a reasonable
doubt must, therefore, be proof of such a convincing character that you
would be willing to rely and act upon it unhesitatingly. Putting it in
another way, a reasonable doubt means a doubt based on reason and not
the mere possibility of innocence.

523 F.2d at 655.

The language of the *Conley* instruction has been \"explicitly
approved\" by this circuit \"without reservation.\" *United States v.
Wilkerson*, 691 F.2d 425, 428 (8th Cir. 1982); *United States v.
Harris*, 974 F.2d 84, 85 (8th Cir. 1992); *United States v. Knight*, 547
F.2d 75, 77 (8th Cir. 1976); *United States v. Robertson*, 588 F.2d 575,
579 (8th Cir. 1978).

It is the court\'s duty to instruct on the meaning of reasonable doubt.
*Friedman v. United States*, 381 F.2d 155 (8th Cir. 1967). A
constitutionally inadequate reasonable doubt instruction is *not
harmless error*. *Sullivan v. Louisiana*, 508 U.S. 275 (1993).

This instruction does not use the phrases, \"moral evidence\" or \"moral
certainty,\" which raised some serious questions in *Sandoval v.
California*, 511 U.S. 1 (1994), nor other offensive language, such as
requiring a \"grave uncertainty,\" which was found objectionable in
*Cage v. Louisiana*, 498 U.S. 39, 40 (1990). It also does not follow the
proposal of Justice Ginsburg in her concurring opinion which endorses
the Federal Judicial Center\'s wording. Federal Judicial Center, Pattern
Criminal Jury Instructions § 21 (1988) provides as follows:

As I have said many times, the Government has the burden of proving the
defendant guilty beyond a reasonable doubt. Some of you may have served
as jurors in civil cases, where you were told that it is only necessary
to prove that a fact is more likely true than not true. In criminal
cases, the Government\'s proof must be more powerful than that. It must
be beyond a reasonable doubt.

Proof beyond a reasonable doubt is proof that leaves you firmly
convinced of the defendant\'s guilt. There are very few things in this
world that we know with absolute certainty, and in criminal cases the
law does not require proof that overcomes every possible doubt. If,
based on your consideration of the evidence, you are firmly convinced
that the defendant is guilty of the crime charged, you must find him
guilty. If, on the other hand, you think there is a real possibility
that he is not guilty, you must give him the benefit of the doubt and
find him not guilty.

The Supreme Court reiterated in *Sandoval* that the Constitution does
not mandate any particular form of words, and that the \"hesitate to
act\" formulation is permissible.

This instruction has been regularly approved in the Eighth Circuit, *see
United States v. Simms*, 18 F.3d 588 (8th Cir. 1994); *United States v.
West*, 28 F.3d 748 (8th Cir. 1994), and in the opinion of this
Committee, is more helpful to the average juror than is the Federal
Judicial Center instruction.

**3.12 ELECTION OF FOREPERSON; DUTY TO DELIBERATE; PUNISHMENT NOT**

**A FACTOR; COMMUNICATIONS WITH COURT; CAUTIONARY; VERDICT FORM**

In conducting your deliberations and returning your verdict, there are
certain rules you must follow. I shall list those rules for you now.

*First*, when you go to the jury room, you must select one of your
members as your foreperson. That person will preside over your
discussions and speak for you here in court.

*Second*, it is your duty, as jurors, to discuss this case with one
another in the jury room. You should try to reach agreement if you can
do so without violence to individual judgment, because a verdict -
whether guilty or not guilty - must be unanimous.

Each of you must make your own conscientious decision, but only after
you have considered all the evidence, discussed it fully with your
fellow jurors, and listened to the views of your fellow jurors.

Do not be afraid to change your opinions if the discussion persuades you
that you should. But do not come to a decision simply because other
jurors think it is right, or simply to reach a verdict.

*Third*, if the defendant is found guilty, the sentence to be imposed is
my responsibility. You may not consider punishment in any way in
deciding whether the Government has proved its case beyond a reasonable
doubt.

*Fourth*, if you need to communicate with me during your deliberations,
you may send a note to me through the marshal or bailiff, signed by one
or more jurors. I will respond as soon as possible either in writing or
orally in open court. Remember that you should not tell anyone -
including me - how your votes stand numerically.

*Fifth*, your verdict must be based solely on the evidence and on the
law which I have given to you in my instructions. The verdict whether
guilty or not guilty must be unanimous. Nothing I have said or done is
intended to suggest what your verdict should be - that is entirely for
you to decide.^1^

*Finally*, the verdict form is simply the written notice of the decision
that you reach in this case. \[The form reads: (read form)\]. You will
take this form to the jury room, and when each of you has agreed on the
verdict\[s\], your foreperson will fill in the form, sign and date it,
and advise the marshal or bailiff that you are ready to return to the
courtroom.

\[If more than one form was furnished, you will bring the unused forms
in with you.\]

**Notes on Use**

1\. The trial judge may give a fair summary of the evidence as long as
the comments do not relieve the jury of its duty to find that each
element of the charged offense is satisfied. Judges may, in appropriate
cases, focus the jury on the primary disputed issues, but caution should
be exercised in doing so. *See* *United States v. Neumann*, 887 F.2d 880
(8th Cir. *en banc* 1989).

**Committee Comments**

As to the subject covered by the \"First\" point, *see* 1A Kevin F.
O'Malley, et al., *Federal Jury Practice and Instructions*: Criminal §
20.01 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury
Instructions § 58 (1988); Ninth Cir. Crim. Jury Instr. 7.1-7.8 (1997).

As to the subject covered by the \"Second\" point, *see* 1A Kevin F.
O'Malley, et al., *Federal Jury Practice and Instructions*: Criminal §
20.01 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury
Instructions § 10 (1988); Fifth Circuit Pattern Jury Instructions:
Criminal § 1.24 (1997); Seventh Circuit Federal Jury Instructions § 7.06
(1999); Ninth Cir. Crim. Jury Instr. 7.1 (1997). *See generally* West
Key \# \"Criminal Law\" 768(3), 865(1), 1174(1).

The Eighth Circuit has indicated that if a hammer instruction is to be
given, it is preferable that it be included in the final instructions
given before the jurors begin their deliberations. *Potter v. United
States*, 691 F.2d 1275, 1277 (8th Cir. 1982); *United States v. Arpan*,
887 F.2d 873 (8th Cir. *en banc* 1989). Accordingly, the Committee
recommends that the matter covered by this \"Second\" point always be
included as a part of the original final instructions.

In this circuit, a defendant does not have a right to an instruction
that the jury has the right to reach no decision. *United States v.
Arpan*, *reaffirming* *United States v. Skillman*, 442 F.2d 542 (8th
Cir. 1971).

As to when and in what circumstances a supplemental instruction may be
appropriate, *see* Instruction 10.02 *infra*.

As to the subject covered by the \"Third\" point, *see* 1A Kevin F.
O'Malley, et al., *Federal Jury Practice and Instructions*: Criminal §
20.01 (5th ed. 2000); Ninth Cir. Crim. Jury Instr. 7.3 (1997).

As to the subject covered by the \"Fourth\" point, *see* 1A Kevin F.
O'Malley, et al., *Federal Jury Practice and Instructions*: Criminal §
20.01 (5th ed. 2000); Fifth Circuit Pattern Jury Instructions: Criminal
§ 1.24 (1997); Seventh Circuit Federal Jury Instructions: Criminal §
7.05 (1999); Ninth Cir. Crim. Jury Instr. 7.5 (1997).

As to the subject covered by the \"Fifth\" point, *see* 1A Kevin F.
O'Malley, et al., *Federal Jury Practice and Instructions*: Criminal §
20.01 (5th ed. 2000); Ninth Cir. Crim. Jury Instr. 7.2 (1997).

As to the subject covered by the \"Final\" point, *see* 1A Kevin F.
O'Malley, et al., *Federal Jury Practice and Instructions*: Criminal §
20.01 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury
Instructions § 58 (1988); Ninth Cir. Crim. Jury Instr. 7.4 (1997).

**3.13 VENUE**

The Government must prove by the greater weight of the evidence that the
offense charged^1,2^ was begun, continued or completed^3^ in the (insert
district) District of (insert State)^4^.

To prove something by the greater weight of the evidence is to prove
that it is more likely true than not true. This is a lesser standard
than proof beyond a reasonable doubt. The requirement of proof beyond a
reasonable doubt applies to all other issues in the case \[except
insanity\].

**Notes on Use**

1\. The actual offense as charged in the elements instruction may be
named in lieu of using the phrase \"offense charged.\" If the elements
instructions do not submit all alternative means of committing the crime
charged, this instruction should be revised to make it consistent with
the elements instructions. *See*, *e.g.*, *United States v. Shyres*, 898
F.2d 647, 657-58 (8th Cir. 1990).

2\. The instruction should be tailored to fit the individual case. In
describing the event that establishes venue, the court should be careful
not to assume as true something that must be proven beyond a reasonable
doubt, such as the use of the mail.

3\. This language applies to continuous crimes. *See* 18 U.S.C. §
3237(a) (1988).

4\. Where appropriate, the geographic area encompassed by the district
may be set out in an instruction.

**Committee Comments**

Venue is a question of fact for the jury and must be instructed upon if
in issue. However, failure to give such an instruction is not reversible
error where the evidence establishing venue is very clear or
uncontradicted. *United States v. Redfearn*, 906 F.2d 352 (8th Cir.
1990); *United States v. Netz*, 758 F.2d 1308, 1312 (8th Cir. 1985);
*United States v. Moeckly*, 769 F.2d 453, 461 (8th Cir. 1985); *United
States v. Shyres*, 898 F.2d 647, 657-58 (8th Cir. 1990).

Venue need only be proved by a preponderance of the evidence. *Netz*,
758 F.2d at 1312.

**4.00 FINAL INSTRUCTIONS: CONSIDERATION OF PARTICULAR KINDS**

**OF EVIDENCE (Introductory Comment)**

This section covers jury instructions which address particular kinds of
evidence. These instructions, like those in Section 2 of this Manual,
are in a variety of forms. Some are limiting instructions which must be
given if requested under Fed. R. Evid. 105, others are purely
discretionary with the court and often need not be given if the same
concept is covered in a more general instruction. Others serve to
explain to the jury how to evaluate certain kinds of evidence that may
be outside its daily experience.

The instructions set out in Section 2 are not repeated here; however,
any of those instructions which were given during trial should in most
cases be repeated in the final charge. Moreover any Section 2
instruction which was not given during trial but is applicable and
properly requested could be appropriately given during the final charge.

Certain credibility instructions are covered in this section. The
Committee Comments to Instruction 3.04, *supra*, cover credibility in
general and situations in which a specific instruction may or may not be
appropriate.

The instructions in this section cover the most commonly encountered
situations. Other instructions may be appropriate in particular cases.

**4.01 THE DEFENDANT\'S FAILURE TO TESTIFY**

\[*See* last paragraph of Instructions 3.05 - 3.08, *supra*.\]

**Committee Comments**

*See* § 15.14 (4th ed. 1992); Federal Judicial Center, Pattern Criminal
Jury Instructions § 22 (1988); Seventh Circuit Federal Jury Instructions
§ 3.01 (1999); Ninth Cir. Crim. Jury Instr. 3.2.2 (1997); Eleventh
Circuit Pattern Jury Instructions: Criminal (Basic) § 2.2 (1997). *See
generally* West Key \# \"Criminal Law\" 787(1), 1173.2(5).

Although it is not reversible error to give an instruction such as this
without specific request, or even over the defendant\'s objection,
*Lakeside v. Oregon*, 435 U.S. 333 (1978), the Committee recommends that
the instruction not be given unless a defendant specifically requests
it. If the instruction is requested, it *must* be given, *Bruno v.
United States*, 308 U.S. 287, 292-94 (1939), even in a multi-defendant
trial where another defendant objects. *Id.*; *United States v.
Schroeder*, 433 F.2d 846, 851 (8th Cir. 1970).

The Committee recommends the practice of inquiring, on the record but
*outside* the jury\'s presence, whether the defendant elects to testify
and, if not, whether this instruction is desired.

**4.02 CHARACTER AND REPUTATION, FOR**

**TRUTHFULNESS, WITNESSES (INCLUDING THE DEFENDANT)^1^**

You have heard testimony about the character and reputation of \[(name
of witness)\] \[the defendant\] \[defendant (name)\] for truthfulness.
You may consider this evidence only in deciding whether to believe the
testimony of \[(name of witness)\] \[the defendant\] \[defendant
(name)\] and how much weight to give to it.

**Notes on Use**

1\. This instruction should *not* be used where a defendant\'s character
for truthfulness in fact represents a \"pertinent character trait\"
within the scope of Rule 404(a)(1). *United States v. Krapp*, 815 F.2d
1183, 1187 (8th Cir. 1987). In a perjury case, for example, the
defendant\'s character for truthfulness would presumably be a
\"pertinent character trait,\" and it would be erroneous to instruct
that the evidence could be used only in deciding whether to believe the
defendant\'s testimony (assuming that he testified). The same problem
may also exist with respect to certain types of fraud charges and other
offenses. In any such situation, if an instruction is to be given at all
(*see* Committee Comments, Instruction 4.03, *infra*, and *United States
v. Krapp*, 815 F.2d at 1187-88), it should advise the jury that it \"may
consider this evidence in deciding whether or not the defendant
committed the crime of \_\_\_\_\_\_\_\_\_\_.\" A similar sort of
instruction, if one is desired, may be used to cover evidence of other
pertinent character traits within Rule 404(a)(1) (e.g., peaceableness in
a murder case, etc.), and to cover pertinent character traits of a
*victim* within the scope of Rule 404(a)(2) (e.g., victim\'s aggressive
character where self defense is a defense).

**Committee Comments**

*See* 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 15.09 (5th ed. 2000); Seventh Circuit Federal
Jury Instructions: Criminal §§ 3.06, 3.12 (1999); Ninth Cir. Crim. Jury
Instr. 4.7 (1997). *See generally* Fed. R. Evid. 404(a)(3), 608; West
Key \# \"Criminal Law\" 785(8-13).

Once a criminal defendant has testified, his or her character for truth
and veracity may be attacked, as with any other witness, in the ways
provided for in Rule 608 (and 609), Fed. R. Evid. It is not necessary,
for that purpose, that he or she first have attempted to introduce
evidence of his or her good character for truth and veracity, *United
States v. Walker*, 313 F.2d 236, 238 (6th Cir. 1963). A defendant who
testifies has no right to offer evidence of his or her character for
truthfulness (as a witness) unless that character has first been
attacked, either in a way provided for in Rule 608 or in some other
actual way. *See* 3 *Weinstein\'s Evidence* ¶ 608\[08\] (1985). There
are, however, constitutional limitations on excluding character evidence
offered by a defendant. *See*, *e.g.*, *United States v. Watson*, 669
F.2d 1374, 1381-84 (11th Cir. 1982); *United States v. Davis*, 639 F.2d
239 (5th Cir. 1981).

If the defendant offers evidence of a pertinent character trait of the
victim, evidence of the defendant's own character as to that trait
becomes admissible. Fed. R. Evid. 404(a)(1).

**4.03 THE DEFENDANT\'S CHARACTER \"STANDING ALONE\"**

\[No instruction recommended.\]

**Committee Comments**

*See* *United States v. Krapp*, 815 F.2d 1183, 1187 (8th Cir. 1987).
*See generally* West Key \# \"Criminal Law\" 375-381, 776, 829(16).

Rule 405 of the Federal Rules of Evidence allows testimony as to the
reputation of the defendant or an opinion as to the defendant\'s
character in cases where evidence of character or a character trait is
admissible. The Eighth Circuit, along with some other circuits, has
disapproved the giving of a \"standing alone\" instruction (that proof
of the defendant\'s good character, standing alone, may be sufficient to
create a reasonable doubt with respect to such evidence) with regard to
such evidence. *United States v. Krapp*; *Black v. United States*, 309
F.2d 331, 343-44 (8th Cir. 1962). *See also* *United States v. Winter*,
663 F.2d 1120, 1148 (1st Cir. 1981); holding that such an instruction is
an unwarranted invasion of the jury\'s special function in deciding what
weight to give any particular item of evidence; *United States v.
Logan*, 717 F.2d 84 (3d Cir. 1983); *United States v. Foley*, 598 F.2d
1323 (4th Cir. 1979); *United States v. Ruppel*, 666 F.2d 261 (5th Cir.
1982). *But see* Justice White\'s dissent to the denial of certiorari in
*Spangler v. United States*, 487 U.S. 1224 (1988).

A \"standing alone\" instruction on good character does appear in many
jury instruction manuals. *See* Federal Judicial Center, Pattern
Criminal Jury Instructions § 51 (1988); Seventh Circuit Federal Jury
Instructions § 3.06 (1999); Eleventh Circuit Pattern Jury Instructions:
Criminal (Special) § 11 (1997).

Volume 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 15.15 (5th ed. 2000) proposes an instruction
which does not use the \"standing alone\" language but simply directs
the jury to consider that evidence along with the other evidence in the
case.

**4.04 TESTIMONY UNDER GRANT OF IMMUNITY OR PLEA BARGAIN**

You have heard evidence that (name of witness) \[has made a plea
agreement with the Government\] \[has received a promise from the
Government that \[he\] \[she\] will not be prosecuted\] \[has received a
promise from the Government that \[his\] \[her\] testimony will not be
used against \[him\] \[her\] in a criminal case\]. \[His\] \[Her\]
testimony was received in evidence and may be considered by you. You may
give \[his\] \[her\] testimony such weight as you think it deserves.
Whether or not \[his\] \[her\] testimony may have been influenced by the
\[plea agreement\] \[Government\'s promise\] is for you to determine.

\[The witness\'s guilty plea cannot be considered by you as any evidence
of this defendant\'s guilt. The witness\'s guilty plea can be considered
by you only for the purpose of determining how much, if at all, to rely
upon the witness\'s testimony.\]^1^

**Notes on Use**

1\. Use only where the government\'s promises have been coupled with a
guilty plea by the witness. Where there has simply been a guilty plea by
the witness to the crime on trial, without any evidence of a plea
bargain or other governmental promise, use Instruction 2.19, *supra*.

**Committee Comments**

*See* *United States v. Ridinger*, 805 F.2d 818, 821 n.5 (8th Cir.
1986); 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 15.03 (5th ed. 2000); *United States v.
Hastings*, 577 F.2d 38, 42 (8th Cir. 1978). *See generally* West Key \#
\"Criminal Law\" 507, 508(2, 9).

This instruction is designed to be used in normal situations involving a
plea agreement or a grant of immunity under 18 U.S.C. § 6002. If in a
particular case a witness receives a different or additional promise
from the government, there should be an appropriate modification of this
instruction.

An instruction regarding the credibility of immunized witnesses,
accomplices, informants, etc. is permissible and the Committee
recommends one be given if requested. Failure to give such an
instruction is not reversible error, however, where the testimony is
corroborated. *United States v. McGinnis*, 783 F.2d 755, 758 (8th Cir.
1986); *United States v. Mothershed*, 859 F.2d 585, 592 (8th Cir. 1988).

Where the testimony is uncorroborated, it is the better practice to
caution the jury. The jury is sufficiently cautioned when it is directed
to the specific factors the jury should take into account in assessing
the credibility of these categories of witnesses. *United States v.
Bowman*, 798 F.2d 333, 334-35 (8th Cir. 1986); *United States v.
Ridinger*, 805 F.2d 818, 821-22 (8th Cir. 1986). This instruction and
Instructions 4.05 and 4.06 were drafted to direct the jury\'s attention
to the specific factors.

It should be noted that, although other circuits have treated the
failure to caution the jury on uncorroborated testimony as reversible
error, *United States v. McGinnis*, 783 F.2d at 758, this circuit has
long held that there is no such \"absolute and mandatory duty . . .
imposed upon the court to advise the jury by instruction that they
should consider the testimony of an uncorroborated accomplice with
caution.\" *Esters v. United States*, 260 F.2d 393, 397 (8th Cir. 1958),
*construing* *Caminetti v. United States*, 242 U.S. 470, 496 (1917).
This circuit continues to construe *Caminetti* in accord with *Esters*.
*United States v. Rockelman*, 49 F.3d 418, 423 (8th Cir. 1995); *United
States v. Schoenfeld*, 867 F.2d 1059, 1061-62 (8th Cir. 1989); *United
States v. Shriver*, 838 F.2d 980, 983 (8th Cir. 1988).

While *Caminetti* acknowledges that the better practice is to
\"caution\" the jury, it did not require that the jury be so instructed
or specify the form of any such \"caution.\" Often this has been
accomplished by what this circuit has labeled a \"cautionary tail,\"
language to the effect that testimony from such a witness must be
examined with greater caution and care than ordinary witnesses. *See*,
*e.g.*, 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal §§ 15.02-.05 (5th ed. 2000); Federal Judicial
Center, Pattern Criminal Jury. Instructions §§ 24, 25 (1988); Seventh
Circuit Federal Jury Instructions: Criminal § 3.13 (1999); Ninth Cir.
Crim. Jury Instr. 4.9, 4.10.1, 4.10.2, 4.11, 4.15 (1997). However this
Circuit has criticized the use of a \"cautionary tail\" as an
unwarranted intrusion into the jury\'s functions.

Accordingly, if an instruction along with the lines of the text is
given, which identifies specific factors the jury should take into
account in assessing credibility, the Committee recommends against the
use of a \"cautionary tail\" in these kinds of instructions (4.04, 4.05,
and 4.06).

**4.05 TESTIMONY OF ACCOMPLICE**

You have heard testimony from (name of witness) who stated that \[he\]
\[she\] participated in the crime charged against the defendant. \[His\]
\[Her\] testimony was received in evidence and may be considered by you.
You may give \[his\] \[her\] testimony such weight as you think it
deserves. Whether or not \[his\] \[her\] testimony may have been
influenced by \[his\] \[her\] desire to please the Government or to
strike a good bargain with the Government about \[his\] \[her\] own
situation is for you to determine.

**Committee Comments**

*See* *United States v. Ridinger*, 805 F.2d 818, 821 n.5 (8th Cir.
1986); 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 15.04 (5th ed. 2000); *United States v.
Valdez*, 529 F.2d 996, 997 (8th Cir. 1976). *See generally* West Key \#
\"Criminal Law\" 780.

*See also* Committee Comments, Instruction 4.04, *supra*.

An accomplice instruction may be given if requested but is not required.
*United States v. Rockelman*, 49 F.3d 418, 423 (8th Cir. 1995); *United
States v. Schoenfeld*, 867 F.2d 1059, 1061-62 (8th Cir. 1989); *United
States v. Roberts*, 848 F.2d 906, 908 (8th Cir. 1988); *United States v.
Shriver*, 838 F.2d 980, 983 (8th Cir. 1988).

This instruction is to be used when the accomplice is called by the
government and his testimony does not exculpate the defendant. Do not
use this instruction if the witness received immunity; in that case, use
Instruction 4.04, *supra*.

An accomplice instruction is generally thought to be helpful to a
defendant\'s case, and the giving of such an instruction, even over
defense counsel\'s objection, may not be prejudicial error. *United
States v. Smith*, 596 F.2d 319, 322 (8th Cir. 1979) (defense counsel
objected because he did not wish to call attention to accomplice
testimony).

**4.05A CREDIBILITY - COOPERATING WITNESS**

You \[have heard\] \[are about to hear\] evidence that \[name of
witness\] hopes to receive a reduced sentence on criminal charges
pending against \[him\] \[her\] in return for \[his\] \[her\]
cooperation with the Government in this case. \[Name of witness\]
entered into an agreement with \[name of agency\] which provides
(specify general agreement, for example, that in return for his
assistance, the Government will dismiss certain charges, recommend a
less severe sentence \[which could be less than the mandatory minimum
sentence for the crime\[s\] with which he/she is charged\]). \[\[Name of
witness\] is subject to a mandatory minimum sentence, that is, a
sentence that the law provides must be of a certain minimum length. If
the prosecutor handling this witness's case believes \[he\] \[she\]
provided substantial assistance, that prosecutor can file in the court
in which the charges are pending against this witness a motion to reduce
\[his\] \[her\] sentence below the statutory minimum. The judge has no
power to reduce a sentence for substantial assistance unless the
Government, acting through the United States Attorney, files a such a
motion. If such a motion for reduction of sentence for substantial
assistance is filed by the Government, then it is up to the judge to
decide whether to reduce the sentence at all, and if so, how much to
reduce it.\]

You may give the testimony of this witness such weight as you think it
deserves. Whether or not testimony of a witness may have been influenced
by \[his\] \[her\] hope of receiving a reduced sentence is for you to
decide.

**4.06 TESTIMONY OF INFORMER**

You have heard evidence that (name of witness) has an arrangement with
the Government under which \[he\] \[she\] \[gets paid\] \[receives
(describe benefit)\] for providing information to the Government.
\[His\] \[Her\] testimony was received in evidence and may be considered
by you. You may give \[his\] \[her\] testimony such weight as you think
it deserves. Whether or not \[his\] \[her\] information or testimony may
have been influenced by \[such payments\] \[receiving (describe
benefit)\] is for you to determine.

**Committee Comments**

*See* *United States v. Ridinger*, 805 F.2d 818, 821 (8th Cir. 1986).
*See generally* West Key \# \"Criminal Law\" 785(4).

*See also* Committee Comments, Instruction 4.04, *supra*.

The giving of a special instruction on the credibility of an informer is
within the discretion of the trial court. *United States v. Robertson*,
706 F.2d 253, 255 (8th Cir. 1983). The presence of substantial
independent evidence in support of the defendant\'s guilt is a factor
entitled to considerable weight in determining whether the trial court
abused that discretion in refusing to give an informer instruction.
*Id.*

Case law clearly identifies an informer as a witness who is a narcotics
user or addict and who is testifying either to gain some advantage or to
avoid some disadvantage, or who is paid on a contingency fee basis by
the government. *See* *Government of Virgin Islands v. Hendricks*, 476
F.2d 776, 779-80 (3d Cir. 1973). Informants include witnesses who are
paid in cash or receive other benefits for their testimony in a specific
case or on a continuing basis by the government. *United States v. Lee*,
506 F.2d 111, 122-23 (D.C. Cir. 1974).

A witness who did not receive any pay or promises was held not to be an
informer in *United States v. Klein*, 701 F.2d 66, 68 (8th Cir. 1983)
and in *Jones v. United States*, 396 F.2d 66, 68 (8th Cir. 1969). A
reluctant witness who was told he would not be prosecuted if he told the
truth was not considered an informer in *United States v. Phillips*, 522
F.2d 388, 391-92 (8th Cir. 1975). In all of these cases it was held that
a cautionary instruction was not required.

The Eighth Circuit has declined to adopt a per se rule requiring that an
addict-informant instruction be given on request. Instead, the
circumstances of each case determine the need for an addict-informant
instruction. *United States v. Hoppe*, 645 F.2d 630, 633 (8th Cir. 1981)
(lists several factors obviating need for addict-informant instruction);
*United States v. Shigemura*, 682 F.2d 699, 702-03 (8th Cir. 1982);
*United States v. Broyles*, 764 F.2d 525, 527 (8th Cir. 1985).

**4.07 COMMON SCHEME - ACTS OR DECLARATIONS OF PARTICIPANT**

\[*See* Instruction 5.06I, *infra*.\]^1^

**Notes on Use**

1\. The \"Coconspirator Statements\" instruction at No. 5.06I, *infra*,
can be easily modified to apply to acts or declarations of a participant
in a common scheme.

**Committee Comments**

*See* 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 18.02 (5th ed. 2000)

*See* Committee Comments, Instruction 5.06I, *infra*.

Where there is evidence of a common scheme or plan, acts and
declarations of the participants may be introduced in the same manner as
acts or declarations of co-conspirators. Fed. R. Evid. 801(d)(2)(E)
defining such declarations to be non-hearsay applies whether or not a
conspiracy was charged. *United States v. Kiefer*, 694 F.2d 1109, 1112
n.2 (8th Cir. 1982); *United States v. Miller*, 644 F.2d 1241, 1244 (8th
Cir. 1981).

**4.08 EYEWITNESS TESTIMONY**

The value of identification testimony depends on the opportunity the
witness had to observe the offender at the time of the offense and to
make a reliable identification later.

In evaluating such testimony you should consider all of the factors
mentioned in these instructions concerning your assessment of the
credibility of any witness, and you should also consider, in particular,
whether the witness had an adequate opportunity to observe the person in
question at the time of the offense. You may consider, in that regard,
such matters as the length of time the witness had to observe the person
in question, the prevailing conditions at that time in terms of
visibility or distance and the like, and whether the witness had known
or observed the person at earlier times.

\[In general, a witness uses his or her senses to make an
identification. Usually the witness identifies an offender by the sense
of sight \-- but this is not necessarily so, and other senses may be
used.\]

You should also consider whether the identification made by the witness
after the offense was the product of \[his\] \[her\] own recollection.
You may consider, in that regard, the strength of the identification,
and the circumstances under which the identification was made, and the
length of time that elapsed between the occurrence of the crime and the
next opportunity the witness had to see the defendant.

\[You may also take into account that an identification made by picking
the defendant out of a group of similar individuals is generally more
reliable than one which results from the presentation of the defendant
alone to the witness.\]

If the identification by the witness may have been influenced by the
circumstances under which the defendant was presented to \[him\] \[her\]
for identification, you should scrutinize the identification with great
care.

\[You may take into account any occasions in which the witness failed to
make an identification of the defendant, or made an identification that
was inconsistent with \[his\] \[her\] identification at trial.\]

The Government has the burden of proving identity beyond a reasonable
doubt. It is not essential that the witness be free from doubt as to the
correctness of the identification. However you, the jury, must be
satisfied beyond a reasonable doubt of the accuracy of the
identification of the defendant before you may find \[him\] \[her\]
guilty. If you are not convinced beyond a reasonable doubt that the
defendant was the person who committed the crime, you must find the
defendant not guilty.

**Committee Comments**

*See* *United States v. Telfaire*, 469 F.2d 552, 558-59 (D.C. Cir.
1972); 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal §§ 14.10, 14.11 (5th ed. 2000). *See generally*
West Key \# \"Criminal Law\" 566, 785(10), 829(16), 1173.2(8).

Although the court in *Telfaire* found the case before it was not one
requiring a special eyewitness instruction, as part of its appellate
function it drafted an eyewitness instruction for future use in
appropriate cases. The instruction in this manual is basically the same
instruction. However, changes have been made in vocabulary and sequence
and repetitive material has been eliminated.

The purpose of the *Telfaire* instruction was to adopt the approach of
*United States v. Barber*, 442 F.2d 517, 528 (3d Cir. 1971) to
(1)\"obviate skeletal pattern instructions\" and (2) \"assure the
essential particularity demanded by the facts surrounding each
identification.\" 469 F.2d at 557. *Telfaire* stressed that the
instruction was to be used as a model, with the language to be revised
and adapted to suit the proof and contentions of each case. *Id.*

This Circuit has strongly recommended the giving of a *Telfaire*
instruction, if requested, in a case in which the reliability of
eyewitness identification of a defendant presents a serious question,
although the exact language need not be given, and further, where the
government\'s case rests solely or substantially on questionable
eyewitness identification, it is reversible error to refuse to give a
*Telfaire*-type instruction. *United States v. Mays*, 822 F.2d 793, 798
(8th Cir. 1987); *Williams v. Lockhart*, 736 F.2d 1264, 1267 (8th Cir.
1984); *United States v. Cain*, 616 F.2d 1056, 1058 (8th Cir. 1980);
*United States v. Greene*, 591 F.2d 471, 474-77 (8th Cir. 1979); *Durns
v. United States*, 562 F.2d 542, 549-50 (8th Cir. 1977); *United States
v. Dodge*, 538 F.2d 770, 783-84 (8th Cir. 1976); *United States v.
Roundtree*, 527 F.2d 16, 19 (8th Cir. 1975).

In *Dodge*, the court indicated it would view with concern the failure
to give specific and detailed instructions on identification in future
cases where the identification of the defendant is based solely or
substantially on eyewitness testimony. 538 F.2d at 784. Failure to give
such an instruction in that case was not grounds for reversal since the
identification was not considered \"questionable.\" *See also* *United
States v. Johnson*, 848 F.2d 904, 906 (8th Cir. 1988) holding that a
specific eyewitness instruction was not necessary where nothing
suggested that the eyewitness\' testimony was unreliable. A general
credibility instruction was held sufficient. In *Durns* failure to
include the first and last paragraphs of *Telfaire* was found not to be
error where there was substantial circumstantial evidence in addition to
the eyewitness identification. 562 F.2d at 549-50.

In *Greene* the court found failure to give the instruction reversible
error, analyzing the basic question as whether eyewitness testimony is
essential to support a conviction. 591 F.2d at 475. Three factors not
present in *Dodge* were found present in *Greene*: l) the eyewitness
identification was the sole basis for conviction; 2) there was the
possibility of misidentification and 3) the trial court gave no
instruction alerting the jury to the crucial role that eyewitness
identification played in that case. 591 F.2d at 476. It should be
further noted that the *Telfaire* instruction was requested. 591 F.2d at
474-75 n.4.

In *Cain* and *Mays* there was no prejudicial error to refuse to give a
requested *Telfaire* instruction where the identification testimony was
strongly corroborated. 616 F.2d at 1058-59; 822 F.2d at 798. In
*Roundtree* the court found no error where the instruction had not been
requested. 527 F.2d at 13.

In *United States v. Grey Bear*, 883 F.2d 1382 (8th Cir. 1989), the
court upheld a trial court's refusal to give a very detailed
identification instruction where the instruction given adequately
pointed out the relevant considerations to be weighed in gauging
eyewitness testimony including accurate recollection and the ability to
observe.

**4.09 INFLUENCING WITNESS, ETC.**

Attempts by a defendant to \[conceal\] \[destroy\] \[make up evidence\]
\[influence a witness\] \[influence witnesses\] in connection with the
crime charged in this case may be considered by you in light of all the
other evidence in the case. You may consider whether this evidence shows
a consciousness of guilt and determine the significance to be attached
to any such conduct.

\[Furthermore, you should also understand that such testimony does not
relate to the other defendants\[s\] in any way at all, and must not be
used against \[him\] \[her\] \[them\] for any purpose whatsoever.\]^1^

**Notes on Use**

1\. This limiting paragraph must be given when requested in
multi-defendant cases, *unless* the concealment, threats, etc. were part
of a conspiracy.

**Committee Comments**

*See* 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 14.07 (5th ed. 2000). *See generally* West Key
\# \"Criminal Law\" 351(8, 10), 778(10).

If the probative value of the evidence outweighs the prejudicial impact
under Fed. R. Evid. 403, evidence of threats by a defendant against a
potential witness can be used to show guilty knowledge. *United States
v. White*, 794 F.2d 367, 371 (8th Cir. 1986). *Cf.* *United States v.
Weir*, 575 F.2d 668, 670 (8th Cir. 1978) \[prejudicial impact not
outweighed\]. Evidence of attempts to influence witnesses is admissible
and it is for the jury to say what weight should be given to it. *United
States v. Hall*, 565 F.2d 1052, 1055 (8th Cir. 1977).

An instruction allowing the jury to consider whether such evidence
points to a consciousness of guilt was held appropriate under the
evidence in *United States v. Rucker*, 586 F.2d 899, 904 (2d Cir. 1978).

**4.10 OPINION EVIDENCE, EXPERT WITNESS**

You have heard testimony from persons described as experts. Persons who,
by knowledge, skill, training, education or experience, have become
expert in some field may state their opinions on matters in that field
and may also state the reasons for their opinion.

Expert testimony should be considered just like any other testimony. You
may accept or reject it, and give it as much weight as you think it
deserves, considering the witness\'s education and experience, the
soundness of the reasons given for the opinion, the acceptability of the
methods used, and all the other evidence in the case.

**Committee Comments**

*See* 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 14.01 (5th ed. 2000); Federal Judicial Center,
Pattern Criminal Jury Instructions § 27 (1988); Fifth Circuit Pattern
Jury Instructions: Criminal § 1.17 (1997); Seventh Circuit Federal Jury
Instructions: Criminal § 3.07 (1999); Ninth Cir. Crim. Jury Instr. 4.16
(1997). *See also* *Chatman v. United States*, 557 F.2d 147, 148-49 (8th
Cir. 1977). *See generally* Fed. R. Evid. 602, 701-05; West Key \#
\"Criminal Law\" 785(7).

**4.11 DEMONSTRATIVE SUMMARIES NOT RECEIVED IN EVIDENCE**

Certain charts and summaries have been shown to you in order to help
explain the facts disclosed by the books, records, or other underlying
evidence in the case. Those charts or summaries are used for
convenience. They are not themselves evidence or proof of any facts. If
they do not correctly reflect the facts shown by the evidence in the
case, you should disregard these charts and summaries and determine the
facts from the books, records or other underlying evidence.

**Committee Comments**

*See* 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 14.02 (5th ed. 2000); Ninth Cir. Crim. Jury
Instr. 4.17 (1997); *United States v. Lewis*, 759 F.2d 1316, 1329 n.6
(8th Cir. 1985); *United States v. Diez*, 515 F.2d 892, 905-06 (5th Cir.
1975). *See generally* 5 Weinstein\'s Evidence ¶ 1006 (1978).

*This instruction should be given only where the chart or summary is
used solely as demonstrative evidence.* Where such exhibits are admitted
into evidence pursuant to Fed. R. Evid. 1006, do *not* give this
instruction. For summaries admitted as evidence pursuant to Fed. R.
Evid. 1006, *see* Instruction 4.12, *infra*.

Sending purely demonstrative charts to the jury room is disfavored. If
they are submitted limiting instructions are strongly suggested. *United
States v. Possick*, 849 F.2d 332, 339 (8th Cir. 1988). The court may
advise the jury that demonstrative evidence will not be sent back to the
jury room.

**4.12 RULE 1006 SUMMARIES**

You will remember that certain \[schedules\] \[summaries\] \[charts\]
were admitted in evidence. You may use those \[schedules\] \[summaries\]
\[charts\] as evidence, even though the underlying documents and records
are not here.^1^ \[However, the \[accuracy\] \[authenticity\] of those
\[schedules\] \[summaries\] \[charts\] has been challenged. It is for
you to decide how much weight, if any, you will give to them. In making
that decision, you should consider all of the testimony you heard about
the way in which they were prepared.\]^2^

**Notes on Use**

1\. This instruction is not necessary if a stipulation instruction has
been given on the subject.

2\. The bracketed portion of this instruction should be given if the
accuracy or authenticity has been challenged.

**Committee Comments**

*See* Seventh Circuit Federal Jury Instructions: Criminal § 3.16 (1999).
*See generally* Fed. R. Evid. 1006, 1008(c); 5 *Weinstein\'s Evidence*
¶¶ 1006, 1008 (1978); West Key \# \"Criminal Law\" 673(a), 858(3).

This instruction is based on Rule 1006 of the Federal Rules of Evidence,
which permits summaries to be admitted as evidence without admission of
the underlying documents as long as the opposing party has had an
opportunity to examine and copy the documents at a reasonable time and
place and if those underlying documents would be admissible. *Ford Motor
Co. v. Auto Supply Co., Inc.*, 661 F.2d 1171, 1175-76 (8th Cir. 1981).
The Rules contemplate that the summaries will not be admitted until the
court has made a preliminary ruling as to their accuracy. *See* Fed. R.
Evid. 104; *United States v. Robinson*, 774 F.2d 261, 276 (8th Cir.
1985).

As *Weinstein* notes, and as Rule 1008(c) makes clear, the trial judge
makes only a preliminary determination regarding a Rule 1006 summary,
the accuracy of which is challenged. The admission is within the sound
discretion of the trial judge. *United States v. King*, 616 F.2d 1034,
1041 (8th Cir. 1980). If the determination is to admit the summary, the
jury remains the final arbiter with respect to how much weight it will
be given and should be instructed accordingly.

The \"voluminous\" requirement of Rule 1006 does not require that it
literally be impossible to examine all the underlying records, but only
that in-court examination would be an inconvenience. *United States v.
Possick*, 849 F.2d 332, 339 (8th Cir. 1988).

Charts and diagrams admitted under Rule 1006 may be sent to the jury at
the district court\'s discretion. *Possick*, 849 F.2d at 339; *United
States v. Orlowski*, 808 F.2d 1283, 1289 (8th Cir. 1986); *United States
v. Robinson*, 774 F.2d at 275.

When this type of exhibit is sent to the jury, a limiting instruction is
appropriate, but failure to give an instruction on the use of charts is
not reversible error. *Possick*, 849 F.2d at 340.

There may be cases in which a variety of summaries are before the jury,
some being simply demonstrative evidence, some being unchallenged Rule
1006 summaries, and some being challenged Rule 1006 summaries. In that
situation, or any variant thereof, it will be necessary for the trial
court to distinguish between the various items, probably by exhibit
number, and to frame an instruction which makes the appropriate
distinctions.

**4.13 SPECIFIC INFERENCES^1^**

\[\[(Insert fact deduced) is an element of the offense of (describe
offense), which must be proved beyond a reasonable doubt.\]^2^ If you
find proof beyond a reasonable doubt that (insert fact established),
that is evidence from which you may, but are not required to, find or
infer that (insert fact deduced).\]^3^

**Notes on Use**

1\. This is a very generalized format. Requests for inference
instructions may be made by the government or the defense. If an
inference instruction is to be given, effort should be made to more
specifically tailor it to the given situation.

2\. This admonition may be necessary if this instruction is not given in
proximity to the elements instruction.

3\. Definitions or further cautionary instructions may be helpful or
required. *See*, *e.g.*, *Barnes v. United States*, 412 U.S. 837, 840
n.3 (1973). *United States v. Johnson*, 563 F.2d 936, 940 n.2 (8th Cir.
1977) and 2B Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 59.16 (5th ed. 2000) on the inferences arising
from possession of recently stolen property; *United States v. Hayes*,
631 F.2d 593, 594 (8th Cir. 1980) and 2A Kevin F. O'Malley, et al.,
*Federal Jury Practice and Instructions*: Criminal § 52.05 (5th ed.
2000) on the inferences arising from the possession of recently stolen
mail; *United States v. Beardslee*, 609 F.2d 914, 919 (8th Cir. 1979),
on the inferences arising from the possession of property recently
purchased in another state.

**Committee Comments**

*See* 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 12.05 (5th ed. 2000). *See generally* West Key
\# \"Criminal Law\" 305-325, 745, 778(1)-(11), 782(7).

An instruction advising the jury that it may make reasonable inferences
is included in the general charges on evidence at Instructions 1.01 and
3.03, *supra*.

An instruction directing the jury\'s attention to a specific inference
should be given only when a) there is a specific inference at issue
supported by the evidence; b) it is one which is specifically recognized
by common law, judicial precedent or statute and c) it has been
requested.

Many of the inferences recognized by common law were and are still
called \"presumptions.\" However, if used in an instruction, these
\"presumptions\" *must* be phrased in terms of a permissive inference.
*Sandstrom v. Montana*, 442 U.S. 510 (1979).

Examples of inferences recognized at common law include the inferences
which may be drawn from the possession of recently stolen property,
*Barnes v. United States*, 412 U.S. 837 (1973) \[knowledge\]; *United
States v. Johnson*, 563 F.2d 936, 940-41 (8th Cir. 1977) \[knowledge and
participation\], including recently stolen mail, *United States v.
Hayes*, 631 F.2d 593, 594 (8th Cir. 1980) and *United States v. Bloom*,
482 F.2d 1162, 1163-66 (8th Cir. 1973) \[knowledge it was stolen from
the mail\]; and possession in a state other than the state in which the
property had been recently purchased, *United States v. Beardslee*, 609
F.2d 914, 919 (8th Cir. 1979) \[transportation\], or stolen, *United
States v. Mitchell*, 558 F.2d 1332, 1335-36 (8th Cir. 1977)
\[transportation\].

These also include inferences which may be drawn from false exculpatory
statements (Instruction 4.15, *infra*) and failure to produce certain
witnesses under certain conditions (Instruction 4.16, *infra*). Other
common law inferences on which instructions may be proper include
\"presumptions of regularity.\" *See* 1A Kevin F. O'Malley, et al.,
*Federal Jury Practice and Instructions*: Criminal § 12.06 (5th ed.
2000); *United States v. Rucker*, 435 F.2d 950, 952-53 (8th Cir. 1971).

Instructions on inferences are most helpful when they involve inferences
which the law allows which may not be readily apparent to the lay
person, such as advising the jury that the law allows mailing to be
established by proof of business custom in a mail fraud case. *See*
Instruction 6.18.1341, *infra*. However, instructions on inferences
based solely on common sense and experience have been discouraged. The
inference of consciousness of guilt which may be drawn from flight is
one example. The giving of an instruction on that inference has always
been limited to very narrow circumstances, *United States v. White*, 488
F.2d 660, 661-62 (8th Cir. 1973), and has recently been altogether
discouraged. *See* *United States v. McQuarry*, 726 F.2d 401, 403 (8th
Cir. 1984) (McMillian, J. concurring). However, an instruction limiting
such evidence to the determination of consciousness of guilt along the
lines of Instruction 4.09, *supra*, may in some cases be appropriate.

Statutory inferences are subject to the test whether it can be said with
substantial assurance that the presumed fact is more likely than not to
flow from the proved fact on which it is made to depend. *Leary v.
United States*, 395 U.S. 6, 36 (1969); *United States v. Franklin*, 568
F.2d 1156, 1157 (8th Cir. 1978).

An example of a statutory inference is found in 18 U.S.C. § 659 \[bills
of lading constitute prima facie evidence of the origin and destination
of a shipment\]. *United States v. Franklin*, 568 F.2d at 1157. *See
also* Notes 4, Instructions 6.18.659A and 6.18.659B, *infra*. Another
example is found in 26 U.S.C. § 6064 \[an individual\'s signature on an
income tax return is prima facie evidence that the return was signed by
him\]. *United States v. Cashio*, 420 F.2d 1132, 1135 (5th Cir. 1969).
*See also* Instructions 6.26.7201 and 6.26.7206, *infra*; 2B Kevin F.
O'Malley, et al., *Federal Jury Practice and Instructions*: Criminal §
67.22 (5th ed. 2000). A further example is found in 18 U.S.C. § 892b,
listing the four factors which constitute prima facie evidence that a
loan is extortionate. *United States v. DeVincent*, 546 F.2d 452, 454-55
(1st Cir. 1976).

Other examples of statutory inferences are found in 21 U.S.C. § 174
\[knowledge of importation can be inferred from possession of heroin and
opium (but not cocaine), *Turner v. United States*, 396 U.S. 398
(1970)\], and in 26 U.S.C. § 5601(b)(2) \[\"possession\" and \"carrying
on\" can be inferred from the defendant\'s unexplained presence at a
still. *United States v. Gainey*, 380 U.S. 63 (1965). But *cf.* *United
States v. Romano*, 382 U.S. 136 (1965)\].

There is some debate on the propriety of instructing the jury on
inferences. For the views of an American Bar Association committee,
*see* 120 F.R.D. 299, 315-20 (1988).

**4.14 SILENCE IN THE FACE OF ACCUSATION**

\[Evidence has been introduced that a statement accusing the defendant
of the crime charged in the indictment was made, and that the defendant
did not \[deny the accusation\] \[\[object to\] \[contradict\] the
statement\]\]. If you find that the defendant was present and actually
heard and understood the statement, and that it was made under such
circumstances that the defendant would be expected to \[deny\]
\[contradict\] \[object to\] it if it was not true, then you may
consider whether the defendant\'s silence was an admission of the truth
of the statement.\]^1^

**Notes on Use**

1\. In the previous edition, this Committee joined in the comments to
Ninth Cir. Crim. Jury Instr. 4.2 (1997) and Federal Judicial Center,
Pattern Criminal Jury Instructions § 45 (1988) recommending that no
instruction on this topic be given. However, without such an
instruction, the jury is given no guidance on the important findings it
must make before it can consider silence to be an admission.
Accordingly, if requested by the defendant, the jury may be instructed
on the elements it must find before it can find evidence of the
defendant\'s silence to be an admission.

**Committee Comments**

*See* 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 14.05 (5th ed. 2000); Seventh Circuit Federal
Jury Instructions: Criminal § 3.03 (1999); *United States v. Carter*,
760 F.2d 1568, 1580 n.5 (11th Cir. 1985). *See generally* West Key \#
\"Criminal Law\" 407(1), (2), 736(2), 781(7).

The general rule is that

when a statement tending to incriminate one accused of committing a
crime is made in his presence and hearing and such statement is not
denied, contradicted, or objected to by him, both the statement and the
fact of his failure to deny are admissible in a criminal prosecution as
evidence of his acquiescence in its truth \* \* \* \[if made\] under
such circumstances as would warrant the inference that he would
naturally have contradicted them if he did not assent to their truth.

*Arpan v. United States*, 260 F.2d 649, 655 (8th Cir. 1958) and cases
cited therein. *See also* *United States v. Mitchell*, 558 F.2d 1332,
1334-35 (8th Cir. 1977). Since the adoption of the Federal Rules of
Evidence, such evidence has come in as an adoptive admission under Fed.
R. Evid. 801(d)(2)(B). *See* *United States v. Carter*, 760 F.2d at
1579.

Whether all the elements necessary to give such silence capacity to be
admitted as an implied or adoptive statement are preliminary questions
for the court. *Arpan*, 260 F.2d at 654; *Carter*, 760 F.2d at 1579-80.
If the court allows the evidence, whether those elements have been
proved becomes a jury question. *Arpan*, 260 F.2d at 655; *Carter*, 760
F.2d at 1580 n.5.

Post-arrest silence by a defendant after *Miranda* warnings have been
given is inadmissible against the defendant. *Doyle v. Ohio*, 426 U.S.
610 (1976). If a defendant gives a statement, however, his silence as to
other matters may be admitted. *Anderson v. Charles*, 447 U.S. 404
(1980); *see* *United States v. Mitchell*, 558 F.2d 1332, 1334-35 (8th
Cir. 1977). A defendant\'s pre-arrest silence may be admitted, *Jenkins
v. Anderson*, 447 U.S. 231 (1980) as well as silence after arrest but
prior to warnings. *Fletcher v. Weir*, 455 U.S. 603 (1982).

**4.15 FALSE EXCULPATORY STATEMENTS**

\[No instruction recommended.\]

**Committee Comments**

Although the Committee does not normally recommend an instruction on
this issue, the following instruction may, in appropriate circumstances,
be given:

When a defendant voluntarily and intentionally offers an explanation, or
makes some statement before trial tending to show his innocence, and
this explanation or statement is later shown to be false, you may
consider whether this evidence points to a consciousness of guilt. The
significance to be attached to any such evidence is a matter for you to
determine.

The instruction is aimed at pretrial fabrications, and is not generally
appropriate for casting doubt on a defendant's trial testimony. *United
States v. Clark*, 45 F.3d 1247, 1251 (8th Cir. 1995).

If the defendant denies making the statement, or denies that it is
exculpatory, this language should be changed to allow the jury to decide
whether or not the statement was made or whether or not it was
exculpatory. *United States v. Holbert*, 578 F.2d 128, 130 (5th Cir.
1978).

If the falsity of the exculpatory statement is controverted, this
language should be changed to allow the jury to find whether or not the
statement was false. *See* *United States v. Pringle*, 576 F.2d 1114,
1120 n.6 (5th Cir. 1978).

*See* 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 14.06 (5th ed. 2000); *United States v.
Wells*, 702 F.2d 141, 144 n.2 (8th Cir. 1983); *United States v.
Turner*, 551 F.2d 780, 783 (8th Cir. 1977). *See generally* West Key \#
\"Criminal Law,\" 351(10), 778(10), 781(6), 781(8).

*See also* Committee Comments, Instruction 4.13, *supra*, on specific
inferences.

False exculpatory statements are properly admissible as substantive
evidence tending to show consciousness of guilt. *United States v.
Hudson*, 717 F.2d 1211, 1215 (8th Cir. 1983) and cases cited therein.
This Circuit has repeatedly held that an instruction of this nature \"is
properly given when a defendant . . . offers an exculpatory explanation
which is later proven to be false.\" *Wells*, 702 F.2d at 144; *United
States v. Hudson*, 717 F.2d 1211 (8^th^ Cir. 1983); *see also* *Rizzo v.
United States*, 304 F.2d 810, 830 (8th Cir. 1962), and cases cited
therein. *See further*, *Wilson v. United States*, 162 U.S. 613, 620-21
(1896) indicating that such conduct formerly gave rise to a
\"presumption\" of guilt.

*Wells* also held that such an instruction does not unfairly penalize
the criminal defendant who, upon confrontation, denies the crime rather
than remain silent. 702 F.2d at 144. *Hudson* further held such an
instruction proper because it permits the jury to attach as much or as
little significance to the statement as it chooses. 717 F.2d at 1215.

While general denials of guilt later contradicted are not considered
exculpatory statements, any other exculpatory statement which is
contradicted by evidence at trial justifies the giving of this kind of
jury instruction. *United States v. McDougald*, 650 F.2d 532, 533 (4th
Cir. 1981) (citing *United States v. Bear Killer*, 534 F.2d 1253, 1260
(8th Cir. 1976)).

The comments to Federal Judicial Center, Pattern Criminal Jury
Instructions § 44 (1988), Seventh Circuit Federal Jury Instructions:
Criminal § 3.22 (1999) and Ninth Cir. Crim. Jury Instr. 4.3 (1997)
recommend that no instruction on this subject be given and that the
subject be left to argument of counsel. However, the courts in many
circuits have approved the giving of an instruction of this nature.
*See*, in addition to the Eighth Circuit cases cited above, *United
States v. Zang*, 703 F.2d 1186, 1191 (10th Cir. 1982); *United States v.
McDougald*, 650 F.2d at 533 \[noting that such instructions \"have long
been approved by the courts\" (citing *Wilson*)\]; *United States v.
Boekelman*, 594 F.2d 1238, 1240-41 (9th Cir. 1979); *United States v.
Pringle*, 576 F.2d 1114, 1120 (5th Cir. 1978).

**4.16 MISSING WITNESS**

\[No model instruction provided\]^1^

**Notes on Use**

1\. Because of the limited circumstances in which a missing witness
instruction would be appropriate, no model instruction is provided here.
With respect to argument of a party\'s failure to call a particular
witness, the Committee recommends that the court review the subject with
counsel before argument, on the record but outside the jury\'s presence,
to determine whether such an argument will be permitted and if so what
limits to place on it. *But note*, neither argument nor an instruction
on this subject should be permitted as *against* a defendant who has
offered no evidence.

**Committee Comments**

*See* Ninth Cir. Crim. Jury Instr. 4.15 (1997). *See generally* West Key
\# \"Criminal Law\" 788. Examples of missing witness instructions may be
found in 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 14.15 (5th ed. 2000); Federal Judicial Center,
Pattern Criminal Jury Instructions § 39 (1988); Seventh Circuit Federal
Jury Instructions: Criminal § 3.24 (1999).

The rule which forms the basis of the \"absent witness\" instruction
provides that \"if a party has it particularly within his power to
produce witnesses whose testimony would elucidate the transaction, the
fact that he does not do it creates the presumption that the testimony,
if produced, would be unfavorable.\" *United States v. Anders*, 602 F.2d
823, 825 (8th Cir. 1979) (quoting from *Graves v. United States*, 150
U.S. 118, 121 (1893)). However it is well settled that the propriety of
giving this instruction is within the discretion of the trial court.
*United States v. Williams*, 604 F.2d 1102, 1117 (8th Cir. 1979);
*Anders*; *United States v. Johnson*, 562 F.2d 515, 517 (8th Cir. 1977);
*United States v. Kirk*, 534 F.2d 1262, 1280 (8th Cir. 1976); *United
States v. Williams*, 481 F.2d 735, 738 (8th Cir. 1973).

It has also long been held that, upon a request for a jury instruction,
the inference is one to be applied with caution and

that it is not one which is abstractly entitled to be given application;
but that it is to be accorded opportunity for significance and effect
only when there has been shown a factual area in which it can logically
operate.

*Wilson v. United States*, 352 F.2d 889, 892 (8th Cir. 1965), *quoted
with approval in* *United States v. Higginbotham*, 451 F.2d 1283, 1286
(8th Cir. 1971).

This is because the applicable rule in this Circuit is that:

Absent unusual circumstances such as knowingly concealing evidence
favorable to a defendant, the government has a wide discretion with
respect to the witnesses to be called to prove its case. The government
is not ordinarily compelled to call all witnesses competent to testify
including special agents or informers.

*Williams*, 481 F.2d at 737; *United States v. Mosby*, 422 F.2d 72, 74
(8th Cir. 1970).

The instruction has been held properly refused where the ability to
produce the witness was not solely or otherwise in the power of the
government such as where a witness could not testify due to illness,
*Williams*, 604 F.2d at 1117; where the witness was not subpoenaed by
either party, *Williams*, 604 F.2d at 1120; *Higginbotham*, 451 F.2d at
1286; where the witness was argued to be \"unavailable\" because he
worked for the government, *Anders*, 602 F.2d at 825; where the
witness/informant\'s whereabouts were no longer known to the government,
*Johnson*, 562 F.2d at 517; where there was no showing that the
government possessed the sole power to produce the witnesses, *Kirk*,
534 F.2d at 1280; where the defendant made no motion to produce or
attempt to subpoena the witness, *Williams*, 481 F.2d at 737.

Moreover, the instruction is not appropriate where the testimony of the
witness would not \"elucidate the transaction\" such as where the
testimony would be cumulative, *United States v. Johnson*, 467 F.2d 804,
808 (1st Cir. 1972), or where it would be irrelevant. *United States v.
Emalfarb*, 484 F.2d 787 (7th Cir. 1973).

**4.17 DIRECT AND CIRCUMSTANTIAL EVIDENCE**

\[*See* last paragraph of Instruction 1.03, *supra*\]

**Committee Comments**

*See* 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 12.04 (5th ed. 2000); Federal Judicial Center,
Pattern Criminal Jury Instructions § 1 (1988); Fifth Circuit Pattern
Jury Instructions: Criminal § 1.07 (1997); Seventh Circuit Federal Jury
Instructions: Criminal § 1.05 (1999); Ninth Cir. Crim. Jury Instr. 1.5
(1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Basic) §§
4.1, 4.2 (1997); *United States v. Kirk*, 534 F.2d 1262, 1279 (8th Cir.
1976).

**5.00 FINAL INSTRUCTIONS: CRIMINAL RESPONSIBILITY**

**(Introductory Comment)**

This section addresses situations in which a person may be found guilty
of a crime even if that person did not personally carry out all of the
acts constituting the substantive offense.

**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).

Section 2(a) 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 at 445. 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 that the defendant
must have 1) associated himself with the unlawful venture 2)
participated in it as something he wished to bring about and 3) 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).

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).

**5.02 CAUSING AN OFFENSE TO BE COMMITTED (18 U.S.C. § 2(b))**

(No definition of \"causing\" is provided. The Elements instruction
should be modified to indicate that the defendant voluntarily and
intentionally caused any acts he did not personally do.)^1^

**Notes on Use**

1\. Thus, for example, the elements of Mail Theft, Instruction
6.18.1708A, *infra*, would be modified as follows:

*One*, the letter was in the United States mail;

*Two*, the defendant *voluntarily and intentionally caused* John Doe to
take the letter from the mail;

*Three*, in so doing the defendant intended to deprive the addressee
temporarily or permanently of the letter.

Note that the defendant must have the state of mind required by the
principal offense. *See* *United States v. Rucker*, 586 F.2d 899, 905
(2d Cir. 1978).

**Committee Comments**

*See* 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 18.01 (5th ed. 2000). *See generally* West Key
\# \"Criminal Law\" 62.

Section 2(a) and 2(b) offenses may overlap.

Section 2(b) merely \"removes all doubt that one who puts in motion or
assists in the illegal enterprise or causes the commission of an
indispensable element of the offense by an innocent agent or
instrumentality is guilty.\" The statute makes it \"unnecessary that the
intermediary who commits the forbidden act have a criminal intent.\"
*United States v. Rapoport*, 545 F.2d 802, 806 (2d Cir. 1976).

*United States v. Rucker*, 586 F.2d 899, 905 (2d Cir. 1978). *See also*
*United States v. Cook*, 745 F.2d 1311, 1315 (10th Cir. 1984).

A person who is legally incapable of committing an offense as a
principal because he does not have the required status (e.g. a bank
employee under 18 U.S.C. § 656) can commit that offense by causing an
intermediary who has such status to do the acts. *United States v.
Tobon-Builes*, 706 F.2d 1092, 1099-1100 (11th Cir. 1983); *United States
v. Ruffin*, 613 F.2d 408, 413-14 (2d Cir. 1979).

**5.03 CORPORATE RESPONSIBILITY**

Defendant\[s\] (insert name\[s\]) \[is\] \[are\] \[a\] corporation\[s\].
A corporation may be found guilty of a criminal offense.

A corporation can act only through its agents \-- that is, its
directors, officers, employees, and other persons authorized to act for
it.

To find a corporate defendant guilty you must find beyond a reasonable
doubt that:

*One*, each element of the crime charged against the corporation was
committed by one or more of its agents; and

*Two*, in committing those acts the agent\[s\] intended, at least in
part, to benefit the corporation; and

*Three*, each act was within the scope of employment of the agent who
committed it.

For an act to be within the scope of an agent\'s employment it must
relate directly to the performance of the agent\'s general duties for
the corporation. It is not necessary that the act itself have been
authorized by the corporation.

If an agent was acting within the scope of his employment, the fact that
the agent\'s act was illegal, contrary to his employer\'s instructions
or against the corporation\'s policies will not relieve the corporation
of responsibility for it.

\[You may, however, consider the existence of corporate policies and
instructions and the diligence of efforts to enforce them in determining
whether the agent was acting with intent to benefit the corporation or
within the scope of his employment.\]^1^

\[If you find that an act of an agent was not committed within the scope
of the agent\'s employment or with intent to benefit the corporation,
then you must consider whether the corporation later approved the act.
An act is approved if, after it is performed, another agent of the
corporation, having full knowledge of the act and acting within the
scope of his employment and with the intent to benefit the corporation,
approves the act by his words or conduct. A corporation is responsible
for any act or omission approved by its agents.\]^2^

**Notes on Use**

1\. This bracketed paragraph should only be given if there is evidence
of such instructions or policies and enforcement efforts. As noted in
the comments above, the Committee does not believe that current case law
supports an instruction stating that any act of a corporate agent in
violation of corporate rules or policies is outside the scope of
employment.

2\. This bracketed paragraph should only be given if there is evidence
of ratification. \"Ratification is an express or implied adoption or
confirmation, with knowledge of all material matters by one person of an
act performed in his behalf by another who at that time assumed to act
as his agent but lacked authority to do so.\" *Federal Enterprises v.
Greyhound Leasing & Fin.*, 849 F.2d 1059, 1062 n.5 (8th Cir. 1988),
quoting Missouri cases.

**Committee Comments**

*See* 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 18.05 (5th ed. 2000); Seventh Circuit Federal
Jury Instructions: Criminal §§ 5.03, 5.04 (1999); Ninth Cir. Crim. Jury
Instr. 3.17 (1997); *see also* \"Corporate Crime: Regulating Corporate
Behavior through Criminal Sanctions,\" 92 Harv. L. Rev. 1227, 1247
(1979). *See generally* West Key \# \"Corporations\" 526.

\"Generally a corporation is responsible for the criminal acts of its
officers, agents and employees committed within the scope of their
employment and for the benefit of the corporation.\" *United States v.
Richmond*, 700 F.2d 1183, 1195 n.7 (8th Cir. 1983) (citing *United
States v. Cincotta*, 689 F.2d 238 (1st Cir. 1982) and *United States v.
Demauro*, 581 F.2d 50, 53 (2d Cir. 1978)). *See also New York Central &
H. R.R. v. United States*, 212 U.S. 481, 493-95 (1909); *Egan v. United
States*, 137 F.2d 369, 379 (8th Cir. 1943); *United States v. Beusch*,
596 F.2d 871, 877-78 (9th Cir. 1979) and *United States v. Hilton Hotels
Corporation*, 467 F.2d 1000, 1004-07 (9th Cir. 1972).

\"Scope of employment\" is not confined to its strict agency definition,
but applies to acts directly related to the performance of duties which
the officer or agent has the broad authority to perform. *Continental
Baking Company v. United States*, 281 F.2d 137, 149-50 (6th Cir. 1960);
*United States v. Carter*, 311 F.2d 934, 941-42 (6th Cir. 1963); *United
States v. Koppers Co., Inc.*, 652 F.2d 290, 298 (2d Cir. 1981). It
includes acts on the corporation\'s behalf in performance of the
agent\'s general line of work. *United States v. Automated Medical
Laboratories, Inc.*, 770 F.2d 399, 407 (4th Cir. 1985); *United States
v. Armour & Co.*, 168 F.2d 342, 344 (3d Cir. 1948); *Hilton Hotels*, 467
F.2d at 1004. \"Thus, scope of employment in practice means little more
than that the act occurred while the offending employee was carrying out
a job-related activity.\" 92 Harv. L. Rev., *supra*, at 1250. *See
Egan*, 137 F.2d at 379-80 for an application of this definition.

Some courts in criminal cases have attempted to define \"scope of
employment\" in terms of \"actual\" and \"apparent\" authority. *See*,
*e.g.*, *Continental Baking*, 281 F.2d at 150-51; *United States v.
American Radiator and Standard Sanitary Corp.*, 433 F.2d 174, 204-05 (3d
Cir. 1970); *United States v. Basic Const. Co.*, 711 F.2d 570, 572-73
(4th Cir. 1983); *United States v. Bi-Co Pavers, Inc.*, 741 F.2d 730,
737-38 (5th Cir. 1984); Seventh Circuit Federal Jury Instructions:
Criminal § 5.03 (1999). \"Actual\" authority is broken down into
\"express\" and \"implied\" authority. However, as *Continental Baking*
points out, these concepts and their definitions are most helpful and
relevant in deciding certain contract and tort questions in civil cases
and do not properly address the true basis for criminal liability. 281
F.2d at 149-50. *See also United States v. Carter*, 311 F.2d at 941-42.
In criminal cases analyzing \"scope of employment\" in terms of
\"authority\" collides with the rule that the corporation can be liable
\"without proof that the conduct was within the agent\'s actual
authority, and even though it may have been contrary to express
instructions.\" *United States v. Hilton Hotels Corporation*, 467 F.2d
at 1004.

Intent to benefit the corporation is treated as a separate element in
this instruction. It is sometimes treated as part of the definition of
\"scope of employment.\" *See United States v. Automated Medical
Laboratories, Inc.*, 770 F.2d at 407.

If the act is done within the course of employment and with intent to
benefit the corporation, the corporation is criminally liable even if
the act was unlawful, *Egan*, 137 F.2d at 379; *United States v.
American Radiator and Standard Sanitary Corp.*, 433 F.2d at 204-05;
*United States v. Automated Medical Laboratories, Inc.*, 770 F.2d at
407, or was done contrary to instructions or policies. *Egan, id.*;
*American Radiator, id.*; *Automated Medical Laboratories, Inc., id*.;
*Hilton Hotels*, 467 F.2d at 1044; *United States v. Beusch*, 596 F.2d
at 877; *United States v. Harvey L. Young & Sons, Inc.*, 464 F.2d 1295,
1297 (10th Cir. 1972). *Cf.* 1A Kevin F. O'Malley, et al., *Federal Jury
Practice and Instructions*: Criminal § 18.05 (5th ed. 2000), which
includes a statement that a corporate agent is not acting within the
scope of his employment when he performs an act which the corporation
has forbidden. The Committee does not believe this portion of No. 18.05
is supported by current case law.

The jury may, however, consider the existence of such policies or
instructions in determining whether the agent was acting for the benefit
of the corporation. *United States v. Beusch*, 596 F.2d at 878; *United
States v. Basic Const. Co.*, 711 F.2d at 573. The fact that an employee
did not follow instructions \"may be a factor militating against
corporate criminal responsibility but rises no higher.\" *United States
v. Harvey L. Young & Sons, Inc.*, 464 F.2d at 1297. Merely stating or
publishing such instructions and policies without diligently enforcing
them is not enough to place the acts of an agent who violates them
outside the scope of his employment. *Beusch*, 596 F.2d at 878.

The agent need only intend in part to benefit the corporation. He may
also intend to benefit himself. *United States v. Gold*, 743 F.2d 800,
823 (11th Cir. 1984); *United States v. Automated Medical Laboratories,
Inc.*, 770 F.2d at 407. It is not necessary that the actions have
actually benefitted the corporation. *Id.*; *United States v. Carter*,
311 F.2d at 942. However, there is no corporate liability where the
agent acts solely for his personal gain, directly contrary to the
interests of the corporation. *Standard Oil Company of Texas v. United
States*, 307 F.2d 120 (5th Cir. 1962).

**5.04 PERSONAL RESPONSIBILITY OF CORPORATE AGENT**

A person is responsible for acts which \[he\] \[she\] performs, or
causes to be performed, on behalf of a corporation, just as \[he\]
\[she\] is responsible for acts performed on \[his\] \[her\] own behalf.
This is so even if \[he\] \[she\] acted on instructions of a superior.
\[But a person is not responsible for the acts performed by other people
on behalf of a corporation, even if those persons are officers,
employees or other agents of the corporation.\]^1^

**Notes on Use**

1\. Do *not* use the last sentence if a conspiracy involving other
corporate employees or agents is charged.

**Committee Comments**

*See* Seventh Circuit Federal Jury Instructions: Criminal § 5.02 (1999).
*See generally* West Key \# \"Criminal Law\" 58.

**5.05 ACCESSORY AFTER THE FACT (18 U.S.C. § 3)**

As I told you, the crime charged in \[Count \_\_\] \[this case\] is
being an accessory after the fact to (describe principal offense, e.g.,
the kidnaping of Jane Doe.) A defendant may be found guilty of being an
accessory after the fact even though \[he\] \[she\] did not personally
commit the crime of (describe principal offense).

The crime of being an accessory after the fact, as charged in \[Count
\_\_ of\] the indictment, has three elements, which are:

*One*, (name\[s\] of principal\[s\]) had committed the offense of
(describe principal offense).^1^

*Two*, the defendant knew that (name\[s\] of principal\[s\]) had
committed the offense of (describe principal offense); and

*Three*, after the crime of (describe principal offense) had been
committed by (name\[s\] of principal\[s\]), the defendant helped^2^
\[him\] \[her\] \[them\], in order to prevent \[his\] \[her\] \[their\]
arrest, trial or punishment.

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

To assist you in determining whether the crime of (describe offense) was
committed by some other person or persons, as required by Element One
above, you are advised that the elements of (describe offense) are as
follows:^3^

*One*,
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_;

*Two*,
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_;
and

*Etc.*,
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_.

**Notes on Use**

1\. This must be a federal offense.

2\. The language of the statute is \"receives, relieves, comforts or
assists.\"

3\. List the elements of the offense to which the defendant is alleged
to have been an accessory after the fact. *See* Instruction 3.09,
*supra*, and Section 6, *infra*.

**Committee Comments**

*See* 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 22.03 (5th ed. 2000) ; Seventh Circuit Federal
Jury Instructions: Criminal § 5.07 (1999); Ninth Cir. Crim. Jury Instr.
5.2 (1997); *United States v. Bissonette*, 586 F.2d 73, 76 (8th Cir.
1978). *See generally* West Key \# \"Criminal Law\" 74-77, 79-80, 82,
814(19), 815(12), 823(16).

An accessory after the fact is one who, knowing that a substantive
offense has been committed by another, receives, relieves, comforts or
assists the principal in order to hinder or delay the principal\'s
apprehension, trial or punishment. *Skelly v. United States*, 76 F.2d
483, 487 (10th Cir. 1935).

Knowledge is an element for being an accessory after the fact under 18
U.S.C. § 3 (1976). Knowledge requires knowing that an offense has been
committed, but it does not require knowledge that a warrant has been
issued. *United States v. Bissonette*, 586 F.2d at 76. (Knowledge of the
issuance of a warrant is required where the charge is harboring a
fugitive under 18 U.S.C. § 1071; *Id.* at 77; *United States v. Udey*,
748 F.2d 1231 (8th Cir. 1984).) Knowledge may be inferred from
circumstantial evidence. *Bissonette*, 586 F.2d at 76.

Assistance given to the offender must be after the fact, because if it
was given before or during the commission of the offense the person
assisting would be an aider and abettor. *United States v. Balano*, 618
F.2d 624, 631 (10th Cir. 1979); *United States v. Barlow*, 470 F.2d
1245, 1253 (D.C. Cir. 1972).

**5.06A CONSPIRACY: ELEMENTS (18 U.S.C. § 371)**

The crime of conspiracy^1^ as charged in \[Count \_\_ of\] the
indictment, has four^2^ elements, which are:

*One*, on or before (insert date), two \[or more\] persons reached an
agreement or came to an understanding \[to (insert offense, e.g.,
transport stolen property across state lines)\] \[to defraud the United
States by (describe means, e.g., impeding, impairing, obstructing and
defeating the lawful governmental functions of the Internal Revenue
Service in the ascertainment, computation, assessment and collection of
income taxes)\];

*Two*, the defendant voluntarily and intentionally joined in the
agreement or understanding, either at the time it was first reached or
at some later time while it was still in effect;

*Three*, at the time the defendant joined in the agreement or
understanding, \[he\] \[she\] knew the purpose of the agreement or
understanding; and

*Four*, while the agreement or understanding was in effect, a person or
persons who had joined in the agreement knowingly did one or more of the
following acts: (list overt acts for which there is sufficient
evidence^3^) for the purpose of carrying out or carrying forward the
agreement or understanding.

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

**Notes on Use**

1\. The general conspiracy statute is 18 U.S.C. § 371. At least 24 other
conspiracy statutes are found in Titles 15, 18 and 21.

2\. Conspiracies charged under 18 U.S.C. § 371 require an overt act
which is covered in Element Four. An overt act is not required in
conspiracies charged under 15 U.S.C. § 1, 18 U.S.C. §§ 241, 286, 384 and
1951 and 21 U.S.C. § 846. When one of these conspiracies is charged,
Element Four should be omitted. *See* Instruction 6.21.846A; *United
States v. Shabani*, 513 U.S. 10 (1994) (21 U.S.C. § 846 does not require
proof of an overt act).

3\. The government may prove uncharged overt acts to satisfy this
element. *United States v. Sellers*, 603 F.2d 53 (8th Cir. 1979),
*vacated*, 447 U.S. 932 (1980), *aff\'d in relevant part*, 628 F.2d 1085
(8th Cir. 1980).

**Committee Comments**

*See* 1A and 2 Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal §§ 18.02, 31.01-.11 (5th ed. 2000); Fifth
Circuit Pattern Jury Instructions: Criminal § 2.20 (1997); Seventh
Circuit Federal Jury Instructions: Criminal § 5.08 (1999); Ninth Cir.
Crim. Jury Instr. 8.5.1 (1997); Eleventh Circuit Pattern Jury
Instructions: Criminal (Offense) § 11.1 (1997); *see also* *United
States v. Sopczak*, 742 F.2d 1119, 1121 (8th Cir. 1984); *United States
v. Brown*, 584 F.2d 252, 260 (8th Cir. 1978). *See generally* West Key
\# \"Conspiracy\" .23.

\"The offense of conspiracy consists of an agreement between \[two or
more persons\] to commit an offense, attended by an act of one or more
of the conspirators to effect the object of the conspiracy.\" *United
States v. Hoelscher*, 764 F.2d 491, 494 (8th Cir. 1985); *United States
v. Brown*, 604 F.2d 557, 560 (8th Cir. 1979) (citing *United States v.
Skillman*, 442 F.2d 542, 547 (8th Cir. 1971) and *United States v.
Jackson*, 549 F.2d 517, 530 (8th Cir. 1977)).

A single defendant can be indicted and convicted of conspiracy, provided
that an unlawful agreement with others is proved, *Kitchell v. United
States*, 354 F.2d 715, 720 n.8 (1st Cir. 1966), although if the other
conspirator(s) have actually been acquitted of that conspiracy there can
be no conviction of the sole remaining alleged conspirator. *United
States v. Peterson*, 488 F.2d 645 (5th Cir. 1974). In an instance where
all other *named* conspirators have been acquitted, but there is
evidence that the conspiracy involved other, *unnamed* conspirators,
conviction of the sole remaining named conspirator is permissible.
*United States v. Allen*, 613 F.2d 1248 (3d Cir. 1980); *United States
v. Artuso*, 618 F.2d 192 (2d Cir. 1980).

One who joins an existing conspiracy is guilty of conspiracy and adopts
the prior acts of the other conspirators. *United States v. Green*, 600
F.2d 154 (8th Cir. 1979); *United States v. Lemm*, 680 F.2d 1193, 1204
(8th Cir. 1982). A new conspiracy is not created each time a new member
joins, or an old member quits, an existing conspiracy. *United States v.
Burchinal*, 657 F.2d 985, 990 (8th Cir. 1981); *United States v.
Heater*, 689 F.2d 783, 788 (8th Cir. 1982). A defendant must know of the
existence of the conspiracy. Without such knowledge he cannot be guilty
even if his acts furthered the conspiracy. *United States v. Falcone*,
311 U.S. 205, 210 (1940).

Proof of association or acquaintanceship alone is not enough to
establish a conspiracy; however, it has a sufficient bearing on the
issue to make it admissible. *United States v. Apker*, 705 F.2d 293, 298
(8th Cir. 1983); *United States v. Brown*, 584 F.2d at 259-60.

The government need show that only one of the conspirators engaged in
one overt act in furtherance of the conspiracy. *United States v.
Hermes*, 847 F.2d 493, 495 (8th Cir. 1988).

**5.06B CONSPIRACY: \"AGREEMENT\" EXPLAINED**

The Government must prove that the defendant reached an agreement or
understanding with at least one other person. \[It makes no difference
whether that person is a defendant or named in the indictment. You do
not have to find that all of the persons charged were members of the
conspiracy.\]^1^

The \"agreement or understanding\" need not be an express or formal
agreement or be in writing or cover all the details of how it is to be
carried out. Nor is it necessary that the members have directly stated
between themselves the details or purpose of the scheme.

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 joined in an agreement or
understanding. A person who has no knowledge of a conspiracy but who
happens to act in a way which advances some purpose of one, does not
thereby become a member.

But a person may join in an agreement or understanding, as required by
this element, without knowing all the details of the agreement or
understanding, and without knowing who all the other members are.
Further it is not necessary that a person agree to play any particular
part in carrying out the agreement or understanding. A person may become
a member of a conspiracy even if that person agrees to play only a minor
part in the conspiracy, as long as that person has an understanding of
the unlawful nature of the plan and voluntarily and intentionally joins
in it.

You must decide, after considering all of the evidence, whether the
conspiracy alleged in \[the indictment\] \[Count \_\_\_ of the
indictment\] existed. If you find that the alleged conspiracy did exist,
you must also decide whether the \[defendant\] \[defendant whose case
you are considering\] voluntarily and intentionally joined the
conspiracy, either at the time it was first formed or at some later time
while it was still in effect. In making that decision, you must consider
only evidence of \[the defendant's\] \[that defendant's\] own actions
and statements. You may not consider actions and pretrial statements of
others \[, except to the extent that pretrial statements of others
describe something that had been said or done by \[the\] \[that\]
defendant\].^2^

**Notes on Use**

1\. Use such part or parts of this paragraph as are pertinent to the
case. Where the other conspirators are not named the jury may be
instructed that there is no requirement that the other conspirators be
named as long as the jury finds beyond a reasonable doubt that there are
other coconspirators. *United States v. Collins*, 552 F.2d 243 (8th Cir.
1977).

2\. This paragraph is consistent with the court's ruling in *Bourjaily
v. United States*, 483 U.S. 171 (1987) and *United States v. Shigemura*,
682 F.2d 699, 705 (8th Cir. 1982). *See also United States v.
Stephenson*, 53 F.3d 836 (7th Cir. 1995); *United States v. Hagmann*,
950 F.2d 175, 180 (5th Cir. 1991); *United States v. de Ortiz*, 907 F.2d
629, 635 (7th Cir. 1990) (*en banc*).

**Committee Comments**

*See* 2 Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal §§ 31.04, 31.05, 31.07 (5th ed. 2000); Fifth
Circuit Pattern Jury Instructions: Criminal § 2.20 (1997); Eleventh
Circuit Pattern Jury Instructions: Criminal (Offense) § 11.1 (1997).
*See generally* West Key \# \"Criminal Law\" 59(*l*)-(4).

Agreement among the coconspirators to pool their resources is the
essence of the crime. *Iannelli v. United States*, 420 U.S. 770, 777
(1975). To prove the existence of an agreement, proof of a formal
agreement is not necessary \-- proof of a common plan or tacit
understanding is sufficient. *United States v. Powell*, 853 F.2d 601,
604 (8th Cir. 1988); *United States v. Campbell*, 848 F.2d 846, 851 (8th
Cir. 1988); *United States v. Massa*, 740 F.2d 629, 636 (8th Cir. 1984);
*Nilva v. United States*, 212 F.2d 115, 121 (8th Cir. 1954).

Mere knowledge of an illegal act or association with an individual
engaged in illegal conduct is not enough to prove a person has joined a
conspiracy. *United States v. Raymond*, 793 F.2d 928, 932 (8th Cir.
1986). However, the defendants need not have knowledge of every detail
or part of a conspiracy, as long as the evidence overall shows that the
defendants agreed to the essential nature of the conspiracy. *Blumenthal
v. United States*, 332 U.S. 539, 557 (1947).

The Eighth Circuit has held that once the government has established
existence of a conspiracy, even slight evidence connecting a particular
defendant to the conspiracy may be sufficient proof of the defendant\'s
involvement in the conspiracy. *United States v. Reeves*, 83 F.3d 203
(8th Cir. 1996).

However, \"slight evidence\" is a standard for appellate review and this
term should not be included in jury instructions. *United States v.
Cooper*, 567 F.2d 252, 253 (3d Cir. 1977).

The conspirators need not know or even have contact with each other.
*United States v. Michaels*, 726 F.2d 1307, 1311 (8th Cir. 1984);
*Blumenthal v. United States*, 332 U.S. at 557-58. It is sufficient that
a conspirator knows that the purpose and complexity of the scheme would
require the aid and assistance of the additional persons. *United States
v. Rosado-Fernandez*, 614 F.2d 50, 53 (5th Cir. 1980); *United States v.
Wilson*, 506 F.2d 1252, 1257 (7th Cir. 1974).

**5.06C CONSPIRACY: SUBSTANTIVE OFFENSE: ELEMENTS^1^**

\[To assist you in determining whether there was an agreement or
understanding to (name substantive offense, e.g., transport stolen
property across state lines), you are advised that the elements of (name
offense) are:

*One*,
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_;

*Two*,
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_;
and

*Etc.*,
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_.^2^

Keep in mind that the indictment charges a conspiracy to commit (name
offense) and not that (name offense) was committed.\]^3^

\[Count \_\_ of the indictment charges defendant\[s\] (name\[s\]) \[and
others who are not presently defendants in this case\] with the charge
of conspiracy to commit (name substantive offense, e.g., mail fraud).
Earlier in these instructions I defined the elements of (name of
offense, e.g., mail fraud) in relation to the charges that the defendant
(describe conduct, e.g., willfully participated in a scheme to defraud).
You may use those definitions in considering whether the defendants
conspired to commit (name offense, e.g., mail fraud), keeping in mind
that the charges in Count \_\_ charge a conspiracy to commit (name
offense, e.g., mail fraud) and not that (name offense, e.g., mail fraud)
was committed.\]^4^

**Notes on Use**

1\. Use this instruction if a conspiracy to commit a substantive offense
has been charged.

2\. List elements of offense which was the object of the conspiracy.
*See* Instruction 3.09, *supra*, and Section 6, *infra*.

3\. Use this paragraph if a conspiracy to violate a federal statute is
charged and the substantive offense is not charged elsewhere in the
indictment.

4\. Use this paragraph if a conspiracy to violate a federal statute is
charged and the substantive offense is also charged in the indictment
and submitted to the jury.

**5.06D CONSPIRACY: \"OVERT ACT\" - EXPLAINED^1^**

It is not necessary that the act done in furtherance of the conspiracy
be in itself unlawful. It may be perfectly innocent in itself.

It is not necessary that the defendant have personally committed the
act, known about it, or witnessed it. It makes no difference which of
the conspirators did the act. This is because a conspiracy is a kind of
\"partnership\" so that under the law each member is an agent or partner
of every other member and each member is bound by or responsible for the
acts of every other member done to further their scheme.

\[It is not necessary that the Government prove, beyond a reasonable
doubt, that more than one act was done in furtherance of the conspiracy.
It is sufficient if the Government proves beyond a reasonable doubt,
*one* such act; but in that event, in order to return a verdict of
guilty, you must unanimously agree upon which act was done.\]

**Notes on Use**

1\. Use if evidence has been admitted on more than one overt act.

**Committee Comments**

*See* 2 Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal §§ 31.03, 31.07 (5th ed. 2000). *See generally*
West Key \# \"Conspiracy\" 27.

The overt act itself need not be criminal in nature. *United States v.
Hermes*, 847 F.2d 493, 496 (8th Cir. 1988). An overt act may be
perfectly innocent in itself. *United States v. Donahue*, 539 F.2d 1131,
1136 (8th Cir. 1976). The overt act need not involve more than one of
the conspirators. *United States v. Bass*, 472 F.2d 207, 213 (8th Cir.
1973).

The overt act found by the jury must have taken place within the statute
of limitations. If this is an issue the jury should be appropriately
instructed. *United States v. Alfonso-Perez*, 535 F.2d 1362 (2d Cir.
1976).

The Government is not limited in its proof to establishing overt acts
specified in the indictment, nor must the Government prove every overt
act alleged. *United States v. Lewis*, 759 F.2d 1316, 1344 (8th Cir.
1985).

**5.06E CONSPIRACY: SUCCESS IMMATERIAL**

It is not necessary for the Government to prove that the conspirators
actually succeeded in accomplishing their unlawful plan.

**Committee Comments**

*See* Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) §
11.1 (1997); 2 Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 31.08 (5th ed. 2000).

There is likewise no requirement that the defendant have benefitted from
the unlawful plan. *United States v. Kibby*, 848 F.2d 920, 922 (8th Cir.
1988).

**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 find the
defendant not guilty. \[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.

**5.06G CONSPIRACY: SINGLE/MULTIPLE CONSPIRACIES**

\(1\) The indictment charges that the defendants were members of one
single conspiracy to commit the crime of \_\_\_\_\_\_\_.^1^

\(2\) One of the issues you must decide is whether there were really two
(or more) separate conspiracies \-- one \[between\] \[among\]
\_\_\_\_\_\_\_\_ and \_\_\_\_\_\_\_ to commit the crime of
\_\_\_\_\_\_\_\_\_, and another one \[between\] \[among\]
\_\_\_\_\_\_\_\_ and \_\_\_\_\_\_\_ to commit the crime of
\_\_\_\_\_\_\_\_\_.^2^

\(3\) The Government must convince you beyond a reasonable doubt that
each defendant was a member of the conspiracy charged in the indictment.
If the Government fails to prove this as to a defendant, then you must
find that the defendant not guilty of the conspiracy charge, even if you
find that \[he\] \[she\] was a member of some other conspiracy. Proof
that a defendant was a member of some other conspiracy is not enough to
convict.

\(4\) But proof that a defendant was a member of some other conspiracy
would not prevent you from returning a guilty verdict, if the Government
also proved that \[he\] \[she\] was a member of the conspiracy charged
in the indictment.^3^

\[A single conspiracy may exist even if all the members did not know
each other, or never met together, or did not know what roles all the
other members played. And a single conspiracy may exist even if
different members joined at different times, or the membership of the
group changed. Similarly, just because there were different subgroups
operating in different places, or many different criminal acts committed
over a long period of time, does not necessarily mean that there was
more than one conspiracy. These are factors you may consider in
determining whether more than one conspiracy existed.\]

**Notes on Use**

1\. If a multiple conspiracy instruction is given, 5.06B, which explains
agreement, may need some revision. The bracketed paragraph, which
relates in part to the question of agreement, may be tailored to the
facts of the particular case.

2\. If the court concludes that a multiple conspiracy instruction is
required by the evidence but that the specificity called for by the
model instruction is not appropriate, the following shorter version may
be given:

If the United States has failed to prove beyond a reasonable doubt the
existence of the conspiracy which is charged, then you must find the
defendant not guilty, even though some other conspiracy did exist or
might have existed. Likewise, if the United States has failed to prove
beyond a reasonable doubt that the defendant was a member of the
conspiracy which is charged, then you must find the defendant not guilty
even though \[he\] \[she\] may have been a member of some other
conspiracy. But proof that a defendant was a member of some other
conspiracy would not prevent you from returning a guilty verdict, if the
Government also proved that \[he\] \[she\] was a member of the
conspiracy charged in the indictment.

This alternative is based upon an instruction approved in *United States
v. Adipietro*, 983 F.2d 1468, 1475 n.7 (8th Cir. 1993); *United States
v. Sawyers*, 963 F.2d 157, 161 (8th Cir. 1992); and *United States v.
Figueroa*, 900 F.2d 1211, 1216 (8th Cir. 1990).

3\. The possible existence of separate conspiracies may require the
drafting of special instructions limiting the jury\'s consideration of
statements made by co-conspirators to members of a particular
conspiracy. Further, in separate but jointly tried conspiracies,
limiting instructions are required to prevent guilt of those
participating in one conspiracy from being transferred to those
participating in a separate conspiracy. *United States v. Varelli*, 407
F.2d 735, 747 (7th Cir. 1969); *United States v. Jackson*, 696 F.2d at
585-86; *United States v. Snider*, 720 F.2d 985, 990 (8th Cir. 1983).

**Committee Comments**

*See* 2 Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 31.09 (5th ed. 2000). *See generally* West Key
\# \"Conspiracy\" 23.

This instruction should be used when there is some evidence that
multiple conspiracies may have existed, *and* a finding that multiple
conspiracies existed would constitute a material variance from the
indictment. *See generally Berger v. United States*, 295 U.S. 78, 81-82
(1935) (proof that two or more conspiracies may have existed is not
fatal unless there is a material variance that results in substantial
prejudice); *Kotteakos v. United States*, 328 U.S. 750, 773-74 (1946)
(there must be some leeway for conspiracy cases where the evidence
differs from the exact specifications in the indictment); *United States
v. Lucht*, 18 F.3d 541, 552 (8th Cir. 1994). In these circumstances, an
instruction is necessary to ensure a unanimous verdict on one
conspiracy. *United States v. Gordon*, 844 F.2d 1397, 1400-02 (9th Cir.
1988).

If there is evidence that supports multiple conspiracies, then whether a
conspiracy is one scheme or several is primarily a jury question.
*United States v. England*, 966 F.2d 403, 406 (8th Cir. 1992); *United
States v. Wilson*, 497 F.2d 602 (8th Cir. 1974).

With respect to single versus multiple conspiracies, the Eighth Circuit
has set forth the following guidelines:

The general test is whether there was \"one overall agreement\" to
perform various functions to achieve the objectives of the conspiracy. A
conspirator need not know all of the other conspirators or be aware of
all the details of the conspiracy, so long as the evidence is sufficient
to show knowing contribution to the furtherance of the conspiracy.

*United States v. Massa*, 740 F.2d 629, 636 (8th Cir. 1984); *United
States v. Adipietro*, 983 F.2d 1468, 1475 (8th Cir. 1993); *United
States v. Askew*, 958 F.2d 806, 810 (8th Cir. 1992); *United States v.
Spector*, 793 F.2d 932, 935-36 (8th Cir. 1986). Moreover, \"\[t\]he
existence of a single agreement can be inferred if the evidence revealed
that the alleged participants shared \'a common aim or purpose\' and
\'mutual dependence and assistance existed.\'\" *United States v.
DeLuna*, 763 F.2d 897, 918 (8th Cir. 1985) (quoting *United States v.
Jackson*, 696 F.2d 578, 582-83 (8th Cir. 1982)); *United States v.
Crouch*, 46 F.3d 871, 874 (8th Cir. 1995).

The involvement of a number of separate transactions does not establish
the existence of separate conspiracies. *Spector*, 793 F.2d at 935.
Likewise, \"\`\[m\]ultiple groups and the performance of separate crimes
or acts do not rule out the possibility that one overall conspiracy
exists.\'\" *United States v. Dijan*, 37 F.3d 398, 402 (8th Cir. 1994)
(quoting *United States v. Roark*, 924 F.2d 1426, 1429 (8th Cir. 1991)).
Further, \"\`\[a\] division of labor among conspirators in pursuit of a
common goal does not necessitate a finding of discrete schemes.\'\"
*United States v. Askew*, 958 F.2d at 810 (quoting *United States v.
Gomberg*, 715 F.2d 843, 846 (3d Cir. 1983)). However, a mere overlap of
personnel or knowledge of another\'s illegal conduct is not by itself
proof of a single conspiracy. *United States v. Peyro*, 786 F.2d 826,
829 (8th Cir. 1986).

Whether an indictment charges one or more than one conspiracy is
determined under a \"totality of the circumstances test\" under which
the following factors are considered:

\(1\) time;

\(2\) persons acting as coconspirators;

\(3\) the statutory offenses charged in the indictments;

\(4\) the overt acts charged by the government or any other description
of the offenses charged which indicate the nature and the scope of the
activity which the government sought to punish in each case; and

\(5\) places where the events alleged as part of the conspiracy took
place.

\"The essence of the determination is whether there is one agreement to
commit two crimes, or more than one agreement, each with a separate
object.\" *United States v. Thomas*, 759 F.2d 659, 662 (8th Cir. 1985)
\[addressing a double jeopardy claim\].

**5.06H CONSPIRACY: WITHDRAWAL^1^**

If a person enters into an agreement but withdraws from that agreement
before anyone has committed an act in furtherance of it, then the crime
of conspiracy was not complete at that time and the person who withdrew
must be found not guilty of the conspiracy.

In order for you to find that a person withdrew from a conspiracy, you
must find that person took a definite, positive step to disavow or
defeat the purpose of the conspiracy. Merely stopping activities or a
period of inactivity is not enough. That person must have taken such
action before any member of the scheme had committed any act in
furtherance of the conspiracy.

The defendant has the burden of proving that \[he\] \[she\] withdrew by
the greater weight of the evidence. To prove something by the greater
weight of the evidence is to prove that it is more likely true than not
true. It is determined by considering all of the evidence and deciding
which evidence is more convincing. \[If the evidence appears to be
equally balanced, or if you cannot say upon which side it weighs
heavier, you must resolve that question against the defendant. The
greater weight of the evidence is not necessarily determined by the
greater number of witnesses or exhibits a party has presented.\]

**Notes on Use**

1\. This defense is available only to those conspiracies which require
the commission of an overt act as an element.

This instruction, if used, should immediately follow the last paragraph
of Instruction 5.06A, *supra*.

**Committee Comments**

*See* Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) §
11.4 (1997); Seventh Circuit Federal Jury Instructions: Criminal § 5.12
(1999); 2 Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 31.11 (5th ed. 2000). *United States v.
Jimenez*, 622 F.2d 753 (5th Cir. 1980). *See generally* West Key \#
\"Conspiracy\" 40.4.

Withdrawal requires an affirmative act to defeat or disavow the purpose
of the conspiracy; mere cessation of activity is insufficient. *Hyde v.
United States*, 225 U.S. 347, 368-69 (1912); *United States v. Lewis*,
759 F.2d 1316, 1343 (8th Cir. 1985); *United States v. Hamilton*, 689
F.2d 1262, 1268 (6th Cir. 1982); *United States v. Cohen*, 516 F.2d
1358, 1364 (8th Cir. 1975). *See also* *United States v. Boyd*, 610 F.2d
521, 528 (8th Cir. 1980). To withdraw, a conspirator must show that he
took \"affirmative action, either making a clean breast to the
authorities or communicating his withdrawal in a manner reasonably
calculated to reach co-conspirators.\" *United States v. Parnell*, 581
F.2d 1374, 1384 (10th Cir. 1978). These are only two possible methods of
withdrawal. *United States v. United States Gypsum Co.*, 438 U.S. 422
(1978). However, a mere cessation of activities or periods of inactivity
are not sufficient to make the required showing.

To constitute a defense withdrawal must come before the commission of an
overt act. Thus, an instruction on withdrawal is never appropriate in a
conspiracy prosecution under a conspiracy statute which does not require
proof of an overt act. *See* *United States v. Nicoll*, 664 F.2d 1308
(5th Cir. 1982).

In order to be entitled to an instruction on withdrawal, a defendant
must have presented some evidence that he acted affirmatively to defeat
or disavow the purpose of the conspiracy. *United States v. Wedelstedt*,
589 F.2d 339 (8th Cir. 1978). The burden of proof that the defendant
withdrew is on the defendant. *United States v. Boyd*, 610 F.2d 521, 528
(8th Cir. 1979); *United States v. Jiminez*, 622 F.2d at 757. *But see*
*United States v. Read*, 658 F.2d 1225 (7th Cir. 1981).

**5.06I CONSPIRACY: CO-CONSPIRATOR ACTS AND STATEMENTS^1^**

You may consider acts knowingly done and statements knowingly made by a
defendant\'s co-conspirators during the existence of the conspiracy and
in furtherance of it as evidence pertaining to the defendant even though
they were done or made in the absence of and without the knowledge of
the defendant.**^1^** This includes acts done or statements made before
the defendant had joined the conspiracy, for a person who knowingly,
voluntarily and intentionally joins an existing conspiracy is
responsible for all of the conduct of the co-conspirators from the
beginning of the conspiracy.

\[Acts and statements which are made before the conspiracy began or
after it ended are admissible only against the person making them and
should not be considered by you against any other defendant.\]^2,\ 3^

**Notes on Use**

1\. This instruction conforms to the Court\'s ruling in *Bourjaily v.
United States*, 483 U.S. 171 (1987). The Court decides the admissibility
of conspiratorial statements and the jury should not reexamine this
ruling. *United States v. de Ortiz*, 907 F.2d 629, 633 (7th Cir. 1990)
(*en banc*); *United States v. Petrozzielo*, 548 F.2d 20, 23 (1st Cir.
1977); *United States v. Stanchich*, 550 F.2d 1294 (2d Cir. 1977);
*United States v. Enright*, 579 F.2d 980, 986, 987 (6th Cir. 1978);
*United States v. Gantt*, 617 F.2d 831, 845, 846 (D.C. Cir. 1980); 2
Kevin F. O'Malley, et al., *Federal Jury Practice and Instructions*:
Criminal § 31.06 (5th ed. 2000).

2\. This instruction can be used in other situations involving joint
conduct such as with respect to co-schemers in a mail fraud case. In
such a situation, \"conspirator\" should be changed to \"schemer\" and
\"conspiracy\" to \"scheme.\" *See* Instruction 4.07, *supra*.

3\. An explicit limiting instruction must be given if evidence of acts
or statements by any co-conspirator made before or after the conspiracy
began or ended has been admitted. *See* *United States v. Snider*, 720
F.2d 985, 999 (8th Cir. 1983).

*See also* *Grunewald v. United States*, 353 U.S. 391 (1957); *United
States v. Steele*, 685 F.2d 793, 800-01 (3d Cir. 1982); *United States
v. Del Valle*, 587 F.2d 699 (5th Cir. 1979); *United States v. Payne*,
635 F.2d 643, 645 (7th Cir. 1980). Basically, this line of cases holds
that, unless the conspiracy includes an agreement to cover up the
conspiracy, once the central purposes of the conspiracy have been
accomplished, statements made to cover up the conspiracy are not
statements made in furtherance of the conspiracy and cannot be admitted
against the other conspirators.

**Committee Comments**

*See* *United States v. Shigemura*, 682 F.2d 699, 705 (8th Cir. 1982).
*See also* West Key \# \"Criminal Law\" 422(1); \"Conspiracy\" 41.

A. *Admissibility*.

Rule 801(d)(2)(E) governs the admissibility of co-conspirator
statements. That rule provides that a statement is not hearsay if it is
offered against a party and constitutes \"a statement by a
co-conspirator of \[the\] party during the course and in furtherance of
the conspiracy.\" Such an out-of-court declaration is admissible against
a defendant under this rule if the government demonstrates (1) that a
conspiracy existed; (2) that the defendant and the declarant were
members of the conspiracy; and (3) that the declarations were made
during the course of and in furtherance of the conspiracy. *United
States v. Bell*, 573 F.2d 1040, 1043 (8th Cir. 1978).

Fed. R. Evid. 104(a) requires the district court to apply a
preponderance of the evidence standard in assessing the admissibility of
evidence. *Bourjaily v. United States*, 483 U.S. 171, 176 (1987);
*United States v. Meeks*, 857 F.2d 1201, 1203 (8th Cir. 1988). In making
its determination as to the admissibility of co-conspirator statements,
the district court may consider any relevant evidence, including the
hearsay statements sought to be admitted. *Bourjaily*, 483 U.S. at
176-79; *Meeks*, 857 F.2d at 1203.

Although the statements themselves may be considered in determining
their admissibility, most courts have held that there must be at least
some independent evidence (other than the statements) of the existence
of the conspiracy before the statements are admitted. *United States v.
Garbett*, 867 F.2d 1132, 1134 (8th Cir. 1989); *United States v.
Lindemann*, 85 F.3d 1232, 1238, 1239 (7th Cir. 1996); *United States v.
Clark*, 18 F.3d 1337, 1340-41 (6th Cir. 1994); *United States v.
Sepulveda*, 15 F.3d 1161, 1181 (1st Cir. 1993); *United States v. Daly*,
842 F.2d 1380, 1386 (2d Cir. 1988); *United States v. Gordon*, 844 F.2d
1397, 1402 (9th Cir. 1988); *United States v. Martinez*, 825 F.2d 1451,
1453 (10th Cir. 1987).

In *Bourjaily*, it was further held that there can be no separate
Confrontation Clause challenges to the admissibility of a
co-conspirator\'s out-of-court statement once it is deemed admissible
under Rule 801(d)(2)(E). 483 U.S. at 181-84. Thus, the unavailability of
the declarant need not be demonstrated, *United States v. Inadi*, 475
U.S. 387 (1986), nor need the court make a separate inquiry into the
reliability of the statement. *Bourjaily*, 483 U.S. at 183-84. \[Prior
to *Inadi* and *Bourjaily* this circuit had recognized the two-pronged
Confrontation Clause inquiry. *See* *United States v. Massa*, 740 F.2d
629, 638-41 (8th Cir. 1984).\]

The procedural steps to be utilized when the admissibility of a
co-conspirator\'s statement is at issue are set forth in the *Bell*
opinion, 573 F.2d at 1044.

B. *Jury Instructions*.

The admission of co-conspirator statements into a trial traditionally
gave rise to three different jury instructions. One instruction advised
the jury it could consider statements of co-conspirators made in the
absence of and without the knowledge of the defendant or before he was a
member. *See* instruction set out in *United States v. Shigemura*, 682
F.2d at 705 \[first two sentences of first instruction on page 705\].
This is still a valid instruction. As held in *United States v.
Treadwell*, 760 F.2d 327, 338 (D.C. Cir. 1985), such an instruction can
be helpful because:

A lay jury is unlikely to have knowledge or understanding of the
vicarious liability principles underlying use of co-conspirator acts and
statements or in what circumstances the acts and statements of one
person may be imputed to another.

A second instruction sanctioned by this circuit cautioned the jury on
the weight to be given to and credibility of a co-conspirator\'s
statement. *See* *Shigemura*, 682 F.2d at 705 \[third sentence of first
instruction on page 705\]; *United States v. Bell*, 573 F.2d at 1044;
*United States v. Baykowski*, 615 F.2d 767, 772 (8th Cir. 1980). Such an
instruction was approved in *Bell*, and failure to give such an
instruction was disapproved in *Baykowski*.

However, Supreme Court decisions holding that reliability can be
inferred would eliminate any reason to caution the jury on the weight
and credibility to be accorded co-conspirator statements. *Ohio v.
Roberts*, 448 U.S. 56, 66 (1980) held that: \"Reliability can be
inferred without more in a case where the evidence falls within a firmly
rooted hearsay exception.\" The *Bourjaily* opinion held that the
co-conspirator exception to the hearsay rule meets the \"firmly rooted\"
test and that, under *Roberts*, a court need not make an independent
inquiry into the reliability of such statements.

*See also* *United States v. Regilio*, 669 F.2d 1169, 1176 (7th Cir.
1981), holding that the community of interest of co-conspirators
evidences likelihood of reliability. In *Regilio*, the court found no
error in the refusal to give a co-conspirator statement instruction
which ended as follows:

If you find that the statement was made, you may give the statement such
weight as you feel it deserves, keeping in mind that it must be
considered with caution and great care, particularly since the statement
in question was not under oath or subject to cross-examination.

669 F.2d at 1178. The court held that, unlike accomplice testimony,
out-of-court co-conspirator declarations \"are not inherently unreliable
because when the statement is made the declarant, unlike a testifying
accomplice, has no reason to inculpate his co-conspirator falsely.\"

After *Bourjaily* it would appear that the only cautionary instruction
the jury should be given with respect to such statements would go to the
credibility of the witness who testifies to the statements, and then
only if an accomplice, informant or immunized witness instruction is
applicable. *See* Instructions 6.03-.05, *infra*. In a conspiracy
prosecution the testimony of an accomplice/co-conspirator is not per se
unreliable and it is for the jury to decide how much weight such
testimony should be given. *United States v. Sopczak*, 742 F.2d 1119,
1121 (8th Cir. 1984); *United States v. Evans*, 697 F.2d 240, 245 (8th
Cir. 1983).

It would seem that a cautionary instruction with respect to the
statement itself would not come into play unless the credibility of the
declarant had been attacked under Fed. R. Evid. 806. Then the jury could
be given a standard credibility instruction tailored to apply to the
non-testifying declarant.

**6.00 FINAL INSTRUCTIONS: ELEMENTS OF OFFENSES**

**(Introductory Comment)**

This section contains elements instructions for many commonly prosecuted
criminal offenses. Also included are definitions of particular terms
used in the individual elements instructions or statute. Definitions of
terms generally applicable to many offenses are included in Section 8,
*infra*.

An instruction on the elements of a crime should be as simple and direct
as possible. Separating the elements and numbering them should make the
instruction both easier to draft and more understandable to the jury.
Instruction 3.09 on the Government\'s burden of proof should follow the
elements instructions.

If a lesser included offense is to be submitted to the jury, it should
be given immediately after the greater offense. Instruction 3.10,
*supra*, contains a format for the lesser included offense.

**6.18.111 ASSAULT ON A FEDERAL OFFICER \[WITH A**

**DANGEROUS OR DEADLY WEAPON\] (18 U.S.C. § 111)**

The crime of assault^1^ on a federal officer \[with a dangerous or
deadly weapon\], as charged in \[Count of\] the indictment, has
\[three\] \[four\] elements, which are:

*One*, the defendant forcibly assaulted (describe federal officer by
position and name)^2^ \[with a deadly or dangerous weapon\];^3^

*Two*, the assault was done voluntarily and intentionally;^4^ \[and \]

*\[Three*, the assault resulted in bodily injury;^5^ and \]

*\[Three,\] \[Four,\]* at the time of the assault, (name of officer) was
doing what he was employed by the federal government to do.^6^

An \"assault\" is any intentional and voluntary attempt or threat to do
injury to the person of another, when coupled with the apparent present
ability to do so sufficient to put the person against whom the attempt
is made in fear of immediate bodily harm.^7^

\"Forcibly\" means by use of force. Physical force is sufficient but
actual physical contact is not required. You may also find that a person
who, in fact, has the present ability to inflict bodily harm upon
another and who threatens or attempts to inflict bodily harm upon such
person acts forcibly. In such case, the threat must be a present one.^8^

\[A \"deadly and dangerous weapon\" is an object used in a manner likely
to endanger life or inflict serious bodily harm. A weapon intended to
cause death or danger but that fails to do so because of a defective
component is a deadly or dangerous weapon.\]^9^

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

**Notes on Use**

1\. The wording of the introductory paragraph and Elements One and Three
(or Four if bodily injury resulted) must be modified to conform to the
indictment if forcibly "resists, opposes, impedes, intimidates, or
interferes . . . on account of the performance of his (her) official
duties" is charged.

2\. Whether a person performing the functions delegated to the assault
victim is a federal officer or employee within the meaning of section
111 is a question of law for the court. *See*, *United States v. Oakie*,
12 F.3d 1436 (8th Cir. 1993). However, whether the assault victim was in
fact acting as an officer or employee, and whether he was performing
federal \"investigative, inspection, or law enforcement functions\" at
the time of the alleged assault, are fact questions for the jury.
*United States v. Oakie*, 12 F.3d at 1440. The Committee recommends that
the specific title of the federal officer be used.

3\. Use this language if the enhanced penalty under section 111(b) for
assault with a deadly or dangerous weapon is charged. The question of
what constitutes a deadly or dangerous weapon is a question of fact for
the jury. *United States v. Czeck*, 671 F.2d 1195, 1197 (8th Cir. 1982).
A thorough discussion of this question is found in *United States v.
Moore*, 846 F.2d 1163, 1166-67 (8th Cir. 1988).

4\. The assault must be intentional, even though the term \"willful\" is
not used in the statute. *United States v. Feola*, 420 U.S. at 684;
*Potter v. United States*, 691 F.2d 1275, 1280 (8th Cir. 1982); *United
States v. Manelli*, 667 F.2d 695, 696 (8th Cir. 1981). The requirement
that the defendant acted \"voluntarily and intentionally\" would appear
to satisfy that element. *United States v. Hanson*, 618 F.2d 1261,
1264-65 (8th Cir. 1980). In *United States v. Sweet*, 985 F.2d 443,
444-45 (8th Cir. 1993), the court stated \"\[U\]nless used in the
statute itself or unless the crime falls within that rare type of
offense where defendant\'s knowledge that \[s\]he is violating the law
is an element of the offense, there is no occasion for an instruction
defining specific intent.\" *Id.* at 444-45 (quoting *United States v.
Dougherty*, 763 F.2d 970, 974 (8th Cir. 1985)).

The defendant need not know that the victim is a federal officer.
*United States v. Feola*, 420 U.S. at 684-86; *United States v.
Michalek*, 464 F.2d 442, 443-44 (8^th^ Cir. 1972). If self- defense is
raised, however, knowledge of the official capacity of the victim may be
an element necessary for conviction. *See United States v. Feola*, 420
U.S. at 686; *United States v. Lynch*, 58 F.3d 389, 391-92 (8^th^ Cir.
1995).

5\. Use this bracketed element if the enhanced penalty under section
111(b) if the assault inflicted bodily injury. "Bodily injury" is not
defined in section 111 but is defined in 18 U.S.C. § 1365(g)(4) as "(A)
a cut, abrasion bruise, burn or disfigurement; (B) physical pain; (C)
illness; (D) impairment of the function of a bodily member, organ, or
mental faculty; or (E) any other injury to the body, no matter how
temporary."

6\. State, local or tribal officers are federal officers for the
purposes of the statute if included within the designation of 18 U.S.C.
§ 1114 by reason of contract, designation or deputization. *See* *United
States v. Bettelyoun*, 16 F.3d 850, 852 (8^th^ Cir. 1994), and *United
States v. Oakie*, 12 F.3d at 1439-40 (tribal law enforcement officers
designated by the Bureau of Indian Affairs to perform federal law
enforcement functions are federal officers).

The statute uses the phrase \"while engaged in . . . the performance of
his official duties.\" This means simply acting within the scope of what
that person is employed to do; it is not defined by whether the officer
is abiding by laws and regulations in effect at the time of the
incident. The test is whether the person is acting within that area of
responsibility, that is, whether the officer's actions fall within the
agency's overall mission, in contrast to engaging in a personal frolic
of his own. *United States v. Street*, 66 F.3d 969, 978 (8th Cir. 1995).

It is also a violation of the statute to assault a federal officer \"on
account of\" or in retaliation for his discharge of his official duties.
*E.g.*, *United States v. Lopez*, 710 F.2d 1071, 1074 n.3 (5th Cir.
1983). If this conduct is charged, Element *Three* should be so
modified.

7\. The statute prohibits any acts or threats of bodily harm that might
reasonably that might reasonably deter a federal official from the
performance of his or her duties. Even if there is no physical contact,
the force requirement is satisfied even if the defendant's conduct
places the officer in fear for his life or safety. *See United States v.
Yates*, 304 F.3d 818 (8^th^ Cir. 2002); *United States v. Street*, 66
F.3d 969, 975-76 (8^th^ Cir. 1995); *United States v. Wollenzien*, 972
F.2d 890, 891-92 (8^th^ Cir. 1992).

8\. The element of force may be satisfied by proof of actual physical
contact or by proof of a threat or display of physical aggression toward
the officer that would reasonably inspire fear of pain, bodily harm, or
death in a reasonable person. No direct contact is required, simply
conduct that places the officer in fear for his life or safety. *See
United States v. Street*, 66 F.3d at 977.

9\. *See* 18 U.S.C. § 111(b). \"Serious bodily harm\" has been defined
as more than minor injury, but not necessarily injury creating a
substantial likelihood of death. *Moore*, 846 F.2d at 1166. See also
*United States v. Hollow*, 747 F.2d 481, 482 (8th Cir. 1984).

**Committee Comments**

*See United States v. Yates*, 304 F.3d 818 (8^th^ Cir. 2002), for a
discussion of the categories of assault and the penalty provisions of
section 111; it further holds that in the context of section 111, simple
assault is conduct in violation of section 111(a), which does not
involve actual physical contact, a dangerous weapon, serious bodily
injury, or the intent to commit murder or another serious felony.

If \"self defense\" is raised as an affirmative defense, an appropriate
instruction setting forth the defense and the government\'s burden
thereon should be given. *See United States v. Feola*, 420 U.S. 671
(1975); *United States v. Lynch*, 58 F.3d 389, 391-92 (8^th^ Cir. 1995);
*United States v. Alvarez*, 755 F.2d 830, 842-43 (11th Cir. 1985). S*ee
also* Instructions 3.09, *supra*, and 9.00 and 9.04, *infra*.

**6.18.152A BANKRUPTCY FRAUD (Concealment of Assets) (18 U.S.C. §
152(1))**

The crime of bankruptcy fraud has four elements, which are:

*One*, on or about (specify time alleged in the indictment) a bankruptcy
case was pending in the United States Bankruptcy Court for the
\_\_\_\_\_ District of \_\_\_\_\_, in which \_\_\_\_\_ \[doing business
as \_\_\_\_\_ \] was the Debtor;

*Two*, (describe the property alleged in the indictment)^1^ was a part
of the bankruptcy estate of the Debtor;

*Three*, the defendant knowingly^2^ \[concealed\] \[attempted to
conceal;^3^\] the (describe the property alleged in the indictment) from
the \[custodian\] \[trustee\] \[Marshal\] \[some person\] charged with
the custody and control of that property; and

*Four*, such \[concealment\] \[attempt to conceal\] was done with the
intent to defraud.

The term "debtor" means the person or corporation for whom a bankruptcy
case has been commenced.

When a debtor files a petition seeking protection from creditors under
the bankruptcy laws, a "bankruptcy estate" is created, which is
comprised of all property belonging to the debtor, wherever located, and
by whomever held, as of the time of the filing of the bankruptcy case.
The "bankruptcy estate" also includes proceeds, products, rents, or
profits of or from the property of the estate, but it does not include
earnings from services performed by an individual after the case is
filed.

\"Concealment\" means not only hiding property or assets, it also
includes preventing the discovery of assets, transferring property or
withholding information required to be made known. Concealment of
property of the estate may include transferring property to a third
party or entity, destroying the property, withholding knowledge
concerning the existence or whereabouts of the property, or knowingly
doing anything else by which the defendant acts to hinder, unreasonably
delay or defraud any creditors. The United States need not prove that
the concealment was successful.

To act with \"intent to defraud\" means to act knowingly and with the
intent to deceive someone for the purpose of causing some \[financial
loss\] \[loss of property or property rights\] to another, or bringing
about a financial gain to oneself or another, to the detriment of a
third party.

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

**Notes On Use**

1\. The property alleged to have been concealed must be pled with
particularity and, therefore, should be sufficiently identified in the
instruction. *See United States v. Arge*, 418 F.2d 721, 724 (10th Cir.
1969).

2\. It is the opinion of the Committee that the term "knowingly" is a
well-known and often used term which does not need to be defined. If a
definition is requested and deemed necessary, see the Committee Comments
for Instruction 7.03.

3\. This bracketed language should be used where an attempted
concealment was unsuccessful. It is no defense that the defendant's
attempt to conceal was unsuccessful. *See United States v. Cherek*, 734
F.2d 1248, 1254 (7th Cir. 1984); *United States v. Porter*, 842 F.2d
1021, 1024 (8th Cir. 1988).

**Committee Comments**

*See* Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) at
86, et seq. (1997).

A similar instruction was discussed in *United States v. Christner,* 66
F.3d 922, 925-26 (8th Cir. 1995).

Property which is subject to a bankruptcy proceeding is to be accorded a
broad interpretation, and it also includes equitable interests held by
the debtor, such as causes of action. *United States v. Brimberry*, 779
F.2d 1339, 1347-48 (8th Cir. 1985) (citing 4 W. Collier, Bankruptcy, ¶
541.10 (15th ed.)). However, equitable interests subject to the
bankruptcy estate include only existing equitable interests, not the
right to acquire such an interest. In *Brimberry*, the court concluded
that the right to a constructive trust did not provide a basis for
conviction under the bankruptcy fraud statute, but where the bankruptcy
court imposed a constructive trust on property purchased with embezzled
funds, the court concluded the constructive trust was sufficient to
satisfy the \"property belonging to the estate of the debtor\" element
of 15 U. S. C. § 78jjj(c)1(C)(I).

The Committee believes that in bankruptcy fraud cases based upon
concealment of assets, materiality is not an element of the offense. It
is not mentioned in the statute as an element of the offense, and recent
decisions of the Supreme Court would tend to indicate that such an
element will not be judicially imposed. *See* *United States v. Wells*,
519 U.S. 482 (1997).

**6.18.152B BANKRUPTCY FRAUD (Making a False Statement) (18 U.S.C. §
152(2-4))**

The crime of bankruptcy fraud has four elements, which are:

*One*, on or about (specify time alleged in the indictment) a bankruptcy
case was pending in the United States Bankruptcy Court for the
\_\_\_\_\_ District of \_\_\_\_\_, in which \_\_\_\_\_ \[doing business
as \_\_\_\_\_\] was the Debtor;

*Two*, the defendant \[made\] \[caused to be made\] a false
\[statement\] \[oath\] \[account\] \[regarding a matter material^1^ to\]
\[in relation to\] the bankruptcy proceeding;

*Three*, the defendant knew the \[statement\] \[oath\] \[account\] was
false when it was made;

*Four*, the defendant did so with the intent to defraud.

The term "debtor" means the person or corporation for whom a bankruptcy
case has been commenced.

To act with \"intent to defraud\" means to act knowingly and with the
intent to deceive someone for the purpose of causing some \[financial
loss\] \[loss of property or property rights\] to another, or bringing
about a financial gain to oneself or another, to the detriment of a
third party.

A matter is "material" if it has a natural tendency to influence, or is
capable of influencing, the outcome of the bankruptcy proceeding.

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

**Notes On Use**

1\. There is some question as to whether materiality is an element of
the offense of bankruptcy fraud. While Title 18 U.S.C. § 152(2-4) does
not specifically mention materiality as an element of the offense, the
Eighth Circuit has nevertheless held that materiality is an element
which the jury must find in order to support a conviction for bankruptcy
fraud. This is so even though it was not expressly set out in the
statute. *United States v. Yagow*, 953 F.2d 427, 432 n.2 (8th Cir.
1992). However, the continued validity of *Yagow* on the issue of
materiality is open to question in light of the Supreme Court\'s later
opinion in *United States v. Wells*, 519 U.S. 482 (1997). The *Wells*
case was not a bankruptcy case at all; rather, it dealt with an
analogous prosecution for false statements made to a financial
institution in violation of 18 U.S.C. § 1014. In *Wells*, the Supreme
Court declined to require materiality where the statute did not impose
such a right.

**6.18.201A BRIBERY OF PUBLIC OFFICIAL (18 U.S.C. § 201(b)(1)**)

The crime of bribing a \[public official\] \[person who has been
selected to be a public official\]^1^, as charged in \[Count of\] the
indictment, has three elements, which are:

*One*, the defendant \[gave\] \[offered\] \[promised\]^2^ something of
value to (name of official or selectee);

*Two*, at that time (name of official or selectee) was \[selected to
be\] a (name official position, e.g., Special Agent of the Federal
Bureau of Investigation);^3^ and

*Three*, the defendant did this act corruptly,^4^ that is, with intent
to \[influence\] \[induce\] (name of official or selectee) (describe the
official action or fraud to be influenced or induced - e.g., not to
arrest the defendant).

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

**Notes on Use**

1\. This instruction does not cover the second clause of section
201(b)(1). Where an offer or promise is made to give something of value
to a third person, the instruction should be so modified.

2\. All subsections under section 201(b) and (c) provide for acting
\"directly or indirectly.\" Where indirect action is charged, the jury
instructions should be modified accordingly.

3\. By phrasing the instruction in this manner, the court avoids having
to further instruct that a person holding the defendant\'s particular
position is a \"public official.\" However, the court should make such a
finding on the record.

4\. The Committee believes that the element of \"corruptly\" is
adequately defined by setting out the required intent.

**Committee Comments**

Section 201(a) is "comprehensive statute applicable to all persons
performing activities for or on behalf of the United States, whatever
the form of delegation of authority." *Dixson v. United States*, 465
U.S. 482, 296 (1984). *See Vinyard v. United States*, 335 F.2d 176,
181-83 (8th Cir. 1964).

Bribery requires intent "to influence" an official act or "to be
influenced" in an official act. It also requires proof of a quid pro
quo. *United States v. Sun-Diamond Growers of California*, 526 U.S. 398,
404-05 (1999).

The defendant must have acted "corruptly." "Corruptly\" has been
recognized as having "a longstanding and well-accepted meaning" in
criminal law. "It denotes '\[a\]n act done with an intent to give some
advantage inconsistent with official duty and the rights of others. . .
. It includes bribery but is more comprehensive; because an act may be
corruptly done though the advantage to be derived from it be not offered
by another.'" *United States v. Aguilar*, 515 U.S. 593, 616 (1995) (J.
Scalia, joined by J. Kennedy and Thomas, concurring in part and
dissenting in part) (internal cites omitted), in the context of 18
U.S.C. § 1503. *See also* Committee Comments, Instruction 6.18.1503A,
*infra*, for a discussion of \"corruptly\" in 18 U.S.C. § 1503. The
following definition given by district court in *Aguilar* was cited with
approval:

An act is done \"corruptly\" if it's done voluntarily and intentionally
to bring about either an unlawful result or a lawful result by some
unlawful method, with a hope or expectation of either financial gain or
other benefit to oneself or a benefit of another person.

*Id*. at 616-17.

It is immaterial whether the public official lacked the legal authority
to take the action sought by the defendant, whether the official is not
corrupted, or whether the object of the bribe cannot be obtained.
*Vinyard v. United States*, 335 F.2d at 182. The statute is violated
when a bribe is given or an offer to bribe is made regardless of whether
afterward the person "discovers that for some reason or another, be it a
mistake on his part or a mistake on the part of some officer or agency
of the United States, there was actually no occasion for him to have
done it. *Id. at 182.* The illegality of an arrest is not a viable
defense in a prosecution for bribery of the arresting officer. *Id.* at
181.

\"Public official\" is defined in section 201(a)(1). Although the public
official must be a federal officer, it is not necessary that the
defendant know or believe he is a federal official as long as the
defendant believed he was dealing with a government official. *United
States v. Jennings*, 471 F.2d 1310, 1313 (2d Cir. 1973). It is not
necessary that a person be formally employed or under contract with the
United States to be a public official; a person is a public official if
he occupies a position of public trust with official federal
responsibilities, if he possesses some degree of official responsibility
for carrying out a federal program or policy. *Dixson v. United States*,
465 U.S. 482, 496, 498-99 (1984). *See United States v. Hang*, 75 F.3d
1275, 1279-81 (8^th^ Cir. 1996).

"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. at 414. \"Official act\" is defined in section
201(a)(3).

Giving an illegal gratuity to a public official is a lesser included
offense of bribery. *United States v. Johnson*, 647 F.2d 815 (8th Cir.
1981); *see* Instruction 6.18.201E, *infra*.

*See* Instruction 3.10, *supra*, for a form for a lesser included
offense instruction which must be given if the factual element of intent
is disputed. Where intent is not in dispute, the lesser included offense
instruction should be withheld.

**6.18.201B RECEIVING BRIBE BY PUBLIC OFFICIAL (18 U.S.C. § 201(b)(2))**

The crime of \[soliciting\] \[receiving\] \[agreeing to receive\] a
bribe by a \[public official\] \[person who has been selected to be a
public official\], as charged in \[Count of\] the indictment, has three
elements, which are:

*One*, the defendant was \[selected to be\] (describe the defendant\'s
official position, e.g., a special agent of the United States Customs
Service)^1^;

*Two*, the defendant \[asked for\] \[accepted\] \[agreed to receive\]^2^
\[personally\] \[for another person or entity\] something of value; and

*Three*, the defendant did so corruptly^3^, that is, in return for being
\[influenced\] \[induced\] to (describe the official act or fraud
offered by the defendant, e.g., allow the importation of contraband
drugs into the United States).

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

**Notes on Use**

1\. By phrasing the instruction in this manner, the court avoids having
to further instruct that a person holding the defendant\'s particular
position is a \"public official.\" However, the court should such a
finding on the record.

2\. All subsections under section 201(b) and (c) provide for acting
\"directly or indirectly.\" Where indirect action is charged, the jury
instructions should be modified accordingly.

3\. The Committee believes that the element of \"corruptly\" is
adequately defined by setting out the required intent.

**Committee Comments**

*See* Committee Comments, Instruction 6.18.201A, *supra*.

Under 18 U.S.C. § 201(b)(2), \"the illegal conduct is taking or agreeing
to take money for a promise to act in a certain way.\" *United States v.
Brewster*, 408 U.S. 501, 526 (1972). Performance of the promise is not
required, simply acceptance or solicitation with knowledge that the
donor is paying compensation for an official act. *Id. at 526-27.*

This offense requires corrupt intent, "a quid pro quo -- a specific
intent to give or receive something of value *in exchange* for an
official act." An offense under section 201(c)(1)(B), which criminalizes
illegal gratuities, punishes the receipt of a gratuity paid \"for or
because of any official act performed or to be performed" by a public
official. An illegal gratuity "may constitute merely a reward for some
future act that the public official will take (and may already have
determined to take), or for a past act that he has already taken.
*United States v. Sun-Diamond Growers of California*, 526 U.S. 398,
404-05 (1999).

The statutory requirement that the public official was influenced or
induced to act in a certain way does not describe the official\'s
subjective intent; instead, it describes the intention conveyed to the
briber. Thus, the statute is violated \"by giving false promises of
assistance to people he believed were offering him money to influence
his official actions.\" *United States v. Myers*, 692 F.2d 823, 842
(2^nd^ Cir. 1982). *See also, United States v. Brewster*, 408 U.S. 501
(1972).

Receiving an illegal gratuity is a lesser included offense of receiving
a bribe. *See* Instruction 6.18.201F, *infra*.

*See* Instruction 3.10, *supra*, for a form for a lesser included
offense instruction which must be given if the factual element of intent
is disputed. Where intent is not in dispute the lesser included offense
instruction should be withheld.

**6.18.201C BRIBING A WITNESS (18 U.S.C. § 201(b)(3))**

The crime of bribing a witness, as charged in \[Count of\] the
indictment, has three elements, which are:

*One*, (name of witness) was to be a witness under oath or affirmation
at (describe proceeding, e.g., a trial before the United States District
Court for the District of Nebraska);

*Two*, the defendant \[gave\] \[offered\] \[promised\] something of
value to (name of witness)^1^; and

*Three*, the defendant did this act corruptly,^2^ that is, with the
intent to influence \[(name of witness\'s) testimony\] \[(name of
witness) to be absent from the proceeding described\].

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

**Notes on Use**

1\. This section can also be violated by offering to give something of
value to any *other* person or entity.

2\. The Committee believes that the element of \"corruptly\" is
adequately defined by setting out the required intent. *See* Seventh
Circuit Federal Jury Instructions: Criminal at 141 (1999).

**Committee Comments**

*See* Committee Comments, Instructions 6.18.201A-B, *supra*.

**6.18.201D SOLICITING BRIBE BY WITNESS (18 U.S.C. § 201(b)(4))**

The crime of \[soliciting\] \[receiving\] \[agreeing to receive\] a
bribe by a witness, as charged in \[Count \_\_\_\_\_ of\] the
indictment, has three elements, which are:

*One*, the defendant was to be a witness under oath or affirmation at
(describe proceeding, e.g., a hearing before the National Labor
Relations Board); and

*Two*, the defendant \[asked for\] \[accepted\] \[agreed to receive\]^1^
something of value \[personally\] \[for another person or entity\]; and

*Three*, the defendant did so corruptly,^2^ that is, in return for
\[being influenced in his testimony at the (e.g., hearing)\] \[absenting
himself from the (e.g., hearing)\].

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

**Notes on Use**

1\. The defendant may also be charged with demanding, exacting,
soliciting, seeking or receiving something of value.

2\. The Committee believes that the element of \"corruptly\" is
adequately defined by setting out the required intent.

**Committee Comments**

*See* Committee Comments, Instructions 6.18.201A-C, *supra*.

**6.18.201E ILLEGAL GRATUITY TO PUBLIC OFFICIAL**

**(18 U.S.C. § 201(c)(1)(A))**

The crime of \[giving\] \[offering\] \[promising\] an illegal
gratuity^1^ to a public official^2^, as charged in \[Count \_\_\_\_\_
of\] the indictment, has three elements, which are:

*One*, the defendant \[gave\] \[offered\] \[promised\] a \[payment\]
\[thing of value\] not authorized by law to (name of official);

*Two*, the defendant did so \[for\] \[because of\] an official act^3^ to
be performed by (name of official); and

*Three*, at that time, (name of official) was a (name official position,
e.g., Member of Congress)^3^.

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

**Notes on Use**

1\. \"Illegal gratuity\" is used to describe a violation of section
201(c)(1)(A) in numerous cases, including by the Supreme Court in
*United States v. Sun-Diamond Growers of California,* 526 U.S. 398; the
phrase is a generally recognized substitute for the more cumbersome
phraseology in the statute. However, the statute does not refer to this
crime as an \"illegal gratuity.\" If the parties do not want to
characterize this conduct as an \"illegal gratuity,\" they may
substitute the statutory language.

2\. The statute also applies to former public officials and persons who
have been selected to be public officials. If one of these alternatives
is charged, the language in the elements should be changed accordingly.

3\. "Official act" is defined in section 201(a)(3) as "any decision or
action on any question, matter, cause, suit, proceeding or controversy,
which may at any time be pending, or which may by law be brought before
any public official, in such official's official capacity." It includes
"decisions or actions generally expected of the public official. These
decisions or actions do not need to be specifically described in any
law, rule, or job description to be considered to be an 'official act.'"
2 Kevin F. O'Malley, et al., *Federal Jury Practice and Instructions*:
Criminal § 27.08 (5^th^ ed. 2000).

4\. By phrasing the instruction in this manner, the court avoids having
to further instruct that a person holding the defendant\'s particular
position is a \"public official.\" However, the court should make such a
finding on the record. *See United States v. Hang*, 75 F.3d 1275, 1279
(8^th^ Cir. 1996) ("The classification of an individual as a 'public
official' is a legal determination" and is subject to *de novo*
review.).

**Committee Comments**

*See* *United States v. Sun-Diamond Growers of California,* 526 U.S. 398
(1999); *United States v. Johnson*, 647 F.2d 815 (8th Cir. 1981).

The subsections to section 201(c) prohibit illegal gratuities. The
distinguishing feature between a bribe and an illegal gratuity is the
intent element. "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'
an official act. In other words, for bribery there must be a *quid quo
pro* -- a specific intent to give or receive something of value *in
exchange* for an official act." *United States v. Sun-Diamond Growers of
California*, 526 U.S. at 404-05. *See also United States v. Johnson*,
647 F.2d 815, 818 (8th Cir. 1981). For a violation of section
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. at 414. Some laws which prohibit receipt of
honoraria are subject to challenge on First Amendment grounds. *See
United States v. National Treasury Employees Union*, 513 U.S. 454
(1995).

Giving an illegal gratuity is a lesser included offense of bribery.
*United States v. Oseby,* 148 F.3d 1016, 1021 (8^th^ Cir. 1998); *United
States v. Johnson*, 647 F.2d at 818. *See also* Instruction 6.18.201A,
*supra*.

**6.18.201F RECEIVING ILLEGAL GRATUITY BY**

**PUBLIC OFFICIAL (18 U.S.C. § 201(c)(1)(B))**

The crime of \[demanding\] \[receiving\] \[agreeing to receive\]^1^ an
illegal gratuity^2^ by a public official^3^, as charged in \[Count
\_\_\_\_\_ of\] the indictment, has three elements, which are:

*One*, the defendant was a (describe the defendant\'s official position,
e.g., an employee of the Internal Revenue Service);^4^

*Two*, the defendant \[demanded\] \[received\] \[agreed to receive\] a
\[payment\] \[thing of value\] not authorized by law; and

*Three*, the defendant did so \[for\] \[because of\] an official act^5^
to be performed by (name of official).

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

**Notes on Use**

1\. The statute also provides for seeking, accepting and agreeing to
accept illegal gratuities. When any of this activity is charged, the
appropriate words should be substituted in the instruction.

2\. \"Illegal gratuity\" is used to describe a violation of section
201(c)(1)(A) in numerous cases, including by the Supreme Court in
*United States v. Sun-Diamond Growers of California*, 526 U.S. 398
(1999); the phrase is a generally recognized substitute for the more
cumbersome phraseology in the statute. However, the statute does not
refer to this crime as an \"illegal gratuity.\" If the parties do not
want to characterize this conduct as an \"illegal gratuity,\" they may
substitute the statutory language.

3\. The statute also applies to former public officials and persons who
have been selected to be public officials. If one of these alternatives
is charged, the language in the elements should be changed accordingly.

4\. By phrasing the instruction in this manner, the court avoids having
to further instruct that a person holding the defendant\'s particular
position is a \"public official.\" However, the court should make such a
finding on the record. *See United States v. Hang*, 75 F.3d 1275, 1279
(8^th^ Cir. 1996) ("The classification of an individual as a 'public
official' is a legal determination" and is subject to *de novo*
review.).

5\. "Official act" is defined in section 201(a)(3) as "any decision or
action on any question, matter, cause, suit, proceeding or controversy,
which may at any time be pending, or which may by law be brought before
any public official, in such official's official capacity." It includes
"decisions or actions generally expected of the public official. These
decisions or actions do not need to be specifically described in any
law, rule, or job description to be considered to be an 'official act.'"
2 Kevin F. O'Malley, et al., *Federal Jury Practice and Instructions*:
Criminal § 27.08 (5^th^ ed. 2000)

**Committee Comments**

*See* Committee Comments, Instruction 6.18.201E, *supra*; *United States
v. Sun-Diamond Growers of California*, 526 U.S. 398 (1999); *United
States v. Johnson*, 647 F.2d 815 (8th Cir. 1981).

The subsections to section 201(c) prohibit illegal gratuities. The
distinguishing feature between a bribe and an illegal gratuity is the
intent element. "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'
an official act. In other words, for bribery there must be a *quid quo
pro* -- a specific intent to give or receive something of value *in
exchange* for an official act." *United States v. Sun-Diamond Growers of
California*, 526 U.S. at 404-05. *See also United States v. Johnson*,
647 F.2d 815, 818 (8th Cir. 1981). For a violation of section
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. at 414. Some laws which prohibit receipt of
honoraria are subject to challenge on First Amendment grounds. *See
United States v. National Treasury Employees Union*, 513 U.S. 454
(1995).

Giving an illegal gratuity is a lesser included offense of bribery.
*United States v. Oseby*, 148 F.3d 1016, 1021 (8^th^ Cir. 1998); *United
States v. Johnson*, 647 F.2d at 818. *See also* Instruction 6.18.201A,
*supra*.

**6.18.287 MAKING A FALSE CLAIM AGAINST**

**THE UNITED STATES (18 U.S.C. § 287)**

The crime of making a \[false\] \[fictitious\] \[fraudulent\] claim
against the United States, as charged in \[Count \_\_\_\_\_\] of the
indictment, has four elements, which are:

*One*, the defendant \[made\] \[presented\] to (name of U.S. officer or
agency)^1^ a claim against \[the United States\] \[(name of department
or agency of the United States)\];

*Two*, the claim was \[false\] \[fictitious\] \[fraudulent\]^2^ in that
(describe how claim was false, etc.);

*Three*, the defendant knew the claim was \[false\] \[fictitious\]
\[fraudulent\]; and

*Four*, the \[false\] \[fictitious\] \[fraudulent\] matter was material
to (name of U.S. officer or agency).

\[A claim is \"false\" or \"fictitious\" if any part of it is untrue
when made, and then known to be untrue by the person making it or
causing it to be made.\] \[A claim is \"fraudulent\" if any part of it
is known to be untrue, and made or caused to be made with the intent to
deceive the governmental agency to which submitted.\]^3^

A claim is \"material\" if it has a natural tendency to influence, or is
capable of influencing the (name of U.S. officer or agency). \[However,
whether a claim is \"material\" does not depend on whether (name of U.S.
officer or agency) was actually deceived.\]^4^

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

**Notes on Use**

1\. By naming the agency in the elements, the court avoids having to
further instruct that the agency is an agency of the United States.
However, the court should make such a finding on the record, because
that is an issue of law which the court must decide. The jury must
decide whether it was material.

2\. In some cases, the claim may be charged to be false in more than one
way in a single count of an indictment. In those cases, the jury should
be instructed as follows:

You need not find that the claim is false in all of the ways alleged.
Instead, you must find unanimously and beyond a reasonable doubt that
the claim is false in at least one of the ways set out in a particular
count of the indictment.

3\. Definitions of \"false,\" \"fictitious\" and \"fraudulent\" should
be given. *See* 2 Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 30.05 (5th ed. 2000); Seventh Circuit Federal
Jury Instructions: Criminal at 163-65 (1999); Eleventh Circuit Pattern
Jury Instructions: Criminal (Offense) § 9 (1997); *United States v.
Milton*, 602 F.2d 231, 233 (9th Cir. 1979) on which the instruction is
based. *See also* 18 Am. Crim. L. Rev. at 283-84.

4\. Materiality is an element of the second (\"false claim\") clause of
18 U.S.C. § 287, even though the statute, on its face, has no
materiality requirement. *United States v. Wells*, 63 F.3d 745, 750 (8th
Cir. 1995) (citing *United States v. Adler*, 623 F.2d 1287, 1291 n.5
(8th Cir. 1980)). As an element, the question of materiality must be
submitted to the jury and it is a constitutional violation and
reversible error for the trial court to refuse to submit this issue to
the jury. *United States v. Gaudin*, 515 U.S. 506, 523 (1995) (unanimous
opinion).

**Committee Comments**

The following matters are questions of law to be determined by the
court. The court may instruct the jury as to its findings on these
matters:

*a. Claim.* The question of whether the matter submitted constitutes a
claim against the United States is a question of law for the court.
*United States v. John Bernard Industries*, 589 F.2d 1353, 1360 (8th
Cir. 1979) \[jury instructed that the submission of sales slips
constituted a claim\]; *United States v. Wertheimer*, 434 F.2d 1004,
1006 (2d Cir. 1970) \[jury instructed that the submission of invoices
constituted a claim\].

*b. \"Against the United States.\"* The question of whether the entity
to which a claim is submitted is a department or agency of the United
States is a question of law. 18 U.S.C. § 6 (department or agency
defined); *see also* 5 U.S.C. § 101 (executive departments); *United
States v. Madeoy*, 912 F.2d 1486, 1494 (D.C. Cir. 1990) (if the court
reaches a \"conclusion through an exercise in statutory interpretation\"
about a particular issue, the conclusion is a legislative fact that need
not be submitted to the jury). The legal relationship between a private
entity to whom a claim is submitted and a government agency alleged to
have jurisdiction over it is also a question of law. *United States v.
Catena*, 500 F.2d 1319, 1325 (3d Cir. 1974).

\"Willfulness\" is not in the statute and accordingly the Committee has
not included it as an element. *See* Committee Comments to Instructions
7.01 and 7.02. \"Willfulness\" has been specifically held not to be an
element of a section 287 offense. *United States v. Cook*, 586 F.2d 572,
574-75 (5th Cir. 1978), *reh. denied*, 589 F.2d 1114 (5th Cir. 1979);
*United States v. Beasley*, 550 F.2d 261, 270 n.12 (5th Cir. 1977). Both
cases held the portion of the opinion in *United States v. Johnson*,
ruling on the constitutionality of section 287, should not be construed
to mean that willfulness should be added as a separate element. *See
also* *White Collar Crime: False Claims*, 18 Am. Crim. L. Rev. at 285
(1980).

Courts of Appeals in the past have approved instructions under section
287 which contain the word \"willfully\"; however, this approval does
not mean more than that from a defendant\'s point of view an instruction
containing a willfulness requirement is not erroneous, not that a new
element, not mandated by the statute was being judicially created.
*United States v. Irwin*, 654 F.2d at 681-82.

The Committee has considered the opinion in *United States v. Martin*,
772 F.2d 1442 (8th Cir. 1985), a fraudulent claim case, and does not
believe that the court meant to add an element of \"intent to deceive\"
to the elements of a false or fictitious claim case. In *Martin*, the
defendant raised the issue of \"intent to deceive\" by arguing that his
claim was not \"fraudulent,\" of which \"intent to deceive\" is part of
the definition. This distinction was not made clear in the opinion.
Since both parties treated \"intent to deceive\" as an issue, the court
was never asked to decide how it became an issue. Thus, the Committee is
treating the unanalyzed and unsupported statement in the opinion that
\"intent to deceive\" is an element as dicta and not controlling with
respect to false or fictitious claims. *See United States v. Marvin*,
687 F.2d 1221, 1225 (8th Cir. 1982).

**6.18.471 COUNTERFEITING (18 U.S.C. § 471)**

The crime of counterfeiting, as charged in \[Count \] of the indictment,
has two elements, which are:

*One*, the defendant \[falsely made\] \[forged\] \[counterfeited\]
\[altered\] a (specify U.S. obligation or security); and

*Two*, the defendant did so with intent to defraud.

To act with \"intent to defraud\" means to act with the intent to
deceive or cheat, for the purpose of causing some financial loss to
another or bringing about some financial gain to the defendant or
another. It is not necessary, however, to prove that the United States
or anyone else was in fact defrauded.^1^

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

**Notes on Use**

1\. *See* *United States v. Hall*, 801 F.2d 356, 357-60 (8^th^ Cir.
1986); 2 Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal §§ 32.01-.13 (5th ed. 2000).

**Committee Comments**

Whether or not a specific security or obligation is an obligation or
security of the United States is a question of law and is to be decided
by the trial court. *See* 18 U.S.C. § 8; *United States v. Anzalone*,
626 F.2d 239, 242 (2d Cir. 1980).

The generally accepted definition of "counterfeit" means made in order
to bear such a likeness or resemblance to (a genuine obligation of the
United States) (currency of the United States) that it is calculated to
deceive an honest, sensible, and unsuspecting person of ordinary
observation and care when dealing with a person who is (presumed)
(believed) (supposed) to be honest and upright. *See United States v.
Hall*, 801 F.2d 356, 357-60 (8^th^ Cir. 1986); 2 Kevin F. O'Malley, et
al., *Federal Jury Practice and Instructions*: Criminal § 32.11 (5th ed.
2000). If a fact issue exist as to whether the instrument meets this
test, a separate instruction should be submitted.

*See United States v. Hall*, 801 F.2d at 358, for a discussion of
"altered."

An intent to defraud unknown third parties is sufficient. *United States
v. Pitts*, 508 F.2d 1237, 1240 (8^th^ Cir. 1974).

**6.18.472 PASSING COUNTERFEIT OBLIGATIONS (18 U.S.C. § 472)**

The crime of \[passing\] \[selling\] \[attempting to \[pass\]
\[sell\]\]^1^ counterfeit obligations, as charged in \[Count of\] the
indictment, has three elements, which are:

*One*, the defendant \[passed\] \[sold\] \[attempted to \[pass\]
\[sell\]\] (specify the security or obligation involved, e.g., three
counterfeit ten dollar bills);

*Two*, the defendant knew that (describe security or obligation, e.g.,
the ten dollar bills) were counterfeit when \[he\] \[she\] \[passed\]
\[sold\] \[attempted to \[pass\] \[sell\] them; and

*Three*, the defendant did so with intent to defraud.

To act with \"intent to defraud\" means to act with the intent to
deceive or cheat, for the purpose of causing some financial loss to
another or bringing about some financial gain to the defendant or
another. It is not necessary, however, to prove that the United States
or anyone else was in fact defrauded.

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

**Notes on Use**

1\. Section 472 of Title 18 U.S.C. specifically provides that an attempt
to commit the act constitutes a violation of law just as when the act
has been completed. The Committee is of the opinion that the statutory
terms \"utter\" and \"publish\" are adequately covered by \"passing\" or
\"attempting to pass.\" It may be appropriate in some circumstances to
define \"attempt.\" *United States v. Joyce*, 693 F.2d 838 (8th Cir.
1982).

**Committee Comments**

*See* *United States v. Armstrong*, 16 F.3d 289, 292 (8^th^ Cir. 1994);
*United States v. Hall*, 801 F.2d 356, 357-60 (8^th^ Cir. 1986); 2 Kevin
F. O'Malley, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal §
32.06 (5th ed. 2000).

Only obligations or securities of the United States are covered by the
statute, and are defined by 18 U.S.C. § 8. *See* *United States v.
Anzalone*, 626 F.2d 239, 242 (2d Cir. 1980).

The generally accepted definition of \"counterfeit\" is an item bearing
such a likeness or resemblance to genuine currency as is calculated to
deceive an honest, sensible, and unsuspecting person of ordinary
observation and care when dealing with a person supposed to be honest
and upright. *See United States v. Hall*, 801 F.2d 356, 357-60 (8^th^
Cir. 1986). Should a fact issue exist as to whether the instrument meets
this test, a separate instruction should be submitted.

An intent to defraud unknown third parties is sufficient. *United States
v. Pitts*, 508 F.2d 1237, 1240 (8th Cir. 1974). The cases do not require
that the recipient think that the bills are true and genuine. *See
United States v. Berry*, 599 F.2d 267, 268 (8^th^ Cir. 1979) (recipients
immediately noticed bills were "funny"). A defendant can be convicted of
passing to a recipient who knows of the bills\' counterfeit character
where the bills will eventually be put into circulation. *United States
v. Patterson*, 739 F.2d 191, 196 (5th Cir. 1984); *United States v.
Hagan*, 487 F.2d 897 (5th Cir. 1973); *United States v. Wolfe*, 307 F.2d
798 (7th Cir. 1962).

Knowledge of the counterfeit character of the obligation is an element
of the offense. *See*, *e.g.*, *United States v. Carll*, 105 U.S. 611,
613 (1881); *United States v. Baker*, 650 F.2d 936, 937 (8th Cir. 1981);
*United States v. Pitts*, 508 F.2d at 1240; *United States v. Tucker*,
820 F.2d at 236-37. Knowledge may be shown by circumstantial evidence.
*United States v. Armstrong*, 16 F.3d at 292; *United States v. Berry*,
599 F.2d 267, 268-69 (8th Cir. 1979). A mere attempt to pass a bill does
not support an inference that the defendant knew it was counterfeit.
*United States v. Armstrong*, 16 F.3d at 292; *United States v.
Castens*, 462 F.2d 391, 393 (8th Cir. 1972). Depending on the
circumstances, however, the appearance of a bill may be sufficient to
prove the defendant\'s guilty knowledge. *United States v. Baker*, 650
F.2d at 937. Acts from which guilty knowledge may be inferred include a
rapid series of passings, the passing of counterfeit money at different
establishments (even though the accused is not positively identified at
other places in the vicinity), the use of large counterfeit bills for
small purchases rather than change received in prior purchases, and the
segregation of counterfeit bills from genuine bills. *United States v.
Armstrong,* 18 F.3d at 292; *United States v. Olson*, 697 F.2d 273, 275
(8th Cir. 1983). Mere possession of a counterfeit obligation will not
sustain a conviction. *United States v. Olson*, 697 F.2d 273, 275 (8th
Cir. 1983), *on appeal after remand*, 730 F.2d 544 (8^th^ Cir. 1984).

\"Passing\" and \"uttering\" are sometimes treated as synonymous.
However, \"passing\" does not require any declaration that the note is
good nor does it require an attempt to place it in circulation.
\"Uttering\" may require either or both of these additional elements.
*See* 2 Kevin F. O'Malley, et al., FEDERAL JURY PRACTICE AND
INSTRUCTIONS: Criminal § 32.06 (5th ed. 2000); Committee Comments,
Instruction 6.18.495B, *infra*.

It is not necessary to allege or prove that anything of value was
actually received for the counterfeit currency. *United States v.
Holmes*, 453 F.2d 950, 952 (10th Cir. 1972) (citing *Rader v. United
States*, 288 F.2d 452, 453 (8th Cir. 1961)), a forgery case under 18
U.S.C. § 500.

**6.18.495A FORGERY (18 U.S.C. § 495) (First Paragraph)**

The crime of forgery,^1^ as charged in \[Count of\] the indictment, has
four elements, which are:

*One*, the defendant wrote the signature of \[payee\] on a (specify the
document);

*Two*, the defendant did so without authority;

*Three*, the defendant did so in order to \[obtain money\] \[enable
another to obtain money\] from the United States; and

*Four*, the defendant did so with intent to defraud the United States.

To act with \"intent to defraud\" means to act with the intent to
deceive or cheat, for the purpose of causing some financial loss to
another or bringing about some financial gain to the defendant or
another. It is not necessary, however, to prove that the United States
or anyone else was in fact defrauded, or that anyone actually obtained
money from the United States.^2^

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

**Notes on Use**

1\. The first paragraph of section 495 also covers false making,
altering and counterfeiting. If any of these alternatives are charged,
elements one and two should be changed accordingly.

2\. *See* *United States v. Speaks*, 453 F.2d 966, 969 n.9 (1st
Cir.1972) for this definition of \"intent to defraud.\"

**Committee Comments**

*See* 2 Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal §§ 32.01-.13 (5th ed. 2000); Seventh Circuit
Federal Jury Instructions: Criminal at 175 (1999).

The jury should be instructed that intent to defraud the United States
is an element of this offense. *See* *Prussian v. United States*, 282
U.S. 675, 680 (1931); *United States v. Hester*, 598 F.2d 247, 249 (D.C.
Cir. 1979); *United States v. Bates*, 468 F.2d 1252, 1255 (5th Cir.
1972). *But see* *United States v. Dimond*, 445 F.2d 866, 867 (9th Cir.
1971) (proof of intent to interfere with governmental functions is
sufficient).

Signing \"without authority\" is usually part of the definition of
forgery. However, there are cases where a forgery can be accomplished
with authority. *See* *United States v. McGovern*, 661 F.2d 27 (3d Cir.
1981; *United States v. Price*, 655 F.2d 958 (9th Cir. 1981).

It is not necessary that anyone actually received money or anything of
value from the United States as a result of the forgery. *Hammerschmidt
v. United States*, 265 U.S. 182, 188 (1924); *United States v. Rader*,
185 F. Supp. 224, 230 (W.D. Ark. 1960), *aff\'d*, 288 F.2d 452 (8th Cir.
1961); *United States v. Price*, 655 F.2d 958, 960 (9th Cir. 1981). In
appropriate cases, the jury may be so instructed. *See* 2 Kevin F.
O'Malley, et al., *Federal Jury Practice and Instructions*: Criminal §
32.11 (5th ed. 2000).

**6.18.495B UTTERING A FORGED WRITING (18 U.S.C. § 495) (Second
Paragraph)**

The crime of uttering a \[false\] \[forged\] \[altered\]
\[counterfeited\] document, as charged in \[Count of\] the indictment,
has three elements, which are:

*One*, the defendant used or attempted to use (describe document) and in
doing so stated or implied, directly or indirectly, that the (specify
document) was genuine;

*Two*, the defendant did so knowing that the (specify document or matter
forged or altered, e.g., the endorsement of the payee) was \[false\]
\[forged\] \[altered\] or \[counterfeited\]; and

*Three*, the defendant did so with intent to defraud the United States.

\"Intent to defraud\" means to act with the intent to deceive or cheat,
for the purpose of causing some financial loss to another or bringing
about some financial gain to the defendant or another. It is not
necessary, however, to prove that the United States or anyone else was,
in fact, defrauded, or that anyone actually obtained money from the
United States.^1^

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

**Notes on Use**

1\. *See* *United States v. Speaks*, 453 F.2d 966, 969 n.9 (1st Cir.
1972) for a definition of \"intent to defraud\" under this statute.

**Committee Comments**

*See* 2 Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal §§ 32.01-.13 (5th ed. 2000) and Seventh Circuit
Federal Jury Instructions: Criminal at 175 (1999).

The Committee is satisfied that Element *Three* correctly sets out the
required mental state. *See* *Ross v. United States*, 374 F.2d 97, 101
(8th Cir. 1967).

The crime of uttering under 18 U.S.C. § 495 requires proof of an attempt
to circulate a check by means of a fraudulent representation that it is
\"genuine.\" *United States v. Rivamonte*, 666 F.2d 515 (11th Cir.
1982); *United States v. DeJohn*, 638 F.2d 1048, 1055-56 (7th Cir. 1981)
and *United States v. Smith*, 631 F.2d 391, 396 (5th Cir. 1980). It is
not necessary that anything of value be actually received in exchange
for the written instrument. Merely offering the instrument is
sufficient. *United States v. Rader*, 185 F. Supp. 224, 230 (W.D. Ark.
1960), *aff\'d*, 288 F.2d 452 (8th Cir. 1961). \"\'Uttering and
publishing\' . . . is the putting forth or attempt to circulate the
false or forged Treasury check.\" *United States v. Watts*, 532 F.2d
1215, 1218 n.2 (8th Cir. 1976).

The distinction between \"falsely made\" and \"forged\" is addressed in
*United States v. Hagerty*, 561 F.2d 1197 (5th Cir. 1977).

The Devitt and Blackmar definition of \"forgery,\" former § 53.05 (*see*
now 2 Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 32.12 (5th ed. 2000)), was held adequate in
*United States v. Mercer*, 853 F.2d 630, 633 (8th Cir. 1988). The
*Mercer* case further held that a theory of defense instruction
identical to one required in *United States v. Lewis*, 592 F.2d 1282,
1285 (5th Cir. 1979) was merely cumulative and not required where the
jury was adequately instructed on intent to defraud.

**6.18.641 THEFT OF GOVERNMENT MONEY OR PROPERTY (18 U.S.C. § 641)**

The crime of theft of Government \[property\]^1^ as charged in the
indictment has three elements which are:

*One*, the defendant voluntarily, intentionally and knowingly
\[embezzled\] \[stole\] \[converted\] \[money\] \[thing of value\]^2^
\[to \[his\] \[her\] \[their\] own use or to the use of another\]; and

*Two*, the \[money\] \[thing of value\]^3^ belonged to the United States
and had a value in excess of One Thousand Dollars (\$1,000);^4^ and

*Three*, the defendant did so with intent to deprive the owner of the
use or benefit of the \[money\] \[thing of value\]^5^ or property so
taken.

The word \"value\" means the face, par, or market value, or cost price,
either wholesale or retail, whichever is greater.^6^

A \"thing of value\" can be tangible or intangible property.^7^

It is not necessary to prove that the defendant knew that the Government
owned the property at the time of the wrongful taking so long as it is
established, beyond a reasonable doubt, that the Government did in fact
own the money or property involved, that it had a value in excess of One
Thousand Dollars (\$1,000), and that the defendant knowingly and
willfully \[embezzled\] \[stole\] \[converted\] it.

\[To \"embezzle\" means voluntarily and intentionally to take or to
convert to one\'s use the property of another which property came into
the defendant\'s possession lawfully.\]

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

**Notes on Use**

1., 2., 3., 5. The statute covers \"record,\" \"voucher,\" \"money,\"
\"thing of value,\" or \"property made or being made under \[federal\]
contract.\" Whichever form is applicable should be used.

4\. The statute provides for both a felony offense and a misdemeanor
offense. Section 641 was amended by section 606 of The Economic
Espionage Act of 1996, Pub. L. 104-294, 110 Stat. 3511, to make value in
excess of \$1,000 the felony threshold. The Committee recommends that
the jury specifically find that the amount embezzled or misapplied
exceeded \$1,000. If this issue is controverted, the misdemeanor offense
should be included in the instructions as a lesser included offense.
Alternatively, a special interrogatory could be submitted to the jury
asking it whether it finds, beyond a reasonable doubt, that the item had
a value of more than \$1,000 at the time of the alleged offense.

6\. 18 U.S.C. § 641.

7\. *United States v. May*, 625 F.2d 186, 190-91 (8th Cir. 1980). *See
also* *United States v. DiGilio*, 538 F.2d 972 (3d Cir. 1976) (copying
F.B.I. documents and selling the copies held to violate the statute) and
*United States v. Morison*, 604 F. Supp. 655, 663-64 (D. Md. 1985),
*aff'd*, 844 F.2d 1057 (4th Cir. 1988) (statute applied to unauthorized
disclosures of classified information).

**Committee Comments**

*See* Fifth Circuit Pattern Jury Instructions: Criminal § 2.33 (1997);
*United States v. Walker*, 563 F. Supp. 805 (S.D. Iowa 1983).

The Committee believes that the intent required by 18 U.S.C. § 641 is
adequately covered by Elements One and Three. *United States v. May*,
625 F.2d 186 (8th Cir. 1980); *United States v. Denmon*, 483 F.2d 1093
(8th Cir. 1973).

In this statute, steal or stealing has been given broader meaning than
larceny at common law. The statute applies to any taking whereby a
person dishonestly obtains anything of value belonging to another with
the intent to deprive the owner of the rights and benefits of ownership.
*Crabb v. Zerbst*, 99 F.2d 562 (5th Cir. 1938). *See also* *Morissette
v. United States*, 342 U.S. 246, 267-69 n.28 (1952).

**6.18.656 EMBEZZLEMENT AND MISAPPLICATION**

**OF BANK FUNDS (18 U.S.C. § 656)**

The crime of \[embezzlement\] \[misapplication\] of bank funds, as
charged in \[Count of\] the indictment, has five elements, which are:

*One*, the defendant was (describe position and name of bank, e.g., a
trust officer at First National Bank);

*Two*, the defendant \[embezzled\] \[misapplied\] the \[funds\]
\[credits\]^1^ of the bank;

*Three*, the amount so \[embezzled\] \[misapplied\] was more

than \$100.00;^2^

*Four*, the defendant did so with the intent \[to injure\] \[to
defraud\] the bank^3^; and

*Five*, the bank was (describe federal relation, e.g., insured by the
FDIC).^4^

\[\"Embezzlement\" means the voluntary and intentional taking, or
conversion to one\'s own use, of the property of another, which property
came into the defendant\'s possession lawfully, by virtue of some
office, employment, or position of trust which the defendant held.\]^5^
\[\"Misapplication\" means the unauthorized, or unjustifiable or
wrongful use of a bank\'s funds. Misapplication includes the wrongful
taking or use of money of the bank by a bank officer or employee for his
own benefit or for the use and benefit of some other person.\]^6^

\[To act with \"intent to injure\" means to act with intent to cause
pecuniary loss.\]^7^ \[To act with \"intent to defraud\" means to act
with intent to deceive or cheat, for the purpose of causing a financial
loss to someone else or bringing about a financial gain to the defendant
or another.\]^8^

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

**Notes on Use**

1\. The statute also covers \"money, funds, assets or securities
entrusted to the custody or care\" of the bank. If the embezzlement or
the misapplication of any of these is charged, the instruction should be
changed accordingly.

A more detailed description of the property embezzled or misapplied can
be used instead of the general statutory language.

2\. The statute provides for both a felony offense and a misdemeanor
offense. The Committee recommends that the jury specifically find that
the amount embezzled or misapplied exceeded \$100.00. If this issue is
controverted, the misdemeanor offense should be included in the
instructions as a lesser included offense. Alternatively, a special
interrogatory could be submitted to the jury asking it whether it finds,
beyond a reasonable doubt, that the item had a value of more than
\$100.00 at the time of the alleged offense.

3\. Several cases have held that the required intent could alternatively
be intent to deceive the bank\'s officers, directors, or examiners.
*United States v. Steffen*, 641 F.2d 591, 597 (8th Cir. 1981); *United
States v. Krepps*, 605 F.2d 101, 107 n.21 (3d Cir. 1979). Both of these
cases involved situations where the misapplication was accomplished by a
bank officer circumventing policies regarding loans to officers by
setting up loans to third parties from which the officer was to receive
the proceeds. Judge Devitt has included \"intent to deceive\" the
bank\'s officers, etc. in jury instructions which are set out in *United
States v. Dougherty*, 763 F.2d 970 (8th Cir. 1985). That case involved a
misapplication accomplished by a bank officer who issued banker\'s
acceptances to certain bank customers without obtaining loan committee
approval. These cases indicate that an instruction on \"intent to
deceive\" may be appropriate in misapplication cases of this nature.

4\. Absent a stipulation between the government and the defendant, this
instruction must include the element that the victim financial
institution fell into one of the categories listed in the statute.

5\. *See* *United States v. Sayklay*, 542 F.2d 942 (5th Cir. 1976);
*Woxberg v. United States*, 329 F.2d 284 (9th Cir. 1964); 2 Kevin F.
O'Malley, et al., *Federal Jury Practice and Instructions*: Criminal §
33.04 (5th ed. 2000).

6\. *See* *United States v. Moraites*, 456 F.2d 435 (3d Cir. 1972);
*United States v. Bevans*, 496 F.2d 494 (8th Cir. 1974); *United States
v. Beran*, 546 F.2d 1316 (8th Cir. 1976); 1A Kevin F. O'Malley, et al.,
*Federal Jury Practice and Instructions*: Criminal § 33.05 (5th ed.
2000). Conversion of bank funds is encompassed within the definition of
misapplication. *United States v. Beran*.

7\. *See* *United States v. Arthur*, 544 F.2d 730, 736 (4th Cir. 1976);
*United States v. Blackwood*, 735 F.2d 142, 144-46 (4th Cir. 1984).

8\. *See* Eleventh Circuit Pattern Jury Instructions: Criminal (Offense)
§ 19 (1997).

**Committee Comments**

*See* 2 Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal §§ 33.01-.06 (5th ed. 2000); Ninth Cir. Crim.
Jury Instr. 8.11.1, 8.11.2 (1997); Eleventh Circuit Pattern Jury
Instructions: Criminal (Offense) § 19 (1997); *United States v. Bevans*,
496 F.2d 494, 499 n.4 (8th Cir. 1974); *United States v. Farrell*, 609
F.2d 816, 818 (5th Cir. 1980).

Misapplication and embezzlement are separate and distinct offenses.
*United States v. Holmes*, 611 F.2d 329, 331 (10th Cir. 1979).
Embezzlement requires a conversion of property for the defendant\'s own
use while misapplication may be accomplished by diverting funds for the
use of others, *United States v. Beran*, 546 F.2d 1316, 1320 (8th Cir.
1976), or by improperly structuring a loan to third parties for the
defendant\'s personal benefit. *United States v. Angelos*, 763 F.2d 859,
861 (7th Cir. 1985); *United States v. Steffen*, 641 F.2d 591, 597 (8th
Cir. 1981). A check kiting scheme can constitute misapplication. *United
States v. Young*, 618 F.2d 1281 (8th Cir. 1980). *See* *United States v.
Gens*, 493 F.2d 216 (1st Cir. 1974) for a comprehensive review of the
cases construing the word \"misapplied.\"

Intent to injure or defraud the bank is an element of embezzlement,
*United States v. Scheper*, 520 F.2d 1355 (4th Cir. 1975), as well as
misapplication. *United States v. Cooper*, 577 F.2d 1079, 1082-83 (6th
Cir. 1978). Courts have read this requirement back into section 656
after it was inadvertently dropped from the statute in the course of a
technical revision of the federal criminal code. *United States v.
Angelos*, 763 F.2d at 861; *Seals v. United States*, 221 F.2d 243, 245
(8th Cir. 1955).

This circuit has specifically held that the element of \"intent to
defraud\" is sufficient and the concept of specific intent or a
definition thereof is not appropriate in a section 656 case (or in any
other, unless used in the statute itself). *United States v. Dougherty*,
763 F.2d 970, 973-74 (8th Cir. 1985).

Intent to injure is distinct from intent to defraud. *Angelos*, 763 F.2d
at 861, which case further held that intent to defraud can mean to take
financial advantage of a confidential relationship. Intent to injure
under section 656 means intent to cause pecuniary loss. *United States
v. Arthur*, 544 F.2d 730, 736 (4th Cir. 1976); *United States v.
Blackwood*, 735 F.2d 142, 144-46 (4th Cir. 1984).

Intent to injure or defraud the bank is proved by showing a \"knowing
voluntary act by the defendant, the natural tendency of which may have
been to injure the bank even though such may not have been his motive.\"
*United States v. Farrell*, 609 F.2d at 820.

The defendant\'s criminal intent may be shown by circumstantial
evidence. *Seals v. United States*, 221 F.2d at 248; *see*, *e.g.*,
*United States v. Mohr*, 728 F.2d 1132, 1134-35 (8th Cir. 1984). The
government need not prove that the defendant knew he was violating the
law. *United States v. Dougherty*, 763 F.2d at 973-74.

Whether the defendant planned to return the money or whether the bank
actually sustained a loss is immaterial to guilt under section 656.
*United States v. Angelos*, 763 F.2d at 861; *United States v. Scheper*,
520 F.2d at 1358.

**6.18.659A THEFT FROM INTERSTATE SHIPMENT (18 U.S.C. § 659) (First
Paragraph)**

The crime of theft from an \[interstate\] \[foreign\] shipment, as
charged in \[Count of\] the indictment, has three elements, which are:

*One*, the defendant \[embezzled\] \[stole\] \[obtained by fraud or
deception\]^1^ the property of another^2^ from a (describe interstate or
foreign carrier);

*Two*, at that time this property \[was moving as\] \[was part of\]
\[constituted\] a\[n\] \[interstate\] \[foreign\] shipment;

*Three*, at that time the value of the property was more than
\$100.00;^3^ and

*Four*, the defendant acted with the intent to convert the property
temporarily or permanently to his own use.

\[To \"embezzle\" means voluntarily and intentionally to take, or to
convert to one\'s own use, the property of another, which property came
into the defendant\'s possession lawfully.\]

\[To \"steal\" means to take with the intent to deprive the owner
permanently or temporarily of the rights and benefits of ownership.\]

A shipment becomes a\[n\] \[interstate\] \[foreign\] shipment as soon as
it is assembled for movement across a \[state line\] \[United States
border\] and remains one until it arrives at its final destination and
is delivered.^4^

The word \"value\" means face, par, or market value, or cost price,
either wholesale or retail, whichever is greater.^5^

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

**Notes on Use**

1\. The statute may also be violated by \"unlawfully\" \"taking,\"
\"carrying away\" or \"concealing.\" If one of the \"unlawful\"
alternatives is charged and a definition of \"unlawfully\" is requested,
\"unlawfully\" should be defined in terms of the specific manner in
which the conduct is alleged to be unlawful.

2\. A more specific description of the property may be used instead of
the general statutory language.

3\. If there is a dispute over whether the value is greater or less than
\$100.00, a lesser included offense instruction may be given. If there
is no dispute, a lesser included offense instruction is not necessary.
*United States v. Price*, 447 F.2d 23 (2d Cir. 1971). Alternatively, a
special interrogatory could be submitted to the jury asking it whether
it finds, beyond a reasonable doubt, that the item had a value of more
than \$100.00 at the time of the alleged offense.

4\. *United States v. Crum*, 663 F.2d 771 (8th Cir. 1981); 2 Kevin F.
O'Malley, et al., *Federal Jury Practice and Instructions*: Criminal §§
34.05, 34.07 (5th ed. 2000); Fifth Circuit Pattern Jury Instructions:
Criminal § 2.36 (1997); Eleventh Circuit Pattern Jury Instructions:
Criminal (Offense) § 20.1 (1997).

The eighth paragraph of section 659 reads as follows:

To establish the interstate or foreign commerce character of any
shipment in any prosecution under this section the waybill or other
shipping document of such shipment shall be prima facie evidence of the
place from which and to which such shipment was made. The removal of
property from a pipeline system which extends interstate shall be prima
facie evidence of the interstate character of the shipment of the
property.

This circuit has found that the following instruction complies with that
statute and the applicable constitutional test of a statutory
presumption:

Section 659 of Title 18 of U.S.C.A. further provides that:

To establish the interstate . . . commerce character of any shipment . .
. the waybill or other shipping document of such shipment shall be prima
facie evidence of the place from which and to which such shipment was
made.

\"Prima facie evidence\" means sufficient evidence, unless outweighed by
other evidence in the case. In other words, waybills, or bills of
lading, or other shipping documents such as invoices, if proved, are
sufficient to show the interstate commerce character of the shipment, in
the absence of evidence in the case which leads the jury to a different
or contrary conclusion.

*United States v. Franklin*, 568 F.2d 1156, 1157 (8th Cir. 1978). *See
further* Committee Comments, Instruction 4.13, *supra*, relating to
instructions on statutory inferences. *See also* 2 Kevin F. O'Malley, et
al., *Federal Jury Practice and Instructions*: Criminal §§ 34.05, 34.07
(5th ed. 2000); Fifth Circuit Pattern Jury Instructions: Criminal § 2.36
(1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) §
20.1 (1997).

5\. This definition of value is contained in 18 U.S.C. § 641 and has
been held applicable to section 659. *United States v. Watson*, 570 F.2d
282, 283-84 (8th Cir. 1978).

**Committee Comments**

*See* 2 Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal §§ 34.01-.08 (5th ed. 2000); Fifth Circuit
Pattern Jury Instructions: Criminal § 2.36 (1997); Eleventh Circuit
Pattern Jury Instructions: Criminal (Offense) § 20.1 (1997).

In this and other federal statutes the word \"steal\" or \"stolen\" has
been given a broader meaning than larceny at common law. Accordingly
this statute applies to any taking whereby a person dishonestly obtains
goods belonging to another with the intent to deprive the owner of the
rights and benefits of ownership. *United States v. DeNormand*, 149 F.2d
622, 624 (2d Cir. 1945); *United States v. Scott*, 592 F.2d 1139, 1143
(10th Cir. 1979). *See also* *United States v. Turley*, 352 U.S. 407,
410-17 (1957). Thus, the Government need not prove that the defendant
intended permanently to deprive an owner of property, which is an
element of larceny. *United States v. Shackelford*, 777 F.2d 1141,
1143-45 (6th Cir. 1985); *United States v. Waronek*, 582 F.2d 1158,
1160-62 (7th Cir. 1978).

\"Embezzle\" is defined in *United States v. Scott*, 592 F.2d at 1143.
*See also* Instruction 6.18.656, *supra*.

The determination of whether goods are moving as an interstate shipment
is to be based on practical considerations rather than technical
distinctions. *United States v. Crum*, 663 F.2d 771 (8th Cir. 1981). An
\"interstate shipment\" exists if the goods have been physically
segregated for such shipment, even where interstate transport has not
actually commenced in the sense of over-the-road travel. *See* *United
States v. Henneberry*, 719 F.2d 941 (8th Cir. 1983); *United States v.
Gollin*, 176 F.2d 889, 893-95 (3d Cir. 1949). An interstate shipment
does not lose its interstate character until it arrives at its final
destination and is delivered. *Crum*, 663 F.2d at 771. *See also*
*United States v. Wetzel*, 488 F.2d 153 (8th Cir. 1973).

**6.18.659B PURCHASE, RECEIPT OR POSSESSION OF PROPERTY**

**STOLEN FROM AN INTERSTATE SHIPMENT (18 U.S.C. § 659) (Second
Paragraph)**

The crime of receiving property which has been stolen from an
\[interstate\] \[foreign\] shipment, as charged in \[Count of\] the
indictment, has four elements, which are:

*One*, property^1^ was \[embezzled\] \[stolen\] \[obtained by fraud or
deception\]^2^ from a (describe interstate or foreign carrier) while it
\[was moving as\] \[was part of\] \[constituted\] a\[n\] \[interstate\]
\[foreign\] shipment;

*Two*, the defendant \[bought\] \[received\] \[possessed\] that
property;

*Three*, at that time the value of the property was more than
\$100.00;^3^ and

*Four*, at the time that the defendant \[bought\] \[received\]
\[possessed\] such property, he knew that it had been \[embezzled\]
\[stolen\] \[obtained by fraud or deception\].

\[Property has been \"embezzled\" if it has been voluntarily and
intentionally taken or converted to the use of someone other than the
owner, after it came into that person\'s possession lawfully.\]

\[Property has been \"stolen\" if it has been taken with the intent to
permanently or temporarily deprive the owner of the rights and benefits
of ownership.\]

A shipment becomes a\[n\] \[interstate\] \[foreign\] shipment as soon as
it is assembled for movement across a \[state line\] \[United States
border\] and remains one until it arrives at its final destination and
is delivered.^4^

The word \"value\" means face, par, or market value, or cost price,
either wholesale or retail, whichever is greater.^5^

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

**Notes on Use**

1\. A more specific description of the property may be used instead of
the more general statutory language.

2\. The statute may also be violated by receiving property that has been
\"unlawfully\" \"taken,\" \"carried away\" or \"concealed.\" If any one
of the \"unlawful\" alternatives is charged, and a definition of
\"unlawfully\" is requested, \"unlawfully\" should be defined in terms
of the specific manner in which the conduct is alleged to be unlawful.

3\. If there is a dispute over whether the value is greater or less than
\$100.00, a lesser included offense instruction may be given. If there
is no dispute, a lesser included offense instruction is not necessary.
*United States v. Price*, 447 F.2d 23 (2d Cir. 1971). Alternatively, a
special interrogatory could be submitted to the jury asking it whether
it finds, beyond a reasonable doubt, that the item had a value of more
than \$100.00 at the time of the alleged offense.

4\. *United States v. Crum*, 663 F.2d 771 (8th Cir. 1981); 2 Kevin F.
O'Malley, et al., *Federal Jury Practice and Instructions*: Criminal §§
34.05, 34.07 (5th ed. 2000); Fifth Circuit Pattern Jury Instructions:
Criminal § 2.37 (1997); Eleventh Circuit Pattern Jury Instructions:
Criminal (Offense) § 20.2 (1997)

The eighth paragraph of section 659 reads as follows:

To establish the interstate or foreign commerce character of any
shipment in any prosecution under this section the waybill or other
shipping document of such shipment shall be prima facie evidence of the
place from which and to which such shipment was made. The removal of
property from a pipeline system which extends interstate shall be prima
facie evidence of the interstate character of the shipment of the
property.

This circuit has found that the following instruction complies with that
statute and the applicable constitutional test of a statutory
presumption:

Section 659 of Title 18 of U.S.C.A. further provides that:

To establish the interstate . . . commerce character of any shipment . .
. the waybill or other shipping document of such shipment shall be prima
facie evidence of the place from which and to which such shipment was
made.

\"Prima facie evidence\" means sufficient evidence, unless outweighed by
other evidence in the case. In other words, shipping documents such as
invoices, if proved, are sufficient to show the interstate commerce
character of the shipment, in the absence of evidence in the case which
leads the jury to a different or contrary conclusion.

*United States v. Franklin*, 568 F.2d 1156, 1157 (8th Cir. 1978). *See
further* Committee Comments, Instruction 4.13, *supra*, relating to
instructions on statutory inferences. *See also* 2 Kevin F. O'Malley, et
al., *Federal Jury Practice and Instructions*: Criminal §§ 34.05, 34.07
(5th ed. 2000); Fifth Circuit Pattern Jury Instructions: Criminal § 2.37
(1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) §
20.2 (1997).

5\. This definition of value is contained in 18 U.S.C. § 641 and has
been held applicable to section 659. *United States v. Watson*, 570 F.2d
282, 283-84 (8th Cir. 1978).

**Committee Comments**

*See* Fifth Circuit Pattern Jury Instructions: Criminal § 2.37 (1997);
Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 20.2
(1997); *United States v. Beck*, 659 F.2d 875 (8th Cir. 1981); *United
States v. Mavrick*, 601 F.2d 921, 927 (7th Cir. 1979).

*See* Committee Comments, Instruction 6.18.659A, *supra*.

The goods must be part of an interstate shipment only when stolen; it is
not necessary that they be so when the receiving or possession occurs.
*United States v. Tyers*, 487 F.2d 828, 830 (2d Cir. 1973); *Winer v.
United States*, 228 F.2d 944, 947 (6th Cir. 1956); *United States v.
Gollin*, 166 F.2d 123, 125 (3d Cir. 1948).

The defendant must know that the goods were stolen, but need not know
they were stolen from an interstate shipment. *United States v.
Allegretti*, 340 F.2d 243, 247 (7th Cir. 1964). Possession of recently
stolen goods gives rise to a permissible inference of knowledge that the
goods are stolen unless possession is otherwise explained. *United
States v. Humphrey*, 696 F.2d 72, 74 (8th Cir. 1982); *United States v.
Dugan*, 477 F.2d 140, 142 (8th Cir. 1973). *See* Committee Comments,
Instruction 4.13, *supra*.

Possession may be sole or joint and includes both actual and
constructive possession. *United States v. Dugan*, 477 F.2d at 141,
which defined constructive possession as \"knowingly having both the
power and the intention at a given time to exercise dominion or control
over the property.\" *See* Instruction 8.02, *infra*, for an instruction
defining possession.

If the defendant claims innocent possession the burden is on the
defendant to produce such evidence and raise it as a defense; it is not
an element of the crime to be proved by the government. *United States
v. Mavrick*, 601 F.2d 921, 926-27 (7th Cir. 1979).

**6.18.666A THEFT CONCERNING A PROGRAM RECEIVING**

**FEDERAL FUNDS (18 U.S.C. § 666(a)(1)(A))**

The crime of \[embezzlement\] \[theft\] \[fraud\] \[conversion\]
\[misapplication\] concerning a program receiving Federal funds, as
charged in \[Count \_\_\_ of\] the indictment, has four elements, which
are:

*One*: the defendant was an agent of (name of organization, agency or
governmental unit);

*Two*: \[on or about (insert date)\] \[during the period between (insert
beginning and ending dates)\], the defendant \[embezzled\] \[stole\]
\[obtained by fraud\] \[converted to the use of (name of person) without
authority\] \[intentionally misapplied\]^1^ property of a value^2^ of
\$5,000 or more \[as part of a single scheme or plan\];^3^

*Three*: the property was \[owned by\] \[under the (care) (custody)
(control)\] of (name of organization, agency or governmental unit);

*Four*: (name of organization, agency or governmental unit) received
benefits in excess of \$10,000 in the one-year period beginning (insert
date), pursuant to a federal program involving a \[grant\] \[contract\]
\[subsidy\] \[loan\] \[guarantee\] \[insurance\] \[(describe some other
form of federal assistance)\].

As used in this instruction, the term \"agent\" means a person
authorized to act on behalf of (insert name of organization, agency or
governmental unit) and includes \[(an) (a)\] \[employee\] \[partner\]
\[director\] \[officer\] \[manager\] \[representative\].^4^

\[To \"embezzle\" means knowingly, voluntarily and intentionally to
take, or to convert to one\'s own use, the property of another which
came into the defendant\'s possession lawfully.\]^5^

\[To \"steal\" means knowingly to take with the intent to deprive the
owner permanently or temporarily of the rights and benefits of
ownership.\]^6^

\[To \"obtain by fraud\" means to act knowingly and with intent to
deceive or cheat, usually for the purpose of causing a financial loss to
someone else or bringing about a financial gain to oneself or
another.\]^7^

\[\"Conversion\" means the deliberate taking or retaining of the money
or property of another with the intent to deprive the owner of its use
or benefit either temporarily or permanently. Conversion includes the
misuse or abuse of property as well as use in an unauthorized manner or
to an unauthorized extent.\]^8^

\[To \"misapply\" means to use the funds or property of (name of
organization, agency or governmental unit) knowing that such use is
unauthorized, or unjustifiable or wrongful. Misapplication includes the
wrongful taking or use of the money or property of (name of
organization, agency or governmental unit) by its agent for \[(his)
(her) own benefit\] \[the use or benefit of some other person\]^9^ \[an
unauthorized purpose, even if such use benefitted (name of organization,
agency or governmental unit)\].^10^

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

**Notes on Use**

1\. When alternative means of commission of the crime are charged and
submitted, *see* Fed. R. Crim. P. 7(c)(1) and Committee Comments to
Instruction 11.02, *infra*; Note 2, Instruction 6.18.1341, *infra*; and
Note 4, Instruction 6.18.1951, *infra*. If two or more means are
submitted to the jury, consideration should be given to whether a
unanimity instruction is appropriate.

2\. A definition of the term \"value\" can be found in Instruction
6.18.641, *supra*.

3\. \"Under section 666, where multiple conversions are part of a single
scheme, it seems appropriate to aggregate the value of property stolen
in order to reach the \$5,000 minimum required for prosecution.\"
*United States v. Sanderson*, 966 F.2d 184, 189 (6th Cir. 1992); *see
also* *United States v. Billingslea*, 603 F.2d 515, 520 (5th Cir. 1979)
(\"\[F\]ormulation of a plan or scheme or setting up of a mechanism
which, when put into operation, will result in the taking or diversions
of sums of money on a recurring basis will produce but one crime \[under
§ 665\].\"); *United States v. Brown*, 521 F. Supp. 511 (W.D. Wis. 1981)
(a continuing course of conduct reflecting a single intent may be
prosecuted in a single aggregate count for violations of 18 U.S.C. §
665).

4\. *See* 18 U.S.C. § 666(d)(1). The Committee recommends that the
definition of \"agent\" be tailored to conform to the facts of each case
by selecting one or more of the alternatives in section 666(d)(1) that
have been established by the evidence.

5\. *See* Instruction 6.18.641, *supra*. This definition should be used
if the term \"embezzled\" is used in Element Two.

6\. *See* Instruction 6.18.659A, *supra*; *Morissette v. United States*,
342 U.S. 246, 271 (1952). This definition should be used if the term
\"stole\" is used in Element Two.

7\. *See* Instruction 6.18.1341, *infra*. This definition should be used
if the term \"obtained by fraud\" is used in Element Two.

8\. *See* 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 16.03 (5th ed. 2000). This definition should
be used if the term \"converted\" is used in Element Two.

9\. The Dictionary Act, 1 U.S.C. § 1, provides in relevant part \"that
'in determining the meaning of any Act of Congress, unless the context
indicates otherwise' 'person' includes 'associations' and other
artificial entities such as corporations and societies.\" *Rowland v.
California Men's Colony,* 506 U.S. 194 (1993).

10\. *See* Instruction 6.18.656, *supra*; *United States v. Urlacher*,
979 F.2d 935, 938 (2d Cir. 1992); Instruction 6.18.2314, *infra*;
*United States v. Miller*, 725 F.2d 462, 468 (8th Cir. 1984). This
definition should be used if the term \"misapplied\" is used in Element
Two.

**Committee Comments**

Section 666 was \"designed to create new offenses to augment the ability
of the United States to vindicate significant acts of theft, fraud, and
bribery involving Federal monies which are disbursed to private
organizations or State and local governments pursuant to a federal
program.\" S. Rep. No. 225, at 369, 98th Cong., 2d Sess., *reprinted in*
1984 U.S. Code Cong. & Admin. News 3182, 3510. \"Thus it seems Congress
intended this statute to augment the prosecutorial powers of 18 U.S.C.
§§ 641 and 665.\" *United States v. Sanderson*, 966 F.2d 184, 188 (6th
Cir. 1992).

The Committee believes that where a violation of 18 U.S.C. § 666
requires proof of a specific intent element, the requisite intent is set
forth in the applicable definition. As the instruction is drafted, the
definition of the term used in Element Two is required to supply the
appropriate specific intent.

\"Conversion . . . may be consummated without any intent to keep and
without any wrongful taking, where the initial possession by the
converter was entirely lawful. Conversion may include misuse or abuse of
property. It may reach use in an unauthorized manner or to an
unauthorized extent of property placed in one\'s custody for limited
use. Money rightfully taken into one\'s custody may be converted without
any intent to keep or embezzle it merely by commingling it with the
custodian\'s own, if he was under a duty to keep it separate and
intact.\" *Morissette v. United States*, 342 U.S. 246, 271-72 (1952).
The Committee believes that in most cases \"conversion\" is among the
types of criminal activities subsumed within the ambit of
\"misapplication.\" *See United States v. Krepps*, 605 F.2d 101, 104 (3d
Cir. 1979), 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal §§ 16.01, 16.03 (5th ed. 2000).

\"The language in Section 666 is clear that it is not an element of this
crime that the government trace the \$5,000 to specific federal
government funds.\" *United States v. Smith*, 659 F. Supp. 833, 835
(S.D. Miss. 1987). \"Congress specifically chose . . . \[to\] enact a
criminal statute that would eliminate the need to trace the flow of
federal monies and that would avoid inconsistencies caused by the
different ways that various federal programs disburse funds and control
their administration.\" *United States v. Westmoreland*, 841 F.2d 572,
576 (5th Cir. 1988) (Congress desired to protect the integrity of
federal funds by assuring the integrity of the organization or agencies
that receive them); *see also* *United States v. Rooney*, 986 F.2d 31,
34 (2d Cir. 1993).

\"The principal policy objective behind § 666 is to protect the
integrity of the vast sums of money distributed through Federal
programs.\" *United States v. Rooney*, 986 F.2d 31, 34 (2d Cir. 1993).
The Senate Judiciary Committee Report accompanying the statute states
that \"\[t\]he Committee intends that the term \'Federal program
involving a grant, a contract, a subsidy, a loan, a guarantee, insurance
or another form of Federal Assistance\' be broadly construed, consistent
with the purpose of this section to protect the integrity of the vast
sums of money distributed through Federal programs from theft, fraud,
and undue influence by bribery. However, the concept is not unlimited.
The term \'Federal program\' means that there must exist a specific
statutory scheme authorizing the Federal assistance in order to promote
or achieve certain policy objectives.\" S. Rep. No. 225, 98th Cong., 2d
Sess. 369 (1984); *see also* *United States v. Peery*, 977 F.2d 1230,
1232 (8th Cir. 1992).

\"The term \'in any one-year period\' means a continuous period that
commences no earlier than twelve months before the commission of the
offense or that ends no later than twelve months after the commission of
the offense. Such period may include time both before and after the
commission of the offense.\" 18 U.S.C. § 666(d)(5).

Section 666(c) was added by amendment in 1986 to avoid the possible
application of the statute to acceptable commercial and business
practices, and the provision closely parallels the bank bribery
provision found in 18 U.S.C. § 215. *See* H.R. Rep. No. 797, 99th Cong.,
2d Sess. 1986, *reprinted in* 1986 U.S. Code Cong. & Admin. News, 6138,
6153. However, this provision does not exempt from criminal liability
the willful misappropriation of funds that are used for otherwise
legitimate purposes. \"Section 666(a)(1)(A) prohibits embezzling,
stealing, obtaining by fraud, converting, or intentionally misapplying
funds. The first four prohibitions cover any possible taking of money
for one\'s own use or benefit. Intentional misapplication, in order to
avoid redundancy, must mean intentional misapplication for otherwise
legitimate purposes; if it were for illegitimate purposes, it would be
covered by the prohibitions against embezzlement, stealing, obtaining by
fraud, or conversion.\" *United States v. Urlacher*, 979 F.2d 935, 938
(2d Cir. 1992).

**6.18.666B SOLICITATION OR ACCEPTANCE OF A BRIBE BY AN AGENT**

**OF A PROGRAM RECEIVING FEDERAL FUNDS (18 U.S.C. § 666(a)(1)(B))**

The crime of \[soliciting\] \[demanding\] \[accepting\] \[agreeing to
accept\] a bribe by an agent of a program receiving Federal funds, as
charged in \[Count \_\_\_ of\] the indictment, has four elements, which
are:

*One*: the defendant was an agent of (name of organization, agency or
governmental unit);

*Two*: \[on or about (insert date)\] \[during the period between (insert
beginning and ending dates)\], the defendant corruptly \[\[solicited\]
\[demanded\] for the benefit of \[(name of person or entity)\] \[another
person\]^1^\] \[\[accepted\] \[agreed to accept\] from (name of person
or entity)\], something of value, that is (describe the thing of value),
in connection with (briefly describe in summary form the business,
transaction, or series of transactions, e.g., a contract for the
purchase of office supplies);

*Three*: the (business, transaction(s), e.g., the contract) involved
something of a value^2^ of \$5,000 or more;

*Four*: (name of organization, agency or governmental unit) received
benefits in excess of \$10,000 in the one-year period beginning (insert
date), pursuant to a federal program involving a \[grant\] \[contract\]
\[subsidy\] \[loan\] \[guarantee\] \[insurance\] \[(describe some other
form of federal assistance)\].

As used in this instruction, the term \"agent\" means a person
authorized to act on behalf of (insert name of organization, agency or
governmental unit) and includes \[(an) (a)\] \[employee\] \[partner\]
\[director\] \[officer\] \[manager\] \[representative\].^3^

As used in this instruction, the term \"corruptly\"^4^ means that the
defendant acted voluntarily and intentionally and\[, at least in
part,\]^5^ in return for being \[influenced to\] \[induced to\]
\[rewarded for\] (describe the action to be rewarded, influenced or
induced, e.g., award a contract for the purchase of office supplies).

\[A \"thing of value\" can be tangible or intangible property.
Intangible property rights include any valuable right considered as a
source of wealth, and include the right to exercise control over how
money is spent.\]^6^

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

**Notes on Use**

1\. The Dictionary Act, 1 U.S.C. § 1, provides in relevant part \"that
'in determining the meaning of any Act of Congress, unless the context
indicates otherwise' 'person' includes 'associations and other
artificial entities such as corporations and societies.\" *Rowland v.
California Men's Colony*, 506 US. 194 (1993). The Committee believes
that the term \"person\" as defined in 1 U.S.C. § 1 applies in section
666, and that the instructions should be modified accordingly when the
intended beneficiary of the bribe is an artificial entity.

2\. A definition of the term \"value\" can be found in Instruction
6.18.641, *supra*.

3\. *See* 18 U.S.C. § 666(d)(1). The Committee recommends that the
definition of \"agent\" be tailored to conform to the facts of each case
by selecting one or more of the alternatives in section 666(d)(1) that
have been established by the evidence.

4\. *See* Instruction 6.18.201B, *supra*.

5\. Where the defendant introduces evidence that his motive was proper,
it is appropriate for the court to use the phrase \"at least in part\"
when defining the term \"corruptly\" in the section 666 verdict
directing instruction. *See* *United States v. Coyne*, 4 F.3d 100, 113
(2d Cir. 1993); *United States v. Biaggi*, 909 F.2d 662, 683 (2d Cir.
1990). (\"\[A\] valid purpose that partially motivates a transaction
does not insulate participants in an unlawful transaction from criminal
liability.\")

6\. *See* Note 7, Instruction 6.18.641, *supra*; *United States v.
Shyres*, 898 F.2d 647, 652 (8th Cir. 1990). Where the evidence
establishes that intangible property rights were illegally usurped by
the defendant, the jury instructions should be modified accordingly.

**Committee Comments**

Section 666 was \"designed to create new offenses to augment the ability
of the United States to vindicate significant acts of theft, fraud, and
bribery involving Federal monies which are distributed to private
organizations or State and local governments pursuant to a Federal
program.\" S. Rep. No. 225 at 369, 98th Cong., 2d. Sess., *reprinted in*
1984 U.S. Code Cong. & Admin. News, 3182, 3510. Congress intended that
this statute augment the prosecutorial powers of 18 U.S.C. §§ 201, 641
and 665. *Id.*; *see also* *United States v. Sanderson*, 966 F.2d 184,
188 (6th Cir. 1992).

Section 666 applies to both illegal gratuities and bribes. Under the
former version of section 666, where the payment was illegal if it was
made \"for or because of\" the recipient\'s official conduct, the
statute applied to \"both past acts supporting a gratuity theory and
future acts necessary for a bribery theory.\" *United States v.
Crozier*, 987 F.2d 893, 898-99 (2d Cir. 1993). \"\[U\]nder the current
version, the payment must be \'to influence or reward\' the official
conduct. Thus, the current statute continues to cover payments made with
intent to reward past official conduct, so long as the intent to reward
is corrupt.\" *United States v. Bonito*, 57 F.3d 167 (2d Cir. 1995).

\"The term \'thing of value\' used in § 666\[(a)(1)(B) and (a)(2)\] . .
. has long been construed in other federal criminal statutes to embrace
intangibles. . . . The valuation of intangibles is a traditional
challenge which has routinely been met by courts in the past, e.g., with
respect to the jurisdictional amount requirements for diversity
jurisdiction under 28 U.S.C. § 1332, and indeed, in federal question
cases under 28 U.S.C. § 1331 prior to 1980. The value of a right to
engage in a business activity has been recognized as subject to
reasonable estimation.\" *United States v. Mongelli*, 794 F. Supp. 529,
531 (S.D.N.Y. 1992); *see also* *United States v. Marmolejo*, 89 F.3d
1185, 1191 (5th Cir. 1996), *cert. granted sub nom., Salinas v. United
States*, 522 U.S. 52 (1997); *Morissette v. United States*, 342 U.S. 246
(1952); *United States v. May*, 625 F.2d 186, 191 (8th Cir. 1980).

\"The term \'in any one-year period\' means a continuous period that
commences no earlier than twelve months before the commission of the
offense or that ends no later than twelve months after the commission of
the offense. Such period may include time both before and after the
commission of the offense.\" 18 U.S.C. § 666(d)(5).

The circuits are split on the issue of whether the United States must
show a tracing of federal funds in bribery cases charged under section
666(a)(1)(B). *Compare* *United States v. Simas*, 937 F.2d 459, 463 (9th
Cir. 1991) (in cases charged under section 666, federal funds need not
be traced to project affected by bribe, nor is it necessary to show that
the defendant had authority to administer federal funds); *United States
v. Foley*, 73 F.3d 484, 492 (2d Cir. 1996) (no violation of section
666(a)(1)(B) where the conduct at issue affects neither the federal
program funds received by a protected organization nor the receiving
organization's financial interests. The Supreme Court has granted
*certiorari* to examine the question of what kinds of cases involving
state employees are subject to prosecution under the Federal Bribery
Statute and whether such cases include those where no federal funds are
disbursed or impinged. *United States v. Marmole*jo, 89 F.3d 1185 (5th
Cir. 1996), *cert. granted sub nom. Salinas v. United States*, 522 U.S.
52 (1997).

\"Corruptly\" has been defined as offering anything of value \"for the
purpose of influencing official action.\" Seventh Circuit Federal Jury
Instructions: Criminal at .216-17 (1999). In *Bonito*, \"\[t\]he court
specifically instructed that the government had to prove that \[the
defendant\] acted with corrupt intent, which it defined as acting

voluntarily and intentionally and with the purpose, at least in part, of
accomplishing either an unlawful end result or a lawful end result by
some unlawful method or means. A person acts corruptly, for example,
when he gives or offers to give something of value intending to
influence or reward a government agent in connection with his official
duties."

*United States v. Bonito*, 57 F.3d at 171; *see also* Committee Comments
to Instruction 6.18.201B, *supra*, for a discussion of \"corruptly\" in
18 U.S.C. § 201, bribery of a public official.

The Senate Judiciary Committee Report accompanying the statute states
that \"\[t\]he Committee intends that the term \'Federal program
involving a grant, a contract, a subsidy, a loan, a guarantee, insurance
or another form of Federal Assistance\' be broadly construed, consistent
with the purpose of this section to protect the integrity of the vast
sums of money distributed through Federal programs from theft, fraud,
and undue influence by bribery. However, the concept is not unlimited.
The term \'Federal program\' means that there must exist a specific
statutory scheme authorizing the Federal assistance in order to promote
or achieve certain policy objectives.\" S. Rep. No. 225, 98th Cong., 2d
Sess. 369 (1984); *see also* *United States v. Peery*, 977 F.2d 1230,
1232 (8th Cir. 1992).

Section 666(c) was added by amendment in 1986 to avoid the possible
application of the statute to acceptable commercial and business
practices, and the provision closely parallels the bank bribery
provision found in 18 U.S.C. § 215. *See* H.R. Rep. No. 797, 99th Cong.,
2d Sess. 1986, *reprinted in* 1986 U.S. Code Cong. & Admin. News, 6138,
6153.

**6.18.666C BRIBERY OF AN AGENT OF A PROGRAM RECEIVING**

**FEDERAL FUNDS (18 U.S.C. § 666(a)(2))**

The crime of bribery of an agent of a program receiving Federal funds,
as charged in \[Count \_\_\_ of\] the indictment, has four elements,
which are:

*One*: (name of agent) was an agent of (name of organization, agency or
governmental unit);

*Two*: the defendant corruptly \[gave\] \[offered\] \[agreed to give\]
(describe the thing of value) to (name of recipient) in connection with
(briefly describe in summary form the business, transaction, or series
of transactions, e.g., a contract for the purchase of office supplies);

*Three*: the (describe business or transaction(s), e.g., the contract)
involved something of a value^1^ of \$5,000 or more;

*Four*: (name of organization, agency or governmental unit) received
benefits in excess of \$10,000 in the one-year period beginning (insert
date), pursuant to a federal program involving a \[grant\] \[contract\]
\[subsidy\] \[loan\] \[guarantee\] \[insurance\] \[describe some other
form of federal assistance\].

As used in this instruction, the term \"agent\" means a person
authorized to act on behalf of (insert name of organization, agency or
governmental unit) and includes \[(an) (a)\] \[employee\] \[partner\]
\[director\] \[officer\] \[manager\] \[representative\].^2^

As used in this instruction, the term \"corruptly\"^3^ means that the
defendant acted voluntarily and intentionally and\[, at least in
part,\]^4^ to \[influence\] \[induce\] \[reward\] (name of agent) \[to\]
\[for\] (describe the action to be rewarded, influenced or induced,
e.g., award a contract for the purchase of office supplies).

\[A \"thing of value\" can be tangible or intangible property.
Intangible property rights include any valuable right considered as a
source of wealth, and include the right to exercise control over how
money is spent.\]^5^

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

**Notes on Use**

1\. A definition of the term \"value\" can be found in Instruction
6.18.641, *supra*.

2\. *See* 18 U.S.C. § 666(d)(1). The Committee recommends that the
definition of \"agent\" be tailored to conform to the facts of each case
by selecting one or more of the alternatives in section 666(d)(1) that
have been established by the evidence.

3\. *See* Instruction 6.18.201A, *supra*, and Committee Comments to
Instruction 6.18.201A, *supra*, for a discussion of \"corruptly\" in 18
U.S.C. § 201, bribing a public official.

4\. Where the defendant introduces evidence that his motive was proper,
it is appropriate for the court to use the phrase \"at least in part\"
when defining the term \"corruptly\" in the section 666 verdict
directing instruction. *See* *United States v. Coyne*, 4 F.3d 100, 113
(2d Cir. 1993); *United States v. Biaggi*, 909 F.2d 662, 683 (2d Cir.
1990). (\"\[A\] valid purpose that partially motivates a transaction
does not insulate participants in an unlawful transaction from criminal
liability.\")

5\. *See* Note 7, Instruction 6.18.641, *supra*; *United States v.
Shyres*, 898 F.2d 647, 652 (8th Cir. 1990). Where the evidence
establishes that intangible property rights were illegally usurped by
the defendant, the jury instructions should be modified accordingly.

**Committee Comments**

*See* Committee Comments in Instruction 6.18.666B, *supra*.

**6.18.751 ESCAPE FROM CUSTODY (18 U.S.C. § 751(a))**

The crime of escape from custody, as charged in \[Count of\] the
indictment, has three elements, which are:

*One*, the defendant was \[in the custody^1^ of (describe the custodian,
e.g., the Attorney General, the Bureau of Prisons, a Special Agent of
the Federal Bureau of Investigation)\] \[confined in (name of the
institution in which the defendant was confined)\];

*Two,* the \[custody\] \[confinement\] was by virtue of (describe the
authority for the custody, e.g., a felony conviction, an arrest for a
misdemeanor, etc.)^2^; and

\[*Two*\] \[*Three*\], the defendant \[left\] \[attempted^3^ to leave\]
custody without authorization; and

\[*Three*\] \[*Four*\], in so doing, the defendant knew that he was
\[leaving\] \[attempting to leave\] custody without authorization.

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

**Notes on Use**

1\. In routine cases where custody is obvious, no definition of
\"custody\" should be needed. In other cases, where custody is minimal
or constructive, a definition may be appropriate.

2\. If the defendant is to be subject to the five-year maximum sentence,
the jury must find as an element of the offense that he was in custody
or confinement by virtue of an arrest on a charge of felony, or
conviction of any offense. *See Jones v. United States*, 526 U.S. 227
(1999); *Apprendi v. New Jersey*, 530 U.S. 466 (2000); *United States v.
Aguayo-Delgado*, 220 F.3d 926 (8^th^ Cir. 2000).

3\. If the defendant is charged with attempt, the instructions must
incorporate Model Instruction 8.01 on attempt.

**Committee Comments**

*See* 2 Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal §§ 35.01-.07 (5th ed. 2000).

As an element of the offense, the Government is obligated to establish
*both* the fact of custody *and* the authority for the custody. *United
States v. Richardson*, 687 F.2d 952 (7th Cir. 1982); *see also* *United
States v. Payne*, 529 F.2d 1353, 1354-55 (8th Cir. 1976). The custody
may be minimal and, indeed, may be constructive. *United States v.
Cluck*, 542 F.2d 728, 731, 736 (8th Cir. 1976). The defendant cannot
raise the invalidity or impropriety of his confinement as a defense.
*Id.* at 732.

Out of an abundance of caution, many courts had included willfulness as
an element of this offense. *See, e.g., United States v. Tapio*, 634
F.2d 1092, 1094 (8th Cir. 1980); *United States v. Cluck*. However, the
Committee believes that there now is clear precedent for requiring only
knowledge as the mental state for this offense. *See* *United States v.
Bailey*, 444 U.S. 394, 407-08 (1980). \"\[S\]pecific intent is not an
element of the offense of escape under section 751.\" *United States v.
Tapio*, 634 F.2d at 1094.

An intentional failure to return to confinement is an \"escape\" in
violation of section 751. *United States v. Bailey*, 444 U.S. at 413.

As the Supreme Court noted in *Bailey*, 444 U.S. at 409-13, a defense of
duress or necessity is theoretically available in escape situations. Two
elements are involved in such a defense: (a) that the defendant, while
in confinement, was confronted with a threat (presumably limited to
threats of death or serious bodily harm) so imminent that leaving
custody was his only reasonable alternative; and (b) that the defendant
made a bona fide effort to surrender or return to custody as soon as the
claimed duress or necessity had lost its coercive force. *See* *United
States v. Jackson*, 838 F.2d 301, 302 (8th Cir. 1988). As with the
defense of duress in other settings, once the defendant has introduced
sufficient evidence on *both* these points to put the defense in issue,
the burden may be upon the defense to prove these defenses by a
preponderance of the evidence. *See Dixon v. United States*, \_\_\_ U.S.
\_\_\_, 126 S. Ct. 2437 (2006). *See generally* Instruction 9.02,
*infra*.

**6.18.844i ARSON OF PROPERTY USED IN OR AFFECTING**

**INTERSTATE COMMERCE \[No Personal Injury Involved\]** ^1^

The crime of arson as charged in \[Count \_\_\_ of\] the indictment has
three elements, which are:

*One*, the defendant \[attempted to\] \[damage(d)\] (specify the
particular building, vehicle, real or personal property alleged in the
indictment) by \[fire\] \[using an explosive^2^\] on (date);

*Two*, the defendant did so maliciously;

*Three*, at the time of the \[fire\] \[explosion\] (specify the
particular building, vehicle, real or personal property alleged in the
indictment) \[was used in (interstate) (foreign) commerce\]^3^ \[was
used in an activity affecting interstate commerce\].

The term "maliciously" as used in this instruction means to
intentionally cause damage without just cause or reason.

The term "used in an activity affecting interstate commerce" means
active use of the property for commercial purposes and not a passive,
passing or past connection to commerce. \[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 the
building was used as rental property.)\] ^4,\ 5^

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

**Notes on Use**

1\. The Committee believes that arson involving serious bodily injury or
death should follow the same approach adopted by the United States
Supreme Court in *Jones v. United States*, 526 U.S. 227 (1999), in which
increased penalties for "serious bodily injury" and "death" are
"distinct elements, each of which must be charged by indictment, proven
beyond a reasonable doubt, and submitted to a jury for its verdict."
*See also Apprendi v. New Jersey*, 530 U.S. 466 (2000).

2\. The term "explosive" is defined in 18 U.S.C. § 844(j) as including
"gunpowders, powders used for blasting, all forms of high explosives,
blasting materials, fuses (other than electric circuit breakers),
detonators, and other detonating agents, smokeless powders, other
explosive or incendiary devices . . . and any chemical compounds,
mechanical mixture, or device that contains any oxidizing and
combustible units, or other ingredients, in such proportions,
quantities, or packing that ignition by fire, by friction, by
concussion, by percussion, or by detonation of the compound, mixture, or
device, or any part thereof may cause an explosion."

3\. In *United States v. Rea*, 169 F.3d 1111, 1113 (8th Cir. 1999),
*vacated on other grounds*, 530 U.S. 1201 (2000), the Eighth Circuit
unequivocally confirmed that the interstate commerce requirement of the
statute is an element of the offense which must be found by the jury,
rather than a prerequisite to subject matter jurisdiction.

4\. The Committee believes that the phrase "active employment for
commercial purposes" can lead to jury confusion in certain cases because
activities that courts have found to constitute active employment (such
as use of the building as rental property) may be assumed by the jury to
be passive in nature. In *Jones v. United States*, 529 U.S. 848 (2000)
(quoting from *Russell v. United States*, 471 U.S. 858 (1985)), the
Supreme Court stated "the *Russell* opinion went on to observe however
that 'by its terms § 844(i) applies only to property that is used in an
activity that affects commerce. The rental of real estate is
unquestionably such an activity.'" 529 U.S. 848, 856. The Committee
therefore believes that the following language should also be added in
an appropriate case: "\[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 the building was
used as rental property.)\]" If this form of instruction is used, the
judge should make a finding outside the presence of the jury that the
particular use of the property is a sufficient use to affect interstate
commerce.

5\. In *United States v. Jones*, *id*., the Supreme Court determined
that section 844(i)'s qualification that a building must, *inter alia,*
be used "in any activity affecting interstate or foreign commerce" means
"active employment for commercial purposes, and not merely a passive,
passing, or past connection to commerce." The Court concluded that the
proper inquiry "'is into the function of the building itself, and then a
determination of whether that function affects commerce.'" *Id.*
(quoting *United States v. Ryan*, 9 F.3d 660, 675 (8th Cir. 1993)
(Arnold, C.J., concurring, in part, and dissenting, in part)). Clearly,
under *Jones*, arson of an owner-occupied residential property connected
to interstate commerce solely by virtue of interstate receipt of
utilities, a mortgage and an insurance policy does not fall under
section 844(I). Further, the Eighth Circuit has made clear that all
buildings must be "used in" commerce in order to meet the requirements
of section 844(i). *United States v. Rea*, 223 F.3d 741 (8th Cir. 2000)
(church). This issue is discussed in more detail in *United States v.
Rea (Rea III)*, No. 01-2177, slip op. (8^th^ Cir. Aug. 26, 2002).
Compare *United States v. Harris*, 221 F.3d 1048, 1050 n.2 (8th Cir.
2000). The mere status of being owned by an out-of-state resident does
not constitute active employment in interstate commerce, nor does the
fact that the building is about to be placed on the market for sale, nor
that it is leased by a person to his wholly owned company in a passive
legal arrangement, nor that it receives natural gas from an out-of-state
provider. *United States v. Ryan*, 227 F.3d 1058 (8th Cir. 2000).

**6.18.912 IMPERSONATION OF A FEDERAL OFFICER OR EMPLOYEE-\[ACTING**

**AS\] \[DEMANDING SOMETHING OF VALUE\] (18 U.S.C. § 912)**

The crime of impersonation of a federal \[officer\] \[employee\],^1^ as
charged in \[Count of\] the indictment, has three elements, which are:

*One*, the defendant pretended to be (describe the pretense, e.g., a
special agent of the F.B.I.); and

*Two*, such pretense was false and the defendant knew it was false;^2^
and

*Three*, the defendant, while so pretending, \[acted with the intent to
cause a person to follow some course of action or inaction\]^3^
\[\[demanded\] \[obtained\] some \[money\] \[paper\] \[document\]
\[thing of value\]\].^4^

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

**Notes on Use**

1\. The statute does not label the crime \"impersonation of a federal
officer\"; however, that is the title usually associated with a
violation of 18 U.S.C. § 912.

2\. Although the statute and cases do not expressly state that the
defendant must know the pretense was false, that is implicit in the word
\"pretend.\" *See* 2 Kevin F. O'Malley, et al., *Federal Jury Practice
and Instructions*: Criminal § 38.04 (5th ed. 2000).

3\. Use this language if the defendant is charged with \"acting as\" a
federal officer. The specific language setting forth what the victim did
or did not do may be substituted for the more general language of
\"following some course of action or inaction.\" The exact language of
*Robbins*, 613 F.3d at 691, that \"to 'act as such' would be the
equivalent of causing 'the deceived person to follow some course he
would not have pursued but for the deceitful conduct,'\" is not used
because it is confusing and because the government is not required to
prove that the victim would not have followed the course of action \"but
for the pretense.\"

The Committee does not believe that *Robbins* intended to create a new
causation requirement for this statute. The first bracketed matter set
forth in Element *Three* is a mental-state requirement, not a causation
requirement. *United States v. Gilbert*, 143 F.3d 397, 398 (8^th^ Cir.
1998) (jury could reasonably infer that the defendant attempted to avoid
receiving a traffic ticket by impersonating a federal agent and falsely
implying that he was on the way to a work-related emergency. \"There was
more here than a naked representation, more than mere bravado or
puffing.\")

4\. Use this language if the charge is that the defendant obtained
something of value. Obtaining property by impersonating a federal
official is a separate and distinct offense from \"acting as\" a federal
official. *United States v. Lepowitch*, 318 U.S. 702, 704-05 (1943);
*United States v. Robbins*, 613 F.2d 688, 690 (8th Cir. 1979). The
gravamen of the offense is the acquisition of something of value because
of the defendant\'s representation that he was a federal officer or
employee. *United States v. Etheridge*, 512 F.2d 1249, 1253 (2d Cir.
1975). The \"thing of value\" obtained by the defendant need not to be
tangible; information can be a thing of value. *United States v.
Sheker*, 618 F.2d 607, 609 (9th Cir. 1980). Similarly, forbearance by a
police officer of issuing a traffic ticket is a thing of value. *United
States v. Rippee*, 961 F.2d 677, 679 (7^th^ Cir. 1992).

**Committee Comments**

*See* 2 Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal §§ 38.01-.06 (5th ed. 2000). *See generally
United States v. Robbins*, 613 F.2d 688 (8th Cir. 1979); *United States
v. Gilbert*, 143 F.3d 397 (8^th^ Cir. 1998).

An \"intent to defraud\" need not be specifically alleged; it is
automatically present any time the other elements of the offense are
proven, *United States v. Gayle*, 967 F.2d 483, 486-87 (11^th^ Cir.
1992); instead, all that is required is that the defendant sought to
cause the deceived person to follow some course he would not have
pursued but for the deceitful conduct. *United States v. Robbins*, 613
F.2d at 690-92.

It is immaterial that the officer impersonated lacked the authority to
do what the defendant did or purported to do, *Thomas v. United States*,
213 F.2d 30, 31-32 (9th Cir. 1954), or that the benefits accrued to the
defendant in his personal capacity rather than in his purported official
capacity. *United States v. Rippee*, 961 F.2d 677, 679 (7^th^ Cir.
1992).

**6.18.922 FELON IN POSSESSION OF FIREARM (18 U.S.C. § 922(g))**

The crime of being a felon^1^ in possession of a firearm, as charged in
\[Count of\] the indictment, has three elements, which are:

*One*, the defendant had been convicted of a crime punishable by
imprisonment for a term exceeding one year;

*Two*, the defendant thereafter knowingly^2^ \[possessed\] \[received\]
a firearm, that is (describe weapon); and

*Three*, the firearm was transported across a state line at some time
during or before the defendant\'s possession of it.

\[You are instructed that (list convictions of the defendant, e.g.,
burglary, robbery) \[is\] \[are each\] \[a\] crime\[s\] punishable by
imprisonment for more than one year under the laws of (list
jurisdiction, e.g., State of Missouri).\]^3^

\[You are instructed that the Government and the defendant have
stipulated, that is, agreed, that the defendant has been convicted of a
crime punishable by imprisonment for more than one year under the laws
of (list jurisdiction, e.g., State of Missouri), and you must consider
the first element as proven.\]

If you have found beyond a reasonable doubt that the firearm in question
was manufactured in a state other than (name state in which possession
occurred) and that the defendant possessed that firearm in the State of
(name state in which possession occurred) then you may, but are not
required to, find that it was transported across a state line.^4^

The term \"firearm\" means any weapon (including a starter gun) which
will or is designed to or may be readily converted to expel a projectile
by the action of an explosive.^5^

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

**Notes on Use**

1\. A misdemeanor crime involving domestic abuse may also be actionable
under this section. *See* 18 U.S.C. §§ 921(33)(A) and 922(g)(9).

2\. \"Knowingly\" is found in the penalty section of the statute, § 924.

3\. Crimes included are defined in section 921.

4\. Adapted generally from the instruction used in *Barrett v. United
States*, 423 U.S. 212 (1976), *see* 2A Kevin F. O'Malley, et al.,
*Federal Jury Practice and Instructions*: Criminal § 39.14 (5th ed.
2000).

5\. This definition is taken from 18 U.S.C. § 921(a)(3). Other portions
of this definition should be used where appropriate.

**Committee Comments**

*See Scarborough v. United States*, 431 U.S. 563 (1977); *Barrett v.
United States*, 423 U.S. 212, 215 n.4 (1976); 2A Kevin F. O'Malley, et
al., *Federal Jury Practice and Instructions*: Criminal §§ 39.09-.15
(5th ed. 2000).

The Firearms Owners\' Protection Act of 1986 amended prior section 922
by incorporating with it related provisions of 18 U.S.C. App. §
1202(a)(l). *See* House Rep. #99-495, reprinted in 1986 U.S. Code Cong.
& Admin. News 1327, 1349. *See generally* Hardy, *The Firearms Owners\'
Protection Act: A Historical and Legal Perspective*, 17 Cumb. L. Rev.
585 (1987), for an extensive discussion of the legislative history of
this amendment.

In amending section 922(g), Congress intended both to \"enhance the
ability of law enforcement to fight violent crime\" and to \"relieve the
nation\'s sportsmen and firearms owners and dealers from unnecessary
burdens under the Gun Control Act of 1968.\" House Report at 1327. These
potentially conflicting goals, coupled with a long and, at times
confusing, legislative history, can make interpretation of this statute
difficult.

Pursuant to the statute, it is unlawful for any person who has been
convicted of a crime punishable by imprisonment for a term exceeding one
year to possess or receive a firearm where the required interstate
commerce nexus is established. The defendant need not know the firearm
was transported across state lines. *United States v. Valiant*, 873 F.2d
205 (8th Cir. 1989). Challenges to the constitutionality of section
922(g) on the theory that Congress did not have constitutional authority
to criminalize possession of a weapon by a felon just because the weapon
had been transported in interstate commerce have been unsuccessful.
*United States v. Lopez*, 514 U.S. 549 (1995). *See, e.g., United States
v. Monteleone*, 77 F.3d 1086 (8th Cir. 1996); *United States v. Rankin*,
64 F.3d 338, 339 (8th Cir. 1995); *United States v. Mosby*, 60 F.3d 454,
456 (8th Cir. 1995).

Section 921(a)(20) indicates that what constitutes a conviction is to be
determined by reference to the law of the jurisdiction in which
proceedings were held. Moreover, the section provides that, where a
conviction has been expunged or set aside, or where a person has had his
or her civil rights restored, there is no conviction for the purposes of
this statute. With regard to restoration of civil rights, the Eighth
Circuit has held that substantial, not total, restoration is required to
remove a defendant from the reach of the statute, but further held that
disqualification from serving as a juror and in certain law enforcement
positions did not constitute substantial restoration. *Presley v. United
States*, 851 F.2d 1052 (8th Cir. 1988). For a discussion of the
differences in the various statutory schemes for the restoration of
rights in other jurisdictions within this circuit, *see United States v.
Traxell*, 914 F.2d 119 (8th Cir. 1990); *United States v. Woodall*, 120
F.3d 880 (8th Cir. 1997). For a discussion of the restoration of the
right to possess a firearm, *see Caron v. United States*, 524 U.S. 308
(1998). Any state limitation on possession of a particular type of
firearm by an offender "activates the uniform federal ban on possessing
any firearms at all." *Caron v. United States*, 524 U.S. at 312. The
mere absence of a statute prohibiting firearm possession by ex-felons
does not constitute a restoration of civil rights for purposes of
section 921(a)(20). *United States v. Moore*, 108 F.3d 878 (8th Cir.
1997).

In *Old Chief v. United States*, 519 U.S. 172 (1997), the Supreme Court
held that it was error for the trial court to refuse to accept a
defendant's offer of stipulation to the fact of a prior felony
conviction over the objection of the prosecution in any case \"in which
the prior conviction is for an offense likely to support conviction on
some improper ground.\" In appropriate cases, under *Old Chief*, the
trial court may be compelled to accept an offer to stipulate to the fact
of a prior felony conviction. *See, e.g., United States v. Blake*, 107
F.3d 651 (8th Cir. 1997); *but see Old Chief*, 519 U.S. at 196 (Justice
O'Connor dissenting).

The Eighth Circuit has not decided whether justification and coercion
can be defenses to a charge under section 922(g). See *United States v.
Blankenship*, 67 F.3d 673, 677 (8th Cir. 1995) for a discussion of the
elements of both defenses.

The Eighth Circuit held in *United States v. Richardson*, 439 F.3d 421
(8^th^ Cir. 2006), that convictions under § 922(g)(1) and (g)(3) arising
out of the same act of possession should have been merged for
sentencing, because Congress did not intend multiple punishments for a
single act of possession of a firearm.

**6.18.922(G)(3) DRUG USER IN POSSESSION OF FIREARM (18 U.S.C. §
922(g)(3))**

The crime of being a \[drug user\] \[drug addict\] in possession of a
firearm, as charged in \[Count of\] the indictment, has three elements,
which are:

*One*, the defendant \[was an unlawful user of a controlled substance,
that is, (name of substance)\]^1^ \[was a drug addict\]^2^;

*Two*, the defendant knowingly^3^ \[possessed\] \[received\] \[a
firearm\] \[ammunition\], that is (describe weapon or ammunition), while
\[he\] \[she\] was \[an unlawful user of a controlled substance\] \[a
drug addict\]; and

*Three*, the \[firearm\] \[ammunition\] was transported across a state
line at some time during or before the defendant\'s possession of it.

If you have found beyond a reasonable doubt that the firearm in question
was manufactured in a state other than (name state in which possession
occurred) and that the defendant possessed that firearm in the State of
(name state in which possession occurred) then you may, but are not
required to, find that it was transported across a state line.^4^

The term \"firearm\" means any weapon (including a starter gun) which
will or is designed to or may be readily converted to expel a projectile
by the action of an explosive.^5^

\[The phrase \"unlawful user of a controlled substance\" means a person
who uses a controlled substance in a manner other than as prescribed by
a licensed physician. The defendant must have been actively engaged in
use of \[a\] controlled substance\[s\] during the time \[he\] \[she\]
possessed the \[firearm\] \[ammunition\], but the law does not require
that \[he\] \[she\] used the controlled substance\[s\] at the precise
time \[he\] \[she\] possessed the \[firearm\] \[ammunition\]. Such use
is not limited to the use of drugs on a particular day, or within a
matter of days or weeks before, but rather that the unlawful use has
occurred recently enough to indicate that the individual is actively
engaged in such conduct. \[An inference that a person \[was\] \[is\] a
user of a controlled substance may be drawn from evidence of a pattern
of use or possession of a controlled substance that reasonably covers
the time the \[firearm\] \[ammunition\] was possessed.\]^6^

\[The term \"drug addict\" means any individual who habitually uses any
controlled substance so as to endanger the public morals, health,
safety, or welfare, or who is so far addicted to the use of a controlled
substance as to have lost the power of self-control with reference to
\[his\] \[her\] addiction.\]^7^

You are instructed that \[name of substance(s)\] is a controlled
substance.

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

**Notes on Use**

1\. This instruction's definition of an unlawful user of a controlled
substance is based upon the definition utilized by the Treasury
Department in its firearms regulations, 27 C.F.R. § 478.11, which
provides in pertinent part as follows:

\[A\]ny person who is a current user of a controlled substance in a
manner other than as prescribed by a licensed physician. Such use is not
limited to the use of drugs on a particular day, or within a matter of
days or weeks before, but rather that the unlawful use has occurred
recently enough to indicate that the individual is actively engaged in
such conduct. A person may be an unlawful current user of a controlled
substance even though the substance is not being used at the precise
time the person seeks to acquire a firearm or receives or possesses a
firearm. An inference of current use may be drawn from evidence of a
recent use or possession of a controlled substance or a pattern of use
or possession that reasonably covers the present time, e.g., a
conviction for use or possession of a controlled substance within the
past year; multiple arrests for such offenses within the past 5 years if
the most recent arrest occurred within the past year; or persons found
through a drug test to use a controlled substance unlawfully, provided
that the test was administered within the past year.

The Eighth Circuit in *United States v. Turnbull*, 349 F.3d 558, 562
(8^th^ Cir. 2003) found the Treasury Department's definition "entirely
consistent with any standard for unlawful use to be gleaned from our
prior decisions" and that the district court acted within its discretion
when it incorporated §478.11\'s definition in its instructions. The
Eighth Circuit has held that the government need not prove that the
defendant was actually using drugs at the precise moment he possessed
the firearm. Rather, the \"plain language \[of § 922(g)(3)\] requires
that the government only prove \[the defendant\] was an 'unlawful user'
. . . during the time he possessed firearms.\" *United States v.
McIntosh*, 23 F.3d 1454, 1458 (8^th^ Cir. 1994).

2\. This definition is taken from 21 U.S.C. §802(1).

3\. \"Knowingly\" is found in the penalty section of the statute, § 924.

4\. Adapted generally from the instruction used in *Barrett v. United
States*, 423 U.S. 212, 225 (1976).

5\. This definition is taken from 18 U.S.C. § 921(a)(3). Other portions
of this definition should be used where appropriate.

6\. *See* Note 1.

7\. *See* Note 2.

**Committee Comments**

The Firearms Owners\' Protection Act of 1986 amended prior section 922
by incorporating with it related provisions of 18 U.S.C. App. §
1202(a)(l). *See* House Rep. #99-495, reprinted in 1986 U.S. Code Cong.
& Admin. News 1327, 1349. *See generally* Hardy, *The Firearms Owners\'
Protection Act: A Historical and Legal Perspective*, 17 Cumb. L. Rev.
585 (1987), for an extensive discussion of the legislative history of
this amendment.

In amending section 922(g), Congress intended both to \"enhance the
ability of law enforcement to fight violent crime\" and to \"relieve the
nation\'s sportsmen and firearms owners and dealers from unnecessary
burdens under the Gun Control Act of 1968.\" House Report at 1327. These
potentially conflicting goals, coupled with a long and, at times
confusing, legislative history, can make interpretation of this statute
difficult.

Pursuant to the statute, it is unlawful for any person who is a user of
or addicted to a controlled substance to possess or receive a firearm
where the required interstate commerce nexus is established. The
defendant need not know the firearm was transported across state lines.
*United States v. Valiant*, 873 F.2d 205 (8th Cir. 1989). Challenges to
the constitutionality of section 922(g) on the theory that Congress did
not have constitutional authority to criminalize possession of a weapon
by a felon just because the weapon had been transported in interstate
commerce have been unsuccessful. *United States v. Lopez*, 514 U.S. 549
(1995). *See, e.g., United States v. Monteleone*, 77 F.3d 1086 (8th Cir.
1996); *United States v. Rankin*, 64 F.3d 338, 339 (8th Cir. 1995);
*United States v. Mosby*, 60 F.3d 454, 456 (8th Cir. 1995).

The Eighth Circuit held in *United States v. Richardson*, 439 F.3d 421
(8^th^ Cir. 2006), that convictions under § 922(g)(1) and (g)(3) arising
out of the same act of possession should have been merged for
sentencing, because Congress did not intend multiple punishments for a
single act of possession of a firearm.

**6.18.924C FIREARMS -POSSESSION IN FURTHERANCE OF A**

**CRIME OF VIOLENCE/ DRUG TRAFFICKING OFFENSE**

**(18 U.S.C. § 924(c)) \***

The crime of possessing a firearm^1^ in furtherance of a \[crime of
violence\]^2^ \[drug trafficking crime\]^3^as charged in Count
\_\_\_\_\_ of the indictment has \[two\] \[three\] elements, which
are:^4^

*One*, the defendant committed the crime\[s\] of (describe
crime\[s\];)^5^ and

*Two*, the defendant knowingly^6^ possessed a firearm in furtherance of
(that) (those) crime(s) \[and\]

\[*Three*, the firearm was a\[n\] (describe, e.g., semi-automatic
assault weapon, short-barreled rifle, short-barreled shotgun, machine
gun, destructive device, or firearm equipped with a silencer or
muffler.)\]^7^

\[*Three,* the defendant used the firearm to cause the death of (specify
person killed).\];^8^

\[The phrase "possessed in furtherance of" means the firearm must have
some purpose or effect with respect to (insert crime\[s\]); its presence
or involvement cannot be the result of accident or coincidence.\] \[The
firearm must facilitate or have the potential to facilitate the offense
of (insert crime\[s\]).\] ^9^

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

\* This statute was revised in 1998. This instruction is to be used for
offenses committed after November 13, 1998.

**Notes on Use**

1\. *See* 18 U.S.C. §§ 921(a)(3), 921(a)(23) and 921(a)(24) and 26
U.S.C. § 5845(b). \"Firearm\" normally will not require definition for
the jury. Under 18 U.S.C. § 924(c)(1) as amended effective November 18,
1988, the penalty for use of a machine gun, silencer or muffler has been
substantially increased, e.g., thirty (30) years. Under 18 U.S.C. §
924(c)(1), as amended effective September 13, 1994, the penalty for use
of a semi-automatic assault weapon has been increased to ten (10) years.
The definition of these weapons can be rather technical and not
necessarily intuitive. *See, e.g.*, 18 U.S.C. §§ 921(a)(30) & 922,
Appendix and 26 U.S.C. § 5645. Where the third optional element is
included in this instruction because the government seeks an enhanced
penalty for use of an assault weapon, machine gun, silencer or muffler,
or destructive device, the Committee recommends that the jury should be
instructed as to the statutory definitions at the request of either
party. Where more than one firearm is charged in the same count, a
special verdict may be helpful. *See* Instruction 11.03. *Cf.* *United
States v. Friend*, 50 F.3d 548, 554 (8th Cir. 1995) (government did not
object to lesser included instruction of using a firearm with no
silencer).

2\. Currently defined by 18 U.S.C. § 924(c)(3); *see also* 18 U.S.C. §
16.

3\. Defined by 18 U.S.C. § 924(c)(2) as amended by the Anti-Drug Abuse
Act of 1988, Pub. L. 100-690, 102 Stat. 4181, 4360 § 6212 (eff. Nov. 18,
1988). For crimes committed between November 15, 1986, and November 18,
1988, consistent with the 1988 amendment, applicable case law
interpreted \"drug trafficking crime\" to include conspiracy to
distribute and possession with intent to distribute controlled
substances \-- but not simple misdemeanor possession, *e.g.*, 21 U.S.C.
§ 844. *See United States v. Matra*, 841 F.2d at 843. Note, however,
that where simple possession is in excess of five grams of cocaine base,
that possession is a felony (21 U.S.C. § 844) and thus is a \"drug
trafficking crime\" under section 924(c)(2).

4\. The committee has omitted "use" and "carry" from the main body of
the instruction because it believes that the prosecution will opt for
the generally broader "possess in furtherance" language of the statute
in formulating charges in indictments. However, in those instances in
which the indictment charges the " use" of a firearm, the following
definition of that term should be included in the instruction:

\[The phrase \"used \[a\] firearm\[s\]\" means that the firearm was
actively employed in the course of the commission of the (insert
crime\[s\]). You may find that a firearm was used during the commission
of the crime\[s\] of (insert crime) if you find that (it was
\[brandished\] \[displayed\] \[bartered\] \[used to strike someone\]
\[fired\]) (the defendant \[attempted to fire the firearm\] \[traded or
offered to trade a firearm without handling it\] \[made references to a
firearm that was in the defendant\'s possession\]) (describe other
conduct consistent with the active-employment use of a firearm).\]

The United States Supreme Court, in *Bailey*, has determined that \"the
language, context, and history of section 924(c)(1) indicate that the
Government must show active employment of the firearm\" when the case is
submitted under the \"use\" prong of the statute. This holding overrules
an established line of cases that utilized the \"accessibility and
proximity test\" previously employed by this and other circuits. The
language of section 924(c)(1), supported by its history and context,
compels the conclusion that Congress intended \'use\' in the active
sense of \'to avail oneself of.\'\" *Id.*

In order to meet this requirement, the firearm need not have a role in
the crime as a weapon. *See Smith v. United States*, 508 U.S. 223, 241
(1993) (holding that a criminal who trades his firearm for drugs
\"uses\" it during and in relation to a drug trafficking offense within
the meaning of section 924(c)). *Bailey v. United States*, 516 U.S. 137,
145 (1995).

Where "carry" is charged in the indictment, it should be noted,
\"carrying\" does not require that the defendant had the weapon on his
person. *United States v. Nelson*, 109 F.3d 1323 (8th Cir. 1997);
*United States v. Barry*, 98 F.3d 373, 378 (8th Cir. 1996),.
\"Carries,\" within the meaning of section 924(c)(1), includes carrying
a weapon in a vehicle. *United States v. Nelson*; *United States v.
Freisinger*, 937 F.2d 383, 387 (8th Cir. 1991). It is not necessary to
show that the defendant used the weapon in any affirmative manner to
prove that the defendant carried the weapon. *Bailey v. United States*,
516 U.S. at 145 (a firearm can be carried without being used, e.g., when
an offender keeps a gun hidden in his clothing throughout a drug
transaction).

Courts have held that it is not plain error to fail to give a definition
of \"carrying\" because it is a commonly understood term. *See* *United
States v. Rhodenizer*, 106 F.3d 222, 225 (8th Cir. 1997); *United States
v. Behler*, 100 F.3d 632 (8th Cir. 1996) (where the defendant fails to
offer an instruction defining \"carry,\" the ordinary meaning of the
word should apply).

If a definition of \"carrying\" is to be given, the Committee recommends
the following be inserted after element *Three*:

\[You may find that a firearm was \"carried\" during the commission of
the crime\[s\] of (insert crime) if you find that the defendant \[had a
firearm on his person\] \[was transporting a firearm in a vehicle\]
\[(describe other included conduct consistent with carrying a
firearm)\].

For additional discussion of the scope of the term \"carry,\" *see Smith
v. United States*, 508 U.S. 223 (1993); *United States v. White*, 81
F.3d 80 (8th Cir. 1996); *United States v. Willis*, 89 F.3d at 1379.

The use or carrying of a \"firearm,\" as defined in 18 U.S.C. §
921(a)(3), clearly is a statutory element of the offense which must be
submitted to the jury. Element *Two*, *supra*. *See also United States
v. Rodriguez*, 841 F. Supp. 79 (E.D.N.Y. 1994) (whether a firearm
threaded for a silencer next to a silencer was \"equipped\" with a
silencer within the meaning of the statute was an issue for the jury),
*aff\'d*, 53 F.3d 545, 546 (2d Cir. 1995).

The \"in relation to\" element must be included in the instructions in
those instances where "use" or "carry" is charged. *Smith v. United
States*, 508 U.S. 223, 237 (1993).

In *Bradshaw* v. *United States,* 153 F.3d 704, 707 (8^th^ Cir. 1998)
this circuit approved the following language:

In determining whether a defendant used or carried a firearm, you may
consider all of the factors received in evidence in the case including
the nature of the underlying drug trafficking crime alleged, the
proximity of the defendant to the firearm in question, the usefulness of
the firearm to the crime alleged, and the circumstances surrounding the
presence of the firearm.

In *Bailey v. United States*, 516 U.S. 137 (1995), the Court enumerated
various examples of conduct that would constitute the active employment
of a firearm in relation to the predicate offense and also stated that a
firearm could \"be used without being carried, e.g., when an offender
has a gun on display during a transaction or barters with a firearm
without handling it.\" *Id.* The Committee believes that other conduct
can also constitute active employment of a firearm and that latitude
should be accorded to the trial court to fashion an appropriate
instruction when the evidence supports submission on the issue of
\"use.\"

5\. The question of whether the crime is a crime of violence or a drug
trafficking crime is a question of law for the court. *United States v.
Moore*, 38 F.3d 977, 979 (8th Cir. 1994) (district judge correctly
applied a categorical analysis to the elements of involuntary
manslaughter as defined in 18 U.S.C. § 1112 and determined as a matter
of law that it was a crime of violence). The trial court should make its
finding on the record.

6\. Section 924(c) as written does not require that possession, use or
carrying of a weapon be done \"knowingly.\" However, "the existence of a
mens rea is the rule of, rather than the exception to, the principles of
Anglo-American criminal jurisprudence." *Staples v. United States*, 511
U.S. 600, 605 (1994). Most jurisdictions that have addressed the issue
require knowledge. The Eighth Circuit has implied that knowingly is
required. *See* *Bradshaw v. United States*, 153 F.3d 704 (8^th^ Cir.
1998); *United States v. Coyle*, 998 F.2d 548, 551 (8th Cir. 1993),
*cert. denied sub nom.*, *Swedzinski v. United States*, 510 U.S. 1095
(1994). *See also United States v. Wilson*, 884 F.2d 174, 178-79 (5th
Cir. 1989). Other circuits' pattern jury instructions require knowingly
also. *See* First, Fifth, Seventh, Ninth and Eleventh Circuit Pattern
Jury Instructions and 2A Kevin F. O'Malley, et al., *Federal Jury
Practice and Instructions*: Criminal §§ 39.16-.20 (5^th^ ed. 2000).
Thus, the Committee believes that \"knowingly\" is required even though
section 924(c) does not expressly require that the act be done
knowingly.

7\. This element should be considered only when the government seeks an
enhanced sentence associated with a particular type of firearm, e.g., a
semi-automatic assault weapon or a machine gun. *See United States v.
Simms*, 18 F.3d 588, 592 (8th Cir. 1994) (generally the prosecution must
prove only that the defendant used or carried a firearm and did so in
relation to the predicate, e.g., drug trafficking, crime); *United
States v. Warren*, 16 F.3d 247, 252 (8th Cir. 1994) (a section 924(c)
conviction requires that a defendant use or carry a firearm during and
in relation to either a drug trafficking crime or a crime of violence).
Where an enhanced sentence is sought, the government must prove that the
firearm was not just any firearm, but of the type specifically
proscribed.

The Committee believes that actual knowledge of the specific
characteristics of the firearm resulting in enhancement of the
punishment is not required in an 18 U.S.C. § 924(c) prosecution. *United
States v. Harris,* 959 F.2d 246, 257-61 (D.C. Cir. 1992). Although it
may be argued that the rationale of *United States v. X-Citement Video,
Inc.*, 513 U.S. 64 (1994) requires a *mens rea* finding as to the
characteristics of the firearm, it is the Committee\'s opinion that the
*X-Citement Video* rationale does not apply to an \"element\" that only
establishes applicability of an enhanced penalty, as opposed to
liability for violation of the statute. *X-Citement Video* involved a
prosecution under 18 U.S.C. § 2252, and the Court held that the
government needed to prove not only that the defendant knew the
depiction was sexually explicit, but also that the defendant knew the
performer was a minor.\]

The Committee also believes that *Staples v. United States*, 511 U.S.
600 (1994) is distinguishable. Where a defendant is charged with merely
possessing a proscribed firearm such as a sawed-off shotgun or machine
gun under 26 U.S.C. § 5861(d), there is no doubt that the mens rea
requirement of the offense includes knowledge that the firearm possessed
had characteristics that make it a \"firearm\" under that statute. The
Court in Staples held that Congress would have spoken more clearly if it
had intended to permit severe punishment of \"traditionally lawful
conduct\" and of those \"wholly ignorant of the offending
characteristics of their weapons.\" Before a defendant can be found
guilty under 18 U.S.C. § 924(c), however, the government must first
prove that the defendant committed a \"crime of violence\" or a \"drug
trafficking crime.\" *See United States v. Hawkins*, 59 F.3d 723, 729
(8th Cir. 1995) (\"mere possession\" of a firearm is insufficient);
*United States v. Simms*, 18 F.3d 588, 592 (8th Cir. 1994). The
distinction between the scienter requirements of 26 U.S.C. § 5861 and 18
U.S.C. § 924(c) were carefully analyzed in *United States v. Harris*,
959 F.2d 246, 257-61 (D.C. Cir. 1992). Employing the same analysis the
Supreme Court later used in *Staples*, the D.C. Circuit concluded that
the defendant\'s conviction for using a machine gun in violation of 18
U.S.C. § 924(c) could stand without proof that the defendant \"knew the
precise nature of the weapon,\" but that the conviction for possessing
the same weapon in violation of 26 U.S.C. § 5861 could not. *Harris*,
959 F.2d at 259 (finding that knowingly using a firearm in relation to a
drug distribution offense established the required mental state and
analogizing to cases where the defendants receive enhanced penalties
based on possession of different kinds of illegal drugs without the
government showing the defendant knew the exact nature of a given
illegal substance.

A defendant may be held liable under section 924(c) for the acts of
others, based not on actual knowledge, but that the use or carrying of
the firearm was reasonably foreseeable in furtherance of the offense,
e.g., a drug conspiracy. *United States v. Friend*, 50 F.3d 548, 554
(8th Cir. 1995); *United States v. Lucas*, 932 F.2d 1210, 1220 (8th
Cir.) (citing *Pinkerton v. United States*, 328 U.S. 640, 647-48
(1946)). The *mens rea* requirement is satisfied by the defendant\'s
agreement to join in an agreement to commit other crimes; however, there
is no requirement that the defendant have actual knowledge of the
specific type of firearm. *See Friend*, 50 F.3d at 554 (evidence
supported foreseeability of firearm but not silencer). The Committee
recommends that the reasonable foreseeability requirement be given if
the jury is to be given a vicarious liability *Pinkerton* instruction or
Instruction 5.01 (aiding and abetting). *See Friend*, 50 F.3d at 554;
*United States v. Comeaux*, 955 F.2d 586, 591 (8th Cir. 1992)
(*Pinkerton* vicarious liability instruction where the defendants were
indicted as aiders and abettors), *cert. denied sub nom*., *Roberson v.
United States*, 506 U.S. 944 (1992).

8\. Title 18 U.S.C. § 924(j) is not independent of section 924(c) and
the punishment provisions of that section. Section 924(j) is an
additional aggravating punishment for the scheme set out in section
924(c). "Although section 924(j) does not explicitly contain the same
express mandatory cumulative punishment language as found in section
924(c), it incorporates section 924(c) by reference without disclaiming
the cumulative punishment scheme which is so clearly set out in section
924(c). *United States v. Allen,* 247 F.3d 741,769, (8^th^ Cir. 2001).

Where the indictment charges a violation of section 924(c) which caused
death of a person under section 924(j), the Court must instruct the
jury, consistent with the facts of the case, on the elements of murder,
voluntary manslaughter and involuntary manslaughter since the maximum
sentence to be imposed is dependent on a determination of the nature of
the crime committed which caused the death. *See* 18 U.S.C. §§ 924(j)(1)
and (2).

This circuit has not decided whether a specific intent to kill is an
element of the offense of murder in the first degree committed during a
violation of section 924(c). *United States v. Allen,* 247 F.3d at
783-84 (citations omitted). The element of "malice aforethought" may be
established may be established under a felony murder theory. "We agree
with the Tenth Circuit's interpretation of section 1111(a) in a case
such as this one (murder committed during armed bank robbery) that
'first degree murder is defined as including any murder which is either
premeditated or committed in the perpetration of any of the listed
felonies, which include robbery.'" *Id.* Further, an instruction
requiring a jury to find, beyond a reasonable doubt, that a defendant
was aware that a serious risk of death may occur in the course of an
armed robbery is adequate to support a conviction. *Id.* at 785. The
panel's decision in *Allen* also concluded that the aiding and abetting
instructions on each count given by the District Court were sufficient
to supply a specific intent element as a matter of law. *Id.* Aiding and
abetting a violation of 924(j) the government must prove: (1) the
defendant must "have known the offense of using or carrying a firearm
during and in relation to a bank robbery was being committed or going to
be committed;" (2) the defendant "intentionally acted in some way for
the purpose of causing, encouraging, or aiding the commission of using
or carrying of a firearm during and in relation to a bank robbery and
that . . . was murdered in the perpetration of that robbery;" and (3)
the defendant "was aware of a serious risk of death attending his
conduct. *Id.* at 784, n.19 (8^th^ Cir. 2001).

9\. *Muscarello v. United States,* 524 U.S. 125, 135 (1998). The
Committee believes that the language "during and in relation to" in
those instances in which "use" or "carry" is charged and the phrase "in
furtherance of" in those cases in which "possession" is charged were
intended by Congress to be co-extensive. If the Court concludes that
further definition of "in furtherance of" would be helpful to the jury,
the instruction from *Bradshaw v. United States,* 153 F.3d 704, 707
(8^th^ Cir. 1998) may be used. *See* Note 4, *supra*.

**Committee Comments**

Brandishing and discharge of a weapon are sentencing enhancements and
not elements of this offense and thus, do not need to pleaded and proven
to a jury beyond a reasonable doubt. *Harris v. United States*, No.
00-10666, slip op. at 20 (June 24,2002) (Kennedy, J.); 536 U.S. (2002).

*See* Fifth Circuit Pattern Jury Instruction 2.48 (West 2001) and 2A
Kevin F. O'Malley, et al., *Federal Jury Practice and Instructions*:
Criminal §§ 39.17-.20 (5^th^ ed. 2000).

**6.18.1001A CONCEALING A MATERIAL FACT**

**FROM A GOVERNMENTAL AGENCY (18 U.S.C. § 1001)**

The crime of \[falsifying a material fact\] \[concealing a material
fact\] in a matter with a governmental agency, as charged in \[Count
\_\_\_\_\_ of\] the indictment, has four elements, which are:

*One*, the defendant knowingly, voluntarily and intentionally
\[falsified\] \[concealed\] (describe material fact falsified or
concealed, e.g., the true purchase price of the ABC Building) in
(describe the matter within agency jurisdiction, e.g., a loan closing
statement submitted to XYZ Association);^1^

*Two*, the defendant did so by use of a \[trick\] \[scheme\] \[device\],
that is, a course of action intended to deceive others;^2^

*Three*, the fact was material to the (name agency, e.g., Federal Home
Loan Bank Board);^3^ and

*Four*, the (describe matter, e.g., loan closing statement) was a matter
within the jurisdiction of (name agency, e.g., Federal Home Loan Bank
Board).^4^ You may find that this element has been satisfied if you find
that the (name of agency)\'s function includes (describe evidence
adduced to show agency jurisdiction, e.g., \"reviewing lending practices
of XYZ Association\").

A fact is \"material\" if it has a natural tendency to influence, or is
capable of influencing, the decision of the agency. \[However, whether a
fact is \"material\" does not depend on whether a course of action
intended to deceive others actually succeeded.\]^5^

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

**Notes on Use**

1\. Attention must be paid to sufficiently describing the matter within
federal jurisdiction. The example given in Element *One* of this
instruction suggests a way to characterize a matter involving a document
submitted to a local agency. The examples given in Element *One* of
Instruction 6.18.1001B and Element *One* of Instruction 6.18.1001C
suggest a way to characterize a matter involving a statement made
directly to a federal agency.

2\. This element contains the definition of \"scheme or device\" from
Seventh Circuit Federal Jury Instructions: Criminal at 242 (1999).

3\. Materiality is an element of the second (\"false statement\") clause
of 18 U.S.C. § 1001 and it is a constitutional violation and reversible
error for the trial court to refuse to submit the issue to the jury.
*United States v. Gaudin*, 515 U.S. 506, 523 (1995) (unanimous opinion).
Three justices might have reached a different conclusion regarding the
second clause of 18 U.S.C. § 1001, if the government had not conceded
that materiality is an element. *Id.* at 523 (Rehnquist, C.J.,
concurring). Because the first (\"concealment\") clause explicitly
refers to a \"material fact,\" there can be no doubt that *Gaudin* also
requires that the issue of materiality be submitted to the jury in
\"concealment\" cases.

4\. The statutory requirement that the matter be "within the
jurisdiction" of any department or agency of the United States appears
to be an element of the offense. Traditionally, this issue has been
treated as a question of law for the court. *Terry v. United States*,
131 F.2d 40, 44 (8th Cir. 1942) (decided under 18 U.S.C. § 80, a
predecessor to sections 287 and 1001). However, the logic applied in
*United States v. Gaudin* to the issue of \"materiality,\" may similarly
apply to the issue of departmental/agency jurisdiction. Accordingly, the
Committee recommends that the third element be added to previous
versions of this instruction. However, the Committee believes that
whether an entity is a department or agency of the United States need
not be determined by the jury, but is a question of law which should be
found by the Court, on the record, before submitting the case to the
jury. \"Department or agency\" is defined in 18 U.S.C. § 6; *see also* 5
U.S.C. § 101 (executive departments); *United States v. Gould*, 536 F.2d
216 (8th Cir. 1976) (if the court reaches a \"conclusion through an
exercise in statutory interpretation\" about a particular issue, the
conclusion is a legislative fact that need not be submitted to the
jury).

5\. *See United States v. Gaudin*, 515 U.S. at 508 (agreed definition);
*United States v. Adler*, 623 F.2d 1287, 1292 n.7 (8th Cir. 1980) (\"A
writing or document is materially false if such writing has a natural
tendency to influence or is capable of influencing the decision of the
government agency making the determination required in the matter.\");
*United States v. Johnson*, 937 F.2d 392, 396 (8th Cir. 1991)
(\"\[a\]ctual reliance by the government is not necessary\"); *Blake v.
United States*, 323 F.2d 245, 247 (8th Cir. 1963) (same).

**Committee Comments**

*See* Seventh Circuit Federal Jury Instructions: Criminal at 239-47
(1999); *United States v. Swaim*, 757 F.2d 1530, 1533 (5th Cir. 1985);
*United States v. Diogo*, 320 F.2d 898, 902 (2d Cir. 1963).

*See* Committee Comments, Instruction 6.18.1001B, *infra*.

The requirement of a \"trick, scheme, or device\" is discussed in
*United States v. London*, 550 F.2d 206, 211-14 (5th Cir. 1977).
\"Willfully\" and \"knowingly\" are defined in *United States v.
Markham*, 537 F.2d 187, 194 (5th Cir. 1976).

The government must prove an affirmative act by which a material fact is
actively concealed. *United States v. Shannon*, 836 F.2d 1125, 1130 (8th
Cir. 1988).

Nondisclosure or partial disclosure may constitute concealment under
section 1001. *United States v. Olin Mathieson*, 368 F.2d 525 (2d Cir.
1966). However, in such cases the Government must prove that the
defendant had a legal duty to disclose. *United States v. Larson*, 796
F.2d 244, 246 (8th Cir. 1986); *United States v. Anzalone*, 766 F.2d
676, 682-83 (1st Cir. 1985); *United States v. Irwin*, 654 F.2d 671,
678-79 (10th Cir. 1981). Whether the defendant had a legal duty to
disclose is a question of law for the court. *United States v. DeRosa*,
783 F.2d 1401, 1407 (9th Cir. 1986).

In *Hubbard v. United States*, 514 U.S. 695, 715 (1995), the Supreme
Court held that \"a federal court is neither a 'department' nor an
'agency' within the meaning of § 1001,\" overruling *United States v.
Bramblett*, 348 U.S. 503 (1955), which had held that the word
\"department\" used in section 1001 was meant to extend the statute's
reach to all three branches of government. The False Statements
Accountability Act of 1996, Pub. L. 104-292, HR 3166 (Oct. 11, 1996),
revised section 1001 to cover statements that are made to all three
branches of the federal government, effectively overruling *Hubbard*.

**6.18.1001B FALSE STATEMENT TO GOVERNMENTAL AGENCY (18 U.S.C. § 1001)**

The crime of making a \[false\] \[fictitious\] \[fraudulent\] material
\[statement\] \[representation\] in a matter within the jurisdiction of
a governmental agency, as charged in \[Count \_\_\_\_\_ of\] the
indictment, has three elements which are:

*One*, the defendant knowingly, voluntarily and intentionally made a
\[false\] \[fictitious\] \[fraudulent\] \[statement\] \[representation\]
in (describe matter within agency jurisdiction, e.g., a U.S. customs
declaration);^1^

*Two*, the \[statement\] \[representation\] was material^2^ to the (name
agency, e.g., U.S. Customs Service); and

*Three*, the (describe matter, e.g., U.S. customs declaration) was a
matter within the jurisdiction of (name agency, e.g., U.S. Customs
Service)^3^. You may find that this element has been satisfied if you
find that the (name of agency)\'s function includes (describe evidence
adduced to show agency jurisdiction, e.[g]{.underline}., \"collecting
duties on goods entering the United States\").

\[A statement is \"false\" or \"fictitious,\" if untrue when made, and
then known to be untrue by the person making it or causing it to be
made.\] \[A statement or representation is \"fraudulent,\" if known to
be untrue, and made or caused to be made with the intent to deceive the
governmental agency to whom it was submitted.\]^4^

A \[statement\] \[representation\] is \"material,\" if it has a natural
tendency to influence, or is capable of influencing, the decision of the
agency. \[However, whether a \[statement\] \[representation\] is
\"material\" does not depend on whether the agency was actually
deceived.\]^5^

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

**Notes on Use**

1\. Attention must be paid to sufficiently describing the matter within
federal jurisdiction. The example given in Element *One* of Instruction
6.18.1001A, *supra*, suggests a way to characterize a matter involving a
document submitted to a local non-federal agency. The examples given in
Element *One* of this instruction and Element *One* of Instruction
6.18.1001C, *infra*, suggest a way to characterize a matter involving a
statement made directly to a federal agency.

2\. Contrary to long-standing Circuit holdings, the issue of materiality
is an element of the offense which must be decided by the jury. *See*
Committee Comments, *infra*, and *United States v. Gaudin*, 515 U.S. 506
(1995).

3\. The statutory requirement that the matter be \"within the
jurisdiction\" of any department or agency of the United States appears
to be an element of the offense. Traditionally, this issue has been
treated as a question of law for the court. *Terry v. United States*,
131 F.2d 40, 44 (8th Cir. 1942) (decided under 18 U.S.C. § 80, a
predecessor to sections 287 and 1001). However, the logic applied in
*United States v. Gaudin* to the issue of \"materiality,\" may similarly
apply to the issue of departmental/agency jurisdiction. Accordingly, the
Committee recommends that the third element be added to previous
versions of this instruction. However, the Committee believes that
whether an entity is a department or agency of the United States need
not be determined by the jury, but is a question of law which should be
found by the Court, on the record, before submitting the case to the
jury. \"Department or agency\" is defined in 18 U.S.C. § 6; *see also* 5
U.S.C. § 101 (executive departments); *United States v. Gould*, 536 F.2d
216 (8th Cir. 1976) (if the court reaches a \"conclusion through an
exercise in statutory interpretation\" about a particular issue, the
conclusion is a legislative fact that need not be submitted to the
jury).

4\. Definitions of \"false,\" \"fictitious\" and \"fraudulent\" should
be given. *See* 2A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 40.07 (5th ed. 2000); Seventh Circuit Federal
Jury Instructions: Criminal at 243 (1999) on which this instruction is
based.

5\. \"Materiality involves only the capability of influencing an
agency\'s governmental functions, i.e., does the statement have a
\'natural tendency to influence or is it capable of influencing agency
decision.\'\" *United States v. Whitaker*, 848 F.2d at 916 (citing
*United States v. Popow*, 821 F.2d 483 (8th Cir. 1987) (citing *United
States v. Richmond*, 700 F.2d at 1188)). *See* *also* *United States v.
Voorhees*, 593 F.2d 346, 349 (8th Cir. 1979). *Gaudin* did not disturb
this well-recognized definition. 515 U.S. at 508. *See also United
States v. Adler*, 623 F.2d 1287, 1292 n.7 (8th Cir. 1980) (\"\[a\]
writing or document is materially false if such writing has a natural
tendency to influence or is capable of influencing the decision of the
government agency making the determination required in the matter\").
Actual reliance by the government or success of the attempted deception
is not necessary. *See United States v. Johnson*, 937 F.2d 392, 396 (8th
Cir. 1991); *Blake v. United States*, 323 F.2d 245, 247 (8th Cir. 1963).

**Committee Comments**

*See* *United States v. Whitaker*, 848 F.2d 914, 917 (8th Cir. 1988);
*United States v. Gilbertson*, 588 F.2d 584, 589 (8th Cir. 1978);
*United States v. Lanier*, 578 F.2d 1246, 1250-52 (8th Cir. 1978);
*United States v. Chandler*, 752 F.2d 1148, 1150 (6th Cir. 1985); 2A
Kevin F. O'Malley, et al., *Federal Jury Practice and Instructions*:
Criminal §§ 40.05-.08 (5th ed. 2000); Seventh Circuit Federal Jury
Instructions: Criminal at 239-47 (1999). *See generally* *White Collar
Crime: False Statements*, 18 Am. Crim. L. Rev. 273 (1980).

Most courts set out the elements as this circuit did in *Whitaker*, as
follows: (1) a statement; (2) which is false; (3) and material; (4) made
knowingly and willingly and (5) within the government jurisdiction. 848
F.2d at 917; *United States v. Lichenstein*, 610 F.2d 1272, 1276 (5th
Cir. 1980); *United States v. Godwin*, 566 F.2d 975, 976 (5th Cir. 1978)
(per curiam). *See also* *United States v. Johnson*, 937 F.2d 392, 396
(8th Cir. 1991) (same elements in different order).

In order to fall within a federal agency\'s jurisdiction, it is not
necessary that the false statement be presented directly to a federal
agency; it is sufficient if the statement is made in some intended
relationship to a matter within an agency\'s jurisdiction. *United
States v. Richmond*, 700 F.2d 1183, 1187-88 (8th Cir. 1983). *See also
United States v. Rodgers*, 466 U.S. 475 (1984); *United States v. Bass*,
472 F.2d 207, 212 (8th Cir. 1973) and cases cited therein.

In *Hubbard v. United States*, 514 U.S. 695, 715 (1995), the Supreme
Court held that \"a federal court is neither a 'department' nor an
'agency' within the meaning of § 1001,\" overruling *United States v.
Bramblett*, 348 U.S. 503 (1955), which had held that the word
\"department\" used in section 1001 was meant to extend the statute's
reach to all three branches of government. The False Statements
Accountability Act of 1996, Pub. L. 104-292, HR 3166 (Oct. 11, 1996),
revised section 1001 to cover statements that are made to all three
branches of the federal government, effectively overruling *Hubbard*.

The defendant need not have actual knowledge that he is making a
statement within the jurisdiction of a federal agency. *United States v.
Yermian*, 468 U.S. 63, 75 (1984); *United States v. Hildebrandt*, 961
F.2d 116, 119 (8th Cir. 1992). Nor must the intended victim of the
deceit be the federal government. *Yermian*, 468 U.S. at 69.

While materiality is not an explicit requirement of the second clause of
section 1001, the Supreme Court has assumed that it is and has held that
it is a constitutional violation and reversible error to refuse to
submit the issue to the jury. *United States v. Gaudin*, 515 U.S. 506,
523 (1995) (Rehnquist, C.J., concurring and noting and that the Court
did not resolve the conflict among the circuits but merely assumed that
materiality is an element of the false statement clause of section
1001).

The acts must be done \"knowingly and willfully.\" \"Knowingly\" under
this clause of the statute has been generally defined as \"with
knowledge\" and \"willfully\" as \"deliberately\" or \"deliberately with
knowledge.\" *McBride v. United States*, 225 F.2d 249, 253-55 (5th Cir.
1955); *Neely v. United States*, 300 F.2d 67, 72-73 (9th Cir. 1962);
*United States v. Mekjian*, 505 F.2d 1320, 1324-25 (5th Cir. 1975).

As to the element of knowingly, it is reasonable for the court to inform
the jury that they must attempt to view this element by looking at
whether the evidence showed that the *defendant knew* he filled out the
form falsely.

*United States v. Cox*, 696 F.2d 1294, 1297 (11th Cir. 1983).
\"Knowingly\" includes knowledge of the falsity. *United States v.
Lanier*, 578 F.2d at 1252.

Knowledge of falsity also arises under this clause of section 1001 in
the definition of \"false\" and \"fictitious.\" \"False\" and
\"fictitious\" are standardly defined as in this instruction.

\"Willfully\" is construed as requiring that the conduct be intentional,
i.e., that statements in the invoices be intentionally false. *United
States v. Richmond*, 700 F.2d at 1191-92. Such intent can be shown by
proving intent to defraud. *Id.* at 1194. However, \"intent to
defraud\--that is the intent to deprive someone of something by means of
deceit\" is not required by section 1001. *United States v.
Lichenstein*, 610 F.2d at 1277; *United States v. Godwin*, 566 F.2d at
976. Intent under section 1001 passes an intent to deceive, *id.*, an
intent or design to induce belief in the falsity or an intent to
mislead, *Lichenstein*, 610 F.2d at 1277, or an intent to disrupt agency
functions by false statements. *Id.*, 610 F.2d at 1278.

In addition to being one of the ways in which willfulness can be
established, the issue of \"intent to deceive\" also arises where
\"fraudulent\" statements are charged. \"Fraudulent\" is standardly
defined as in this instruction.

In one opinion in this circuit, *United States v. Martin*, 772 F.2d 1442
(8th Cir. 1985), the court indicated \"intent to deceive\" may be an
element. The Committee has examined this opinion and does not believe
that it is authority for adding this concept as an additional element,
but that \"intent to deceive\" is relevant in analyzing the element of
willfulness and in defining \"fraudulent.\"

Specifically, in *United States v. Martin*, the defendant raised the
issue of \"intent to deceive\" by arguing that his claim was not
\"fraudulent.\" Both parties agreed \"intent to deceive\" was an issue,
and the court addressed \"intent to deceive\" as an element when it
should have been treated as part of the definition of \"fraudulent.\"
The court was never asked to decide *how* it became an issue. Thus, the
Committee is treating the unanalyzed and unsupported statement in the
opinion that \"intent to deceive\" is an element of 18 U.S.C. § 1001 as
dicta and not controlling. *See United States v. Marvin*, 687 F.2d 1221,
1225 (8th Cir. 1982).

**6.18.1001C USING A FALSE DOCUMENT (18 U.S.C. § 1001)**

The crime of \[making\] \[using\] a false \[writing\] \[document\] in a
matter within the jurisdiction of a governmental agency, as charged in
\[Count \_\_\_\_\_ of\] the indictment, has four elements, which are:

*One*, the defendant voluntarily and intentionally \[made\] \[used\] a
\[writing\] \[document\] containing a \[false\] \[fictitious\]
\[fraudulent\] \[statement\] \[entry\] in (describe matter within agency
jurisdiction, e.g., an application for an S.B.A. loan);^1^

*Two*, at the time the defendant did so, he knew that the \[writing\]
\[document\] contained a \[false\] \[fictitious\] \[fraudulent\]
\[statement\] \[entry\];

*Three*, the \[false\] \[fictitious\] \[fraudulent\] \[statement\]
\[entry\] was material to the (name of agency, e.g., Small Business
Administration)^2^; and

*Four*, the (describe matter, e.g., an application for an S.B.A. loan)
was a matter within the jurisdiction of the (name agency, e.g., Small
Business Administration).^3^ (You may find that this element has been
satisfied if you find that the (name of agency)\'s function includes
(describe evidence adduced to show agency jurisdiction, e.g., \"acting
on applications for loans.\")

\[A statement or entry is \"fraudulent,\" if known by the defendant to
be untrue, and made or used by the defendant with the intent to deceive
the governmental agency to whom submitted.\]^4^

A \[writing\] \[document\] is \"material\" if it has a natural tendency
to influence, or is capable of influencing, the decision of the agency.
\[However, whether a \[writing\] \[document\] is \"material\" does not
depend on whether the \[agency\] was actually deceived.\]^5^

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

**Notes on Use**

1\. Attention must be paid to sufficiently describing the matter within
federal jurisdiction. The example given in Element *One* of Instruction
6.18.1001A suggests a way to characterize a matter involving a document
submitted to a local agency. The examples given in Element *One* of
Instruction 6.18.1001B, *supra*, and Element *One* of this instruction
suggest a way to characterize a matter involving a statement made
directly to a federal agency.

2\. Materiality is an element of the second (\"false statement\") clause
of 18 U.S.C. § 1001 and it is a constitutional violation and reversible
error for the trial court to refuse to submit the issue to the jury.
*United States v. Gaudin*, 515 U.S. 506, 523 (1995) (unanimous opinion).
Three justices might have reached a different conclusion regarding the
second clause of 18 U.S.C. § 1001, if the government had not conceded
that materiality is an element. *Id*. at 2320 (Rehnquist, C.J.,
concurring). Because the first (\"concealment\") clause explicitly
refers to a \"material fact,\" there can be no doubt that *Gaudin* also
requires that the issue of materiality be submitted to the jury in
\"concealment\" cases.

3\. The statutory requirement that the matter be "within the
jurisdiction" of any department or agency of the United States appears
to be an element of the offense. Traditionally, this issue has been
treated as a question of law for the court. *Terry v. United States*,
131 F.2d 40, 44 (8th Cir. 1942) (decided under 18 U.S.C. § 80, a
predecessor to sections 287 and 1001). However, the logic applied in
*Gaudin* to the issue of \"materiality,\" may similarly apply to the
issue of departmental/agency jurisdiction. Accordingly, the Committee
recommends that the third element be added to previous versions of this
instruction. However, the Committee believes that whether an entity is a
department or agency of the United States need not be determined by the
jury, but is a question of law which should be found by the Court, on
the record, before submitting the case to the jury. \"Department or
agency\" is defined in 18 U.S.C. § 6; *see also* 5 U.S.C. § 101
(executive departments); *United States v. Gould*, 536 F.2d 216 (8th
Cir. 1976) (if the court reaches a \"conclusion through an exercise in
statutory interpretation\" about a particular issue, the conclusion is a
legislative fact that need not be submitted to the jury).

4\. The definition of \"false and fictitious\" is not given because the
definition contains nothing that is not already in the elements. *See*
Instruction 6.18.1001B, *supra*. \"Fraudulent\" is defined. *See* 2A
Kevin F. O'Malley, et al., *Federal Jury Practice and Instructions*:
Criminal § 40.08 (5th ed. 2000); Seventh Circuit Federal Jury
Instructions: Criminal at 243 (1999).

5\. *See* *United States v. Gaudin*, 515 U.S. at 508 (agreed
definition); *United States v. Adler*, 623 F.2d 1287, 1292 n.7 (8th Cir.
1980) (\"A writing or document is materially false if such writing has a
natural tendency to influence or is capable of influencing the decision
of the governmental agency making the determination required in the
matter.\"); *United States v. Johnson*, 937 F.2d 392, 396 (8th Cir.
1991) (actual reliance by the government or success of the attempted
deception is not necessary); *Blake v. United States*, 323 F.2d 245, 247
(8th Cir. 1963) (same).

**Committee Comments**

*See* 2A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal §§ 40.09-.12 (5th ed. 2000); *United States v.
Hicks*, 619 F.2d 752, 754 (8th Cir. 1980); *Ebeling v. United States*,
248 F.2d 429, 438 (8th Cir. 1957); Seventh Circuit Federal Jury
Instructions: Criminal at .241 (1999).

In *Hicks*, the court states that \"willfully\" should be interpreted
\"as that term is now generally understood in the field of federal
criminal law,\" referring to former § 14.06 of Devitt & Blackmar (now 1A
Kevin E. O'Malley, et al., *Federal Jury Practice and Instructions,
Criminal*: § 17.05 (5th ed. 2000)) and cases cited therein. These cases
support a definition of \"voluntarily and intentionally.\"
Alternatively, \"deliberately\" could be used. *See* Committee Comments,
Instruction 6.18.1001B, *supra*. \"Knowingly and intentionally\" was
used in the instruction in *Ebeling*.

The specific knowledge required by this clause of the statute is set
forth in Element *Two*.

In *Ebeling*, the court held that the false documents themselves did not
have to be submitted to the government if it was intended \"to bear a
relation or purpose as to some matter which is within the jurisdiction
of a department or agency of the United States.\" 248 F.2d at 434. In
that case, the court found that phony purchase orders, shipping tickets
and invoices created by a government contractor and its subcontractor as
backup for a false amount claimed under the contract were covered
section by 1001, even though the backup was not directly submitted for
payment.

In *Hubbard v. United States*, 514 U.S. 695, 715 (1995), the Supreme
Court held that \"a federal court is neither a 'department' nor an
'agency' within the meaning of § 1001,\" overruling *United States v.
Bramblett*, 348 U.S. 503 (1955), which had held that the word
\"department\" used in section 1001 was meant to extend the statute's
reach to all three branches of government. The False Statements
Accountability Act of 1996, Pub. L. 104-292, HR 3166 (Oct. 11, 1996),
revised section 1001 to cover statements that are made to all three
branches of the federal government, effectively overruling *Hubbard*.

**6.18.1005 FALSE ENTRY IN BANK RECORDS (18 U.S.C. § 1005) (Third
Paragraph)**

The crime of making a false entry in bank records, as charged in \[Count
\_\_\_\_\_ of\] the indictment, has four elements, which are:

*One*, that the defendant^1^ made or caused to be made a false entry
\[concerning a material fact\]^2^ in a \[book\] \[report\] \[statement\]
of (name of bank or other covered institution)^3^;

*Two*, the defendant knew the entry was false;

*Three*,^4^ \[the defendant did so with the intent \[to injure\] \[to
defraud\] \[the bank\] \[(or describe other entity or person covered by
the statute allegedly intended to be injured or defrauded, i.e., \"any
other company, body politic or corporate, or any individual
person\")\];\]

\[the defendant did so with the intent to deceive an officer of the bank
(or describe other entity or person covered by the statute allegedly
intended to be deceived, i.e., \"the Comptroller of the Currency, or the
Federal Deposit Insurance Corporation, or any agent or examiner
appointed to examine the affairs of such bank or company, or the Board
of Governors of the Federal Reserve System\");\] and

*Four*, the bank was (describe federal relation, e.g., insured by the
FDIC).

An entry is \"false\" if untrue when made. An entry may be false if it
records a transaction which did not occur, or fails to record a
transaction which did occur and should have been accurately recorded, or
inaccurately reports or records a transaction.

\[To act with \"intent to injure\" means to act with intent to cause
pecuniary loss.\] \[To act with \"intent to defraud\" means to act with
intent to deceive or cheat, ordinarily for the purpose of causing a
financial loss to someone else or bringing about a financial gain to the
defendant or another.\] \[To act with \"intent to deceive\" means to act
with intent to mislead or to cause a person to believe that which is
false.\]^5^

\[A fact is \"material\" if it has a natural tendency to influence, or
is capable of influencing the decision of the institution. (Whether a
fact is material does not depend on whether a course of action intended
to deceive others actually succeeded.)\]^6^

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

**Notes on Use**

1\. The Federal Judicial Center Pattern Jury Instructions list as an
element that the defendant be an employee of the bank. The third
paragraph of the statute does not make this distinction and proscribes
\"whoever,\" not merely officers, from making false entries. *United
States v. Edick*, 432 F.2d 350, 352-53 (4th Cir. 1970).

2\. Although neither 18 U.S.C. § 1005 nor § 1006 expressly require the
false statement or entry to be of a "material fact," both the Eleventh
Circuit and the Fifth Circuit impose such a requirement, albeit without
much discussion. *United States v. Rapp*, 871 F.2d 957, 963-64 (11th
Cir. 1989) (citing *United States v. Jackson*, 621 F.2d 216, 219 (5th
Cir. 1980)) (section 1005); *United States v. Beuttenmuller*, 29 F.3d
973, 982 (5th Cir. 1994) (section 1006). Both circuits suggest using the
definition of materiality approved for section 1001 instructions. The
Eighth Circuit has not specifically addressed this issue. In *Feingold
v. United States*, 49 F.3d 437 (8th Cir. 1995), the court mentioned the
requirement of materiality in conjunction with a section 1001 charge,
but did not make any reference to a materiality issue in a section 1005
charge that was discussed in the preceding sentence. The issue
apparently was not raised, and was not discussed in the appellate
opinion.

In section 1001, materiality is important because the statute requires
that the statement be of a material fact and no intent to deceive or
defraud is required for conviction. The statutory language in sections
1005 and 1006 does not include a requirement of materiality, but does
impose a requirement that the government prove an intent to defraud or
deceive. Materiality of the statement would seem less significant if the
individual seeks to deceive or defraud. The requirement of materiality
was arguably intentionally left out of sections 1005 and 1006 for that
reason, although no court has yet so stated. In the absence of case law
on point, the Committee recommends requiring that materiality be found
by the jury. If it is an element, under the holding o*f United States v.
Gaudin*, 515 U.S. 506 (1995), it is a jury issue and must be instructed.

3\. The types of institutions covered include the Federal Reserve Bank,
member banks of the Federal Reserve System, national banks, bank holding
companies, and any state bank, banking association, trust company or
savings bank, the deposits of which are insured by the Federal Deposit
Insurance Corporation.

4\. Intent to deceive rather than defraud or injure may be alleged in
the indictment, and the jury should be instructed accordingly. The
defendant does not have to know that his act violates the law and is not
entitled to an instruction defining \"specific intent.\" *United States
v. Dougherty*, 763 F.2d 970, 973-74 (8th Cir. 1985).

In the event the indictment alleges and the evidence at trial supports
the submission to the jury of more than one mental state, for example,
intent to defraud the bank and intent to deceive the comptroller of
currency, the jury may be instructed that they can find the defendant
guilty if they find unanimously and beyond a reasonable doubt that the
government has proven at least one theory. *See generally United States
v. Gipson*, 553 F.2d 453 (5th Cir. 1977); *United States v. Frazin*, 780
F.2d 1461, 1468 (9th Cir. 1977).

5\. \"Intent to deceive\" is defined according to *United States v.
Godwin*, 566 F.2d 975 (5th Cir. 1978).

6\. *See United States v. Gaudin*, 515 U.S. at 508 (agreed definition);
*United States v. Adler*, 623 F.2d 1287, 1292 n.7 (8th Cir. 1980) (\"A
writing or document is materially false if such writing has a natural
tendency to influence or is capable of influencing the decision of the
government agency making the determination required in the matter.\");
*United States v. Johnson*, 937 F.2d 392, 396 (8th Cir. 1991) (\"Actual
reliance by the government is not necessary.\"); *Blake v. United
States*, 323 F.2d 245, 247 (8th Cir. 1963) (same).

**Committee Comments**

*See* 2A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 41.03 (5th ed. 2000); Fifth Circuit Pattern
Jury Instructions: Criminal § 2.31 (1997); Eleventh Circuit Pattern Jury
Instructions: Criminal (Offense) § 33 (1997); Federal Judicial Center,
Pattern Criminal Jury Instructions § 81 (1988). *United States v.
Biggerstaff*, 383 F.2d 675 (4th Cir. 1967).

\"\[S\]ection 1005 is intended to be broad enough to cover any document
or record of the bank that would reveal pertinent information for the
officers or directors of the bank.\" *United States v. Foster*, 566 F.2d
1045, 1052 (6th Cir. 1977).

\"The essence of the offense is making or causing to be made a bank
entry which represents what is not true or does not exist.\" *United
States v. Steffen*, 641 F.2d 591, 597 (8th Cir. 1981). \"An omission
where an honest entry would otherwise be made can be a false entry for
section 1005 purposes.\" *United States v. Copple*, 827 F.2d 1182, 1187
(8th Cir. 1987). For example, omitting information that would show the
true nature of a transaction can be a violation. *United States v.
Austin*, 823 F.2d 257 (8th Cir. 1987). For other examples of false
entries, *see United States v. Dougherty*, 763 F.2d 970 (8th Cir. 1985)
(failure to record improper issuance of bankers\' acceptances); *United
States v. Mohr*, 728 F.2d 1132 (8th Cir. 1984) (exceeding loan limit and
concealing documents); *United States v. Ness*, 665 F.2d 248 (8th Cir.
1981) (check-rolling without deposits to customer accounts, which were
not really legitimate loans); *United States v. Steffen*, 641 F.2d 591
(8th Cir. 1981) (forged minutes of board of directors\' meeting);
*United States v. Bevans*, 496 F.2d 494 (8th Cir. 1974) (rollover of
insufficient fund checks and their treatment as new checks each day to
avoid posting as overdrafts).

*Coffin v. United States*, 156 U.S. 432, 463 (1895), held that \"the
making of a false entry is a concrete offense which is not committed
where the transaction entered actually took place, and is entered
exactly as it occurred.\" However, the *Coffin* holding has been
modified, and a literally true and accurate entry may still be false if
it records a fraudulent transaction, contains a half truth, or conceals
a material fact. *Agnew v. United States*, 165 U.S. 36, 52-54 (1897);
*United States v. Walker*, 871 F.2d 1298, 1308 (6th Cir. 1989); *United
States v. Gleason*, 616 F.2d 2, 29 (2d Cir. 1979); *United States v.
Krepps*, 605 F.2d 101, 109 (3d Cir. 1979).

The person responsible for the false entries need not have actually made
the entry himself; it is enough that he set into motion the actions that
necessarily resulted in the making of the entry in the normal course of
business. *United States v. Wolf*, 820 F.2d 1499, 1504 (9th Cir. 1987);
*United States v. Krepps*, 605 F.2d 101, 109 n.28 (3d Cir. 1979).

Intent to injure, defraud, or deceive is an element. No other definition
of \"specific intent,\" i.e., willfulness in the sense of a purpose to
violate the law is necessary. *United States v. Dougherty*, 763 F.2d
970, 973-74 (8th Cir. 1985). Consistent with the *Dougherty* opinion,
and with the recommendation in Instruction 7.02, \"willfully\" is not
included in the description of the mental element for this offense.
Cases that include \"willfully\" in the description of the mental
element of a section 1005 offense use the term in the sense of acting
voluntarily and intentionally rather than as a \"specific intent\"
requirement of the statute. For example, the Fifth Circuit instruction
does not include \"willfully\" as part of the mental element of a
section 1005 violation, and *United States v. Jackson*, 621 F.2d 216,
219 (5th Cir. 1980), lists section 1005 elements without mentioning
\"willfully.\" A recent case, *United States v. Kington*, 875 F.2d 1091,
1104 (5th Cir. 1989), cites *Jackson* in listing section 1005 elements.
However, in denying a rehearing in *Kington*, the court stated at 878
F.2d 815, 817, \"\[w\]e note in particular that the district court\'s
intent instruction on the section 1005 count required both willfulness
*and* an intent to injure or defraud.\" Also, in a recent case, the
Eleventh Circuit said, \"\[t\]o substantiate the \[section 1005
violations\] the government must prove . . . that Rapp *knowingly* and
*willfully* made, or directed or authorized the making of, a false entry
concerning a material fact in a book or record . . . with knowledge of
its falsity and with the intent to defraud or deceive . . . .\" *United
States v. Rapp*, 871 F.2d 957, 963 (11th Cir. 1989) (citing *Jackson* as
the source of these elements). Under paragraph three of section 1005 it
is error to give a \"reckless disregard\" instruction, since \"reckless
disregard\" does not adequately reflect the statutorily required mental
state. *See United States v. Welliver*, 601 F.2d 203, 210 (5th Cir.
1979); *United States v. Adamson*, 700 F.2d 953, 964 (5th Cir. 1983).
Although materiality is not statutorily required, some circuits have
imposed the requirement. *See* cases cited in Note 2, *supra*. Until the
Eighth Circuit addresses the issue, the Committee recommends including
materiality in the jury instructions and allowing the jury to decide the
issue.

In cases where violations of civil rules and regulations are shown by
the evidence, it may be appropriate to instruct the jury that they are
not to consider violations of such regulations as a crime. *See United
States v. Kindig*, 854 F.2d 703, 707 n.1 (5th Cir. 1988).

**6.18.1006A FALSE ENTRIES IN FEDERAL CREDIT**

**INSTITUTION RECORDS (18 U.S.C. § 1006) (First Paragraph)**

The crime of making a false entry in credit institution records, as
charged in \[Count \_\_\_\_\_ of\] the indictment, has \[four\] \[five\]
elements, which are:

*One*, the defendant was \[an officer of\] \[an agent of\] \[an employee
of\] \[connected in a capacity with\]^1^ (name of covered agency or
institution);^2^

*Two*, the defendant made or caused to be made a false entry
\[concerning a material fact\]^3^ in a \[book of\] \[report of\]
\[statement of or to\] (name of agency or institution);

*Three*, the defendant knew the entry was false;

*Four*,^4^ the defendant did so with the intent to \[defraud the
institution (or describe other covered entity or person allegedly
intended to be defrauded, i.e., \"any other company, body politic or
corporate, or any individual\");\] \[deceive an \[officer\] \[auditor\]
\[examiner\] \[agent\] of \[the institution\] \[department or agency of
the United States.\]^5^

\[*Five*, (name of institution) was (describe federal relation, e.g.,
accounts insured by the Administrator of the National Credit Union
Administration).\]^6^

An entry is \"false\" if untrue when made. An entry may be false if it
records a transaction which did not occur, or fails to record a
transaction which did occur and should have been accurately recorded, or
inaccurately reports or records a transaction.

\[To act with \"intent to defraud\" means to act with intent to deceive
or cheat, ordinarily for the purpose of causing a financial loss to
someone else or bringing about a financial gain to the defendant or
another.\] \[To act with \"intent to deceive\" means to act with intent
to mislead or to cause a person to believe that which is false.\]^7^

\[A fact is \"material\" if it has a natural tendency to influence, or
is capable of influencing the decision of the institution. (Whether a
fact is material does not depend on whether a course of action is
intended to deceive others actually succeeded.)\]^8^

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

**Notes on Use**

1\. The language in the statute, \"connected in any capacity with,\" is
construed broadly to effectuate congressional intent by protecting
federally insured lenders from fraud. *United States v. Prater*, 805
F.2d 1441, 1446 (11th Cir. 1986); *United States v. Payne*, 750 F.2d
844, 853 (11th Cir. 1985).

2\. The types of agencies and institutions covered include among others:
Federal Deposit Insurance Corporation, National Credit Union
Administration, Office of Thrift Supervision, Resolution Trust
Corporation, and any lending, mortgage, insurance, credit or savings and
loan corporation or association acting under the laws of the United
States or any institution the accounts of which are insured by the
Federal Deposit Insurance Corporation or the National Credit Union
Administration Board.

3\. Although neither 18 U.S.C. § 1005 nor § 1006 expressly require the
false statement or entry to be of a "material fact," both the Eleventh
Circuit and the Fifth Circuit impose such a requirement, albeit without
much discussion. *United States v. Rapp*, 871 F.2d 957, 963-64 (11th
Cir. 1989) (citing *United States v. Jackson*, 621 F.2d 216, 219 (5th
Cir. 1980)) (section 1005); *United States v. Beuttenmuller*, 29 F.3d
973, 982 (5th Cir. 1994) (section 1006). Both circuits suggest using the
definition of materiality approved for section 1001 instructions. The
Eighth Circuit has not specifically addressed this issue. In *Feingold
v. United States*, 49 F.3d 437 (8th Cir. 1995), the court mentioned the
requirement of materiality in conjunction with a section 1001 charge,
but did not make any reference to a materiality issue in a section 1005
charge that was discussed in the preceding sentence. The issue
apparently was not raised, and was not discussed in the appellate
opinion.

In section 1001, materiality is important because the statute requires
that the statement be of a material fact and no intent to deceive or
defraud is required for conviction. The statutory language in sections
1005 and 1006 does not include a requirement of materiality, but does
impose a requirement that the government prove an intent to defraud or
deceive. Materiality of the statement would seem less significant if the
individual seeks to deceive or defraud. The requirement of materiality
was arguably intentionally left out of sections 1005 and 1006 for that
reason, although no court has yet so stated. In the absence of case law
on point, the Committee recommends requiring that materiality be found
by the jury. If it is an element, under the holding o*f United States v.
Gaudin*, 515 U.S. 506 (1995), it is a jury issue and must be instructed.

4\. The jury should be instructed on intent to defraud or to deceive
according to the allegations of the indictment.

5\. Intent to injure, defraud, or deceive is an element. No other
definition of \"specific intent,\" i.e., willfulness in the sense of a
purpose to violate the law is necessary. *United States v. Dougherty*,
763 F.2d 970, 973-74 (8th Cir. 1985). Consistent with the *Dougherty*
opinion, and with the recommendation in Instruction 7.02, *infra*,
\"willfully\" is not included in the description of the mental element
for this offense. Cases that include \"willfully\" in the description of
the mental element of a section 1005 violation, and *United States v.
Jackson*, 621 F.2d 216, 219 (5th Cir. 1980), list section 1005 elements
without mentioning \"willfully.\" *United States v. Kington*, 875 F.2d
1091, 1104 (5th Cir. 1989), cites *Jackson* in listing section 1005
elements. However, in denying a rehearing in *Kington*, the court stated
at 878 F.2d 815, 817, \"\[w\]e note in particular that the district
court\'s intent instruction on the section 1005 count required both
willfulness *and* an intent to injure or defraud.\" Also, the Eleventh
Circuit said, \"\[t\]o substantiate the \[section 1005 violations\] the
government must prove . . . that Rapp *knowingly* and *willfully* made,
or directed or authorized the making of, a false entry concerning a
material fact in a book or record . . . with knowledge of its falsity
and with the intent to defraud or deceive . . . .\" *United States v.
Rapp*, 871 F.2d 957, 963 (11th Cir. 1989) (citing *Jackson* as the
source of these elements).

6\. Use this paragraph where the false entry is in a report of a lending
institution rather than one of the federal agencies named in the
statute. The Federal Savings and Loan Insurance Corporation was
abolished in 1989. Institutions formerly insured by FSLIC are now
insured by FDIC. Section 1006 was amended one year later to account for
this change and the legal effect of the delay is unclear.

7\. \"Intent to deceive\" is defined according to *United States v.
Godwin*, 566 F.2d 975 (5th Cir. 1978).

8\. *See United States v. Gaudin*, 515 U.S. at 508 (agreed definition);
*United States v. Adler*, 623 F.2d 1287, 1292 n.7 (8th Cir. 1980) (\"A
writing or document is materially false if such writing has a natural
tendency to influence or is capable of influencing the decision of the
government agency making the determination required in the matter.\");
*United States v. Johnson*, 937 F.2d 392, 396 (8th Cir. 1991) (\"Actual
reliance by the government is not necessary.\"); *Blake v. United
States*, 323 F.2d 245, 247 (8th Cir. 1963) (same).

**Committee Comments**

*See* *United States v. Tullos*, 868 F.2d 689, 693-94 (5th Cir. 1989);
*United States v. Stovall*, 825 F.2d 817, 822 (5th Cir.), *opinion
amended*, 833 F.2d 526 (5^th^ Cir. 1987).

A false entry in the records of a federal lending institution in
violation of section 1006 and willful misapplication of the funds of a
federal lending institution in violation of section 657 are separate
offenses. *United States v. Stovall*, 825 F.2d at 822-23.

Failure to disclose a bank officer\'s interest in a loan, and failure to
disclose nominee status of a borrower, constitute false entries. *United
States v. Rochester*, 898 F.2d 971, 978 (5th Cir. 1990); *United States
v. Tullos*, 868 F.2d at 694 n.6.

*United States v. Payne*, 750 F.2d 844, 861 (11th Cir. 1985), holds that
the \"exculpatory no\" doctrine, which developed as an exception to 18
U.S.C. § 1001, is applicable to prosecutions under section 1006.

*Tullos* and *Stovall* include \"knowingly and willfully\" in defining
the mental element of a section 1006 offense. The Committee believes
that the reasoning of *United States v. Dougherty*, 763 F.2d 970, 973-74
(8th Cir. 1985), applies, and that there is no need to instruct on an
element of willfulness. Intent to defraud or to deceive correctly
defines the mental element of the offense. *See*, *e.g.*, *United States
v. Rochester*, 898 F.2d 971, 979 (5th Cir. 1990); *United States v.
Payne*, 750 F.2d 844, 858 (11th Cir. 1989); *United States v. Chenaur*,
552 F.2d 294, 297 n.3 and 299 n.7 (9th Cir. 1977); *United States v.
Hykel*, 461 F.2d 721, 723 (3d Cir. 1972); *Beaudine v. United States*,
368 F.2d 417, 420 n.4 (5th Cir. 1966). Although materiality is not
statutorily required, some circuits have imposed the requirement. *See*
cases cited in Note 2, *supra*. Until the Eighth Circuit addresses the
issue, the Committee recommends including materiality in the jury
instructions and allowing the jury to decide the issue.

In cases where violations of civil rules and regulations are shown by
the evidence, it may be appropriate to instruct the jury that they are
not to consider violations of such regulations as a crime. *See* *United
States v. Kindig*, 854 F.2d 703, 707 n.1 (5th Cir. 1988).

**6.18.1006B PARTICIPATION IN FEDERAL CREDIT**

**INSTITUTION TRANSACTIONS (18 U.S.C. § 1006, Third Paragraph)**

The crime of (describe offense charged, e.g., receiving benefits through
a transaction of a credit institution), as charged in \[Count \_\_\_\_\_
of\] the indictment, has \[three\] \[four\] elements, which are:

*One*, the defendant was \[an officer of\] \[an agent of\] \[an employee
of\] \[connected in a capacity with\]^1^ (name of covered agency or
institution)^2^;

*Two*, the defendant \[participated in\] \[shared in\] \[directly or
indirectly received\] any \[money\] \[profit\] \[property\] \[benefit\]
through \[a transaction\] \[a loan\] \[a commission\] \[a contract\]
\[an act\] of (name of covered agency or institution);

*Three*, the defendant did so with the intent to defraud \[the United
States\] \[an agency of the United States\] (name of covered agency or
institution);

\[*Four*, (name of institution) was (describe federal relation, e.g.,
accounts insured by the Administrator of the National Credit Union
Administration).\]^3^

To act with \"intent to defraud\" means to act with intent to deceive or
cheat, ordinarily for the purpose of causing a financial loss to someone
else or bringing about a financial gain to the defendant or another.

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

**Notes on Use**

1\. Title 18 U.S.C. § 1005 was amended by the Financial Institutions
Reform, Recovery and Enforcement Act (FIRREA) of 1989 to include a
paragraph similar to the third clause of 18 U.S.C. § 1006. Presumably,
this instruction can serve as a pattern for section 1005 offenses under
the new provision. The language in the statute, \"connected in any
capacity with,\" is construed broadly to effectuate congressional intent
by protecting federally insured lenders from fraud. *United States v.
Prater*, 805 F.2d 1441, 1446 (11th Cir. 1986); *United States v. Payne*,
750 F.2d 844, 853 (11th Cir. 1985).

2\. The types of agencies and institutions covered include among others:
Federal Deposit Insurance Corporation, National Credit Union
Administration, Office of Thrift Supervision, Resolution Trust
Corporation, and any lending, mortgage, insurance, credit or savings and
loan corporation or association acting under the laws of the United
States or any institution the accounts of which are insured by the
Federal Deposit Insurance Corporation or the National Credit Union
Administration Board.

3\. Use this paragraph where the illegal participation or receipt of
benefits is in connection with a transaction of a lending institution
rather than one of the federal agencies named in the statute. The
Federal Savings and Loan Insurance Corporation was abolished in 1989.
Institutions formerly insured by FSLIC are now insured by FDIC. Section
1006 was amended one year later to account for this change, and the
legal effect of the delay is unclear.

**Committee Comments**

*See* *United States v. Griffin*, 579 F.2d 1104, 1108 (8th Cir. 1978);
*United States v. Chenaur*, 552 F.2d 294, 297 n.3 (9th Cir. 1977);
*United States v. Hykel*, 461 F.2d 721, 723 (3d Cir. 1972).

Participation or benefit with intent to defraud is sufficient; there is
no need to show actual loss to the institution. *United States v. Rice*,
645 F.2d 691 (9th Cir. 1981); *United States v. Chenaur*, 552 F.2d at
299; *Beaudine v. United States*, 368 F.2d 417, 420 (5th Cir. 1966).

The offense of misapplication of funds (18 U.S.C. § 657) is different
from the offense of fraudulent participation in the benefits of a loan
(18 U.S.C. § 1006). *United States v. Rochester*, 898 F.2d 971, 980 (5th
Cir. 1990).

Although case law discusses willfulness as an intent element of a
section 1006 violation, *see*, *e.g.*, *United States v. Rochester*, 898
F.2d at 978-79, the Committee believes the rationale of *United States
v. Dougherty*, 763 F.2d 970, 973-74 (8th Cir. 1985), controls, and that
a \"specific intent\" instruction should not be given. *Griffin* lists
as the fourth element of a section 1006 violation \"that such act or
acts were done knowingly and willfully.\" 579 F.2d at 1108. However,
*Dougherty* was decided after *Griffin*, and \"specific intent,\" apart
from intent to defraud or deceive, does not appear to be required by
section 1006.

*See also* Committee Comments and Notes on Use, Instruction 6.18.1006A,
*supra*.

**6.18.1014 FALSE STATEMENT TO A FINANCIAL INSTITUTION**

**(18 U.S.C. § 1014)**

The crime of making a false statement to a financial institution, as
charged in \[Count \_\_\_\_\_ of\] the indictment, has three elements,
which are:^1^

*One*, the defendant knowingly made a false statement (describe the
alleged false statement, e.g., that the defendant had no current
indebtedness to another financial institution) to (name of financial
institution);

*Two*, the defendant made the false statement for the purpose of
influencing the action of (name of financial institution) upon (describe
transaction, e.g., an application for a loan);

*Three*, that (name of financial institution) was (describe federal
relation, e.g., insured by the FDIC) at the time the statement was
made^2^.

A statement is \"false\" if untrue when made.

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

**Notes on Use**

1\. In *United States v. Wells*, 519 U.S. 482 (1997), the Supreme Court
held that materiality is not an element of section 1014, and remanded
the case. On remand, the court of appeals held that \"in light of the
Supreme Court decision in this case, any reference to materiality in the
jury instruction is unnecessary and has the potential to cause
confusion.\" *United States v. Wells*, 519 U.S. 482 (1997). This revised
instruction removes all references to materiality.

2\. In *United States v. Carlisle*, 118 F.3d 1271, 1274 (8th Cir. 1997),
the court noted the importance of proof of federal relation **at the
time of the offense**.

**Committee Comments**

*See* Fifth Circuit Pattern Jury Instructions: Criminal § 2.52 (1997).
*Williams v. United States*, 458 U.S. 279, 284 (1982); *United States v.
Concemi*, 957 F.2d 942, 951 (1st Cir. 1992); *United States v. Haddock*,
956 F.2d 1534, 1549 (10th Cir. 1992); *United States v. Huntress*, 956
F.2d 1309, 1317 (5th Cir. 1992); *United States v. Bonnette*, 663 F.2d
495, 497 (4th Cir. 1981).

Reliance is not an element of a section 1014 violation. It is not
necessary to prove that the financial institution was influenced by or
actually relied on the false statement. *United States v. Copple*, 827
F.2d 1182, 1187 (8th Cir. 1987); *United States v. Bonnette*, 663 F.2d
at 498. Materiality, likewise, is not an element of section 1014.
*United States v. Wells*, 519 U.S. 482 (1997).

A number of false statements in a single document constitutes only one
violation of section 1014. *United States v. Sue*, 586 F.2d 70 (8th Cir.
1978).

**6.18.1111 INTRODUCTORY COMMENTS TO HOMICIDE INSTRUCTIONS**

**Committee Comments**

**Federal Jurisdiction under 18 U.S.C. § 7**

Federal jurisdiction may be exclusive or concurrent. Certain statutes,
such as 18 U.S.C. § 1114, base federal jurisdiction on the identity of
the victim. Other statutes, such as 18 U.S.C. § 1111, base federal
jurisdiction on where the crime occurs. These latter statutes, the
federal enclave laws, permit federal courts to serve as a forum for the
prosecution of certain crimes when they occur within the "special
maritime and territorial jurisdiction of the United States," 18 U.S.C. §
7.

The phrase "within the exclusive jurisdiction of the United States"
applies to crimes committed within the premises, grounds, forts,
arsenals, navy-yards, and other places within the boundaries of a state
or within a territory over which the Federal Government has
jurisdiction. *In re Gon-shay-ee*, 130 U.S. 343, 351 (1889). Currently,
18 U.S.C. § 7 describes those same places more expansively and affixes
to them the phrase "special maritime and territorial jurisdiction of the
United States." The statute defines this as including, among other
things, the high seas, any other waters within the admiralty and
maritime jurisdiction of the United States and without jurisdiction of
any particular state, any American vessel on the waters of any of the
Great Lakes or on any of the waters connecting the Great Lakes, and any
American aircraft while in flight over the high seas, or over any other
waters within the admiralty and maritime jurisdiction of the United
States. Although not enumerated in section 7, federal jurisdiction
extends to crimes committed in Indian country under 18 U.S.C. § 1152,
and exclusive federal jurisdiction is granted over certain enumerated
offenses, including murder and manslaughter, committed by an Indian
within Indian country (18 U.S.C. § 1153).

Federal jurisdiction under 18 U.S.C. §§ 1111 and 1112 ultimately depends
on the location of the offense. The location is determined by where the
injury was inflicted or other means employed which caused the death,
without regard to where the death actually occurred. 18 U.S.C. § 3236;
*United States v. Parker*, 622 F.2d 298, 302 (8th Cir. 1980). If
injuries are inflicted both outside and inside the federal boundary, the
Eighth Circuit adopts a proximate cause analysis and requires the
government to prove beyond a reasonable doubt that the victim died as a
proximate result of the injuries inflicted within the federal boundary.
*Id*.

It is unclear in light of *United States v. Gaudin*, 515 U.S. 506
(1995), whether the element of federal jurisdiction is a question of law
to be determined by the court or a question of fact to be determined by
the jury. However, the Eighth Circuit in *United States v. Stands*, 105
F.3d 1565, 1575 (8th Cir. 1997), held that the location of the crime is
a factual issue for the jury, but it is for the court, not the jury, to
determine whether that land is in Indian country and thus within federal
jurisdiction.

**Injection of Defenses**

*See* Instruction 9.05.

In the Eighth Circuit, it is well established that a defendant is
entitled to an instruction on his theory of the case if there is
evidence to support it and a proper request has been made. *United
States v. Long Crow*, 37 F.3d 1319, 1323 (8th Cir. 1994) (quoting
*United States v. Brown*, 540 F.2d 364, 380 (8th Cir. 1976)). The
evidence need not be overwhelming, and a defendant is entitled to an
instruction on a theory of defense even though the evidentiary basis for
that theory is \"weak, inconsistent, or of doubtful credibility.\"
*United States v. Scout*, 112 F.3d 955, 960 (8th Cir. 1997) (citing
*Closs v. Leapley*, 18 F.3d 574, 580 (8th Cir. 1994)); *but see Long
Crow*, 37 F.3d at 1323 (the defendant must establish the insanity
defense \"by clear and convincing evidence\"). Nonetheless, a defendant
still has the burden of producing some evidence to support his theory.
*See Hall v. United States*, 46 F.3d 855 (8th Cir. 1995) (there must be
evidence upon which a jury could rationally sustain the defense).

**Self-Defense**

*See* Instructions 3.09, *supra*, and 9.04, *infra.*

When evidence is introduced which supports a claim of self-defense, the
government must prove the absence of self-defense beyond a reasonable
doubt. *See United States v. Scout*, 112 F.3d at 960 (citing *United
States v. Alvarez*, 755 F.2d 830, 842 n.12 (11th Cir. 1985)). In other
words, the absence of self-defense is not an element of the crime;
rather, it is an affirmative defense on which the defendant bears the
burden of production. Once the defendant has met this burden, the
government must satisfy the burden of persuasion and negate
self-defense. *Id*.

When self-defense is raised, instructions should be modified to include
an additional element, that *"*the defendant did not kill (name of
victim) in self-defense." An explanation of self-defense should also be
included.

**Heat of Passion**

*See* Instruction 9.05, *infra*.

The prosecution must prove beyond a reasonable doubt the absence of heat
of passion when the issue is properly raised in a homicide case.
*Mullaney v. Wilbur*, 421 U.S. 684, 697-98 (1975).

**Lesser-Included Offense**

"The defendant may be found guilty of an offense necessarily included in
the offense charged . . . ." Fed. R. Crim. P. 31(c). *See* Instruction
3.10, *supra*.

The Eighth Circuit has formulated a five-point test to determine when a
lesser-included offense instruction should be given. *United States v.
Parker*, 32 F.3d 395, 400-01 (8th Cir. 1994) (citing *United States v.
Thompson*, 492 F.2d 359, 362 (8th Cir. 1974)):

A defendant is entitled to an instruction on a lesser-included offense
if: (1) a proper request is made; (2) the elements of the lesser offense
are identical to part of the elements of the greater offense; (3) there
is some evidence which would justify conviction of the lesser offense;
(4) the proof on the element or elements differentiating the two crimes
is sufficiently in dispute so that the jury may consistently find the
defendant innocent of the greater and guilty of the lesser-included
offense; and (5) there is mutuality, *i.e.,* a charge may be demanded by
either the prosecution or the defense.

*See also, United States v. Eagle Hawk,* 815 F.2d 1213, 1215 (8th Cir.
1987), and *United States v. Neiss*, 684 F.2d 570, 571 (8th Cir. 1982).

**6.18.1111A MURDER, FIRST DEGREE, WITHIN SPECIAL**

**MARITIME AND TERRITORIAL JURISDICTION**

**OF THE UNITED STATES (18 U.S.C. § 1111)^1^**

The crime of murder in the first degree \[, as charged in \[Count \_\_\]
of the indictment,\] has four elements, which are:

*One*, the defendant unlawfully killed^2\ 3^ (name of victim);

*Two*, the defendant did so with malice aforethought as defined in
instruction \_\_\_\_\_\_\_\_;^4^

*Three*, the killing was premeditated^5^ as defined in instruction
\_\_\_\_\_\_\_;^6^ and

*Four*, the killing occurred at (describe location where killing is
alleged to have occurred upon which jurisdiction is based).^7^

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

**Notes on Use**

1\. Numerous statutes refer to section 1111. This instruction may be
modified for these situations.

2\. The statute states that the defendant must \"unlawfully\" kill. The
issue of whether the defendant unlawfully killed is injected in a number
of ways, as for instance when the defendant raises the defense of
self-defense or defense of others. Those defenses are addressed by
adding the appropriate language based on instruction 3.09 to this
instruction, rather than by adding another element to this instruction.
The burden of proof remains on the government to disprove self-defense
once the defense is raised.

3\. \"Caused the death of\" may be used instead of \"killed.\"

4\. If the defense of heat of passion is raised, the instruction should
be modified to add \"and not in the heat of passion as submitted in
instruction \_\_\_.\" The Supreme Court has held that the prosecution
must \"prove beyond a reasonable doubt the absence of the heat of
passion on sudden provocation when the issue is properly presented in a
homicide case.\" *Mullaney v. Wilbur*, 421 U.S. 684, 697-98, 704 (1975).

5\. This element may be modified to state \"the defendant premeditated
upon the death of (name of victim).\"

6\. When any other form of first degree murder is at issue (*i.e.*, a
murder \"perpetrated by poison, lying in wait . . . or committed in the
perpetration of, or attempt to perpetrate, any arson, escape, murder,
kidnapping, treason, espionage, sabotage, aggravated sexual abuse or
sexual abuse, burglary, or robbery\...\"), the instruction relative to
premeditation should be appropriately modified. (For example, in a case
where the killing occurred during a robbery, the third element should be
stricken, and a new element should be added requiring \"the killing of
\[victim\] was committed during the perpetration of a robbery.\" This
element should be followed by language which defines accurately the
necessary elements of the offense in question, in this example,
robbery.)

7\. It is the Committee\'s opinion that the issue of where the killing
occurred is a question of fact to be determined by the jury but the
issue of federal jurisdiction is a question of law to be determined by
the court. *See United States v. Gaudin*, 515 U.S. 506 (1995). *See also
United States v. Stands*, 105 F.3d 1565, 1575 (8th Cir. 1997) (the
location of the crime is a factual issue for the jury, but it is for the
court, not the jury, to determine whether that land is in Indian country
and thus within federal jurisdiction). If, however, the court should
desire to submit the issue of federal jurisdiction to the jury, a fifth
element may be added, as follows:

*\[Five*, (describe alleged location) is within the \[describe basis
under which the location is within the special maritime or territorial
jurisdiction of the United States, e.g., the boundaries of the Sioux
Indian reservation.\]

If this is done, the first sentence should be modified to state that the
crime has five elements.

*See* 18 U.S.C. § 7 for the definition of \"special maritime and
territorial jurisdiction of the United States,\" and 18 U.S.C. §§ 1152
and 1153 for federal jurisdiction over Indian country and Indians. The
Committee recommends adding the appropriate definition with the
statutory phrase.

**Committee Comments**

*See* 18 U.S.C. § 1111 and Introductory Comments. *See generally,
Beardslee v. United States*, 387 F.2d 280 (8th Cir. 1967). Aside from
the forms of first degree murder which are \"perpetrated by poison,
lying in wait,\" etc., the necessary feature of first degree murder
which distinguishes it from second degree murder is the element of
\"premeditation.\" *Beardslee v. United States*. This factor is covered
by the third element above. In *United States v. Downs*, 56 F.3d 973
(8th Cir. 1995), the Eighth Circuit describes the three nonexclusive
categories of evidence which are reviewed in determining sufficiency of
evidence of premeditation:

\(1\) facts about how and what the defendant did prior to the actual
killing which show he was engaged in activity directed toward the
killing, that is, *planning activity*; (2) facts about the defendant's
prior relationship and conduct with the victim from which *motive* may
be inferred; and (3) facts about the *nature of the killing* from which
it may be inferred that the manner of killing was so particular and
exacting that the defendant must have intentionally killed according to
a preconceived design.

*Downs*, 56 F.3d at 975. Intention and premeditation may be established
by circumstantial evidence. *United States v. Blue Thunder,* 604 F.2d
550 (8th Cir. 1979); *United States v. Black Elk*, 579 F.2d 49, 51 (8th
Cir. 1978); *cf.*, *United States v. Thompson*, 492 F.2d 359, 362 (8th
Cir. 1974) (insufficient circumstantial evidence of intent).

In *Ball v. United States*, 140 U.S. 118, 133 (1891), the Supreme Court
recognized the applicability of the common law's year-and-a-day rule to
federal prosecutions for murder. The Eighth Circuit, in *dicta*, has
recognized that the government must allege and prove that death occurred
within a year and a day of the infliction of injury, *Merrill v. United
States*, 599 F.2d 240, 241-42 (8th Cir. 1979). Unless there is an issue
in the case as to whether death occurred more than a year and a day
beyond infliction of the fatal injury, the Committee does not believe it
is necessary to instruct on the issue.

Second degree murder can be a lesser-included offense under a charge of
first degree murder. *See* Introductory Comments, *supra.*

**6.18.1111A-1 \"MALICE AFORETHOUGHT\" DEFINED**

As used in these instructions, \"malice aforethought\" means an intent,
at the time of a killing, willfully to take the life of a human being,
or an intent willfully to act in callous and wanton disregard of the
consequences to human life; but \"malice aforethought\" does not
necessarily imply any ill will, spite or hatred towards the individual
killed.^1^ ^2^

In determining whether \[the victim\] was unlawfully killed with malice
aforethought, you should consider all the evidence concerning the facts
and circumstances preceding, surrounding and following the killing which
tend to shed light upon the question of intent.

**Notes on Use**

1\. This instruction should be modified in the case of felony murder or
murder for hire. As here stated, the instruction is designed for
situations where a defendant is accused as the principal.

2\. If the court wishes to further define malice and "callous and wanton
disregard," the Eighth Circuit has stated: "Malice may be established by
evidence of conduct which is reckless and wanton, and a gross deviation
from a reasonable standard of care, of such a nature that a jury is
warranted in inferring that the defendant was aware of a serious risk of
death or serious bodily harm." *United States v. Johnson*, 879 F.2d 331,
334 (8^th^ Cir. 1989) (quoting *United States v. Black Elk*, 579 F.2d
49, 51 (8^th^ Cir. 1978)).

**6.18.1111A-2 \"PREMEDITATION\" DEFINED**

A killing is premeditated when it is intentional and the result of
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 for the defendant, after forming the intent to kill, to be fully
conscious of his intent, and to have thought about the killing.

\[For there to be premeditation the defendant must think about the
taking of a human life before acting. The amount of time required for
premeditation cannot be arbitrarily fixed. The time required varies as
the minds and temperaments of people differ and according to the
surrounding circumstances in which they may be placed. Any interval of
time between forming the intent to kill, and acting on that intent,
which is long enough for the defendant to be fully conscious and mindful
of what \[he\] \[she\] intended and willfully set about to do, is
sufficient to justify the finding of premeditation.\]^1^

**Notes on Use**

1\. The instruction may be submitted with the bracketed paragraph
included if the court wishes to provide further description to the jury
of premeditation.

**6.18.1111A-3 HEAT OF PASSION OR SUDDEN QUARREL**

**CAUSED BY ADEQUATE PROVOCATION, DEFINED**

The defendant acted upon heat of passion \[or sudden quarrel\]^1^ caused
by adequate provocation, if:

*One*, the defendant was provoked in a way that would cause a reasonable
person to lose \[his\] \[her\] self-control;^2^

*Two*, a reasonable person subject to the same provocation would not
have regained self-control in the time between the provocation and the
killing; and

*Three*, the defendant did not regain \[his\] \[her\] self-control in
the time between the provocation and the killing.

Heat of passion \[or sudden quarrel\] may result from anger, rage,
resentment, terror or fear. The question is whether the defendant, while
in such an emotional state, lost self-control and acted on impulse and
without reflection.

Provocation, in order to be adequate under the law, must be such as
would naturally induce a reasonable person in the passion of the moment
to temporarily lose self-control and kill on impulse and without
reflection. \[A blow or other personal violence may constitute adequate
provocation, but trivial or slight provocation, entirely
disproportionate to the violence of the retaliation, is not adequate
provocation.\]^3^

It must be such provocation as would arouse a reasonable person. \[If
the provocation aroused the defendant because he was voluntarily
intoxicated, and would not have aroused a sober person, it does not
reduce the offense to manslaughter.\]^4^

**Notes on Use**

1\. The Committee recommends that "sudden quarrel" not be included in
the verdict director, as heat of passion now appears to subsume "sudden
quarrel." *See* Notes on Use to Instruction 6.18.1112A, *infra*. *See*
*United States v. Martinez*, 988 F.2d 685, 690-96 (7^th^ Cir. 1993), for
an extensive description of the history of the defense of \"sudden
quarrel\" or "mutual combat," in which the Court concludes that the term
may be \"an anachronism with no meaning not adequately served by a
proper definition of heat of passion.\" *See also* *United States v.
McRae*, 593 F.2d 700, 705 (5^th^ Cir. 1979) (\"it is surely not the
quarrel that signifies but the heat of passion that it occasions\").
Cases in the Eighth Circuit, however, typically state that voluntary
manslaughter requires evidence of a killing upon sudden quarrel or heat
of passion. *See, e.g.,* *United States v. Eagle Elk*, 658 F.2d 644, 648
(8th Cir. 1981).

If "sudden quarrel" is included, the Committee recommends it be defined.
*See United States v. Martinez*, 988 F.2d at 696, quoting 2 LaFave and
Scott, *Substantive Criminal Law* § 7.10(b)(2) at 256 (1986), in which
\"mutual combat\" is defined as meaning that the parties \"willingly
engage in mutual combat, and during the fight one kills the other as the
result of an intention to do so formed during the struggle.\"

2\. There is case law holding the provocation must be sudden. *See
United States v. Bordeaux*, 980 F.2d 534, 537 (8^th^ Cir. 1992) ("A
defendant's anger with the victim, however, is not sufficient to
establish heat of passion without an element of *sudden* provocation.
Evidence of 'a string of prior arguments and a continuing dispute,'
without any indication of some sort of instant incitement . . . ," is
not sufficient.)

3\. Courts typically add, \"Mere words alone, no matter how abusive or
insulting, are not adequate provocation.\" This is the common law rule.
However, there is a trend in the case law that words alone will
sometimes suffice if the words are informational (conveying information
of a fact which constitutes reasonable provocation when that fact is
observed) rather than merely insulting or abusive words. LaFave & Scott,
*Substantive Criminal Law* (1986), § 7.10(6). *But see* Robinson,
*Criminal Law Defenses* (1984), Vol. I, § 102(b) (the one exception to
the common law rule appears to be the confession of adultery).

4\. While the issue is not clearly resolved in the Eighth Circuit, the
Committee recommends this language be used only if there is evidence the
defendant was voluntarily intoxicated. *See United States v. F.D.L.*,
836 F.2d 1113, 1116-18 (8^th^ Cir. 1988). Where adequate provocation or
heat of passion is raised as a defense and the defendant wishes to offer
evidence of his intoxication, the trend seems to be that the provocation
must be that which will arouse a reasonable *sober* person. *See* LaFave
& Scott, *Substantive Criminal Law*, § 4.10.

When voluntary intoxication is raised as an insanity defense, it will be
disallowed by statute and case law. 18 U.S.C. § 17 and the legislative
history (S. Rep. 225, 98^th^ Cong., 1^st^ Sess. 222 at 229 (1983) ("the
voluntary use of alcohol or drugs, even if they render the defendant
unable to appreciate the nature and quality of his acts, does not
constitute insanity . . . ."); *United States v. F.D.L.*, 836 F.2d at
1116. It is the general rule, however, that voluntary intoxication may
negate specific intent but not general intent. *United States v.
Johnston*, 543 F.2d 55 (8^th^ Cir. 1976). *See Montana v. Egelhoff*, 518
U.S. 37 (1996); *United States v. Johnson*, 879 F.2d 331, n.1 (8^th^
Cir. 1989).

**6.18.1111B MURDER, SECOND DEGREE, WITHIN SPECIAL**

**MARITIME AND TERRITORIAL JURISDICTION**

**OF THE UNITED STATES (18 U.S.C. § 1111)^1^**

The crime of murder in the second degree \[, as charged in \[Count
\_\_\_ of\] the indictment,\] has \[three\] \[four\] elements, which
are:

*One*, the defendant unlawfully killed^2,\ 3^ (name of victim);

*Two*, the defendant did so with malice aforethought as defined in
instruction \_\_\_\_\_\_\_\_;^4^ \[and\]

*Three*, the killing occurred within (describe location where killing is
alleged to have occurred upon which jurisdiction is based) \[.; and

*Four*, (describe alleged location) is within the (describe basis under
which the location is within the special maritime or territorial
jurisdiction of the United States, *e.g.*, the boundaries of the Sioux
Indian reservation.\]^5,\ 6^

(Insert paragraph describing Government's burden of proof; *see*
Instruction 3.09, *supra*. *See also* Instruction 3.10, *supra*.)

**Notes on Use**

1\. Numerous statutes incorporate section 1111 as an element. This
instruction may be modified to apply to these offenses.

2\. The statute states that the defendant must \"unlawfully\" kill. The
issue of whether the defendant unlawfully killed is injected when the
defendant raises the defense of self-defense or defense of others. Those
defenses are addressed by adding the appropriate language based on
Instruction 3.09 to this instruction, rather than by adding another
element to this instruction.

The burden of proof remains on the government to disprove self-defense
once the defense is raised.

3\. \"Caused the death of\" may be used instead of \"killed.\"

4\. If the defense of heat of passion is raised, the instruction should
be modified to add \"and not in the heat of passion as submitted in
instruction \_\_\_.\" The Supreme Court has held that the prosecution
must \"prove beyond a reasonable doubt the absence of the heat of
passion on sudden provocation when the issue is properly presented in a
homicide case.\" *Mullaney v. Wilbur*, 421 U.S. 684, 697-98, 704 (1975).

5\. *See* Introductory Comments and 18 U.S.C. § 7 for the definition of
\"special maritime and territorial jurisdiction of the United States,\"
and 18 U.S.C. §§ 1152 and 1153 for federal jurisdiction over Indian
country and Indians.

6\. It is unclear whether the element of federal jurisdiction is a
question of law to be determined by the court or a question of fact to
be determined by the jury. *See United States v. Gaudin*, 515 U.S. 506
(1995). *But see United States v. Stands*, 105 F.3d 1565, 1575 (8th Cir.
1997) (the location of the crime is a factual issue for the jury, but it
is for the court, not the jury, to determine whether that land is in
Indian country and thus within federal jurisdiction).

**Committee Comments**

*See* Committee Comments, Instruction 6.18.1111A, and Introductory
Comments, *supra.*

Section 1111(a), Title 18, United States Code, provides that
premeditated, unlawful killing is murder in the first degree, and
further provides that killing a human being in the perpetration of
specified felonies is murder in the first degree. \"Any other murder is
murder in the second degree.\" *Id.* \"To convict of second degree
murder, the jury must find that the defendant killed the victim with
\'malice aforethought.\'\" *United States v. Bordeaux*, 980 F.2d 534,
536 (8th Cir. 1992). Second degree murder can be a lesser-included
offense under a charge of first degree murder. *See* Introductory
Comments, *supra.*

**6.18.1112A VOLUNTARY MANSLAUGHTER, WITHIN SPECIAL**

**MARITIME AND TERRITORIAL JURISDICTION**

**OF THE UNITED STATES (18 U.S.C. § 1112)**

The crime of voluntary manslaughter \[, as charged in \[Count \_\_\_
of\] the indictment,\] has three elements, which are:

*One*, the defendant voluntarily, intentionally, and unlawfully killed
(name of victim);^1,\ 2^

*Two*, the defendant acted \[in the heat of passion\] \[upon sudden
quarrel\] ^3^ caused by adequate provocation, as defined in instruction
\_\_\_\_\_; \[and\]

*Three*, the killing occurred within (describe location where killing is
alleged to have occurred upon which jurisdiction is based) \[.; and

*Four*, (describe alleged location) is within the (describe basis under
which the location is within the special maritime or territorial
jurisdiction of the United States, *e.g.*, the boundaries of the Sioux
Indian reservation).\]^4^

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

**Notes on Use**

1\. If there is evidence of justification or excuse, the following
language should be included after the final element:

\"A killing is \'unlawful\' within the meaning of this instruction if it
was \[neither\] \[not\] \[justifiable\] \[nor\] \[excusable\].\"

2\. \"Caused the death of\" may be used instead of \"killed.\"

3\. The Committee recommends that \"sudden quarrel\" not be included, as
heat of passion now appears to include \"sudden quarrel.\" *See* *United
States v. Martinez*, 988 F.2d 685, 690-96 (7th Cir. 1993), for an
extensive description of the history of the defense of \"sudden
quarrel,\" in which the Court concludes that the term \"sudden quarrel\"
may be \"an anachronism with no meaning not adequately served by a
proper definition of heat of passion.\" *See also* *United States v.
McRae*, 593 F.2d 700, 705 (5th Cir. 1979) (\"it is surely not the
quarrel that signifies but the heat of passion that it occasions\").
Cases in the Eighth Circuit, however, typically state that voluntary
manslaughter requires evidence of a killing upon sudden quarrel or heat
of passion. *See, e.g.,* *United States v. Eagle Elk*, 658 F.2d 644, 648
(8th Cir. 1981).

4\. It is unclear whether the element of federal jurisdiction is a
question of law to be determined by the court or fact to be determined
by the jury. After *United States v. Gaudin*, 515 U.S. 506 (1995), the
Committee believes courts will hold that federal jurisdiction is an
element of § 1112 and will require that the issue be submitted to the
jury. *But see* *United States v. Stands*, 105 F.3d 1565, 1575 (8th Cir.
1997) (the location of the crime is a factual issue for the jury, but it
is for the court, not the jury, to determine whether that land is in
Indian country and thus within federal jurisdiction). If, however, the
court should desire to submit the element of federal jurisdiction to the
jury, the following could be added as element five:

*\[Five*, (describe alleged location) is within the \[describe basis
under which the location is within the special maritime or territorial
jurisdiction of the United States, *e.g.*, the boundaries of the Sioux
Indian reservation.\]

*See* 18 U.S.C. § 7 for the definition of \"special maritime and
territorial jurisdiction of the United States,\" and 18 U.S.C. §§ 1152
and 1153 for federal jurisdiction over Indian country and Indians. The
Committee recommends adding the appropriate definition with the
statutory phrase.

**Committee Comments**

*See* Committee Comments, Instruction 6.18.1111A, *supra*, and
Introductory Comments.

Voluntary manslaughter is the unlawful killing without malice, upon a
sudden quarrel or heat of passion. 18 U.S.C. § 1112. The element of
malice aforethought distinguishes between murder and manslaughter.
*United States v. Weise,* 89 F.3d 502, 505 (8th Cir. 1996); *United
States v. Bordeaux*, 980 F.2d 534, 536 (8th Cir. 1992). The offense of
voluntary manslaughter requires evidence of a killing upon sudden
quarrel or heat of passion, which eliminates the mental element of
malice required for murder, *United States v. Bordeaux,* 980 F.2d at 537
(citing *United States v. Elk*, 658 F.2d 644, 648 (8th Cir. 1981)).

Voluntary manslaughter can be a lesser-included offense under a charge
of first degree or second degree murder, and involuntary manslaughter
can be a lesser-included offense under a charge of voluntary
manslaughter. *See* Introductory Comments, *supra.*

**JUSTIFICATION OR EXCUSE**

If there is evidence of justification or excuse, the jury should be
instructed that an \"unlawful killing\" is one that is not justifiable
or excusable. Justification or excuse may include self-defense, defense
of others, the right to prevent at least certain felonies, coercion or
necessity, mental disorder, and other factual situations sufficient to
remove the matter from the criminal arena. *See* LaFave and Scott,
*Substantive Criminal Law* (1986), Vol. 2, § 7.10 et seq.; *Wharton\'s
Criminal Law* (1994), Vol. 2, § 120 et seq.

Where the justification or excuse is not \"perfect,\" *i.e.*, it does
not meet all the elements for the defense, some cases and state criminal
codes have concluded that the \"imperfect\" defense may warrant the
killing being manslaughter rather than murder. Other cases decline to
accept this approach and instead treat the issue as part of adequate
provocation. LaFave & Scott, *supra*.

**SELF-DEFENSE**

*See* Instruction 9.04, *infra.*

When a defendant presents evidence in support of a claim of
self-defense, the government must prove the absence of self-defense
beyond a reasonable doubt. *See United States v. Scout*, 112 F.3d at 960
(citing *United States v. Alvarez*, 755 F.2d 830, 842 n.12 (11th Cir.
1985)). In other words, the absence of self-defense is not an element of
the crime; rather, it is an affirmative defense on which the defendant
bears the burden of production. *Alvarez*, 755 F.2d at 714 n.1. Once the
defendant has met this burden, the government must satisfy the burden of
persuasion and negate self-defense. *Id*.

Failure to provide a separate instruction explaining that the government
bears the burden of proof on self-defense can constitute reversible
error. *See, e.g., United States v. Corrigan*, 548 F.2d 879, 883-84
(10th Cir. 1977).

The Committee recommends adding a fifth element to this instruction when
self-defense is an issue. *See* Note 2, *supra.*

**6.18.1112B INVOLUNTARY MANSLAUGHTER, WITHIN SPECIAL**

**MARITIME AND TERRITORIAL JURISDICTION**

**OF THE UNITED STATES (18 U.S.C. § 1112)**

The crime of involuntary manslaughter\[, as charged in \[Count \_\_\_
of\] the indictment,\] has \[four\] \[five\] elements, which are:

*One*, \_\_\_\_\_\_\_\_ (name of victim) is dead;

*Two,* the defendant caused the death of the victim, as charged;

*\[Three,* the death of the victim occurred as a result of an act done
by the defendant during the commission of \[an unlawful act^1^ not
amounting to a felony\] \[a lawful act, done either in an unlawful
manner or with wanton or reckless disregard for human life, which might
produce death\] (describe act, e.g., was driving in excess of the speed
limit);\] or

*\[Three*, \[the defendant knew that his conduct was a threat to the
lives of others\]\[it was reasonably foreseeable that the defendant's
conduct might be a threat to the lives of others\];\] \[and\]

*Four*, the killing occurred within (describe location where killing is
alleged to have occurred upon which jurisdiction is based).^2^

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

**Notes on Use**

1\. If there is evidence of justification or excuse, the following
language should be included after the final element:

\"A killing is \'unlawful\' within the meaning of this instruction if it
was \[neither\] \[not\] \[justifiable\] \[nor\] \[excusable\].\"

*See* Committee Comments to Instruction 6.18.1112A regarding
justification and excuse.

2\. It is unclear whether the element of federal jurisdiction is a
question of law to be determined by the court or fact to be determined
by the jury. After *United States v. Gaudin*, 515 U.S. 506 (1995), the
Committee believes courts will hold that federal jurisdiction is an
element of § 1112 and will require that the issue be submitted to the
jury. *But see United States v. Stands*, 105 F.3d 1565, 1575 (8th Cir.
1997) (the location of the crime is a factual issue for the jury, but it
is for the court, not the jury, to determine whether that land is in
Indian country and thus within federal jurisdiction). If, however, the
court should desire to submit the element of federal jurisdiction to the
jury, the following could be added as element five:

*\[Five*, (describe alleged location) is within the \[describe basis
under which the location is within the special maritime or territorial
jurisdiction of the United States, *e.g.*, the boundaries of the Sioux
Indian reservation.\]

*See* 18 U.S.C. § 7 for the definition of \"special maritime and
territorial jurisdiction of the United States,\" and 18 U.S.C. §§ 1152
and 1153 for federal jurisdiction over Indian country and Indians. The
Committee recommends adding the appropriate definition with the
statutory phrase.

**Committee Comments**

*See* Committee Comments, Instruction 6.18.1112A, and Introductory
Comments.

Involuntary manslaughter can be a lesser-included offense of voluntary
manslaughter under 18 U.S.C. § 1112. *See* Introductory Comments,
*supra. United States v. One Star*, 979 F.2d 1319 (8th Cir. 1992).

Under 18 U.S.C. § 1112, there are two types of involuntary manslaughter.
Involuntary manslaughter can either occur in the commission of (1) an
unlawful act or (2) a lawful act in an unlawful manner or without due
caution. *United States v. McMillan*, 820 F.2d 251, 257 (8th Cir. 1987).

In determining what constitutes an \"unlawful act\" under 18 U.S.C. §
1112, the Assimilative Crimes Act, 18 U.S.C. § 13, permits resort to
state law when the acts of the defendant are not punishable under any
enactment of Congress. *See United States v. Butler*, 541 F.2d 730,
735-36 (8th Cir. 1976); *see also United States v. Bald Eagle*, 849 F.2d
361 n.2 (8th Cir. 1988).

\"The requisite mental state for involuntary manslaughter is \'gross\'
or \'criminal\' negligence, a far more serious level of culpability than
that of ordinary tort negligence, but still short of the extreme
recklessness, or malice required for murder.\" *United States v. One
Star*, 979 F.2d 1319, 1321 (8th Cir. 1992). \"It is well settled that
involuntary manslaughter is a lesser-included offense of murder.\"
*Ibid.*

Actual knowledge of a threat to the lives of others, or knowledge of
circumstances that would allow the defendant to foresee the
life-threatening nature of his conduct, is a separate element of the
crime which must be established in addition to gross negligence. *United
States v. Opsta*, 659 F.2d 848, 849 (8th Cir. 1981) (citing *United
States v. Schmidt*, 626 F.2d 616, 617 (8th Cir. 1980)).

There is authority for the proposition that self-defense is inconsistent
with a charge of involuntary manslaughter, so that it would be error to
submit on the lesser-included offense of involuntary manslaughter when
the defendant asserts self-defense. Such an instruction would abrogate
the complete nature of self-defense as a defense. *United States v. Iron
Shield*, 697 F.2d 845 (8th Cir. 1983) (citing *United States v. Smith*,
521 F.2d 374, 377 (10th Cir. 1975)).

**6.18.1114A MURDER, FIRST DEGREE, FEDERAL VICTIM**

**(18 U.S.C. § 1114)**

The crime of murder in the first degree \[, as charged in \[Count \_\_\_
of\] the indictment,\] has four elements, which are:

*One*, the defendant unlawfully killed^1\ 2^ (name of victim);

*Two*, the defendant did so with malice aforethought and not in the heat
of passion;^3^

*Three*, the killing was premeditated^4^ as defined in instruction
\_\_\_\_\_\_;^5^ and

*Four*, (name of victim) was killed \[while engaged in his/her official
duties\] \[on account of the performance of his/her official duties\] as
an \[officer\] \[employee\] of the United States.

The defendant does not have to know that (the victim) was a federal
officer.

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

**Notes on Use**

1\. The statute states that the defendant must \"unlawfully\" kill. The
issue of whether the defendant unlawfully killed is injected in a number
of ways, as for instance when the defendant raises the defense of
self-defense or defense of others. Those defenses are addressed by
adding the appropriate language based on Instruction 3.09 to this
instruction, rather than by adding another element to this instruction.
The burden of proof remains on the government to disprove self-defense
once the defense is raised.

2\. \"Caused the death of\" may be used instead of \"killed.\"

3\. If the defense of heat of passion is raised, the instruction should
be modified to add \"and not in the heat of passion as submitted in
instruction \_\_\_.\" The Supreme Court has held that the prosecution
must \"prove beyond a reasonable doubt the absence of the heat of
passion on sudden provocation when the issue is properly presented in a
homicide case.\" *Mullaney v. Wilbur*, 421 U.S. 684, 697-98, 704 (1975).

4\. This element may be modified to state \"the defendant premeditated
upon the death of (name of victim).\"

5\. When any other form of first degree murder is at issue (*i.e.*, a
murder \"perpetrated by poison, lying in wait . . . or committed in the
perpetration of, or attempt to perpetrate, any arson, escape, murder,
kidnaping, treason, espionage, sabotage, aggravated sexual abuse or
sexual abuse, burglary, or robbery. . . .\"), the instruction relative
to premeditation should be appropriately modified. (For example, in a
case where the killing occurred during a robbery, the third element
should be stricken, and a new element should be added requiring \"the
killing of \[victim\] was committed during the perpetration of a
robbery.\" This element should be followed by language which defines
accurately the necessary elements of the offense in question, in this
example, robbery.)

**Committee Comments**

*See* 18 U.S.C. §§ 1111, 1114; Introductory Comments; and Instructions
6.18.1111A, 6.18.1112A, *supra*.

*See* Committee Comments, Instructions 6.18.1111A and 6.18.1112A,
*supra*.

**OFFICIAL DUTY**

The test for determining whether a federal officer or employee is
engaged in the performance of an official duty is whether the officer or
employee was acting within the scope of employment or engaging in a
\"personal frolic.\" *United States v. Street*, 66 F.3d 969, 978 (8^th^
Cir. 1995). The scope of what the agent is employed to do is not defined
by whether the officer or employee was abiding by the controlling laws
and regulations at the time of the incident. *Id.* Moreover, the scope
of employment is not defined by the job description. *Id.* Instead, in
the Eighth Circuit, the scope of employment is interpreted broadly by
looking to whether the officer or employee\'s actions fall within the
agency\'s overall mission. *Id.* The statute was intended by Congress to
protect federal officers and facilitating the accomplishment of federal
law enforcement functions. *Id.* at 974.

**FEDERAL OFFICER**

A defendant need not be aware that the victim is a federal officer.
*United States v. Feola*, 420 U.S. 671, 684 (1975).

A state, local or tribal officer may also be a federal officer due to
cross-deputization by a federal agency. If deputized officers are
pursuing duties in furtherance of their federal deputization, they are
federal officers for purposes of 18 U.S.C. §§ 111 and 1114. *United
States v. Schrader*, 10 F.3d 1345, 1350-51 (8th Cir. 1993). (For
example, section 1114 provides that any officer or employee of the
Indian field service of the United States is protected under the
statute. The Bureau of Indian Affairs is part of the Indian field
service of the United States. Tribal police officers who are employed by
a tribe under a contract with the Bureau of Indian Affairs to provide
aid in the enforcement or carrying out in Indian country of a law of
either the United States or an Indian tribe are federal officers for the
purpose of 18 U.S.C. § 111. *United States v. Young*, 85 F.3d 334 (8^th^
Cir. 1996).) Whether an officer is a federal officer is a issue of law
for the court; whether the person is in fact an officer and whether he
was performing federal law enforcement functions are questions for the
jury. *United States v. Oakie*, 12 F.3d 1436, 1439-40 (8^th^ Cir. 1993).

**6.18.1114B MURDER, SECOND DEGREE, FEDERAL VICTIM**

**(18 U.S.C. § 1114)**

The crime of murder in the second degree \[, as charged in \[Count
\_\_\_ of\] the indictment,\] has three elements, which are:

*One*, the defendant unlawfully killed^1\ 2^ (name of victim);

*Two*, the defendant did so with malice aforethought as defined in
instruction \_\_\_\_;^3^ and

*Three*, (name of victim) was killed \[while engaged in his/her official
duties\] \[on account of the performance of his/her official duties\] as
an \[officer\] \[employee\] of the United States.

The defendant does not have to know that (the victim) was a federal
officer.

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

**Notes on Use**

1\. The statute states that the defendant must \"unlawfully\" kill. The
issue of whether the defendant unlawfully killed is injected in a number
of ways, as, for instance, when the defendant raises the defense of
self-defense or defense of others. Those defenses are addressed by
adding the appropriate language based on instruction 3.09 to this
instruction, rather than by adding another element to this instruction.
The burden of proof remains on the government to disprove self-defense
once the defense is raised.

2\. \"Caused the death of\" may be used instead of \"killed.\"

3\. If the defense of heat of passion is raised, the instruction should
be modified to add \"and not in the heat of passion as submitted in
instruction \_\_\_.\" The Supreme Court has held that the prosecution
must \"prove beyond a reasonable doubt the absence of the heat of
passion on sudden provocation when the issue is properly presented in a
homicide case.\" *Mullaney v. Wilbur*, 421 U.S. 684, 697-98, 704 (1975).

**Committee Comments**

*See* 18 U.S.C. §§ 1111, 1114; Introductory Comments; and Instructions
6.18.1111A, 6.18.1112A, *supra*.

*See* Committee Comments, Instructions 6.18.1111A, 6.18.1112A, and
6.18.1114A, *supra*.

**6.18.1114C VOLUNTARY MANSLAUGHTER, FEDERAL VICTIM**

**(18 U.S.C. § 1114)**

The crime of voluntary manslaughter \[, as charged in \[Count \_\_\_
of\] the indictment,\] has three elements, which are:

*One*, the defendant voluntarily, intentionally, and unlawfully killed
(name of victim);^2\ 3^

*Two*, the defendant acted upon \[in the heat of passion\] \[sudden
quarrel\]^4^ caused by adequate provocation, as defined in instruction
\_\_\_\_; and

*Three*, (name of victim) was killed \[while engaged in his/her official
duties\] \[on account of the performance of his/her official duties\] as
an \[officer\] \[employee\] of the United States.

The defendant does not have to know that (name of victim) was a federal
officer.

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

**Notes on Use**

1\. If there is evidence of justification or excuse, the following
language should be included after the final element:

\"A killing is \'unlawful\' within the meaning of this instruction if it
was \[neither\] \[not\] \[justifiable\] \[nor\] \[excusable\].\"

2\. \"Caused the death of\" may be used instead of \"killed.\"

3\. The Committee recommends that \"sudden quarrel\" not be included, as
heat of passion now appears to include \"sudden quarrel.\" *See* *United
States v. Martinez*, 988 F.2d 685, 690-96 (7th Cir. 1993), for an
extensive description of the history of the defense of \"sudden
quarrel,\" in which the Court concludes that the term \"sudden quarrel\"
may be \"an anachronism with no meaning not adequately served by a
proper definition of heat of passion.\" *See also* *United States v.
McRae*, 593 F.2d 700, 705 (5th Cir. 1979) (\"it is surely not the
quarrel that signifies but the heat of passion that it occasions\").
Cases in the Eighth Circuit, however, typically state that voluntary
manslaughter requires evidence of a killing upon sudden quarrel or heat
of passion. *See, e.g.,* *United States v. Eagle Elk*, 658 F.2d 644, 648
(8th Cir. 1981).

**Committee Comments**

*See* 18 U.S.C. §§ 1111, 1114; Introductory Comments; and Instructions
6.18.1111A, 6.18.1112A, *supra*.

*See* Committee Comments, Instructions 6.18.1111A, 6.18.1112A, and
6.18.1114A, *supra*.

**6.18.1114D INVOLUNTARY MANSLAUGHTER, FEDERAL VICTIM**

**(18 U.S.C. § 1114)**

The crime of involuntary manslaughter \[, as charged in \[Count \_\_\_
of\] the indictment,\] has four elements, which are:

*One*, \_\_\_\_\_\_\_\_ (name of victim) is dead;

*Two*, the defendant caused the death of the victim, as charged;

*\[Three,* the death of the victim occurred as a result of an act done
by the defendant during the commission of \[an unlawful act^1^ not
amounting to a felony\] \[a lawful act, done either in an unlawful
manner or with wanton or reckless disregard for human life, which might
produce death\] (describe act, e.g., was driving in excess of the speed
limit); or\]

*\[Three*, \[the defendant knew that his conduct was a threat to the
lives of others\]\[it was reasonably foreseeable that the defendant's
conduct might be a threat to the lives of others\];\] and

*Four*, (name of victim) \[was killed\] \[died\] \[while engaged in
his/her official duties\] \[on account of the performance of his/her
official duties\] as an \[officer\] \[employee\] of the United States.

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

**Notes on Use**

1\. If there is evidence of justification or excuse, the following
language should be included after the final element:

\"A killing is \'unlawful\' within the meaning of this instruction if it
was \[neither\] \[not\] \[justifiable\] \[nor\] \[excusable\].\"

*See* Committee Comments to Instruction 6.18.1112A regarding
justification and excuse.

**Committee Comments**

*See* 18 U.S.C. §§ 1111, 1114; Introductory Comments; and Instructions
6.18.1111A, 6.18.1112A, *supra*.

*See* Committee Comments, Instructions 6.18.1111A, 6.18.1112A, and
6.18.1114A, *supra*.

**6.18.1341 MAIL FRAUD (18 U.S.C. § 1341)**

The crime of \[mail\] fraud, as charged in \[Count \_\_\_\_\_ of\] the
indictment, has \[three\] \[four\] elements, which are:

*One*, the defendant voluntarily and intentionally \[devised or made up
a scheme to defraud another out of \[money, property or property
rights\] \[the intangible right to honest services\]^1^\] \[participated
in a scheme to defraud with knowledge of its fraudulent nature\]
\[devised or participated in a scheme to obtain \[money, property or
property rights\] \[the intangible right to honest services\] by means
of material false representations or promises\]^2^ \[which scheme is
described as follows: (describe scheme in summary form or in manner
charged in the indictment)\];^3^

*Two*, the defendant did so with the intent to defraud; \[and\]

*Three,* the defendant used, or caused to be used, \[the mail\] \[a
private interstate carrier\] \[a commercial interstate carrier\]^4^ in
furtherance of, or in an attempt to carry out, some essential step in
the scheme; \[and\]

*\[Four*, the scheme was in connection with the conduct of
telemarketing.\]

*or*

\[*Four*, the scheme was in connection with the conduct of telemarketing
and

\(a\) victimized ten or more persons over the age of 55, or

\(b\) targeted persons over the age of 55.\]

*or*

\[*Four*, that the scheme affected a financial institution.\]^5^

The phrase \"scheme to defraud\" includes any plan or course of action
intended to deceive or cheat another out of \[money, property or
property rights\] \[the intangible right to honest services\] by
\[employing material falsehoods\] \[concealing material facts\]
\[omitting material facts\]. It also means the obtaining of \[money or
property\] \[the intangible right to honest services\] from another by
means of material false representations or promises. A scheme to defraud
need not be fraudulent on its face but must include some sort of
fraudulent misrepresentation or promise reasonably calculated to deceive
a reasonable person.^6^

A statement or representation is \"false\" when it is untrue when made
or effectively conceals or omits a material fact.^7^

A \[fact\] \[falsehood\] \[representation\] \[promise\] is \"material\"
if it has a natural tendency to influence, or is capable of influencing,
the decision of a reasonable person in deciding whether to engage or not
to engage in a particular transaction.^8^ \[However, whether a \[fact\]
\[falsehood\] \[representation\] \[promise\] is \"material\" does not
depend on whether the person was actually deceived.\]^9^

To act with \"intent to defraud\" means to act knowingly and with the
intent to deceive someone for the purpose of causing some \[financial
loss\] or \[loss of property or property rights\] \[loss of an
intangible right to honest services\] to another or bringing about some
financial gain to oneself or another to the detriment of a third
party.^10^ \[With respect to false statements, the defendant must have
known the statement was untrue when made or have made the statement with
reckless indifference to its truth or falsity.\]^11^

\[The term property rights, as used in the mail fraud statute, includes
intangible as well as tangible property rights. It includes any property
right which has a value -- not necessarily a monetary value -- to the
owner of the property right. For example, a scheme to deprive a company
of the exclusive use of confidential business information obtained by
the employees would be a scheme to deprive the company of intangible
property rights.\]^12^

It is not necessary that the use of \[the mail\] \[an interstate
carrier\] by the participants themselves be contemplated or that the
defendant do any actual \[mailing\] \[sending of material by an
interstate carrier\] or specifically intend that \[the mail\] \[an
interstate carrier\] be used. It is sufficient if \[the mail\] \[an
interstate carrier\] was in fact used to carry out the scheme and the
use of \[the mail\] \[an interstate carrier\] by someone was reasonably
foreseeable.^13^

\[Mailings\] \[Deliveries by an interstate carrier\] which are designed
to lull victims into a false sense of security, postpone inquiries or
complaints, or make the transaction less suspect are \[mailings\]
\[deliveries\] in furtherance of the scheme.\]^14^

\[Each separate use of \[the mail\] \[an interstate carrier\] in
furtherance of the scheme to defraud constitutes a separate
offense.\]^15^

\[The \[mail\] fraud counts of the indictment charge that each
defendant, along with the other defendants, devised or participated in a
scheme. The Government need not prove, however, that the defendants met
together to formulate the scheme charged, or that there was a formal
agreement among them, in order for them to be held jointly responsible
for the operation of the scheme and the use of \[the mail\] \[an
interstate carrier\] for the purpose of accomplishing the scheme. It is
sufficient if only one person conceives the scheme and the others
knowingly, voluntarily and intentionally join in and participate in some
way in the operation of the scheme in order for such others to be held
jointly responsible.\]^16^

\[It is not necessary that the Government prove \[all of the details
alleged in the indictment concerning the precise nature and purpose of
the scheme\] \[that the material \[mailed\] \[sent by an interstate
carrier\] was itself false or fraudulent\] \[that the alleged scheme
actually succeeded in defrauding anyone\] \[that the use of \[the mail\]
\[an interstate carrier\] was intended as the specific or exclusive
means of accomplishing the alleged fraud.\]^17^

\[If you find proof beyond a reasonable doubt of a business custom
(describe custom, e.g., to date stamp only items received through the
mail), that is evidence from which you may, but are not required to,
find or infer that \[the mail\] \[an interstate carrier\] was used to
deliver those items.\]^18^

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

**Notes on Use**

1\. Depriving another of the intangible right of honest services is
covered by the mail fraud statute. 18 U.S.C. § 1346. In *United States
v. Jain*, 93 F.3d 436 (8th Cir. 1996), the court held that in a private
sector (as opposed to public corruption) honest services mail fraud, the
government must show an intent to harm the victim before mail fraud is
proven.

2\. The proper mail fraud theory charged in the indictment should be
selected and included in the body of the instruction. If more than one
theory is part of the evidence in the case, and the theories constitute
a separate offense or an element of the offense, such alternatives can
be submitted in the disjunctive and the jury instructed that all jurors
must agree as to the particular theory. *United States v. Blumeyer*, 114
F.3d 758 (8th Cir. 1997). In such a case, the jury may be instructed as
follows:

You need not find that all of the theories charged in Count \_\_\_ of
the indictment are proven; instead, you must find unanimously and beyond
a reasonable doubt that at least one of the theories set out in Count
\_\_ of the indictment is proven.

If more than one false promise or statement is part of the evidence in
the case, and the promises or statements set out different ways of
committing the offense but do not constitute a separate offense or an
element of the offense, then the jury may be instructed that all the
jurors need not agree as to the particular theory, or the particular
false promise or statement, that was made. In such a case, the jury may
be instructed as follows:

Count \_\_\_ of the indictment accuses the defendant of committing the
crime of \_\_\_ in more than one possible way. The first is that he
\_\_\_. The second is that he \_\_\_. The government does not have to
prove all of these for you to return a guilty verdict on this charge.
Proof beyond a reasonable doubt of any one of these ways is enough. In
order to return a guilty verdict, all twelve of you must agree that at
least one of these has been proved; however, all of you need not agree
that the same one has been proved.

*See* *Schad v. Arizona*, 501 U.S. 624 (1991) (plurality opinion), in
which the Supreme Court rejected the approach of requiring unanimity
when the means used to commit an offense simply satisfy an element of a
crime and do not themselves constitute a separate offense or an element
of an offense. In these circumstances, unanimity is not required. *Id*.
at 630-33. On the other hand, if the means used to commit an offense are
deemed an element of the crime, unanimity is required. *See also*
*Richardson v. United States*, 526 U.S. 813, 817 (1999) (plurality
opinion), in which the Court again distinguished the elements of a crime
from the means used to commit the elements of the crime. If a fact is an
element, "a jury in a federal criminal case cannot convict unless it
unanimously finds that the Government has proved \[it\]." *Id*. On the
other hand, if the fact is defined as a means of committing the crime,
"a federal jury need not always decide unanimously which of several
possible sets of underlying brute facts make up a particular element,
say, which of several possible means the defendant used *to commit an
element of the crime*." *Richardson*, 526 U.S. at 817 (citing *Schad v.
Arizona*, 501 U.S. 624 (1991)).

3\. In a simple case a brief description of the fraud should be given in
the first element. An example would be:

*One*, that the defendant devised a scheme to defraud the brokerage firm
of Smith & Jones by pledging counterfeit stock certificates as
collateral on margin loans given to the defendant, thus causing a loss
to Smith & Jones of 5 million dollars.

Some schemes will be too complicated to lend themselves to short
descriptions. In those schemes the court may more fully summarize the
scheme or refer to the description of the scheme contained in the
indictment.

In submitting a summary of the scheme to the jury, the court should be
aware that on occasion some allegations and misrepresentations charged
in the indictment are not proven. These may be deleted from the summary;
however, the court should be aware that if many allegations are not
proven, there may be a material and prejudicial variance between what is
alleged in the indictment and what is proven at trial.

4\. After September 13, 1994, 18 U.S.C. § 1341 covers schemes carried
out by depositing matter to be sent or delivered by any private or
commercial interstate carrier.

5\. A fourth element is required when the indictment alleges any facts
that would result in enhanced penalties under 18 U.S.C. §§ 1341, 2326.
*See* *Apprendi v. New Jersey*, 530 U.S. 466 (2000). Consideration
should also be given to the use of a special verdict form
(interrogatories to follow finding of guilt).

6\. \"Intent to defraud\" and \"scheme to defraud\" should be defined in
the instruction. "A scheme to defraud need not be fraudulent on its
face, but 'must involve some sort of fraudulent misrepresentations or
omissions reasonably calculated to deceive persons of ordinary prudence
and comprehension.'" *United States v. Goodman*, 984 F.2d 235, 237 (8th
Cir. 1993).

7\. *Preston v. United States*, 312 F.3d 959 (8^th^ Cir. 2002).

8\. *Preston v. United States*, 312 F.3d 959 (8^th^ Cir. 2002).

9\. *See United States v. Henderson*, 416 F.3d 686 (8^th^ Cir. 2005)
(material under 42 U.S.C. § 408(a)(3, 4); *United States v. Mitchell*,
388 F.3d 1139 (8^th^ Cir. 2004) (18 U.S.C. § 1001 (materiality)).

10\. United States v. Ervasti, 201 F.3d 1029 (8^th^ Cir. 2000). False
statements have been defined as those which were known to be untrue at
the time they were made, or made with reckless indifference as to their
truth or falsity, and made with the intent to deceive. *United States v.
Marley*, 549 F.2d 561 (8th Cir. 1977). Reckless indifference is
sufficient in these cases, and a deliberate ignorance instruction, Model
Instruction 7.04, should not be necessary. *Mattingly v. United States*,
924 F.2d 785 (8th Cir. 1991), is not applicable to these cases.

11\. *United States v. Casperson*, 773 F.2d 216 (8^th^ Cir. 1985).

12\. 18 U.S.C. § 1346. In *Carpenter v. United States*, 484 U.S. 19
(1987), the Supreme Court adopted a very broad definition of property
rights under the mail and wire fraud statutes. The Court stated that the
statute covered intangible as well as tangible property rights and
included the *Wall Street Journal*\'s right to control the use of
information obtained by its reporters in the course of their duties. The
Court held that the right of the *Journal* to decide how and when to use
its confidential business information obtained by its reporters was a
property right and that a scheme to deprive the *Journal* of this
confidential business information was a scheme within the scope of the
mail fraud statutes, even if no monetary loss to the *Journal* was
caused by the scheme.

In *United States v. Shyres*, 898 F.2d 647, 652 (8th Cir. 1990), the
court held that the right to exercise control over spending is a
property right protected by the mail fraud statute and approved the
following instruction:

The term \"property rights\" as used in the mail fraud statute includes
intangible as well as tangible property. Intangible property rights
include any valuable right considered as a source of wealth, and include
the right to exercise control over how one\'s money is spent.

*See also United States v. Granberry*, 908 F.2d 278 (8th Cir. 1990).

However, the Supreme Court held in *Cleveland v. United States*, 532
U.S. 12 (2000), that state and municipal licenses are not property under
the mail fraud statute.

13\. *See* 2A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 47.04 (5th ed. 2000). *See also, Pereira v.
United States*, 347 U.S. 1, 8-9 (1954), which holds as follows:

The elements of the offense of mail fraud under 18 U.S.C. (Supp. V) §
1341 are (1) a scheme to defraud, and (2) the mailing of a letter, etc.,
for the purpose of executing the scheme. It is not necessary that the
scheme contemplate the use of the mails as an essential element. *United
States v. Young*, 232 U.S. 155 (1914). Here, the scheme to defraud is
established, and the mailing of the check by the bank, incident to an
essential part of the scheme, is established. There remains only the
question whether Pereira \"caused\" the mailing. That question is easily
answered. Where one does an act with knowledge that the use of the mails
will follow in the ordinary course of business, or where such use can
reasonably be foreseen, even though not actually intended, then he
\"causes\" the mails to be used. *United States v. Kenofskey*, 243 U.S.
440 (1917).

This Circuit has defined \"reasonably foreseeable\" in a variety of
contexts. In a mail fraud scheme in which an insurance company was a
victim, the court stated as follows:

One who engages in carrying out a scheme to defraud is therefore
responsible . . . for a use made of the mail to effect a necessary or
facilitating incident thereof where such use is from the nature of the
business and the incident one of such ordinary course as to constitute a
matter of natural expectability. A use of the mail which is of such a
general expectable occurrence is entitled to be found to be reasonably
foreseeable. Thus, we observed generally . . . as to the ordinary course
of such an insurance business as is here involved:

Certainly in dealing with insurance agents it will be contemplated that
the mails will have to be employed in carrying on business with the
different companies for whom the agent does business.

*United States v. Minkin*, 504 F.2d 350, 353-54 (8th Cir. 1974)
(citation omitted).

In *United States v. Boyd*, 606 F.2d 792, 794 (8th Cir. 1979), the court
held:

Conduct is within the mail fraud statute when, as in this case, the use
of the mails for the purpose of executing the flow of payoff funds is a
reasonably foreseeable possibility in furthering the transaction.

*See also United States v. Rabbitt*, 583 F.2d 1014, 1022-23 (8th Cir.
1978).

In *United States v. Brown*, 540 F.2d 364, 376 (8th Cir. 1976), the
court stated:

\[T\]hus . . . Brown was on notice that transfer of funds from Reliance
to Mansion House by mail rather than by hand delivery was a reasonable
possibility. This was sufficient evidence from which the jury could find
that Brown caused the use of the mails to accomplish the ultimate
objective of the scheme.

14\. *United States v. Sampson*, 371 U.S. 75 (1962); *United States v.
Brown*, 540 F.2d 364, 376 (8th Cir. 1976); *United States v. Tackett*,
646 F.2d 1240, 1243 (8th Cir. 1981).

In *Schmuck v. United States*, 489 U.S. 705, 713 (1989), the Court held
that all mailings that are in any way part of the execution of the
scheme will supply the mailing element of the offense even if the
mailing later may turn out to be counterproductive and allow the
discovery of the scheme.

15\. 2A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 47.15 (5th ed. 2000); *Atkinson v. United
States*, 344 F.2d 97 (8th Cir. 1965); *United States v. Calvert*, 523
F.2d 895, 903 n.6, 914 (8th Cir. 1975).

16\. *Reistroffer v. United States*, 258 F.2d 379, 395 (8th Cir. 1958);
*United States v. Porter*, 441 F.2d 1204, 1211 (8th Cir. 1971).

17\. *See* 2A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 47.04 (5th ed. 2000); *United States v. West*,
549 F.2d 545, 552 (8th Cir. 1977); *United States v. Gross*, 416 F.2d
1205, 1210 (8th Cir. 1969); *Atkinson v. United States*, 344 F.2d 97, 98
(8th Cir. 1965); *United States v. Calvert*, 523 F.2d 895, 912 (8th Cir.
1975) (use of mail need not be specifically nor exclusively intended).

18\. *United States v. Shyres*, 898 F.2d 647, 658 (8th Cir. 1990);
*United States v. Cady*, 567 F.2d 771, 775 (8th Cir. 1977); *United
States v. Minkin*, 504 F.2d 350, 352-53 (8th Cir. 1974); *United States
v. Joyce*, 499 F.2d 9, 17 (7th Cir. 1974); *Bolen v. United States*, 303
F.2d 870, 875 (9th Cir. 1962). Likewise mailing can be inferred from the
presence of a regular postmark. *United States v. Noelke*, 1 Fed. 426
(C.C.N.Y. 1880). *See also* Instruction 4.13, *supra*, on specific
inferences.

**Committee Comments**

The crime of mail fraud is very broad in scope. As the Eighth Circuit
restated in *United States v. Bishop*, 825 F.2d 1278, 1280 (8th Cir.
1987):

The crime of mail fraud is broad in scope; . . . the fraudulent aspect
of the scheme to \"defraud\" is measured by a nontechnical standard . .
. . Law puts its imprimatur on the accepted moral standards and condemns
conduct which fails to match the \"reflection of moral uprightness, of
fundamental honesty, fair play and right dealing in the general business
life of the members of society.\" This is indeed broad. For as Judge
Holmes once observed, \"The law does not define fraud; it needs no
definition. It is as old as falsehood and as versatile as human
ingenuity.\"

The definition of \"scheme\" as used in these instructions is very old
and is similar to one of the first definitions used in this circuit in
*United States v. Dexter*, 154 Fed. 890, 896 (N.D. Ia. 1907). The court
there stated:

A scheme may be said to be a design or plan formed to accomplish some
purpose. An artifice may be said to be an ingenious contrivance or
device of some kind and when use in a bad sense of the word corresponds
with trick or fraud. Hence, a scheme or artifice to defraud within the
meaning of this statute would be to form some plan or devise some trick
to perpetrate a fraud upon another.

The scheme must be one \"reasonably calculated to deceive persons of
ordinary prudence and comprehension.\" *United States v. Goodman*, 984
F.2d 235, 237 (8th Cir. 1993), and must employ material falsehoods.
*Neder v. United States*, 527 U.S. 1 (1999). A scheme under the statute
encompasses false representations as to future intentions as well as
existing facts. *Durland v. United States*, 161 U.S. 306 (1896). Indeed,
as stated above, a scheme to defraud may be actionable even though no
actual misrepresentations are made. *See United States v. Clausen*, 792
F.2d 102, 104-05 (8th Cir. 1986). A scheme to defraud may also involve
the concealment of material facts. *United States v. Bessesen*, 433 F.2d
861, 863, 864 (8th Cir. 1970).

Because of the diverse types of mail fraud schemes prosecuted, it is
difficult to tailor a \"model\" instruction that does not refer to the
indictment in the case. Because of the broad application of the mail
fraud statute, it will be necessary to define certain terms in the
instructions to the jury.

In *Clausen*, the court stated that the mail fraud statute prohibited
both schemes to defraud *and* the obtaining of money and property by
means of false pretenses. The court held that false pretenses were not
essential in order to prove a scheme to defraud. Thus, it is proper to
instruct the jury that the mail fraud statute may be violated either by
devising a scheme to defraud or by obtaining money or property by means
of false or fraudulent pretenses, representations or promises.

One who participates in an ongoing mail fraud devised by others is
guilty of the crime of mail fraud. *United States v. Wilson*, 506 F.2d
1252, 1258 (7th Cir. 1974).

Intent to defraud is an element of mail fraud. *DeMier v. United
States*, 616 F.2d 366, 369 (8th Cir. 1980). Thus, good faith can be a
theory of defense. *United States v. Arnold*, 543 F.2d 1224 (8th Cir.
1976). A defendant is entitled to an instruction on a good faith theory
of defense and one should be given if there is evidence to support the
theory, *United States v. Casperson*, 773 F.2d 216, 222-24 (8th Cir.
1985); *United States v. Sherer*, 653 F.2d 334, 337 (8th Cir. 1981), but
not where the defendant denies the conduct which is charged and the
issue is one of credibility. *United States v. Kimmel*, 777 F.2d 290,
292-93 (5th Cir. 1985). *See* Instruction 9.08, *infra*, for good faith
instructions. *See also* 2A Kevin F. O'Malley, et al., *Federal Jury
Practice and Instructions*: Criminal § 47.16 (5th ed. 2000).

The elements of wire fraud in violation of 18 U.S.C. § 1343 are
identical to the elements of mail fraud with one exception; the
defendant must cause interstate wire facilities to be used instead of
the mail. *See generally*, *United States v. Tackett*, 646 F.2d 1240,
1242-43 (8th Cir. 1981); *United States v. Mendenhall*, 597 F.2d 639,
641 (8th Cir. 1979); *United States v. West*, 549 F.2d 545, 549-53 (8th
Cir. 1977); *United States v. Gross*, 416 F.2d 1205, 1209-10 (8th Cir.
1969). *But see United States v. Bryant*, 766 F.2d 370 (8th Cir. 1985).

Each use of the mail or the wires is a separate offense notwithstanding
the fact that the defendant devised only one scheme to defraud. *See*,
*e.g.*, *United States v. Massa*, 740 F.2d 629, 645-46 (8th Cir. 1984);
*United States v. Calvert*, 523 F.2d 895, 914 (8th Cir. 1975).

If a conspiracy to commit mail fraud is charged, one should be aware
that the Eighth Circuit at the present time requires proof that the
conspiracy \"contemplated the use of the mails.\" *United States v.
Donahue*, 539 F.2d 1131, 1135, 1136 (8th Cir. 1976). That decision
relied heavily on the case of *Blue v. United States*, 138 F.2d 351 (6th
Cir. 1943). In *United States v. Reed*, 721 F.2d 1059 (6th Cir. 1983),
the Sixth Circuit rejected *Blue* in its entirety and held that only a
reasonably foreseeable use of the mail need be proven in a conspiracy
case. Of the circuits which have decided this issue, it appears that
only the Eighth Circuit requires that a mail fraud conspiracy
\"contemplate the use of the mails.\" *United States v. Craig*, 573 F.2d
455 (7th Cir. 1977).

**6.18.1344 BANK FRAUD (18 U.S.C. § 1344)**

The crime of bank fraud, as charged in \[Count of\] the indictment, has
three elements, which are:

*One*, the defendant knowingly \[executed\] \[attempted to execute\]
\[participated in\] a scheme \[to defraud a financial institution\] \[to
obtain \[monies\] \[funds\] \[credits\]^1^ \[owned by\] \[under the
custody and control of\] a financial institution by means of material
\[falsehoods\] \[fraudulent pretenses\] \[false or fraudulent
representations\] \[false or fraudulent promises\]\].

*Two*, the defendant did so with intent to defraud; and

*Three*, the financial institution was \[chartered by the United States
Government\] \[insured by the United States Government\]^2^.

The phrase \"scheme to defraud\" includes any plan or course of action
intended to deceive or cheat another out of \[money, property or
property rights\] by \[employing material falsehoods\] \[concealing
material facts\] \[omitting material facts\]. It also means the
obtaining of \[money or property\] from a financial institution by means
of material false representations or promises.^5^

A \[fact\] \[falsehood\] \[representation\] \[pretense\] \[promise\] is
\"false\" when it is untrue when made or effectively conceals or omits a
material fact. A \[fact\] \[falsehood\] \[representation\] \[pretense\]
\[promise\] is \"material\" if it has a natural tendency to influence,
or is capable of influencing, the decision of the institution in
deciding whether to engage or not to engage in a particular
transaction.. \[However, whether a \[fact\] \[falsehood\]
\[representation\] \[promise\] is \"material\" does not depend on
whether the institution was actually deceived.\] ^3^

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

**Notes on Use**

1\. The statute also covers \"assets, securities or other property.\" 18
U.S.C. § 1344(a)(2). In addition 18 U.S.C. § 1346 provides: \"For the
purposes of this Chapter, the term \'scheme or artifice to defraud\'
includes a scheme or artifice to deprive another of the intangible right
of honest services.\" This provision became effective November 18, 1988.

2\. Section 1344(b) lists five types of financial institutions which can
be a \"federally chartered or insured financial institution.\"

3\. The materiality element and definition are added consistent with
*Neder v. United States*, 527 U.S. 1 (1999) and *United States v.
Gaudin*, 515 U.S. 506, 509 (1995).

**Committee Comments**

*See* *United States v. Stone*, 890 F.2d 418 (8th Cir. 1989); *United
States v. Goldblatt*, 813 F.2d 619, 624 (3d Cir. 1987); *United States
v. Swearingen*, 858 F.2d 1555, 1556-57 (11th Cir. 1988). *See also*
*United States v. Bales*, 813 F.2d 1289, 1293 (4th Cir. 1987). \[Brought
under sections 1004 and 1344.\]

The legislative history of the 1984 bank fraud statute indicates that
Congress intended that it be afforded the same broad application as the
mail fraud statute. *United States v. Rimell*, 21 F.3d 281, 287 (8th
Cir. 1994); *United States v. Bonallo*, 858 F.2d 1427, 1432 (9th Cir.
1988). Since the bank fraud statute was patterned after the mail and
wire fraud statutes, cases interpreting those statutes may apply to the
bank fraud provisions. *See*, *e.g.*, *United States v. Greene*, 670 F.
Supp. 337, 340 (M.D. Fla. 1987).

In *United States v. Stone*, this Circuit held that the element of
\"knowingly\" supplied the required mens rea for a violation of 18
U.S.C. § 1344.

As in the mail fraud cases, it is not necessary for the government to
show that the financial institution suffered a loss or was actually
defrauded or that the defendant personally benefitted from the scheme.
*United States v. Goldblatt*, 813 F.2d at 624-25.

The term \"scheme and artifice to defraud\" includes any plan or pattern
of conduct using false or fraudulent pretenses or representations.
*United States v. Swearingen*, 858 F.2d at 1557. *See also* *United
States v. Whitty*, 688 F. Supp. 48, 54-55 (D. Me. 1988).

Although the statute is to be afforded broad application, it does not
cover a traditional \"pigeon-drop\" scheme where the funds that were at
one time under the control of the bank were legitimately withdrawn and
then given to the defendants. *United States v. Blackmon*, 839 F.2d 900,
904-07 (2d Cir. 1988). Each check presented to a covered financial
institution in a check-kiting scheme can be a separate violation of
section 1344. *United States v. Poliak*, 823 F.2d 371, 372 (9th Cir.
1987).

*See also* *United States v. Taggatz*, 831 F.2d 1355 (7th Cir. 1987)
(check-kiting). *United States v. Robichaux*, 698 F. Supp. 107, 110-11
(E.D. La. 1988) (conspiracy). *United States v. Spambanato*, 687 F.
Supp. 46 (D. Conn. 1988) (restitution). *United States v. Carroll*, 663
F. Supp. 210 (D. Md. 1986) (Federal Rules of Evidence).

**6.18.1503A CORRUPTLY ENDEAVORING TO INFLUENCE A JUROR**

**(18 U.S.C. § 1503)**

The crime of corruptly endeavoring to influence a juror^1^, as charged
in \[Count \_\_\_\_\_ of\] the indictment, has three elements, which
are:

*One*, (name of juror) was a \[grand\] juror in (describe judicial
proceeding);^2^

*Two*, the defendant knew that (describe judicial proceeding) was
pending; \[and\]

*Three*, the defendant corruptly endeavored^3^ to \[influence\]
\[intimidate\] \[impede\] (name of juror) in the discharge of his duty
as a \[grand\] juror\[; and\]

\[Four, (state the sentencing fact that triggers a higher maximum
sencence,^4^ e.g., the crime under consideration by the juror was (name
the Class A or Class B felony charged^5^).\]

The phrase "corruptly endeavored" means that the defendant voluntarily
and intentionally (describe obstructive act)^6^ and that in doing so,
acted with the intent^7^ to \[influence (judicial) (grand jury)
proceedings so as to benefit himself or another\] \[subvert or undermine
the due administration of justice\].^8^ \[The endeavor need not have
been successful, but it must have had at least a reasonable tendency to
impede the \[grand\] juror in the discharge of his duties.\]

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

**Notes on Use**

1\. This clause of the statute also applies to officers of the court and
certain officials.

2\. The instruction is designed for the usual case in which the pendency
of a judicial proceeding is undisputed. If this question is disputed, it
should be submitted to the jury under proper definitional instructions.
*See* *United States v. Vesich*, 724 F.2d 451, 454 (5th Cir.), *reh.
denied*, 726 F.2d 168 (5th Cir. 1984). Section 1503 typically applies
"after the commencement of formal judicial proceedings." *United States
v. Werlinger*, 894 F.2d 1015, 1016 n.3 (8^th^ Cir. 1990). A criminal
action remains "pending" during the one-year period within which to file
a motion to reduce sentence pursuant to Federal Rule of Criminal
Procedure 35(b). *United States v. Novak*, 217 F.3d 566, 572-73 (8^th^
Cir. 2000), or until disposition of the defendant's direct appeal.
*United States v. Johnson*, 605 F.2d 729 (4^th^ Cir. 1979).

3\. The jury should be instructed on the meaning of \"corruptly
endeavored\" as used by the statute. As the discussion in the Committee
Comments, *infra*, illustrates, no one definition has been agreed on and
different definitions may apply to different factual situations. The
court of appeals \"prefer\[s\] instructions phrased not in abstract
legalisms, but rather in concrete terms that intelligibly describe the
actual evidence or contentions of the parties.\" *United States v.
Feldhacker*, 849 F.2d 293, 297 (8th Cir. 1988).

A definition which best suits the case should be formulated and used. At
a minimum, there should be an intent to act and knowledge that
obstruction would or could result from such act. *United States v.
Aguilar*, 515 U.S. 593, 599 (1995). For a discussion of the meaning of
the phrase "knowingly . . . corruptly," as used in 18 U.S.C. §
1512(b)(2)(A), *see* *Arthur Andersen LLP v. United States*, 544 U.S.
696, 706 (2005). (The Committee notes that in Fn 9 in *Andersen*, the
Court observed that § 1503 "lack\[s\] the modifier 'knowingly,' making
any analogy \[to the definition of corruptly in § 1512\] inexact.") The
Committee recommends that in formulating a definition, words such as
\"knowingly,\" \"willfully\" and \"specific intent\" not be used in
favor of words which precisely describe the mental state involved. *See*
Instructions 7.01-.03, *infra*.

4\. Section 1503(b) creates enhanced penalties where a juror is killed,
where an attempt on the life of a juror failed, or where the offense was
committed against a petit juror, in a case in which a class A or B
felony was charged. In *Jones v. United States*, 526 U.S. 227 (1999),
dealing with a carjacking offense under 18 U.S.C. § 2119, the Supreme
Court stated, in footnote 6, "\[u\]nder the Due Process Clause of the
Fifth Amendment and the notice and jury trial guarantees of the Sixth
Amendment, any fact (other than prior conviction) that increases the
maximum penalty for a crime must be charged in an indictment, submitted
to a jury, and proven beyond a reasonable doubt." The Supreme Court made
clear in *Apprendi v. New Jersey*, 530 U.S. 466 (2000), that the
principle it enunciated in *Jones* was a rule of constitutional law
applicable to all prosecutions.

5\. If a killing or attempted killing is charged, *see* Instructions
6.18.1111, 6.18.1112, and 8.01 (attempt).

6\. *See United States v. Frank*, 354 F.3d 910, 921 (8^th^ Cir. 2004)
for a discussion of whether section 1503 requires commission of an overt
act.

7\. The government need not prove that the defendant's only or even main
purpose was to obstruct the due administration of justice. *See United
States v. Machi*, 811 F.2d 991, 996-97 (7^th^ Cir. 1987).

8\. This definition is a generic one. If the circumstances of the case
call for a more specific definition, the Committee Comments on the
"endeavor" and "corruptly" requirements of the statute should aid in
fashioning one.

**Committee Comments**

*See* 2A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 48.03 (5th ed. 2000).

The first two clauses of section 1503, covered by Instructions
6.18.1503A and B, relate to interference with or injury to actual grand
jurors, petit jurors, or court officers in the discharge of their
duties. *United States v. Aguilar*, 515 U.S. 593, 598 (1995). The third
clause referred to as the "Omnibus Clause," and covered by Instruction
6.18.1503C, is a catchall provision which, *inter alia*, prohibits
persons from corruptly endeavoring to influence, obstruct, or impede the
due administration of justice. *Id.* These instructions apply to counts
alleging that the defendant *endeavored* to obstruct justice, not to
counts alleging actual obstruction.

The following discussion relates to all three clauses of section 1503,
but most particularly to the Omnibus Clause, which, because it is the
most general in nature, presents the most issues.

*Pendency of judicial proceedings.* Except where retaliation is charged,
a prerequisite to prosecution under all clauses of section 1503 is a
*pending* judicial proceeding. *United States v. Risken*, 788 F.2d 1361,
1368 (8th Cir. 1986). (In *United States v. Novak*, 217 F.3d 566, 572
(8^th^ Cir. 2000), the court questioned this prerequisite, noting that
"there is nothing on the face of § 1503 requiring a pending proceeding,"
but assumed, arguendo, the existence of the requirement.) A grand jury
proceeding is considered a pending proceeding. *Riskin*. The question of
when a grand jury investigation commences for the purposes of section
1503 is addressed in *United States v. Vesich*, 724 F.2d 451, 454-55
(5th Cir. 1984), *reh. denied*, 726 F.2d 168 (5th Cir. 1984). *See also*
*United States v. Nelson*, 852 F.2d 706, 709-11 (3d Cir. 1988); *United
States v. Steele*, 241 F.3d 302 (3d Cir. 2001). A term of supervised
release also can constitute a pending proceeding, if the obstructive
conduct occurs "'within the time after sentencing for filing a request
for reduction of sentence pursuant to Rule 35(b).'" *United States v.
Novak*, 217 F.3d at 572.

The defendant must know of the pendency of a judicial proceeding.
*Pettibone v. United States*, 148 U.S. 197, 206-07 (1893); *United
States v. Vesich*, 724 F.2d at 457. Such knowledge may be inferred from
the circumstances and need not be detailed. *Id.* The defendant need not
know that the proceeding is federal in nature. *United States v.
Ardito*, 782 F.2d 358, 360-62 (2d Cir. 1986). In *United States v.
McKnight*, 799 F.2d 443, 447 (8th Cir. 1986), the court held it was not
plain error where the court had not specifically instructed the jury
that the defendant must have had knowledge of the judicial proceeding.
The court had instructed the jury that the defendant must have acted
\"knowingly.\" The Committee recommends that the precise knowledge be
set forth in the instruction. *See* Element *Two*, *supra*.

*"Corruptly endeavor" requirement.* Although courts often define the
words "corruptly" and "endeavor" separately, the Committee believes that
to define them as a single phrase would result in less confusion and
overlap. The following is a summary of caselaw as to the meaning of each
word.

*"Endeavor" requirement.* As the Supreme Court stated in *United States
v. Russell*, "\[t\]he word of the section is 'endeavor' and by using it
the section got rid of the technicalities which might be urged as
besetting the word 'attempt' and it describes any effort or essay to
accomplish the evil purpose that the section was enacted to prevent."
255 U.S. at 143; *Osborn v. United States*, 385 U.S. 323, 332-33 (1966).
However, the endeavor "must have a relationship in time, causation, or
logic with the judicial proceedings. . . . \[It\] must have the 'natural
and probable effect' of interfering with the due administration of
justice." (citations omitted). *United States v. Aguilar*, 515 U.S. at
599. Therefore, a judge's making of false statements to an FBI agent did
not constitute obstruction in the absence of evidence the judge knew
those false statements would be given to the grand jury. *Id.* at 600.
On the other hand, submission to a sentencing judge of a false letter
seeking leniency constituted obstruction, even though the government did
not prove that the court's sentencing decision was actually affected by
the letter, because the letter was of the type normally received and
relied upon by the judge. *United States v. Collis*, 128 F.3d 313 (6^th^
Cir. 1997).

Success is not a prerequisite to conviction under any of the clauses of
section 1503. All that must be proved is that the defendant \"corruptly
endeavored\" to obstruct justice. *United States v. Aguilar*, 515 U.S.
593, 599 (1995); *United States v. Russell*, 255 U.S. 138, 143 (1921);
*United States v. Jackson*, 607 F.2d 1219, 1222-23 (8^th^ Cir. 1979);
*United States v. McCarty*, 611 F.2d 220, 224 (8th Cir. 1979).

Endeavor defined.

The Seventh Circuit Model Instructions include the following definitions
of endeavor:

*Influencing - Definition of Endeavor.* The word endeavor describes any
effort or act to influence \[a witness, a juror, an officer in or of any
court of the United States\]. The endeavor need not be successful, but
it must have at least a reasonable tendency to impede the \[witness,
juror, officer\] in the discharge of his duties.

*Obstruction of Justice Generally - Definition of Endeavor.* The word
endeavor describes any effort or act to influence, obstruct, or impede
the due administration of justice. The endeavor need not be successful,
but it must have at least a reasonable tendency to influence, obstruct,
or impede the due administration of justice.

*Seventh Circuit Federal Jury Instructions Criminal* (1999).

In *United States v. Cioffi*, 493 F.2d 1111, 1119 (2d Cir. 1974),
\"endeavor\" was defined for the jury as \"any effort or any act,
however contrived, to obstruct, impede or interfere . . . .\"

In *United States v. Silverman*, 745 F.2d 1386, 1396 n.12 (11th Cir.
1984), the definition of endeavor was altered to correspond to that
case\'s definition of \"corruptly." "\[E\]ndeavor means to undertake an
act or to attempt to effectuate an arrangement or to try to do
something, the natural and probable consequences of which is to
influence, obstruct or impede the due administration of justice."

"Corruptly" requirement. The defendant must have acted \"corruptly\" in
order to violate the first and last clauses of section 1503.
\"Corruptly\" applies as an alternative to threats or force or
threatening letter or communication. *See* *United States v. Cioffi*,
493 F.2d 1111, 1118 n.2 (2d Cir. 1974). Instruction 6.18.1503A covers
corrupt endeavors to influence jurors and Instruction 6.18.1503B,
*infra*, covers threats and force. Instruction 6.18.1503C, *infra*,
covers conduct violating the last or \"omnibus\" clause of section 1503.

The "corruptly" requirement incorporates the scienter element of the
statute. That said, courts have defined the mental state required by the
word \"corruptly\" within at least four different, but often
overlapping, categories: a. intent to influence or obstruct justice; b.
intent to do the act which results in obstruction; c. wicked or evil
purpose; and d. \"per se\" corruption. As the court noted in *United
States v. Brady*, 168 F.3d 574, 578 (1^st^ Cir. 1999), a case involving
a refusal to testify,:

The scienter element in the obstruction statute is the subject of more
confusing case law than can be described in brief compass. In part, this
results from the promiscuous use in the cases of the ambiguous word,
"intent," which can mean either *knowledge* (of consequences) or
*purpose* (to achieve them); in part, it results from the great range of
varying motives that can underlie a refusal to testify (e.g., loyalty of
various kinds, concern as to reputation, fear of reprisal, concern about
self-incrimination.) Further, cases that purport to be setting legal
standards are often instead concerned with the inferences to be drawn
from particular facts.

The term "specific intent\" is found in many definitions of
\"corruptly,\" including one approved by the Eighth Circuit: "In this
case, the word 'corruptly' means willfully, knowingly and with specific
intent to influence a juror to abrogate his or her legal duties as petit
juror." *United States v. Jackson*, 607 F.2d at 1221-22. *See also*
*United States v. Quinn*, 543 F.2d 640, 647 (8th Cir. 1976). *But see
United States v. Gage*, 183 F.3d 711, 718-19 (7^th^ Cir. 1999) (Chief
Judge Posner, concurring) (§ 1503 does not require specific intent).

The most common formulation of a definition of "corruptly" includes
language that the obstructive act must be done with the intent to
influence judicial or grand jury proceedings. As stated in *United
States v. Aguilar*, 515 U.S. at 616, "\[corruptly\] denotes '\[a\]n act
done with an intent to give some advantage inconsistent with official
duty and the rights of others. . . . It includes bribery but is more
comprehensive; because an act may be corruptly done though the advantage
to be derived from it be not offered by another.'" (J. Scalia, joined by
J. Kennedy and Thomas, concurring, in part, and dissenting, in part)
(internal cites omitted).

"\[I\]f the defendant lacks knowledge that his actions are likely to
affect the judicial proceeding, he lacks the requisite intent to
obstruct." *Id.* Intent can be inferred where the obstruction is a
natural consequence of another intended act. *Pettibone v. United
States*, 148 U.S. at 207; *United States v. Jackson*, 607 F.2d at 1221.

Vol. 2A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 48.04 (5th ed. 2000), provides the following
definition: "\[t\]o act 'corruptly' as that word is used in these
instructions means to act voluntarily and deliberately and for the
purpose of improperly influencing, or obstructing, or interfering with
the administration of justice."

The Seventh Circuit has approved the following instruction:

Corruptly means to act with the purpose of obstructing justice. The
United States is not required to prove that the defendant's only or even
main purpose was to obstruct the due administration of justice. The
government only has to establish that the defendant should have
reasonably seen that the natural and probable consequences of his acts
was the obstruction of justice. Intent may be inferred from all of the
surrounding facts and circumstances. Any act, by any party, whether
lawful or unlawful on its face, may violate section 1503 if performed
with a corrupt motive.

*United States v. Cueto*, 151 F.3d 620, 630-31 (7^th^ Cir. 1998).

**6.18.1503B INFLUENCING A JUROR BY THREATS (18 U.S.C. § 1503)**

The crime of influencing a juror^1^ by threats, as charged in \[Count
of\] the indictment, has three elements, which are:

*One*, (name of juror) was a \[grand\] juror in (describe judicial
proceeding);^2^

*Two*, the defendant knew that (describe judicial proceeding) was
pending; and

*Three*, that the defendant endeavored^3^ to \[influence\]
\[intimidate\] \[impede\] (name of juror) in the discharge of his duty
as a \[grand\] juror by \[threats\] \[force\] \[threatening letter\]
\[threatening communication\].

\[Four, (state the sentencing fact that triggers a higher maximum
sencence,^4^ e.g., the crime under consideration by the juror was (name
the Class A or Class B felony charged^5^).\]

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

**Notes on Use**

1\. This clause of the statute also applies to officers of the court and
certain other officials.

2\. The instruction is designed for the usual case in which the pendency
of a judicial proceeding is undisputed. If this question is disputed, it
should be submitted to the jury under proper definitional instructions.

3\. The jury should be instructed on the meaning of \"endeavor.\" *See*
Committee Comments, Instruction 6.18.1503A, *supra*, for possible
definitions.

4\. Section 1503(b) creates enhanced penalties where a juror is killed,
where an attempt on the life of a juror failed, or where the offense was
committed against a petit juror, in a case in which a class A or B
felony was charged. In *Jones v. United States*, 526 U.S. 227 (1999),
dealing with a carjacking offense under 18 U.S.C. § 2119, the Supreme
Court stated, in footnote 6, "\[u\]nder the Due Process Clause of the
Fifth Amendment and the notice and jury trial guarantees of the Sixth
Amendment, any fact (other than prior conviction) that increases the
maximum penalty for a crime must be charged in an indictment, submitted
to a jury, and proven beyond a reasonable doubt." The Supreme Court made
clear in *Apprendi v. New Jersey*, 530 U.S. 466 (2000), that the
principle it enunciated in *Jones* was a rule of constitutional law
applicable to all prosecutions.

5\. If a killing or attempted killing is charged, *see* Instructions
6.18.1111, 6.18.1112, and 8.01 (attempt).

**Committee Comments**

*See* Committee Comments, Instruction 6.18.1503A, *supra*.

**6.18.1503C OBSTRUCTION OF JUSTICE (18 U.S.C. § 1503)**

The crime of obstruction of justice^1^, as charged in \[Count \_\_\_\_\_
of\] the indictment, has three elements, which are:

*One*, the defendant (describe conduct and judicial proceeding^2^, e.g.,
destroyed documents which had been subpoenaed in an investigation by a
federal grand jury);

*Two*, the defendant knew that (describe judicial proceeding) was
pending; and

*Three*, by (describe conduct, e.g., destroying said documents), the
defendant corruptly endeavored^3^ to \[influence\] \[obstruct\]
\[impede\] the due administration of justice.

\[Four, (state the sentencing fact that triggers a higher maximum
sencence,^4^ e.g., the crime under consideration by the juror was (name
the Class A or Class B felony charged^5^).\]

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

**Notes on Use**

1\. \"Obstruction of justice\" refers to the conduct barred by the last
clause of section 1503, known as the omnibus clause.

2\. This instruction is designed for the usual case in which the
pendency of a judicial proceeding is undisputed. If this question is
disputed, it should be submitted to the jury under proper definitional
instructions.

3\. The jury should be instructed on the meaning of \"corruptly
endeavored\" in this statute. As the discussion in the Committee
Comments, Instruction 6.18.1503A, *supra*, illustrates, no one
definition has been agreed on and different definitions may apply to
different factual situations. A definition which best suits the case
should be formulated and used. It should include an intent to act and
knowledge that obstruction would or could result from such act.
\"\[T\]he act must have a relationship in time, causation or logic with
the judicial proceedings,\" and \"if the defendant lacks knowledge that
his actions are likely to affect the judicial proceeding, he lacks the
requisite intent to obstruct.\" *United States v. Aguilar*, 515 U.S.
593, 599 (1995). The Committee recommends that in formulating a
definition of \"corruptly endeavored,\" words such as \"knowingly,\"
\"willfully\" and \"specific intent\" not be used in favor of words
which precisely describe the mental state involved. *See* Instructions
7.01-.03, *infra*.

4\. Section 1503(b) creates enhanced penalties where a juror is killed,
where an attempt on the life of a juror failed, or where the offense was
committed against a petit juror, in a case in which a class A or B
felony was charged. In *Jones v. United States*, 526 U.S. 227 (1999),
dealing with a carjacking offense under 18 U.S.C. § 2119, the Supreme
Court stated, in footnote 6, "\[u\]nder the Due Process Clause of the
Fifth Amendment and the notice and jury trial guarantees of the Sixth
Amendment, any fact (other than prior conviction) that increases the
maximum penalty for a crime must be charged in an indictment, submitted
to a jury, and proven beyond a reasonable doubt." The Supreme Court made
clear in *Apprendi v. New Jersey*, 530 U.S. 466 (2000), that the
principle it enunciated in *Jones* was a rule of constitutional law
applicable to all prosecutions.

5\. If a killing or attempted killing is charged, *see* Instructions
6.18.1111, 6.18.1112, and 8.01 (attempt).

**Committee Comments**

*See* Committee Comments, Instruction 6.18.1503A, *supra*; *United
States v. Frank*, 354 F.3d 910 (8^th^ Cir. 2004); *United States v.
Russell*, 234 F.3d 404 (8^th^ Cir. 2000); *United States v. Novak*, 217
F.3d 566 (8^th^ Cir. 2000); *United States v. Lefkowitz*, 125 F.3d 608
(8^th^ Cir. 1997); *United States v. McKnight*, 799 F.2d 443, 446 (8th
Cir. 1986).

The omnibus clause of section 1503 applies to witnesses and prospective
witnesses where there is a pending judicial proceeding. *United States
v. Risken*, 788 F.2d 1361, 1367-68 (8th Cir. 1986); *United States v.
Shannon*, 836 F.2d 1125, 1128 (8th Cir. 1988). The Eighth Circuit has
held that the witness need not be actually scheduled to testify nor must
he or she actually give testimony at a later time. *Shannon*, *id.*
However, in *United States v. Aguilar*, 515 U.S. at 601 , the Supreme
Court held that the giving of false testimony to \"an investigating
agent who ha\[d\] not been subpoenaed or otherwise directed to appear
before the grand jury\" was not a violation of this section.

**6.18.1510A OBSTRUCTION OF CRIMINAL INVESTIGATIONS (18 U.S.C. §
1510(a))**

The crime of obstructing a criminal investigation by bribery, as charged
in \[Count of\] the indictment, has three elements, which are:

*One*, the defendant \[believed\]^1^ \[knew\] that (name of person) had
information relating to (describe violation of a federal criminal
statute, e.g., theft of Government property);

*Two*, the defendant \[believed\] \[knew\] that (name of person) might
communicate the information to \[a federal criminal investigator\] \[an
agent of the (name of federal agency, e.g., Federal Bureau of
Investigation)\]^2^; and

*Three*, the defendant voluntarily and intentionally endeavored^3^ to
\[obstruct\] \[delay\] \[prevent\] the communication of the information
to \[a federal criminal investigator\] \[an agent of the (name of
federal agency, e.g., Federal Bureau of Investigation)\]^4^ by
\[giving\] \[offering\] \[promising\] something of value^5^ to (name of
person).

\[A \"federal criminal investigator,\" as used in this instruction, is
any individual duly authorized by a department, agency, or armed force
of the United States to investigate or prosecute violations of federal
criminal law.\]^6^

\[To \"endeavor\" means to make any effort, regardless of success.\]^3^

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

**Notes on Use**

1\. \"\[I\]t is only necessary for a defendant to have believed that a
witness might give information to federal officials, and to have
prevented this communication, to violate 18 U.S.C. § 1510.\" *United
States v. Leisure*, 844 F.2d 1347, 1364 (8th Cir. 1988).

2\. The defendant must know or believe that the intended recipient of
the information is a federal investigator. *United States v. Williams*,
470 F.2d 1339, 1342 (8th Cir. 1973).

3\. The statute says, \"Whoever willfully *endeavors* by means of
bribery to obstruct. . . .\" \[Emphasis added.\] The Committee
recommends that the instruction include the following definition: \"To
'endeavor' means to make any effort, regardless of success.\" *See
United States v. Russell*, 255 U.S. 138 (1921), *quoted in Osborn v.
United States*, 385 U.S. 323, 333 (1966), *and in Jackson v. United
States*, 444 U.S. 1080 (1980). An \"endeavor\" to obstruct can be less
than an \"attempt.\" *See* discussion in *United States v. Leisure*, 844
F.2d at 1366.

4\. If the evidence shows that the defendant endeavored to obstruct
communication to a particular agency or investigator, such agency or
investigator can be described in elements One and Two.

5\. *See* Instruction 6.18.201A.

6\. \"Criminal investigator\" should be defined if the term is used in
elements One and Two. The definition paraphrases the language in 18
U.S.C. § 1510(c).

**Committee Comments**

*See* 2 J. Potuto, S. Saltzburg & H. Perlman, FEDERAL CRIMINAL JURY
INSTRUCTIONS, § 51.07 (2d ed. 1993 Supp.); 1A L. Sand, et al., MODERN
FEDERAL JURY INSTRUCTIONS, ¶ 46.03 (1995).

Section 1510(a) is limited to obstruction by means of bribery after
amendments by the Victim and Witness Protection Act, effective October
12, 1982. *United States v. Leisure*, 844 F.2d 1347, 1364 (8th Cir.
1988). Obstruction of justice by means of threats or intimidation is
covered by 18 U.S.C. § 1512. *Id.*

The instruction does not require proof that the defendant had knowledge
of an actual criminal investigation. *See* *United States v. Leisure*
and Note 1, *supra*. The Seventh Circuit has remarked, in *dicta*, that,
\"It is unclear, however, whether the statute is applicable if there is
no criminal investigation known to be in progress.\" *United States v.
Van Engel*, 15 F.3d 623, 627 (7th Cir. 1993) (citing *United States v.
Daly*, 842 F.2d 1380, 1390-91 (2d Cir. 1988), *Leisure* and *United
States v. Carzoli*, 447 F.2d 774, 779 (7th Cir. 1971) (\"An element of
\[a § 1510 offense\] is an actual, existing investigation of possible
violation of a criminal statute.\")). *Cf. United States v. Aguilar*,
515 U.S. 593, 599 (1995) (not a violation of 18 U.S.C. § 1503 to give
false information to an FBI agent without proof that the defendant knew
his actions were likely to affect a grand jury proceeding).

**6.18.1512 TAMPERING WITH A WITNESS (18 U.S.C. § 1512(b)(1))**

The crime of tampering with a witness,^1^ as charged in \[Count of\] the
indictment, has two elements, which are:

*One*, the defendant knowingly used \[intimidation\]^2^ \[threats\]
\[corrupt persuasion\]^3^ against (name of witness); and

*Two*, the defendant did so with intent to \[influence\] \[delay\]
\[prevent\] the testimony of (name of witness) in (insert title of
official proceeding).^4,\ 5,\ 6^

\[To \"intimidate\" someone means intentionally to say or do something
that would cause a person of ordinary sensibilities to be fearful of
harm to himself or another. It is not necessary for the Government to
prove that (name of witness) was actually frightened.\]

\[To corruptly persuade someone means to persuade with consciousness of
wrongdoing.\]

\[To act with \"intent to influence\" the testimony of a person means to
act for the purpose of getting the person to change or color or shade
his or her testimony in some way. It is not necessary for the Government
to prove that the person\'s testimony was, in fact, changed in any
way.\]

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

**Notes on Use**

1\. The form chosen for this model instruction deals only with certain
violations under the statute as set forth in 18 U.S.C.§ 1512(b)(1). As
amended in 2002 (*see* Pub. L. No. 107-273, § 3001, 116 Stat. 1758
(2002)), section 1512(a)(1) prohibits the killing or attempting to kill
a witness and other tampering involving an attempt to kill another
person; section 1512(a)(2) prohibits the use of physical force or the
threat of physical force in connection with witness tampering and other
activities; section 1512(b)(1), (2), and (3) also prohibit other forms
of witness tampering; section 1512(c) prohibits the destruction of
evidence (*see* Pub. L. No. 107-204, § 1102, 116 Stat. 1745 (2002)); and
section 1512(d) sets forth a misdemeanor offense of intentionally
harassing another person. For offenses committed prior to the 2002
Amendments to the statutes, this instruction should be modified to
reflect the statute as it was worded prior to the 2002 Amendments. Where
other types of violations are involved, it will be necessary to change
the form of the elements, and it may be necessary to add other elements
as well.

2\. Title 18 U.S.C. § 1512(b)(1) specifically prohibits attempts to
violate the statute. If an attempt offense is submitted, this
instruction must be appropriately modified. *See* Instruction 8.01 of
these Model Jury Instructions.

3\. Under 18 U.S.C. § 1515(a)(6), the term "'corrupt persuasion' does
not include conduct which would be misleading conduct but for a lack of
a state of mind." There must be consciousness of wrongdoing. *See Arthur
Anderson v. United States*, 544 U.S. 696 (2005).

4\. \"Official proceeding\" is defined in 18 U.S.C. § 1515(a)(1). The
defendant need not know that the proceeding was a federal proceeding.
Further, it is not necessary that a proceeding actually be pending or
about to be instituted. *See* 18 U.S.C. § 1512(n)(1) and (g)(1).
Additional definitions are contained in 18 U.S.C. § 1515. The defendant
must, however, contemplate some particular official proceeding in which
the testimony might be material. *See Arthur Anderson v. United States*,
544 U.S. 696 (2005), and *United States v. Aguilar*, 515 U.S. 593, 599
(1995).

5\. This crime allows for an enhancement of punishment where the
violation "occurs in connection with a trial of a criminal case." 18
U.S.C. § 1512(j). In such cases, therefore, the second element of the
offense should specify that the official proceeding was a trial of a
criminal case.

6\. Title 18 U.S.C. § 1512(e) provides: "In a prosecution for an offense
under this section, it is an affirmative defense, as to which the
defendant has the burden of proof by a preponderance of the evidence,
that the conduct consisted solely of lawful conduct and that the
defendant's sole intention was to encourage, induce, or cause the other
person to testify truthfully." Section 1515(c) states: "This chapter
does not prohibit or punish the providing of lawful, bona fide, legal
representation services in connection with or in anticipation of an
official proceeding." These affirmative defenses should be submitted
under appropriate instructions to the jury if there are facts to support
these defenses at trial. *See* § 9.00 of these Pattern Instructions
(affirmative defenses).

**Committee Comments**

*See* 18 U.S.C. §§ 1512(f)(g) and (i) and 18 U.S.C. § 1515 for
provisions which define or modify this statute.

Before 1982, tampering with and retaliation against federal witnesses
was covered exclusively by 18 U.S.C. § 1503. *See* Instructions
6.18.1503A and 6.18.1503B, *supra*. Now, these offenses are specifically
proscribed by 18 U.S.C. §§ 1512 and 1513. Section 1512 was intended to
provide greater protection for witnesses than did section 1503; however,
section 1503 still applies to certain types of conduct involving
witnesses. *See* *United States v. Risken*, 788 F.2d 1361, 1365-69 (8th
Cir. 1986), for an extensive analysis and comparison of the respective
scopes of sections 1503 and 1512.

It is not necessary that the victim be under subpoena or a scheduled
witness in a case. The statute purposely uses the term \"person\"
instead of \"witness.\" *United States v. Risken*, 788 F.2d at 1368-69
\[dismissed witness\].

**6.18.1513 RETALIATING AGAINST A WITNESS (18 U.S.C. § 1513)**

The crime of retaliating against a witness, as charged in \[Count of\]
the indictment, has two elements, which are:

*One*, the defendant knowingly \[caused\] \[threatened to cause\]
\[bodily injury to\] \[damaged\] \[threatened to damage\] \[the tangible
property of\] (name of witness); and

*Two*, the defendant did so with intent to retaliate against (name of
witness) because \[he\] \[she\] had been a \[witness\] \[party\] at
(insert title of official proceeding).^1^

\[(Describe tangible property) is tangible property\].^2^

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

**Notes on Use**

1\. \"Official proceeding\" is defined in 18 U.S.C. § 1515(a)(1).

2\. \"Tangible property\" is not defined in the Act.

**Committee Comments**

*See* Committee Comments, Instruction 6.18.1512, *supra*. *See
generally* *United States v. Maggitt*, 784 F.2d 590, 593-94 (5th Cir.
1986); *United States v. Velasquez*, 772 F.2d 1348, 1356-58 (7th Cir.
1985). Definitions are contained in 18 U.S.C. § 1515.

**6.18.1621 PERJURY (18 U.S.C. § 1621)**

The crime of perjury, as charged in \[Count of\] the indictment, has
five elements, which are:

*One*, the defendant testified under \[oath\] \[affirmation\] (describe
proceeding, e.g., at the trial of *Smith v. Jones*) that (insert alleged
false testimony);

*Two*, the testimony so given was false; ^1^

*Three*, at the time he testified, the defendant knew such testimony was
false;

*Four*, the defendant voluntarily and intentionally ^2^ gave such
testimony; and

*Five*, the false testimony was material.^3^

False testimony is "material" if the testimony is capable of influencing
(insert name of tribunal, etc.) on the issue before it.

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

**Notes on Use**

1\. In many cases, more than one specification of perjury or more than
one false declaration is charged in a single count of an indictment.
Typically these charges are in the disjunctive. In those cases, the jury
should be instructed as follows:

You need not find that all of the alleged false statements in each count
of the indictment are false; instead, you must find unanimously and
beyond a reasonable doubt that at least one of the statements set out in
a particular count of the indictment is false.

*Vitello v. United States*, 425 F.2d 416 (9th Cir. 1970); *United States
v. Dilworth*, 524 F.2d 470 (5th Cir. 1975); *Arena v. United States*,
226 F.2d 227, 236 (9th Cir. 1955); 2A Kevin F. O'Malley, et al.,
*Federal Jury Practice and Instructions*: Criminal § 50.03 (5th ed.
2000).

2\. The Committee doubts that intent to deceive the court or jury is an
element. Neither 2A Kevin F. O'Malley, et al., *Federal Jury Practice
and Instructions*: Criminal § 50.03 (5th ed. 2000), nor S. Saltzburg &
H. Perlman, FEDERAL CRIMINAL JURY INSTRUCTIONS § 50.01 (1985) includes
this element, but in their notes, Saltzburg and Perlman quote *United
States v. Rose*, 215 F.2d 617, 622-23 (3d Cir. 1954), in describing the
requisite mental state as \"\[k\]nowingly making a false statement with
the intent to deceive.\" Neither of the cases cited by *Rose* supports
that assertion.

Despite its unexplained assertion unsupported by the cases it cites
(dealing with willfulness, not intent to deceive), *Rose* has spawned a
series of cases that apply its intent-to-deceive language and merely
cite back to *Rose*. *See*, *e.g.*, *United States v. Goguen*, 723 F.2d
1012, 1020 (1st Cir. 1983) (citing *Beckanstin* to effect that section
1621 requires intent to deceive); *Beckanstin v. United States*, 232
F.2d l, 4 (5th Cir. 1956) (citing *Rose* for proposition that intent to
deceive is an element).

Although the Committee has found no cases saying that *Rose* is wrong,
there is some support in the language of *Bronston v. United States*,
409 U.S. 352 (1973), for the position that there is no intent-to-deceive
element in section 1621. The issue in *Bronston* was \"whether a witness
may be convicted for perjury for an answer that is literally true but
not responsive to the question asked and arguably misleading by negative
implication.\" Answering in the negative, the Court supplied the
following analysis:

It is no answer to say that here the jury found that petitioner intended
to mislead his examiner. A jury should not be permitted to engage in
conjecture whether an unresponsive answer, true and complete on its
face, was intended to mislead or divert the examiner; the state of mind
of the witness is relevant only to the extent that it bears on whether
\"he does not believe \[his answer\] to be true.\" To hold otherwise
would be to inject a new and confusing element into the adversary
testimonial system we know.

*Id.* at 359. *See also* *United States v. Debrow*, 346 U.S. 374, 376
(1953) \[elements include \"(3) a false statement wilfully made as to
acts material to the hearing\" but no mention of intent to deceive;
issue was sufficiency of the indictment\].

3\. The Committee has added materiality as an element for the jury to
decide in light of *United States v. Gaudin*, 515 U.S. 506 (1995). *See
also United States v. Swink*, 21 F.3d 852, 857 (8th Cir. 1994).

**Committee Comments**

*See* 2A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 50.01-.12 (5th ed. 2000); Ninth Cir. Crim.
Jury Instr. 8.29.1 (1997).

A witness testifying under oath or affirmation violates this statute
\[18 U.S.C. § 1621\] if she gives false testimony concerning a material
matter with the willful intent to provide false testimony, rather than
as a result of confusion, mistake or faulty memory.

*United States v. Dunnigan*, 507 U.S. 87, 94 (1993). *See also* *United
States v. Swink*, 21 F.3d 852, 857 (8th Cir. 1994) (listing elements of
a violation of section 1621).

The Committee believes that for section 1621 purposes, the issue of 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\"
presents a question of law and need not be submitted to the jury.

The materiality of the perjurious testimony is an element of this
offense. *E.g.*, *United States v. Qaisi*, 779 F.2d 346 (6th Cir. 1985).
Most courts of appeals have held that materiality is a question of law
for the trial court. *See*, *e.g.*, *United States v. Ashby*, 748 F.2d
467, 470 (8th Cir. 1984); *United States v. Larranaga*, 787 F.2d 489,
494 (10th Cir. 1986); *United States v. Lighte*, 782 F.2d 367, 372 (2d
Cir. 1986). Presumably, materiality is now a question of fact for the
jury to decide under *United States v. Gaudin*, 515 U.S. 506 (1995).

A statement which is literally true cannot support a conviction even if
it was intended to be misleading. *Bronston v. United States*, 409 U.S.
352 (1973); *United States v. Lighte*, 782 F.2d at 374.

However, each question and answer must be considered in its own context
and in relation to the questions and answers given before and after the
alleged perjurious testimony. In *United States v. Williams*, 552 F.2d
226, 229 (8th Cir. 1977), the court stated:

In *Bronston*, however, the Court dealt only with a literally true
declarative statement and not with the situation presented by Williams\'
\"No\" answers, the truth or falsity of which can only be ascertained in
the context of the question asked. *See* *United States v. Williams*,
536 F.2d 1202, 1205 (7th Cir. 1976); *United States v. Chapin*, 515 F.2d
1274, 1280 (8^th^ Cir. 1975). If the response given was false as the
defendant understood the question, his conviction is not invalidated by
the fact that his answer to the question might generate a number of
different interpretations. *United States v. Chapin*; *United States v.
Parr*, 516 F.2d 458, 470 (5th Cir. 1975).

In a case where a defendant sufficiently raises the defense of literal
truthfulness, the jury should be instructed on this issue. Likewise, if
the context of the alleged false testimony is important in determining
the truth or falsity of the testimony, e.g., where the ambiguity of the
question or answer is raised, this principle should also be instructed
upon. *See* *United States v. Bonacorsa*, 528 F.2d 1218 (2d Cir. 1976).
*See* Eleventh Circuit Pattern Jury Instruction: Criminal (Offense) § 50
(1997); Fifth Circuit Patten Jury Instructions: Criminal § 2.69 (1997);
Seventh Circuit Federal Jury Instructions: Criminal, at 276-80 (1999)
for possible instructions.

In a section 1621 prosecution, the defendant must have acted knowingly
and willfully. *United States v. Edwards*, 443 F.2d 1286, 1294 (8th Cir.
1971); *Spaeth v. United States*, 218 F.2d 361, 363 (6th Cir. 1955).
These mental states are expressed in the third and fourth elements of
this instruction.

In order to fall within section 1621, the false testimony must have been
given under oath or affirmed. *United States v. Plascencia-Orozco*, 768
F.2d 1074, 1076 (9th Cir. 1985). When requested, the defendant is
entitled to an instruction on the two-witness rule, which requires in
perjury prosecutions that the falsity of the defendant\'s statement must
be proved by the testimony of two witnesses or the testimony of one
witness plus corroborating evidence. *See* *Weiler v. United States*,
323 U.S. 606, 607 (1945); *LaRocca v. United States*, 337 F.2d 39, 44
(8th Cir. 1964). The following language may be used to express the
two-witness rule:

You are instructed that the testimony of one witness is not enough to
support a finding that the defendant\'s testimony was false. There must
be additional evidence \-- either the testimony of another person, or
documentary evidence, or other evidence \-- which tends to support the
testimony\'s falsity. The other evidence, standing alone, need not
convince you beyond a reasonable doubt that the testimony was false.
But, after considering all of the evidence on the subject, you must be
convinced beyond a reasonable doubt that the testimony was false.

2A Kevin F. O'Malley, et al., *Federal Jury Practice and Instructions*:
Criminal § 50.05 (5th ed. 2000); Ninth Cir. Crim. Jury Instr. 8.29.1
(1997).

Where the defendant\'s allegedly false statement is \"I don\'t know\" or
\"I don\'t remember,\" the two-witness rule rarely can be applied. In
such cases, circumstantial evidence standing alone can be used to prove
the defendant knowingly lied. *Gebhard v. United States*, 422 F.2d 281,
288 (9th Cir. 1970); *United States v. Nicoletti*, 310 F.2d 359, 361-63
(7th Cir. 1962).

**6.18.1622 SUBORNATION OF PERJURY (18 U.S.C. § 1622)**

The crime of suborning perjury, as charged in \[Count \_\_\_\_\_ of\]
the indictment, has three elements, which are:

*One*, the defendant voluntarily and intentionally persuaded (name of
witness) to commit perjury;

*Two*, the defendant did so with the intent that (name of witness) would
deceive the \[court\] \[jury\]; and

*Three*, (name of witness) committed a perjury in that:

\(a\) He testified under oath or affirmation at (describe proceeding,
e.g., the trial of *United States v. Doe*) that \[insert alleged false
testimony\];

\(b\) the testimony given was false;

\(c\) at the time he testified, the witness knew his testimony was
false;

\[(d) the witness gave such testimony voluntarily and
intentionally;\]^1^

\[(d)\] \[(e)\] the false testimony was material.^2^

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

**Notes on Use**

1\. Sub-element (d) of Element *Three* must be included where the
underlying perjury is in violation of section 1621, but may be omitted
where the predicate perjury is based on section 1623. *See* *United
States v. Watson*, 623 F.2d 1198, 1207 (7th Cir. 1980).

2\. As in Instructions 6.18.1621 and 6.18.1623, materiality is an
element for the jury to decide in light of *United States v. Gaudin*,
515 U.S. 506 (1995). A definition of "material" from either Instruction
6.18.1621 or Instruction 6.18.1623 should be inserted after this
sub-element.

**Committee Comments**

*See* Committee Comments, Instruction 6.18.1621, *supra*.

A perjury is an element of this offense. *Segal v. United States*, 246
F.2d 814, 816 (8th Cir. 1957). 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 (3d Cir. 1975).

If the suborned testimony is in violation of section 1621, the
\"two-witness\" or \"corroboration\" rule applies. *Segal v. United
States*, 246 F.2d at 216. However, the \"two-witness\" rule does not
apply if the suborned testimony is in violation of section 1623. *United
States v. Gross*, 511 F.2d at 915-16.

The \"two-witness\" rule never applies to the crime of subornation.
*Segal v. United States*, 246 F.2d at 817. Nevertheless, the suborner
must have acted knowingly and willfully in persuading the witness to
commit perjury.

**6.18.1623 FALSE DECLARATION BEFORE**

**COURT OR GRAND JURY (18 U.S.C. § 1623)**

The crime of making a false declaration, as charged in \[Count
\_\_\_\_\_ of\] the indictment, has four elements, which are:

*One*, the defendant testified under oath or affirmation \[before a
grand jury\] \[before a court\] that (insert alleged false testimony);

*Two*, such testimony was false in whole or in part^1^;

*Three*, at the time he so testified, the defendant knew his testimony
was false; and

*Four*, the false testimony was material.^2^

False testimony is "material" if the testimony was capable of
influencing \[the grand jury\] \[the court\]. It is not necessary to
find that the false testimony actually affected \[the grand jury\] \[the
court\].

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

**Notes on Use**

1\. In many cases, more than one specification of perjury or more than
one false declaration is charged in a single count of an indictment. In
those cases, the jury should be instructed as follows:

You need not find that all of the alleged false statements in each count
of the indictment are false; instead, you must find unanimously and
beyond a reasonable doubt that at least one of the statements set out in
a particular count of the indictment is false.

*United States v. Holley*, 942 F.2d 916, 925-29 (5th Cir. 1991),
*distinguished in* *United States v. Bellrichard*, 62 F.3d 1046 (8th
Cir. 1995). *Vitello v. United States*, 425 F.2d 416 (9th Cir. 1970);
*United States v. Dilworth*, 524 F.2d 470 (5th Cir. 1975); *Arena v.
United States*, 226 F.2d 227, 236 (9th Cir. 1955); 2A Kevin F. O'Malley,
et al., *Federal Jury Practice and Instructions*: Criminal § 50.08 (5th
ed. 2000).

2\. The Committee has added materiality as an element for the jury to
decide in light of *United States v. Gaudin*, 515 U.S. 506 (1995).

The test for materiality of false testimony in a trial is whether the
false testimony was capable of influencing the tribunal on the issue
before it. *United States v. Sablosky*, 810 F.2d 167, 169 (8th Cir.
1987) (citing *United States v. Jackson*, 640 F.2d 614, 616 (8th Cir.
1981)).

Materiality of false testimony before a grand jury is determined under a
similar test. However, the broader range of a grand jury investigation,
as compared to a trial focused on specific issues, is taken into account
in assessing the materiality of false testimony before a grand jury.
*United States v. Phillips*, 540 F.2d 319, 328 (8th Cir. 1976).

The test of materiality is \"whether or not the statements alleged to be
perjurious tend to impede or hamper the course of the investigation of
the grand jury.\" \[Citations omitted.\] The statements need not be
material to any particular issue, but may be material to any proper
matter of inquiry.

*United States v. Ostertag*, 671 F.2d at 264. The \"capability\" and
\"potential\" of the false testimony to influence the grand jury are
alternative descriptions of the test of materiality. \"Materiality only
calls for the lie to be a potential impediment, not an actual
impediment, of the grand jury\'s inquiry.\" *United States v. Waldemer*,
50 F.3d 1379, 1382 (7th Cir. 1995). \"The inquiry into materiality
assesses potential. It considers whether the false statement was
\'capable of influencing the grand jury on the issue before it.\'\"
*United States v. Friedhaber*, 856 F.2d 640, 642 (4th Cir. 1988). The
false testimony need not actually have influenced, misled or hampered
the grand jury; it is sufficient if it was capable of influencing the
grand jury on the issue before it. *United States v. Brown*, 666 F.2d
1196, 1200 (8th Cir. 1981). A false declaration can also satisfy the
materiality requirement if a truthful statement might have assisted or
influenced the grand jury in its investigation.\" *United States v.
Richardson*, 596 F.2d 157, 165 (6th Cir. 1979). *United States v.
Swift*, 809 F.2d 320, 324 (6th Cir. 1987). *Cf.* *United States v.
Lasater*, 535 F.2d 1041 (8th Cir. 1976) (alleged false statement held
not to have impeded grand jury investigation when other parts of grand
jury testimony addressed the same issue); *accord*, *United States v.
Ball*, 738 F. Supp. 1073 (E.D. Mich. 1990).

Materiality is thus demonstrated if the question posed is such that a
truthful answer could help the inquiry, or a false response hinder it,
and these effects are weighed in terms of potentiality rather than
probability. Thus, in applying this gauge to specific situations, it is
only the question, at the time of its asking, which is considered. It is
of no consequence that the information sought would be merely
cumulative, *United States v. Richardson*, 596 F.2d 157 (6th Cir. 1979),
that the response was believed by the grand jury to be perjurious at the
time it was uttered, *United States v. Lee*, 509 F.2d 645 (2d Cir.
1975), or that the matters inquired into were collateral to the
principal objective of the grand jury. *United States v. Stone*, 429
F.2d 138, 140-41 (2d Cir. 1970).

*United States v. Berardi*, 629 F.2d 723 (2d Cir. 1980).

**Committee Comments**

*See* Committee Comments, Instructions 6.18.1621 and 6.18.1622, *supra*.

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 pursuant to explicit statutory or judicial
procedures.\" *United States v. Tibbs*, 600 F.2d 19, 21 (6th Cir. 1979);
*see*, *e.g.*, *United States v. Krogh*, 366 F. Supp. 1255, 1256 (D.D.C.
1973) \[sworn deposition an ancillary proceeding\]; *cf.* *Dunn v.
United States*, 442 U.S. 100 (1979) \[sworn statement given during
interview with private attorney was not a formal deposition and thus was
not an ancillary proceeding\]. Section 1621 is broader; it proscribes
false testimony in proceedings which are not strictly judicial in
nature. *See*, *e.g.*, *Woolley v. United States*, 97 F.2d 258 (9th Cir.
1938) \[Securities and Exchange Commission investigation\]; *United
States v. Seymour*, 50 F.2d 930 (D. Neb. 1931) \[senatorial hearing\].

Determination of the nature of the proceeding is a matter of law for the
court. *See* *Tasby v. United States*, 504 F.2d 332, 337 (8th Cir.
1974).

In the Eighth Circuit the criterion for determining materiality in a
section 1623 case is whether or not the statements alleged to be
perjurious tend to impede or hamper the course of the investigation by
the grand jury. *United States v. Drape*, 753 F.2d 660, 663 (8th Cir.
1985); *United States v. Williams*, 552 F.2d 226, 230 (8th Cir. 1977);
*United States v. Phillips*, 540 F.2d 319, 328 (8th Cir. 1976). The
latitude of materiality with respect to questions asked of a witness
during a grand jury investigation is broader than the same questions
asked at trial since the purpose of the investigation is to obtain facts
and leads rather than prove matters directly at issue. *Phillips*, 540
F.2d at 328-29. The statements need not be material to any particular
issue, but may be material to any proper area of inquiry. *United States
v. Ostertag*, 671 F.2d 262, 264 (8th Cir. 1982).

There are three other important differences between sections 1623 and
1621:

a\. 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.\" The government is not required to
specify which declaration is false.

b\. The requisite mental states are different. Section 1621 requires
that the defendant act willfully. Section 1623 requires only that the
defendant know that his testimony was false. *See* *United States v.
Watson*, 623 F.2d 1198, 1207 (7th Cir. 1980); *United States v.
Lardieri*, 497 F.2d 317 (3d Cir. 1974).

c\. The \"two-witness\" or \"corroboration\" rule, which requires that
oral testimony of the falsity of a statement be corroborated in a
section 1621 prosecution, is inapplicable to section 1623. *Dunn v.
United States*, 442 U.S. at 108. Thus, a corroboration instruction is
not required where the defendant is charged under section 1623.

Because of the willfulness element and the two-witness rule of 18 U.S.C.
§ 1621, most \"perjury\" prosecutions are brought under 18 U.S.C. §
1623.

**6.18.1708A MAIL THEFT (18 U.S.C. § 1708) (First Paragraph)**

The crime of mail theft, as charged in \[Count of\] the indictment, has
three elements, which are:

*One*, the defendant voluntarily \[stole\] \[took\]^1^ a
\[letter\]\[postal card\] \[package\] \[bag\];

*Two*, the \[letter\] \[postal card\] \[package\] \[bag\] \[mail\] was
in \[the United States mail\] \[(describe authorized depository for U.S.
mail matter)\];^2^ and

*Three*, in so doing the defendant intended to deprive the addressee
temporarily or permanently of the \[letter, etc.\]

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

**Notes on Use**

1\. The statute also includes obtaining or attempting to obtain mail by
fraud. In such a case, that language should be used.

2\. The statute lists specific depositories for mail. Other authorized
depositories are established by regulations of the Postmaster General.
*See* 39 C.F.R. § 111.1, incorporating the Domestic Mail Manual
D041.1.1. If one of these is involved, it should be named in the
elements.

**Committee Comments**

*Cf.* 2A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions: Criminal* §§ 52.01-.05 (5^th^ ed. 2000). *See generally*
*United States v. Hopping*, 668 F.2d 398, 399-400 (8th Cir. 1982).

Theft of mail includes the element of intent to steal at the time the
mail is taken. *United States v. Hopping*, 668 F.2d at 399-400. Element
*Three*, which requires a finding of intent, is also a definition of
\"steal.\" *See* *United States v. Turley*, 352 U.S. 407, 417 (1957).
Accordingly, the Committee believes no further definition of \"steal\"
is necessary.

The protection of 18 U.S.C. § 1708 is limited to mail matter which is
still in the possession or control of the Postal Service or which has
been placed in an authorized receptacle for mail matter, such as a
private letter box, and has not been lawfully removed therefrom. *Rosen
v. United States*, 245 U.S. 467 (1918); *United States v. Matzker*, 473
F.2d 408 (8th Cir. 1973). On the other hand, the protection extended by
§ 1702 is applicable until the mailed material is physically delivered
to the addressee or his agent. *United States v. Ashford*, 530 F.2d 792
(8th Cir. 1976).

**6.18.1708B POSSESSION OF STOLEN MAIL (18 U.S.C. § 1708) (Third
Paragraph)**

The crime of unlawful \[purchase\] \[receipt\] \[concealment\]
\[possession\] of stolen mail, as charged in \[Count of\] the
indictment, has two elements, which are:

*One*, the defendant \[bought\] \[received\] \[concealed\] \[unlawfully
had in \[his\] \[her\] possession\] (describe letter, mail, etc. or
article or thing contained therein);

*Two*, this (describe letter, mail, etc. or article or thing contained
therein) had been stolen^1^ from (describe authorized depository for
mail matter); and

*Three*, the defendant knew (describe letter, mail, etc. or article or
thing contained therein) had been stolen.

Mail matter is \"stolen\" when it has been voluntarily taken from an
authorized depository for mail matter with intent to deprive the
addressee temporarily or permanently of its use and benefit.

The Government does not have to prove who stole the mail matter. Also,
the Government does not have to prove that the defendant knew that the
matter had been stolen from the mail, only that \[he\] \[she\] knew it
had been stolen.

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

**Notes on Use**

1\. The statute also makes illegal the receipt of mail which has been
taken, embezzled or obstructed. If one of these alternatives is charged,
the instruction should be so modified.

**Committee Comments**

*See* 2A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions: Criminal* §§ 52.01-.05 (5^th^ ed. 2000). *See* Committee
Comments, Instruction 6.18.1708A, *supra*; *Blue v. United States*, 528
F.2d 892, 894 (8th Cir. 1976).

The defendant must know that the letter or package was stolen, but he
need not know that it was stolen from the mails. *United States v.
Owens*, 472 F.2d 780-87 (8th Cir. 1973).

The government may prove by circumstantial evidence that the mail was
stolen. *United States v. Reece*, 547 F.2d 432, 435 (8th Cir. 1977);
*United States v. Bloom*, 482 F.2d 1162, 1164 (8th Cir. 1973).

An instruction defining actual and constructive possession in a section
1708 case was approved in *United States v. Haynes*, 653 F.2d 332, 333
(8th Cir. 1981). *See* Instruction 8.02, *infra*, for an instruction
defining possession.

Where warranted by the evidence, an instruction allowing the jury to
draw inferences of theft and knowledge of the theft from evidence of
recent possession of stolen mail may be given. *United States v. Hayes*,
631 F.2d 593, 594-95 (8th Cir. 1980). *See also* *Barnes v. United
States*, 412 U.S. 837, 839-40 (1973); *United States v. Bloom*, 482 F.2d
at 1165-66. *See further* Instruction 4.13, *supra*, concerning
instructions on inferences.

The defendant cannot be convicted for both theft and possession of a
single piece of mail. *United States v. Lindsay*, 552 F.2d 263, 266 (8th
Cir. 1977).

The Committee believes \"unlawfully\" is required by the statute which
proscribes the \"unlawful\" possession of stolen mail. The definition of
\"unlawfully\" as \"contrary to law\" has been called \"circular\" and
\"no definition at all.\" *United States v. Hoog*, 504 F.2d 45, 51 (8th
Cir. 1974). The Committee recommends that \"unlawfully\" be defined in
terms of the particular conduct which made the possession unlawful.

If the defendant claims innocent or authorized possession, the burden is
on the defendant to produce such evidence and raise it as a defense; it
is not an element of the crime to be proved by the government. *United
States v. Tompkins*, 487 F.2d 146, 152 (8th Cir. 1973).

**6.18.1709A EMBEZZLEMENT OF MAIL (18 U.S.C. § 1709) (First Clause)**

The crime of embezzling mail, as charged in \[Count \_\_\_\_\_ of\] the
indictment, has three elements, which are:

*One*, the defendant was an \[officer\] \[employee\] of the United
States Postal Service at the time stated in the indictment; and

*Two*, in \[his\] \[her\] position with the Postal Service, the
defendant had possession of (describe the mail matter, e.g., a letter)
that was intended to be conveyed by mail; and

*Three*, the defendant \[took\] \[removed\]^1^ the (describe the mail
matter, e.g., contents of letter) with the intent to convert it to
\[his\] \[her\] own use.

(Describe the mail matter, e.g., A letter) is "intended to be conveyed
by mail" if a reasonable person who saw (describe the mail matter, e.g.,
the letter) would think it was intended to be delivered through the
mail. \[The intent of the person who prepared the item for mailing or
who mailed it is irrelevant.\]

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

**Notes on Use**

1\. There are two separate methods for a postal employee to violate
section 1709: by embezzling mail matter (clause 1), which includes a
letter and its contents, or by stealing the contents of mail matter
(clause 2). The difference between the two clauses is that one can
embezzle mail matter (i.e., letter or package) and its contents, but the
"stealing clause" applies only to theft of the contents of mail matter
(letter or package). *United States v. Selwyn*, 998 F.2d 556, 557 (8th
Cir. 1993); 2A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions: Criminal* §§ 52.06-.10 (5^th^ ed. 2000). *See United
States v. Selwyn*, 998 F.2d at 557-59, which applied a strict common-law
view of embezzlement to this statute. *See* an instruction on clause 2.

**Committee Comments**

*See* 2A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions: Criminal* §§ 52.06-.10 (5^th^ ed. 2000).

Intent to convert property to one\'s own use is required. *United States
v. Rush*, 551 F. Supp. 148, 151 (S.D. Iowa 1982).

Embezzlement presupposes lawful possession, but theft does not. *See
United States v. Selwyn*, 998 F.2d 556 (8th Cir. 1993) and Note on
Use 1. A postal employee, who does not, by nature of his duties,
originally have lawful possession of certain mail matter, can be charged
and convicted under the stealing provisions in the second clause of
section 1709. *United States v. Selwyn*, 998 F.2d at 558.

The first clause of section 1709 requires that the mail matter was
\"intended to be delivered by mail.\" In \"test letter\" cases, the
Eighth Circuit has required \"evidence from which the jury could
conclude that, judged by objective standards, the test letter appeared
to be a letter that was intended to be delivered.\" *United States v.
Costello*, 604 F.2d 589, 591 (8th Cir. 1979). *See also* *United States
v. Hergenrader*, 529 F.2d 83, 84-86 (8th Cir. 1976), and *Scott v.
United States*, 172 U.S. 343 (1899) (indicating the subjective intent of
the person "mailing" the letter was not at issue; rather, the issue is
whether a reasonable person would believe that the particular mail
matter was intended to be conveyed by mail).

**6.18.1709B THEFT OF MAIL BY POSTAL SERVICE EMPLOYEE**

**(18 U.S.C. § 1709) (Second Clause)**

The crime of theft of mail by a Postal Service employee, as charged in
\[Count \_\_\_\_\_ of\] the indictment, has three elements, which are:

*One*, the defendant was an \[officer\] \[employee\] of the United
States Postal Service at the time stated in the indictment;

*Two*, the \[letter\] \[package\] \[bag\] \[mail\] was \[in the United
States mail\] \[intended to be conveyed by mail\]; and

*Three*, the defendant \[took\] \[removed\]^1^ the (describe the
contents of the mail matter, e.g., check from the letter) with the
intent to convert it to \[his\] \[her\] own use.

\[(Describe the mail matter, e.g., a letter) is "intended to be conveyed
by mail" if a reasonable person who saw (describe the mail matter, e.g.,
the letter) would think it was intended to be delivered through the
mail.\] \[The intent of the person who prepared the item for mailing or
who mailed it is irrelevant.\]

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

**Notes on Use**

1\. There are two separate methods for a postal employee to violate
section 1709: by embezzling mail matter (clause 1), which includes a
letter and its contents, or by stealing the contents of mail matter
(clause 2). The difference between the two clauses is that one can
embezzle mail matter (i.e., letter or package) and its contents, but the
"stealing clause" applies only to theft of the contents of mail matter
(letter or package). *United States v. Selwyn*, 998 F.2d 556, 557 (8th
Cir. 1993); 2A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions: Criminal* §§ 52.06-.10 (5^th^ ed. 2000). *Also see United
States v. Selwyn*, 998 F.2d at 557-59, which applied a strict common-law
view of embezzlement to this statute.

**Committee Comments**

*See* Instruction 6.18.1709A; 2A Kevin F. O'Malley, et al., *Federal
Jury Practice and Instructions: Criminal* §§ 52.06-.10 (5^th^ ed. 2000).

Intent to convert property to one\'s own use is required. United States
v. First, 600 F.2d 170, 171 (8^th^ Cir. 1979); *United States v. Rush*,
551 F. Supp. 148, 151 (S.D. Iowa 1982).

Embezzlement presupposes lawful possession, but theft does not. *See
United States v. Selwyn*, 998 F.2d 556 (8th Cir. 1993), and Note on
Use 1. A postal employee, who does not, by nature of his duties,
originally have lawful possession of certain mail matter, can be charged
and convicted under the stealing provisions in the second clause of
section 1709. *United States v. Selwyn*, 998 F.2d at 558.

One of jurisdictional bases for a violation of section 1709 is that the
mail matter was \"intended to be delivered by mail.\" In \"test letter\"
cases, the Eighth Circuit has required \"evidence from which the jury
could conclude that, judged by objective standards, the test letter
appeared to be a letter that was intended to be delivered.\" *United
States v. Costello*, 604 F.2d 589, 591 (8th Cir. 1979). *See also*
*United States v. Hergenrader*, 529 F.2d 83, 84-86 (8th Cir. 1976), and
*Scott v. United States*, 172 U.S. 343 (1899) (indicating the subjective
intent of the person "mailing" the letter was not at issue; rather, the
issue is whether a reasonable person would believe that the particular
mail matter was intended to be conveyed by mail).

**6.18.1951 INTERFERENCE WITH COMMERCE**

**BY MEANS OF EXTORTION (18 U.S.C. § 1951) (Hobbs Act)**

The crime of interference with commerce by means of extortion, as
charged in \[Count \_\_\_\_\_ of\] the indictment, has three elements,
which are:

*One*, the defendant induced (describe victim\[s\], e.g., John Jones,
President of ABC Corp.) to part with \[property\] \[(describe property
e.g., \$10,000.00 cash)\];

*Two*, the defendant voluntarily and intentionally did so by extortion
\-- that is, \[through the wrongful use of actual or threatened force or
violence\] \[through the wrongful use of fear\] \[under color of
official right\];^1^

*Three*, the defendant\'s action \[obstructed\] \[delayed\] \[affected\]
commerce in some way or degree.

\[\"Fear\" means a state of anxious concern, alarm or apprehension of
harm. Fear includes fear of economic loss or injury, as well as fear of
physical violence. Extortion by wrongful use of fear requires that the
fear be reasonable under the circumstances.\]^2^

\[Extortion \"under color of official right\" is the wrongful taking by
a public officer of money or property not due him or his office, whether
or not the taking was accompanied by force, threats or use of fear. So
if a public official voluntarily and intentionally misuses his public
office and power for the wrongful purpose of inducing a victim to part
with property, such activity constitutes extortion.\]^3^

\[Extortion is committed when property is obtained with the consent of
the victim by the wrongful use of actual or threatened force, violence
or fear or under color of official right.\]^4^

\[You may find an \[obstruction\] \[delay\] \[effect\] on commerce has
been proven if you find and believe from the evidence beyond a
reasonable doubt: (describe effects on commerce alleged in the
indictment on which proof was offered at trial, which demonstrate an
actual effect on interstate commerce, e.g., that the John Doe Produce
Distributing Co. shipped lettuce, tomatoes, string beans, and other
produce from St. Louis, in the State of Missouri, to various points
outside of the State of Missouri, including the states of Oregon,
Wyoming and Kansas.)^5^\]

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

**Notes on Use**

1\. The proper theory of extortion charged in the indictment should be
selected in the second element of the instruction. This type of element
instruction is also used in 2A Kevin F. O'Malley, et al., *Federal Jury
Practice and Instructions*: Criminal § 53.03 (5th ed. 2000), Eleventh
Circuit Pattern Jury Instructions: Criminal (Offense) § 56 (1997) and
Fifth Circuit Pattern Jury Instructions: Criminal § 2.74 (1997). In all
of the remaining instructions, only those instructions pertinent to the
facts of a particular case should be used.

2\. \"Extortion\" and \"fear\" must be defined. The statutory definition
of \"extortion\" may be found at 18 U.S.C. § 1951(b)(2). The wrongful
use of fear and a reasonable fear on the part of the victim is essential
to a conviction of extortion by use of fear. *See* Seventh Circuit
Federal Jury Instructions: Criminal at 297 (1999); *United States v.
Brown*, 540 F.2d 364, 373 n.6 (8th Cir. 1976); *Nick v. United States*,
122 F.2d 660 (8th Cir. 1941); *United States v. Margiotta*, 688 F.2d
108, 133-35 (2d Cir. 1982).

3\. If possible, the instruction should be made to specifically relate
to the charges and evidence in the case. In a case involving extortion
by a police officer, an instruction similar to the following instruction
was used:

Extortion under color of official right by a law enforcement officer
need not involve force or threats. If a victim reasonably feels
compelled or induced to pay money to a law enforcement officer, because
of that officer\'s wrongful use of his official position for the purpose
of obtaining money, the requirement of the crime of extortion under
color of official right is satisfied.

*See United States v. Crowley*, 504 F.2d 992, 995 (7th Cir. 1974). *See
also United States v. Hathaway*, 534 F.2d 386 (1st Cir. 1976); *United
States v. Brown*, 540 F.2d 364 (8th Cir. 1976).

In \"campaign contribution\" cases, an instruction similar to the
following language approved by the Eleventh Circuit, affirmed in *Evans
v. United States*, 504 U.S. 255 (1992), may be appropriate:

\[T\]he acceptance by an elected official of a campaign contribution
does not, in itself, constitute a violation of the Hobbs Act even though
the donor has business pending before the official.

However, if a public official demands or accepts money in exchange for a
specific requested exercise of his or her official power, such a demand
or acceptance does constitute a violation of the Hobbs Act regardless of
whether the payment is made in the form of a campaign contribution.

504 U.S. at 258.

4\. In a case where different theories of extortion are charged, it is
appropriate to charge the jury in the disjunctive on extortion, i.e., a
finding of guilt is supported by extortion under fear of economic loss
or under color of official right. *United States v. Kenny*, 462 F.2d
1205, 1229 (3d Cir. 1972); *United States v. Rabbitt*, 583 F.2d 1014,
1027 (8th Cir. 1978); *United States v. Brown*, 540 F.2d 364, 377 (8th
Cir. 1976). If both theories are submitted to the jury, they should be
instructed that they may convict the defendant if they find unanimously
and beyond a reasonable doubt that at least one of the theories was
proven by the Government.

5\. This instruction is one which was used in *United States v.
Addonizio*, 451 F.2d 49, 75-76 (3d Cir. 1971). Although some courts have
held that the jury may be instructed as a matter of law that interstate
commerce has been shown if various facts were proven, this appears to be
the safer instruction. *See United States v. Hyde*, 448 F.2d 815 (5th
Cir. 1971). *See generally* *Hulahan v. United States*, 214 F.2d 441,
445, 446 (8th Cir. 1954); *United States v. Rabbitt*, 583 F.2d 1014,
1023 (8th Cir. 1978); *United States v. French*, 628 F.2d 1069, 1078
(8th Cir. 1980).

**Committee Comments**

*See* *United States v. Brown*, 540 F.2d 364 (8th Cir. 1976).

If a public official is alleged to have extorted a campaign contribution
\"under color of official right,\" the jury must be instructed that
receipt of such contribution violates section 1951 \"only if the
payments are made in return for an explicit promise or undertaking by
the official to perform or not to perform an official act.\" *McCormick
v. United States*, 500 U.S. 257 (1991). A subsequent case, *Evans v.
United States*, 504 U.S. 255 (1992), resolved the issue as to whether an
affirmative act of inducement by a public official is required to
support a conviction of extortion under color of official right by
affirming a conviction based on an official\'s passive acceptance of a
payment known to have been offered in exchange for a specific requested
exercise of official power. *Evans* also held that the *quid pro quo*
requirement of *McCormick* is met when \"the public official receives
payment \[a campaign contribution\] in return for his agreement to
perform specific official acts; fulfillment of the *quid pro quo* is not
an element of the offense.\" 504 U.S. at 256, 268-69.

Extortion under \"color of official right\" does not require compulsion
or duress. Wrongful use of office to induce payments to or at the
direction of a public official will make out an extortion. Because
threats or coercion are not required, the facts of some cases will be
fairly similar to the facts of a bribery case, in that the \"victim\"
will be buying the influence of a public official, often with very
subtle inducements on the part of the public official to make payoffs to
him. *See United States v. Brown*, 540 F.2d 364 (8th Cir. 1976); *United
States v. French*, 628 F.2d 1069 (8th Cir. 1980).

The term \"property\" has been broadly defined under the Hobbs Act, and
includes not only tangible property, but includes \"any valuable right
considered as a source of wealth.\" *See United States v. Provenzano*,
334 F.2d 678 (3d Cir. 1964).

Fear of economic injury has also been held to include the fear of lost
business opportunities, and the fear of loss of one\'s ability to
compete in the marketplace. *United States v. Hathaway*, 534 F.2d 386,
393-94 (1st Cir. 1976); Seventh Circuit Federal Jury Instructions:
Criminal at 297 (1999).

It is not necessary that the Government prove that a defendant himself
benefitted from any extortion. Extortion is proven if the payments are
made to a third party, or entity, at the direction of the defendant.
*United States v. Provenzano*; *United States v. Green*, 350 U.S. 415,
420 (1956).

Further, only a minimal effect on interstate commerce is required to
establish jurisdiction under the Hobbs Act because Congress intended to
exercise the full scope of its power under the Interstate Commerce
Clause of the United States Constitution. *United States v. Farmer*, 73
F.3d 836, 843 (8^th^ Cir. 1996) (Robbery of a single HyVee grocery store
sufficient to support conviction where store was part of a national
chain which received goods shipped in interstate commerce); *United
States v. Quigley*, 53 F.3d 909 (8^th^ Cir. 1995) (Robbery of two
individuals of a pouch of chewing tobacco and eighty cents while on way
to purchase beer from store which received goods in interstate commerce
not sufficient to support conviction. However, the effect on interstate
commerce must be actual and not merely probable or potential. *United
States v. Williams*, 308 F.3d. 833 (8^th^ Cir. 2002).

If attempted extortion is charged, the instruction should be modified
accordingly. Furthermore, in attempted extortion, the focus is on the
defendant\'s intent, rather than on the state of mind of the victim.
*United States v. Smith*, 631 F.2d at 104. An attempt to arouse fear is
sufficient. *United States v. Frazier*, 560 F.2d 884, 887 (8th Cir.
1977). The actual generation of fear is unnecessary. *United States v.
Mitchell*, 463 F.2d 187 (8th Cir. 1972).

There is no requirement that the public official have the actual power
to perform an act which is the basis of an extortionate scheme. As long
as the victim holds a reasonable belief that the defendant\'s office
included the apparent authority to do the acts which a defendant claims
he can carry out, an extortion is proven. In cases involving apparent
authority, the jury should be instructed on this issue in terms of the
specific case involved. An example is as follows:

You must find that Leo Victim reasonably believed that Senator Doe\'s
official powers included the securing of leases for the State of
Missouri. You need not find, however, that Senator Doe actually held
this power.

*See United States v. Mazzei*, 521 F.2d 639, 643 n.2 (3d Cir. 1975);
*United States v. Brown*, 540 F.2d 364, 372 (8th Cir. 1976). In *United
States v. Loftus*, 992 F.2d 793, 796 (8th Cir. 1993), the court of
appeals stated, \"\[a\]ctual authority over the end result - rezoning -
is not controlling if Loftus, through his official position, had
influence and authority over a means to that end.\"

**6.18.1955 ILLEGAL GAMBLING BUSINESS (18 U.S.C. § 1955)**

The crime of conducting an illegal gambling business, as charged in
\[Count \_\_\_\_\_ of\] the indictment, has three elements, which are:

*One*, that the defendant knowingly \[conducted\] \[financed\]
\[managed\] \[supervised\] \[directed\] \[owned\]^1^ \[all of\] \[part
of\] a gambling business in which five or more persons were involved in
the operation of the business;

*Two*, that such gambling business was a violation of the law\[s\] of
the state\[s\] of (name of state(s)).^2^

*Three*, that such gambling business was in substantially continuous
operation for a period more than thirty days or had a gross revenue of
\$2,000 or more in any one day.

\[\"Bookmaking\" is a form of gambling and involves the business of
establishing certain terms and conditions applicable to given bets or
wagers, usually called a line or odds, and then accepting bets from
members of the public on either side of the wagering proposition with a
view toward making a profit from a percentage or commission collected
from the bettors or customers for the privilege of placing the bets. You
are instructed that \"bookmaking\" is a crime in the State\[s\] of (name
of state(s)\].^3^

\[The word, \"conduct,\" as it is used in connection with the gambling
business, means to perform any act, function or duty which is necessary
to or helpful in the ordinary operation of the business. A person may be
found to conduct a gambling business even though \[he\] \[she\] is only
an agent or employee having no part in the management or control of the
business and no share in the profits.\]^4^

\[A mere bettor or customer of a gambling business cannot properly be
said to conduct the business.\] \[If, however, you find beyond a
reasonable doubt that a defendant is a bookmaker and that \[he\] \[she\]
regularly exchanges line information, or regularly places or accepts
layoff bets with another bookmaker, you may consider that the defendant
and the other bookmaker as being members of the same gambling
business.\]^5^

\[It is not necessary to prove \[that anyone other than the defendant
has been charged with an offense\] \[that the same five people,
including the defendant, owned, financed or conducted such gambling
business throughout more than a thirty-day period\] \[that the defendant
knew the names or identities of any given number of people who might
have been so involved\].\]^6^ \[Neither must it be proved that bets were
accepted every day over a greater than thirty-day period, *nor* that
such activity constituted the primary business or employment of the
defendant.\]^7^

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

**Notes on Use**

1\. The word\[s\], \"(conducted) (financed) (managed) (supervised)
(directed) (owned),\" are all used in their ordinary sense.

2\. Fill in the name of the state(s) whose gambling laws were allegedly
violated. Multiple state law violations may be subsumed under a single
section 1955 violation. *See* *Sanabria*, 437 U.S. at 72-73.

3\. In many cases, instructing the jury whether a particular form of
gambling, e.g., bookmaking, violates state law will suffice. However, if
the defense contends that the form of gambling shown by the evidence did
not violate state law, a more detailed explanation of the elements of
the state violation may be appropriate. For example:

Bookmaking \[is\] a felony crime in the State of Missouri when conducted
as a business rather than in a casual or personal fashion, and when a
bookmaker or bookie accepts more than one bet in any day and accepts
more than \$100 in bets.

*United States v. Sutera*, 933 F.2d 641, 646 (8th Cir. 1991).

Where the defense contends a narrow or specific exemption from the state
law applied to the gambling business which prevented it from being
illegal, a more detailed focus may be appropriate. The state instruction
should be consulted for information as to how to instruct, and what are
the elements of the state offense.

It is the defendant\'s obligation to raise the issue that the gambling
business fell within an exemption from state law. *See* *United States
v. Cartano*, 534 F.2d 788, 791 (8th Cir. 1976). The Government has the
ultimate burden of showing there is no exemption.

Section 1955 is not a specific intent offense. *See* *United States v.
Kohne*, 358 F. Supp. 1053, 1061 (W.D. Pa. 1973); *accord* *United States
v. Mendelsohn*, 896 F.2d 1183, 1188 (9th Cir. 1990). In fact, the
Government need not prove that the *defendant* himself performed any act
prohibited by state law. The focus is on the illegal nature of the
gambling *business* which the Government must prove the defendant
\"conducted,\" \"financed,\" etc., under section 1955(a). *Sanabria*,
437 U.S. at 70; *United States v. Murray*, 928 F.2d 1242, 1245 (1st Cir.
1991). *See also* *United States v. Hill*, 935 F.2d 196, 199 (11th Cir.
1991) (regulatory exception to 21 U.S.C. § 952(a) is an affirmative
defense with the defendant bearing the burden of going forward).

4\. The Eighth Circuit follows the majority view in holding that \"all
levels of personnel involved in the gambling business, not just those on
the management level, are to be considered in determining whether five
or more persons conduct such business within the meaning of section
1955. *United States v. Hammond*, 821 F.2d 473, 476 (8th Cir. 1987).
Thus, it is enough if the person is \"helpful\" as opposed to
\"necessary.\" *Id.*, n.5; *Merrell v. United States*, 463 U.S. 1230,
1231 (1983) (dissent in denial of petition where the defendant\'s
conduct was serving drinks and cleaning up); *United States v. Bennett*,
563 F.2d 879, 883-84 (8th Cir. 1977) (waitress serving drinks). *But
see* *United States v. Boss*, 671 F.2d 396 (10th Cir. 1982). The statute
is intended to apply to all who participate in the gambling operation
except the bettor. *Sanabria v. United States*, 437 U.S. 54, 70-71 n.26
(1978); *United States v. Hammond*, 821 F.2d 473, 476 (8th Cir. 1987);
*United States v. Smaldone*, 583 F.2d 1129, 1132 (10th Cir. 1978).

5\. The bracketed sentence may be needed where a jury must decide
whether a particular bookmaker was part of the single gambling business
alleged in the indictment, or an independent operator who had contact
with the alleged business only in placing personal bets.

6\. *United States v. Segal*, 867 F.2d 1173 (8th Cir. 1989).

7\. These should be included only if they are in issue in the case.

**Committee Comments**

*See* 2B Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal §§ 55.01-.10 (5th ed. 2000); Eleventh Circuit
Pattern Jury Instructions: Criminal (Offense) § 59 (1997); Fifth Circuit
Pattern Jury Instructions: Criminal § 2.75 (1997).

Whether the evidence established that five or more persons were involved
in conducting the gambling business is a frequent issue. The Government
need not prove that a particular defendant *knew* or reasonably
anticipated that five or more persons were involved. *United States v.
Segal*, 867 F.2d 1173, 1178 n.6 (8th Cir. 1989). Evidence of layoff
betting and other relationships between bookmakers may establish that
apparently separate bookmaking operations are part of a single business.
*United States v. Parrino*, 816 F.2d 414, 416 (8th Cir. 1987); *United
States v. Reeder*, 614 F.2d 1179, 1183 (8th Cir. 1980); *United States
v. Guzek*, 527 F.2d 552 (8th Cir. 1975); *United States v. Thomas*, 508
F.2d 1200 (8th Cir. 1975).

The trial court determines as a matter of law which state gambling
statute may be applicable. *See*, *e.g.*, *United States v. Clements*,
588 F.2d 1030, 1037 (5th Cir. 1979) and 441 U.S. 936 (1979). Minimal or
even no explanation to the jury of the state statute allegedly violated
has been upheld. *United States v. Balistrieri*, 779 F.2d 1191, 1223
(7th Cir. 1985); *United States v. Quarry*, 614 F.2d 245 (10th Cir.
1980) (citing *United States v. Crockett*, 506 F.2d 759, 761 (5th Cir.
1975)). The Fifth and Eleventh Circuits\' pattern instructions recommend
advising the jury that the particular type of gambling alleged, e.g.,
bookmaking, is a violation of state law. It is the gambling business
that must violate state law\--not the individual acts of a particular
defendant. *Sanabria v. United States*, 437 U.S. 54, 70 (1978).

\"Gambling\" is defined in section 1955(b)(2). Gambling terminology is
explained in *United States v. Thomas*, 508 F.2d 1200, 1202 n.2 (8th
Cir. 1975).

\"Gross revenue\" is measured by the total amount of wagers placed
during a single day. *United States v. Rotchford*, 575 F.2d 166 (8th
Cir. 1978).

**6.18.1956A MONEY LAUNDERING \-- FINANCIAL TRANSACTION TO PROMOTE**

**SPECIFIED UNLAWFUL ACTIVITY (18 U.S.C. § 1956(a)(1)(A)(i))**

The crime of \[conducting\] \[attempting to conduct\] an illegal
financial transaction, as charged in \[Count\[s\] \_\_\_\_\_ of\] the
indictment has four elements, which are:

*One*, on or about (date),^1^ \[the defendant\] \[defendant\[s\]
(name\[s\])\] \[conducted\] \[attempted to conduct\]^2^ a financial
transaction,^3^ that is, (describe in simple terms, e.g., the purchase
of an automobile), which in any way or degree affected interstate or
foreign commerce;^4^

*Two*, the defendant\[s\] \[conducted\] \[attempted to conduct\] the
financial transaction with (describe the property, e.g., money,
certificates of deposit) that involved the proceeds^5^ of (describe the
specified unlawful activity,^6^ e.g., unlawful distribution of cocaine);

*Three*, at the time the defendant\[s\] \[conducted\] \[attempted to
conduct\] the financial transaction, the defendant\[s\] knew the
(describe property) represented the proceeds of some form of unlawful
activity;^7^ and

*Four*, the defendant\[s\] \[conducted\] \[attempted to conduct\] the
financial transaction with the intent to promote the carrying on of
(describe the specified unlawful activity).^8^

\[A defendant may be found to have attempted to conduct a financial
transaction if \[he\] \[she\] intended to conduct a financial
transaction and voluntarily and intentionally carried out some act which
was a substantial step toward conducting that financial transaction,
even if the transaction was never completed.\]^9^

\[The term \"conducted,\" as used in \[this\] \[Instruction\[s\]
\_\_\_\_\_\] includes initiating, concluding or participating in
initiating or concluding a transaction.\]^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^

\[It is not necessary to show that \[a\] \[the\] defendant intended to
commit (specify additional crime) \[himself\] \[herself\]; it is
sufficient that in \[conducting\] \[attempting to conduct\] the
financial transaction, \[a\] \[the\] defendant \[himself\] \[herself\]
intended to make the unlawful activity easier or less difficult.\]^12^

\[The crime charged in \[Count\[s\] \_\_\_\_ of\] the indictment alleges
multiple purposes for the crime, that is, that \[the defendant\]
\[defendant\[s\] (name\[s\])\] knew that the transaction was
\[conducted\] \[attempted\] for the purposes of (list all objectives).
To find \[the defendant\] \[defendant\[s\] (name\[s\])\] guilty of the
offense\[s\], you must agree unanimously that one or more of the
objectives charged were proved beyond a reasonable doubt.\]^13^

(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\. Both types of activity have been proscribed since original enactment
of section 1956. *See* 18 U.S.C. §§ 1956(a)(1), (a)(2) and (a)(3).

3\. *See* Instruction 6.18.1956J(1) (Financial Transaction), *infra*.
\"Financial transaction\" is a term of art originally defined in 18
U.S.C. § 1956(c)(4) and subsequently expanded and clarified through
amendments. It encompasses another statutorily defined term of art,
\"transaction,\" which has also been expanded since the enactment of
section 1956(c)(3). The Committee recommends careful review to determine
which of the provisions of sections 1956(c)(3) and 1956(c)(4) were in
effect at the time of the alleged financial transaction. *See* Note 1,
*supra*.

4\. *See* Instruction 6.18.1956J(2) (Interstate and Foreign Commerce),
*infra*. All section 1956 offenses require proof that the financial
transaction itself or the financial institution, if one was involved, in
some way affected interstate or foreign commerce. *See* 18 U.S.C. §
1956(c)(4); *United States v. Baker*, 985 F.2d 1248, 1252 (4th Cir.
1993) (element under section 1956(a)(1)(B)(i)); *United States v.
Posters \'N\' Things Ltd.*, 969 F.2d 652, 661 n.6 (8th Cir. 1992)
(expert witness testified as to issue), *aff\'d on other grounds,* 511
U.S. 513 (1994); *United States v. Gonzalez-Rodriguez*, 966 F.2d 918,
924 (5th Cir. 1992) (discussing *United States v. Gallo*, 927 F.2d 815,
823 (5th Cir. 1991) and *United States v. Hamilton*, 931 F.2d 1046,
1051-52 (5th Cir. 1991)). The Eighth Circuit has not ruled whether the
indictment must explicitly allege the interstate/foreign commerce nexus.
*United States v. Lucas*, 932 F.2d 1210, 1219 (8th Cir. 1991) (court was
not required to reach the issue because the indictment which alleged
construction of a shopping center and purchase of merchandise could be
reasonably construed to allege the element). *See also United States v.
Green*, 964 F.2d 365, 374 (5th Cir. 1992) (citing *Lucas*); *United
States v. Lovett*, 964 F.2d 1029, 1038 (10th Cir. 1992) (under section
1957, the interstate commerce nexus is jurisdictional but not an element
of the crime charged) (citing *United States v. Kelley*, 929 F.2d 582,
586 (10th Cir. 1991)). Given the lack of controlling law on this issue,
the Committee recommends that the nexus be alleged in the indictment. In
any case, a finding of an effect on interstate or foreign commerce of
either the transaction itself or the activities of the financial
institution, if one was involved, is essential. *See United States v.
Ben M. Hogan Co., Inc.*, 769 F.2d 1293, 1297 (8th Cir. 1985) (reversible
error for a district court to give an instruction which could have been
understood to include a conclusive presumption of effect on interstate
commerce, where such a finding by the jury was essential in a
prosecution under the Sherman Anti-Trust Act).

5\. *See* Instruction 6.18.1956J(6) (Proceeds), *infra*. The term is not
defined in 18 U.S.C. § 1956(c).

6\. *See* Instruction 6.18.1956J(7) (Specified Unlawful Activity).
*infra*. The term should not be confused with \"unlawful activity\" in
general and has a specific, statutory meaning, as set forth in section
1956(c)(7). Because that section has had numerous amendments, and itself
incorporates activities defined in several other statutes, the Committee
recommends careful review of both the provisions of section 1956(c)(7)
and of the incorporated statutes which were in effect at the time of the
alleged financial transaction (section 1956(a)(1)) or transportation,
transmission or transfer (section 1956)(a)(2)). *See also* Note 8,
*infra*.

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,
*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.

7\. *See* Instruction 6.18.1956J, *infra*. The requirement that the
defendant knew the property involved in the financial transaction
represented the proceeds of some form of unlawful activity is common to
all section 1956(a)(1) offenses. \"Unlawful activity\" encompasses many
more violations than \"specified unlawful activity.\" *Compare* section
1956(c)(1) *with* section 1956(c)(7). However, between October 27, 1986,
and November 29, 1990, it did not include felony violations of foreign
law. *See* Note 1, *supra*.

8\. The mens rea required under sections 1956(a)(1)(A), (a)(2)(A), and
(a)(3) offenses is more restrictive than under sections 1956(a)(1)(B)
and (a)(2)(B). The former requires proof of the defendant\'s intent; the
latter merely requires that the defendant have knowledge of the object
of the financial transaction. *See* G. Richard Strafer, *Money
Laundering: The Crime of the \'90\'s*, 27 Amer. Crim. L. Rev. 149, 162,
172 (1989).

Under sections 1956(a)(1)(A)(i), 1956(a)(2)(a) and 1956(a)(3), the
defendant must have acted with the intent to promote a \"specified\"
unlawful activity, as defined in 18 U.S.C. § 1956(c)(7), rather than the
more broadly described unlawful activity defined in 18 U.S.C. §
1956(c)(1). *See* Note 12, *infra*. Although the specified unlawful
activity inserted in the second element, *see* Note 6, *supra*, will
frequently be the same set forth regarding the defendant\'s intent, the
two forms of specified unlawful activity need not be the same, e.g.,
drug proceeds with which the defendant conducts a transaction with the
intent of making a fraudulent credit application.

On November 18, 1988, section 1956(a)(1)(A)(ii) was added, creating a
fourth objective constituting an offense under section 1956(a)(1):
\"\[w\]ith intent to engage in conduct constituting a violation of
section 7201 or 7206 of the Internal Revenue Code of 1986\" (i.e.,
attempt to evade or defeat tax or making false statements, 26 U.S.C. §§
7201 and 7206). The Committee believes that section 1956(a)(1)(A)(ii)
prosecutions will be rare; therefore, no instruction is included. If
used, such an instruction should define what constitutes violations of
26 U.S.C. § 7201 or 7206, as appropriate. The jury should also be
instructed that they must consider a defendant\'s asserted, subjective
beliefs that any unreported income was not income under the law and/or
that the defendant was not a taxpayer within the meaning of the Internal
Revenue Code. *See Cheek v. United States*, 498 U.S. 192, 202-03 (1991)
(error for trial court to instruct jury that the defendant\'s subjective
beliefs should not be considered in determining whether he acted
willfully); *United States v. Grunewald*, 987 F.2d 531, 535-36 (8th Cir.
1993). The Court would not be required to give a *Cheek* instruction if
the facts demonstrated that the defendant challenged the
constitutionality or validity of the tax laws, rather than held a good
faith but mistaken belief or misunderstanding that the law did not apply
to him. *See United States v. Dack*, 987 F.2d 1282, 1285 (7th Cir. 1993)
(citing *United States v. Cheek*, 931 F.2d 1206, 1208 (7th Cir. 1991)
(on remand from the Supreme Court)). *See also United States v.
Dykstra*, 991 F.2d 450 (8th Cir. 1993) (construing *Cheek* and
discussing when a personal belief is not relevant to the issue of
willfulness).

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

10\. *See* 18 U.S.C. § 1956(c)(2). This definition was included in the
October 27, 1986, version of the statute and has not changed since.

11\. The supplemental definitions and instructions contained in
Instruction 6.18.1956J, *infra*, should be given in most cases. Whether
they are inserted in each 6.18.1956 instruction or given after a series
of 6.18.1956A through 6.18.1956I instructions is an option for the court
to consider based on the number and types of money laundering counts and
the ability of the jury to relate the definitions to the applicable
counts.

12\. *See United States v. Jackson*, 935 F.2d 832, 841 (7th Cir. 1991);
*United States v. Rogers*, 788 F.2d 1472, 1476 (11th Cir. 1986)
(facilitating the promotion of unlawful activity in the context of 18
U.S.C. § 1952(a)(3) (\"Travel Act\") cases is satisfied by proof the
defendant\'s action made the unlawful activity easy or less difficult);
*see also United States v. Corona*, 885 F.2d 766, 773 (11th Cir. 1989)
(the defendant himself does not have to be involved in the offense being
facilitated). The specified unlawful activity which a defendant intends
to promote may be a continuing offense, may be still underway or may be
an offense that will be committed in the future. The financial
transaction need not be linked to a specific future offense; it is
sufficient if a defendant intended to promote a specified unlawful
activity generally. For example, issuing checks to vendors providing
beeper and mobile telephone services used in a continuing criminal
enterprise would qualify, but purchases of cellular phones not
previously used or clearly intended for use in the enterprise would not.

13\. If the indictment alleges the defendant did not personally conduct
the transaction but knew the transaction was conducted for more than one
purpose, use the first set of bracketed language. If the indictment
alleges the defendant personally engaged in the financial transaction,
use the second set of bracketed language. The multiple objective
situation may apply both to multiple intent (i.e., sections
1956(a)(1)(A)(i) and (ii)) and to multiple knowledge (i.e., sections
1956(a)(1)(B)(i) and (ii)) allegations, as well as to allegations of
violation of both sections 1956(a)(1)(A)(i) and 1956(a)(1)(B)(i). *See
United States v. Jackson*, 935 F.2d 832, 842 (7th Cir. 1991) (government
should give clear notice of the provision(s) under which it is
proceeding). Although there is no case law requiring unanimity on
objectives, if an instruction to that effect is \`desired, *see*
Instruction 5.06(F), *supra*.

**Committee Comments**

*See* Ninth Cir. Crim. Jury Instr. 8.33.1 (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.

**6.18.1956B MONEY LAUNDERING \-- FINANCIAL TRANSACTION**

**TO CONCEAL PROCEEDS (18 U.S.C. § 1956(a)(1)(B)(i))**

The crime of \[conducting\] \[attempting to conduct\] an illegal
financial transaction, as charged in \[Count\[s\] \_\_\_\_\_ of\] the
indictment has four elements, which are:

*One*, on or about (date),^1^ \[the defendant\] \[defendant\[s\]
(name\[s\])\] \[conducted\] \[attempted to conduct\]^2^ a financial
transaction,^3^ that is, (describe in simple terms, e.g., the purchase
of an automobile), which in any way or degree affected interstate or
foreign commerce;^4^

*Two*, the defendant\[s\] \[conducted\] \[attempted to conduct\] the
financial transaction with (describe the property, e.g., money,
certificates of deposit) that involved the proceeds^5^ of (describe the
specified unlawful activity,^6^ e.g., unlawful distribution of cocaine);

*Three*, at the time the defendant\[s\] \[conducted\] \[attempted to
conduct\] the financial transaction, the defendant\[s\] knew the
(describe property) represented the proceeds of some form of unlawful
activity;^7^ and

*Four*, the defendant\[s\] \[conducted\] \[attempted to conduct\] the
financial transaction knowing that the transaction 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).^8^

\[A defendant may be found to have attempted to conduct a financial
transaction if \[he\] \[she\] intended to conduct a financial
transaction and voluntarily and intentionally carried out some act which
was a substantial step toward conducting that financial transaction,
even if the transaction was never completed.\]^9^

\[The term \"conducted,\" as used in \[this\] \[Instruction\[s\]
\_\_\_\_\_\] includes initiating, concluding or participating in
initiating or concluding a transaction.\]^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 financial transaction was to conceal or disguise
the nature, location, source, ownership or control of the proceeds of
(describe the specified unlawful activity) if you find beyond a
reasonable doubt that (insert appropriate language from Instruction
7.04).\]^12^

\[The crime charged in \[Count\[s\] \_\_\_\_ of\] the indictment alleges
multiple purposes for the crime, that is, that \[the defendant\]
\[defendant\[s\] (name\[s\])\] knew that the transaction was
\[conducted\] \[attempted\] for the purposes of (list all objectives).
To find \[the defendant\] \[defendant\[s\] (name\[s\])\] guilty of the
offense\[s\], you must agree unanimously that one or more of the
objectives charged were proved beyond a reasonable doubt.\]^13^

(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 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\. Both types of activity have been proscribed since original enactment
of section 1956. *See* 18 U.S.C. §§ 1956(a)(1), (a)(2) and (a)(3).

3\. *See* Instruction 6.18.1956J(1) (Financial Transaction), *infra*.
\"Financial transaction\" is a term of art originally defined in 18
U.S.C. § 1956(c)(4) and subsequently expanded and clarified through
amendments. It encompasses another statutorily defined term of art,
\"transaction,\" which has also been expanded since the enactment of
section 1956(c)(3). The Committee recommends careful review to determine
which of the provisions of sections 1956(c)(3) and 1956(c)(4) were in
effect at the time of the alleged financial transaction. *See* Note 1,
*supra*.

4\. *See* Instruction 6.18.1956J(2) (Interstate and Foreign Commerce),
*infra*. All section 1956 offenses require proof that the financial
transaction itself or the financial institution, if one was involved, in
some way affected interstate or foreign commerce. *See* 18 U.S.C. §
1956(c)(4); *United States v. Baker*, 985 F.2d 1248, 1252 (4th Cir.
1993) (element under 1956(a)(1)(B)(i)); *United States v. Posters \'N\'
Things Ltd.*, 969 F.2d 652, 661 n.6 (8th Cir. 1992) (expert witness
testified as to issue), *aff\'d on other grounds,* 511 U.S. 513 (1994);
*United States v. Gonzalez-Rodriguez*, 966 F.2d 918, 924 (5th Cir. 1992)
(discussing *United States v. Gallo*, 927 F.2d 815, 823 (5th Cir. 1991)
and *United States v. Hamilton*, 931 F.2d 1046, 1051-52 (5th Cir.
1991)). The Eighth Circuit has not ruled whether the indictment must
explicitly allege the interstate/foreign commerce nexus. *United States
v. Lucas*, 932 F.2d 1210, 1219 (8th Cir. 1991) (court was not required
to reach the issue because the indictment which alleged construction of
a shopping center and purchase of merchandise could be reasonably
construed to allege the element). *See also United States v. Green*, 964
F.2d 365, 374 (5th Cir. 1992) (citing *Lucas*); *United States v.
Lovett*, 964 F.2d 1029, 1038 (10th Cir. 1992) (under section 1957, the
interstate commerce nexus is jurisdictional but not an element of the
crime charged) (citing *United States v. Kelley*, 929 F.2d 582, 586
(10th Cir. 1991)). Given the lack of controlling law on this issue, the
Committee recommends that the nexus be alleged in the indictment. In any
case, a finding of an effect on interstate or foreign commerce of either
the transaction itself or the activities of the financial institution,
if one was involved, is essential. *See United States v. Ben M. Hogan
Co., Inc.*, 769 F.2d 1293, 1297 (8th Cir. 1985) (reversible error for a
district court to give an instruction which could have been understood
to include a conclusive presumption of effect on interstate commerce,
where such a finding by the jury was essential in a prosecution under
the Sherman Anti-Trust Act).

5\. *See* Instruction 6.18.1956J(6) (Proceeds), *infra*. The term is not
defined in 18 U.S.C. § 1956(c).

6\. *See* Instruction 6.18.1956J(7) (Specified Unlawful Activity),
*infra*. The term should not be confused with \"unlawful activity\" in
general and has a specific, statutory meaning, as set forth in section
1956(c)(7). Because that section has had numerous amendments, and itself
incorporates activities defined in several other statutes, the Committee
recommends careful review of both the provisions of section 1956(c)(7)
and of the incorporated statutes which were in effect at the time of the
alleged financial transaction (section 1956(a)(1)) or transportation,
transmission or transfer (section 1956)(a)(2)).

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,
*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.

7\. *See* Instruction 6.18.1956J, *infra*. The requirement that the
defendant knew the property involved in the financial transaction
represented the proceeds of some form of unlawful activity is common to
all section 1956(a)(1) offenses. \"Unlawful activity\" encompasses many
more violations than \"specified unlawful activity.\" *Compare* section
1956(c)(1) *with* section 1956(c)(7). However, between October 27, 1986,
and November 29, 1990, it did not include felony violations of foreign
law. *See* Note 1, *supra*.

8\. A conviction under section 1956(a)(1)(B)(i) (concealment) requires a
design to conceal or disguise the nature, location, source, ownership or
control of the proceeds. A \"typical\" money laundering transaction
involving purchases in third-party names frequently satisfies this
element. Purchases in the names of close family members, however, are
problematic, especially where the defendant\'s subsequent use of the
asset is open and conspicuous. *Compare United States v. Sanders*, 929
F.2d 1466, 1472 (10th Cir. 1991) (contrasting *United States v. Lee*,
886 F.2d 998, 1002-03 (8th Cir. 1989)) *with United States v. Sutera*,
933 F.2d 641, 648 (8th Cir. 1991) (money laundering statute did not
require that the defendant did a good job of laundering the proceeds;
the jury simply had to find that the defendant intended to hide them)
*and United States v. Posters \'N\' Things Ltd.*, 969 F.2d 652, 661 n.7
(8th Cir. 1992) (the defendant commingled legitimate and illegitimate
business receipts over a three year period; despite no attempt to
disguise control of the account, one could infer from her record keeping
and bank activity a design to conceal or disguise her illegal proceeds),
*aff\'d on other grounds,* 511 U.S. 513 (1994).

In a \"mixed motive\" situation, a defendant may be found guilty under
both sections 1956(a)(1)(B)(i) and 1956(a)(1)(B)(ii), e.g., where a
transaction is designed in whole or in part to conceal and the same
transaction also is designed to evade taxes. *See United States v.
Isabel*, 945 F.2d 1193, 1203 (1st Cir. 1991). Similarly, the same
transaction may support separate offenses under section 1956(a)(1)(A)(i)
(promoting) and 1956(a)(1)(B)(i) (concealing). The indictment and
instructions should clearly place the defendant, the court and the jury
on notice whether the government is proceeding under the former, the
latter or both. *United States v. Jackson*, 935 F.2d at 842.

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

10\. *See* 18 U.S.C. § 1956(c)(2). This definition was included in the
October 27, 1986, version of the statute and has not changed since.

11\. The supplemental definitions and instructions contained in
Instruction 6.18.1956J, *infra*, should be given in most cases. Whether
they are inserted in each 6.18.1956 instruction or given after a series
of 6.18.1956A through 6.18.1956I instructions is an option for the Court
to consider based on the number and types of money laundering counts and
the ability of the jury to relate the definitions to the applicable
counts.

12\. *See* Instruction 7.04, *infra*. The 1956(a)(1)(B) \"knowing\"
requirement encompasses instances of \"willful blindness.\" S. Rep. No.
433, 99th Cong., 2d Sess. 6, 10 (1986), *construed in* 27 Amer. Crim. L.
Rev. 167. *See also United States v. Kaufmann*, 985 F.2d 884, 897 n.6
(7th Cir. 1993) (\"ostrich\" instruction appropriate for counts
requiring knowledge); *United States v. Campbell*, 977 F.2d 854, 857-58
(4th Cir. 1992) (discussing a willful blindness instruction given in a
section 1956(a)(1)(B)(i) trial); *United States v. Montoya*, 945 F.2d
1068, 1076 (9th Cir. 1991) (distinguishing sections 1956(a)(1)(A) and
1956(a)(1)(B)); *United States v. Fuller*, 974 F.2d 1474, 1482 (5th Cir.
1992) (deliberate ignorance instruction regarding conspiracy to launder
money). In *United States v. Barnhart*, 979 F.2d 647, 651-52 (8th Cir.
1992), the Eighth Circuit addressed a willful blindness instruction
patterned on 7.04 and held that such an instruction \"should not be
given unless there is evidence to support the inference that the
defendant was aware of a high probability of the existence of the fact
in question and purposely contrived to avoid learning all of the facts
in order to have a defense in the event of a subsequent prosecution.\"
*Id.* (quoting *United States v. Alvarado*, 838 F.2d 311, 314 (9th Cir.
1987)). If there is evidence a defendant actually believed that the
transaction was for an innocent purpose, *see* Instruction 7.04,
*infra*, nn 3,4. The deliberate ignorance instruction should not be
given where the evidence points solely to either actual knowledge, or
lack thereof, and where there is no evidence that the defendant had a
conscious purpose to avoid learning the truth. Note 5, Instruction 7.04,
*infra*; *Barnhart*, 979 F.2d at 651. The permissive rather than
mandatory phrasing \"you *may* find\" comports with the usage suggested
in *Karras v. Leapley*, 974 F.2d 71, 74 n.6 (8th Cir. 1992).

13\. If the indictment alleges the defendant did not personally conduct
the transaction but knew the transaction was conducted for more than one
purpose, use the first set of bracketed language. If the indictment
alleges the defendant personally engaged in the financial transaction,
use the second set of bracketed language. The multiple objective
situation may apply both to multiple intent (i.e., 1956(a)(1)(A)(i) and
(ii)) and to multiple knowledge (i.e., 1956(a)(1)(B)(i) and (ii))
allegations, as well as to allegations of violation of both
1956(a)(1)(A)(i) and 1956(a)(1)(B)(i). *See* Note 8, *supra*. *See also
United States v. Jackson*, 935 F.2d 832, 842 (7th Cir. 1991) (government
should give clear notice of the provision(s) under which it is
proceeding). Although there is no case law requiring unanimity on
objectives, if an instruction to that effect is desired, *see*
Instruction 5.06(F), *supra*.

**Committee Comments**

*See* Ninth Cir. Crim. Jury Instr. 8.33.2 (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.

**6.18.1956C MONEY LAUNDERING \-- FINANCIAL TRANSACTION TO**

**AVOID REPORTING REQUIREMENTS (18 U.S.C. § 1956(a)(1)(B)(ii))**

The crime of \[conducting\] \[attempting to conduct\] an illegal
financial transaction, as charged in \[Count\[s\] \_\_\_\_\_ of\] the
indictment has four elements, which are:

*One*, on or about (date),^1^ \[the defendant\] \[defendant\[s\]
(name\[s\])\] \[conducted\] \[attempted to conduct\]^2^ a financial
transaction,^3^ that is, (describe in simple terms, e.g., the purchase
of an automobile), which in any way or degree affected interstate or
foreign commerce;^4^

*Two*, the defendant\[s\] \[conducted\] \[attempted to conduct\] the
financial transaction with (describe the property, e.g., money,
certificates of deposit) that involved the proceeds^5^ of (describe the
specified unlawful activity,^6^ e.g., unlawful distribution of cocaine);

*Three*, at the time the defendant\[s\] \[conducted\] \[attempted to
conduct\] the financial transaction, the defendant\[s\] knew the
(describe property) represented the proceeds of some form of unlawful
activity;^7^ and

*Four*, the defendant\[s\] \[conducted\] \[attempted to conduct\] the
financial transaction knowing that the transaction was designed in whole
or in part to avoid a transaction reporting requirement under State or
Federal law.^8^

\[A defendant may be found to have attempted to conduct a financial
transaction if \[he\] \[she\] intended to conduct a financial
transaction and voluntarily and intentionally carried out some act which
was a substantial step toward conducting that financial transaction,
even if the transaction was never completed.\]^9^

\[The term \"conducted,\" as used in \[this\] \[Instruction\[s\]
\_\_\_\_\_\] includes initiating, concluding or participating in
initiating or concluding a transaction.\]^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^

\[The Currency Transaction Reporting (CTR) requirement of federal
law^12^ requires financial institutions to file a report for each
deposit, withdrawal, exchange of currency, or other payment or transfer,
by, through, or to such financial institution which involves a
transaction in currency of more than \$10,000. Multiple currency
transactions are treated as a single transaction if the financial
institution has knowledge that they are by or on behalf of any person
and result in either cash in or cash out totaling more than \$10,000
during any one business day. A financial institution includes all of its
domestic branch offices for purposes of this requirement. The phrase
\"financial institution\" includes (insert appropriate institution from
31 C.F.R. § 103.11(i), such as \"bank\" or \"savings & loan\").\]^13^

\[You may find that \[the defendant\] \[defendant\[s\] (name\[s\])\]
knew that the purpose of the transaction was to avoid the CTR reporting
requirement if you find beyond a reasonable doubt that (insert
appropriate language from Instruction 7.04).\]^14^

\[The crime charged in \[Count\[s\] \_\_\_\_ of\] the indictment alleges
multiple purposes for the crime, that is, that \[the defendant\]
\[defendant\[s\] (name\[s\])\] knew that the transaction was
\[conducted\] \[attempted\] for the purposes of (list all objectives).
To find \[the defendant\] \[defendant\[s\] (name\[s\])\] guilty of the
offense\[s\], you must agree unanimously that one or more of the
objectives charged were proved beyond a reasonable doubt.\]^15^

(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 on 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\. Both types of activity have been proscribed since original enactment
of section 1956. *See* 18 U.S.C. §§ 1956(a)(1), (a)(2) and (a)(3).

3\. *See* Instruction 6.18.1956J(1) (Financial Transaction), *infra*.
\"Financial transaction\" is a term of art originally defined in 18
U.S.C. § 1956(c)(4) and subsequently expanded and clarified through
amendments. It encompasses another statutorily defined term of art,
\"transaction,\" which has also been expanded since the enactment of
section 1956(c)(3). The Committee recommends careful review to determine
which of the provisions of sections 1956(c)(3) and 1956(c)(4) were in
effect at the time of the alleged financial transaction. *See* Note 1,
*supra*.

4\. *See* Instruction 6.18.1956J, *infra*. All section 1956 offenses
require proof that the financial transaction itself or the financial
institution, if one was involved, in some way affected interstate or
foreign commerce. *See* 18 U.S.C. § 1956(c)(4); *United States v.
Baker*, 985 F.2d 1248, 1252 (4th Cir. 1993) (element under
1956(a)(1)(B)(i)); *United States v. Posters \'N\' Things Ltd.*, 969
F.2d 652, 661 n.6 (8th Cir. 1992) (expert witness testified as to
issue), *aff\'d on other grounds,* 511 U.S. 513 (1994); *United States
v. Gonzalez-Rodriguez*, 966 F.2d 918, 924 (5th Cir. 1992) (discussing
*United States v. Gallo*, 927 F.2d 815, 823 (5th Cir. 1991) and *United
States v. Hamilton*, 931 F.2d 1046, 1051-52 (5th Cir. 1991)). The Eighth
Circuit has not ruled whether the indictment must explicitly allege the
interstate/foreign commerce nexus. *United States v. Lucas*, 932 F.2d
1210, 1219 (8th Cir. 1991) (court was not required to reach the issue
because the indictment which alleged construction of a shopping center
and purchase of merchandise could be reasonably construed to allege the
element). *See also United States v. Green*, 964 F.2d 365, 374 (5th Cir.
1992) (citing *Lucas*); *United States v. Lovett*, 964 F.2d 1029, 1038
(10th Cir. 1992) (under section 1957, the interstate commerce nexus is
jurisdictional but not an element of the crime charged) (citing *United
States v. Kelley*, 929 F.2d 582, 586 (10th Cir. 1991)). Given the lack
of controlling law on this issue, the Committee recommends that the
nexus be alleged in the indictment. In any case, a finding of an effect
on interstate or foreign commerce of either the transaction itself or
the activities of the financial institution, if one was involved, is
essential. *See United States v. Ben M. Hogan Co., Inc.*, 809 F.2d 480
(8^th^ Cir. 1987) (failure to instruct jury that it must find an
interstate commerce connection can be harmless error).

5\. *See* Instruction 6.18.1956J(6) (Proceeds), *infra*. The term is not
defined in 18 U.S.C. § 1956(c).

6\. *See* Instruction 6.18.1956J(7) (Specified Unlawful Activity),
*infra*. The term should not be confused with \"unlawful activity\" in
general and has a specific, statutory meaning, as set forth in section
1956(c)(7). Because that section has had numerous amendments, and itself
incorporates activities defined in several other statutes, the Committee
recommends careful review of both the provisions of section 1956(c)(7)
and of the incorporated statutes which were in effect at the time of the
alleged financial transaction (1956(a)(1)) or transportation,
transmission or transfer (1956)(a)(2)).

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,
*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.

7\. *See* Instruction 6.18.1956J, *infra*. The requirement that the
defendant knew the property involved in the financial transaction
represented the proceeds of some form of unlawful activity is common to
all section 1956(a)(1) offenses. \"Unlawful activity\" encompasses many
more violations than \"specified unlawful activity.\" *Compare* section
1956(c)(1) *with* section 1956(c)(7). However, between October 27, 1986,
and November 29, 1990, it did not include felony violations of foreign
law. *See* Note 1, *supra*.

8\. *See* Instruction 6.18.1956J(1) (Financial Transaction).
Determination of the transaction reporting requirements in effect on the
date of the alleged transaction requires reviewing the provisions of
both 31 U.S.C. §§ 5311-5327 and 31 C.F.R. Chapter 103, in effect on that
date. Further, if the alleged financial transaction involves the use of
a \"financial institution,\" both 31 U.S.C. § 5312(a)(2) and the
regulations promulgated thereunder, should be reviewed to ensure that
the entity was a financial institution. *See* 18 U.S.C. § 1956(c)(6)
(incorporating by reference 31 U.S.C § 5312(a)(2) and its regulations).

The decision in *Ratzlaf v. United States*, 510 U.S. 135 (1994) is not
likely applicable to violations of 18 U.S.C. § 1956. *Ratzlaf* involved
an interpretation of 31 U.S.C. § 5324 and the mental state required
under that statute. Because the mental state requirements of 18 U.S.C. §
1956 are clearly different, the applicability of *Ratzlaf* is doubtful.

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

10\. *See* 18 U.S.C. § 1956(c)(2). This definition was included in the
October 27, 1986, version of the statute and has not changed since.

11\. The supplemental definitions and instructions contained in
Instruction 6.18.1956J should be given in most cases. Whether they are
inserted in each 6.18.1956 instruction or given after a series of
6.18.1956A through 6.18.1956I instructions is an option for the court to
consider based on the number and types of money laundering counts and
the ability of the jury to relate the definitions to the applicable
counts.

12\. Use with 18 U.S.C. § 1956(a)(1)(B)(ii). In addition to Currency
Transaction Report (CTR) requirements under 31 U.S.C. § 5313, two other
common reporting requirements are Currency and Monetary Instrument
Reports (CMIR) under 31 U.S.C. § 5316 and Forms 8300, under 26 U.S.C. §
6050I. Analogous instructions about those reporting requirements and
their applicable provisions can be tailored for such cases.

13\. *See* 31 U.S.C. § 5313; 31 C.F.R. § 103.22. Care should be taken to
use the versions of the statutes and regulations in effect on the date
of the transaction. For CMIRs the applicable references are 31 U.S.C. §
5316 and 31 C.F.R. § 103.23. For Forms 8300, *see* 26 U.S.C. § 6050I.

14\. *See* Instruction 7.04, *infra*. The 1956(a)(1)(B) \"knowing\"
requirement encompasses instances of \"willful blindness.\" S. Rep. No.
433, 99th Cong., 2d Sess. 6, 10 (1986) *construed in* 27 Amer. Crim. L.
Rev. 167. *See also United States v. Kaufmann*, 985 F.2d 884, 897 n.6
(7th Cir. 1993) (\"ostrich\" instruction appropriate for counts
requiring knowledge); *United States v. Campbell*, 977 F.2d 854, 857-58
(4th Cir. 1992) (discussing a willful blindness instruction given in a
section 1956(a)(1)(B)(i) trial); *United States v. Montoya*, 945 F.2d
1068, 1076 (9th Cir. 1991) (distinguishing sections 1956(a)(1)(A) and
1956(a)(1)(B)); *United States v. Fuller*, 974 F.2d 1474, 1482 (5th Cir.
1992) (deliberate ignorance instruction regarding conspiracy to launder
money). In *United States v. Barnhart*, 979 F.2d 647, 651-52 (8th Cir.
1992), the Eighth Circuit addressed a willful blindness instruction
patterned on Instruction 7.04, *infra*, and held that such an
instruction \"should not be given unless there is evidence to support
the inference that the defendant was aware of a high probability of the
existence of the fact in question and purposely contrived to avoid
learning all of the facts in order to have a defense in the event of a
subsequent prosecution.\" *Id.* (quoting *United States v. Alvarado*,
838 F.2d 311, 314 (9th Cir. 1987). If there is evidence a defendant
actually believed that the transaction was for an innocent purpose,
*see* Instruction 7.04, *infra*, nn 3,4. The deliberate ignorance
instruction should not be given where the evidence points solely to
either actual knowledge, or lack thereof, and where there is no evidence
that the defendant had a conscious purpose to avoid learning the truth.
Note 5, Instruction 7.04, *infra*; *Barnhart*, 979 F.2d at 651. The
permissive rather than mandatory phrasing \"you *may* find\" comports
with the usage suggested in *Karras v. Leapley*, 974 F.2d 71, 74 n.6
(8th Cir. 1992).

15\. If the indictment alleges the defendant did not personally conduct
the transaction but knew the transaction was conducted for more than one
purpose, use the first set of bracketed language. If the indictment
alleges the defendant personally engaged in the financial transaction,
use the second set of bracketed language. The multiple objective
situation may apply both to multiple intent (i.e., 1956(a)(1)(A)(i) and
(ii)) and to multiple knowledge (i.e., 1956(a)(1)(B)(i) and (ii))
allegations, as well as to allegations of violation of both
1956(a)(1)(A)(i) and 1956(a)(1)(B)(i). *See United States v. Jackson*,
935 F.2d 832, 842 (7th Cir. 1991) (government should give clear notice
of the provision(s) under which it is proceeding). Although there is no
case law requiring unanimity on objectives, if an instruction to that
effect is desired, *see* Instruction 5.06(F), *supra*.

**Committee Comments**

*See* Ninth Cir. Crim. Jury Instr. 8.33.2 (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.

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

**INSTRUMENTS AND FUNDS TO PROMOTE SPECIFIED**

**UNLAWFUL ACTIVITY (18 U.S.C. § 1956(a)(2)(A))**

The crime of illegally \[attempting to\] \[transport\[ing\]\]
\[transmit\[ting\]\] \[transfer\[ring\]\] a monetary instrument, as
charged in \[Count\[s\] \_\_\_\_ of\] the indictment has three 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*, the defendant\[s\] did so with intent to promote the carrying on
of (describe the specified unlawful activity)^6^; and

*Three*, 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.\]^7^

\[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).\]^8^

(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 6 and 12, Instruction 6.18.1956A, *supra*, and
6.18.1956J(7) (Specified Unlawful Activity), *infra*.

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

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

**Committee Comments**

*See* Ninth Cir. Crim. Jury Instr. 8.33.3 (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.

**6.18.1956E 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*. 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.

**6.18.1956F MONEY LAUNDERING \-- MOVEMENT OF MONETARY INSTRUMENTS**

**AND FUNDS TO AVOID REPORTING REQUIREMENTS (18 U.S.C. §
1956(a)(2)(B)(ii))**

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 avoid a
transaction reporting requirement under State or Federal law;^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^

\[The Currency Transaction Reporting (CTR) requirement of federal
law^12^ requires financial institutions to file a report for each
deposit, withdrawal, exchange of currency, or other payment or transfer,
by, through, or to such financial institution which involves a
transaction in currency of more than \$10,000. Multiple currency
transactions are treated as a single transaction if the financial
institution has knowledge that they are by or on behalf of any person
and result in either cash in or cash out totaling more than \$10,000
during any one business day. A financial institution includes all of its
domestic branch offices for purposes of this requirement. The phrase
\"financial institution\" includes (insert appropriate institution from
31 C.F.R. § 103.11(i), such as \"bank\" or \"savings & loan\").\]^13^

\[You may find that \[the defendant\] \[defendant\[s\] (name\[s\])\]
knew that the purpose of the \[attempted\] act was to avoid the CTR
reporting requirement if you find beyond a reasonable doubt that (insert
appropriate language from Instruction 7.04).\]^14^

(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 \"\[s\]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).

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*. 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, Instruction 6.18.1956B, *supra*, 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(6) (Proceeds), *infra*.

8\. *See* Note 7, Instruction 6.18.1956A, *supra*, and 6.18.1956J(7)
(Specified Unlawful Activity), *infra*. The phrase \"unlawful activity\"
as used in this instruction is broader than the phrase \"specified
unlawful activity\" as used in 18 U.S.C. § 1956.

9\. *See* Notes 8, 12-15 and text preceding them, Instruction
6.18.1956C, *supra*.

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

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

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

13\. *See* Note 13, Instruction 6.18.1956C, *supra*.

14\. *See* Note 14, Instruction 6.18.1956C, *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.

**6.18.1956G MONEY LAUNDERING \"STING\" \-- FINANCIAL**

**TRANSACTION WITH INTENT TO PROMOTE**

**SPECIFIED UNLAWFUL ACTIVITY (18 U.S.C. § 1956(a)(3)(A))**

The crime of \[conducting\] \[attempting to conduct\] an illegal
financial transaction, as charged in \[Count\[s\] \_\_\_\_ of\] the
indictment has three elements, which are:

*One*, on or about (date),^1^ \[the defendant\] \[defendant\[s\]
(name\[s\])\] \[conducted\] \[attempted to conduct\]^2^ a financial
transaction,^3^ that is, (describe in simple terms, e.g., the purchase
of an automobile), which in any way or degree affected interstate or
foreign commerce;^4^

*Two*, the financial transaction involved (describe the \"property,\"
e.g., money) which was represented^5^ to the defendant\[s\] by \[a law
enforcement officer\] \[a person acting at the direction of or with the
approval of an agent of the (name of agency, *see* 18 U.S.C. §
1956(e))\] to be the proceeds^6^ of (describe the specified unlawful
activity,^7^ e.g., unlawful distribution of cocaine); and

*Three*, the defendant \[conducted\] \[attempted to conduct\] the
financial transaction with the intent to promote the carrying on of
(describe the specified unlawful activity).^8^

\[A defendant may be found to have attempted to conduct a financial
transaction if \[he\] \[she\] intended to conduct a financial
transaction and voluntarily and intentionally carried out some act which
was a substantial step toward conducting that financial transaction,
even if the transaction was never completed.\]^9^

\[The term \"conducted,\" as used in \[this\] \[Instruction\[s\]
\_\_\_\_\_\] includes initiating, concluding or participating in
initiating or concluding a transaction.\]^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^

\[It is not necessary to show that \[a\] \[the\] defendant intended to
commit (specify additional crime) \[himself\] \[herself\];^12^ it is
sufficient that in \[conducting\] \[attempting to conduct\] the
financial transaction, \[a\] \[the\] defendant \[himself\] \[herself\]
intended to make the unlawful activity easier or less difficult.\]

\[The crime charged in \[Count\[s\] \_\_\_\_ of\] the indictment alleges
multiple purposes for the crime, that is, that \[the defendant\]
\[defendant\[s\] (name\[s\])\] knew that the transaction was
\[conducted\] \[attempted\] for the purposes of (list all objectives).
To find \[the defendant\] \[defendant\[s\] (name\[s\])\] guilty of the
offense\[s\], you must agree unanimously that one or more of the
objectives charged were proved beyond a reasonable doubt.\]^13^

(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\. Both types of activity have been proscribed since original enactment
of section 1956. *See* 18 U.S.C. §§ 1956(a)(1), (a)(2) and (a)(3).

3\. *See* Instruction 6.18.1956J(1) (Financial Transaction), *infra*.
\"Financial transaction\" is a term of art originally defined in 18
U.S.C. § 1956(c)(4) and subsequently expanded and clarified through
amendments. It encompasses another statutorily defined term of art,
\"transaction,\" which has also been expanded since the enactment of
section 1956(c)(3). The Committee recommends careful review to determine
which of the provisions of sections 1956(c)(3) and 1956(c)(4) were in
effect at the time of the alleged financial transaction. *See* Note 1,
*supra*.

4\. *See* Instruction 6.18.1956J(2) (Interstate and Foreign Commerce),
*infra*. All section 1956 offenses require proof that the financial
transaction itself or the financial institution, if one was involved, in
some way affected interstate or foreign commerce. *See* 18 U.S.C. §
1956(c)(4); *United States v. Baker*, 985 F.2d 1248, 1252 (4th Cir.
1993) (element under section 1956(a)(1)(B)(i)); *United States v.
Posters \'N\' Things Ltd.*, 969 F.2d 652, 661 n.6 (8th Cir. 1992)
(expert witness testified as to issue), *aff\'d on other grounds,* 511
U.S. 513 (1994); *United States v. Gonzalez-Rodriguez*, 966 F.2d 918,
924 (5th Cir. 1992) (discussing *United States v. Gallo*, 927 F.2d 815,
823 (5th Cir. 1991) and *United States v. Hamilton*, 931 F.2d 1046,
1051-52 (5th Cir. 1991)). The Eighth Circuit has not ruled whether the
indictment must explicitly allege the interstate/foreign commerce nexus.
*United States v. Lucas*, 932 F.2d 1210, 1219 (8th Cir. 1991) (court was
not required to reach the issue because the indictment which alleged
construction of a shopping center and purchase of merchandise could be
reasonably construed to allege the element). *See also United States v.
Green*, 964 F.2d 365, 374 (5th Cir. 1992) (citing *Lucas*); *United
States v. Lovett*, 964 F.2d 1029, 1038 (10th Cir. 1992) (under section
1957, the interstate commerce nexus is jurisdictional but not an element
of the crime charged) (citing *United States v. Kelley*, 929 F.2d 582,
586 (10th Cir. 1991)). Given the lack of controlling law on this issue,
the Committee recommends that the nexus be alleged in the indictment. In
any case, a finding of an effect on interstate or foreign commerce of
either the transaction itself or the activities of the financial
institution, if one was involved, is essential. *See United States v.
Ben M. Hogan Co., Inc.*, 809 F.2d 480 (8^th^ Cir. 1987) (failure to
instruct jury that it must find an interstate commerce connection can be
harmless error).

5\. On the issue of what constitutes a sufficient representation, the
Seventh Circuit has stated, \"\[i\]t is enough that the government prove
that an enforcement officer or authorized person made the defendant
aware of circumstances from which a reasonable person would infer that
the property was drug proceeds.\" *United States v. Kaufmann*, 985 F.2d
884, 893 (7th Cir. 1993).

6\. *See* Instruction 6.18.1956J(6) (Proceeds). The term is not defined
in 18 U.S.C. § 1956(c). In the event that the representation was that
the property \"was used to conduct or facilitate specified unlawful
activity\" rather than \"constituted proceeds,\" the following language
might be used: \"property used to \[conduct\] \[facilitate\] (describe
the specified unlawful activity).\" There is some ambiguity as to
whether this a crime as the statute is written. *See Money Laundering
Federal Prosecution Manual*, p.277.

7\. *See* Instruction 6.18.1956J(7) (Specified Unlawful Activity),
*infra*. The term should not be confused with \"unlawful activity\" in
general and has a specific, statutory meaning, as set forth in section
1956(c)(7). Because that section has had numerous amendments, and itself
incorporates activities defined in several other statutes, the Committee
recommends careful review of both the provisions of section 1956(c)(7)
and of the incorporated statutes which were in effect at the time of the
alleged financial transaction (1956(a)(1)) or transportation,
transmission or transfer (1956)(a)(2)).

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,
*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.

8\. The mens rea required under sections 1956(a)(1)(A), (a)(2)(A), and
(a)(3) offenses is more restrictive than under sections 1956(a)(1)(B)
and (a)(2)(B). The former requires proof of the defendant\'s intent; the
latter merely requires that the defendant have knowledge of the object
of the financial transaction. *See* G. Richard Strafer, *Money
Laundering: The Crime of the \'90\'s*, 27 Amer. Crim. L. Rev. 149, 162,
172 (1989).

Under sections 1956(a)(1)(A)(i), 1956(a)(2)(a) and 1956(a)(3), the
defendant must have acted with the intent to promote a \"specified\"
unlawful activity, as defined in 18 U.S.C. § 1956(c)(7), rather than the
more broadly described unlawful activity defined in 18 U.S.C. §
1956(c)(1). *See* Note 11, *infra*. Although the specified unlawful
activity inserted in the second element, *see* Note 6, *supra*, will
frequently be the same set forth regarding the defendant\'s intent, the
two forms of specified unlawful activity need not be the same, e.g.,
drug proceeds with which the defendant conducts a transaction with the
intent of making a fraudulent credit application.

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

10\. *See* 18 U.S.C. § 1956(c)(2). This definition was included in the
October 27, 1986, version of the statute and has not changed since.

11\. The supplemental definitions and instructions contained in
Instruction 6.18.1956J, *infra*, should be given in most cases. Whether
they are inserted in each 6.18.1956 instruction or given after a series
of 6.18.1956A through 6.18.1956I instructions is an option for the court
to consider based on the number and types of money laundering counts and
the ability of the jury to relate the definitions to the applicable
counts.

12\. *See United States v. Jackson*, 935 F.2d 832, 841 (7th Cir. 1991);
*United States v. Rogers*, 788 F.2d 1472, 1476 (11th Cir. 1986)
(facilitating the promotion of unlawful activity in the context of 18
U.S.C. § 1952(a)(3) (\"Travel Act\") cases is satisfied by proof the
defendant\'s action made the unlawful activity easy or less difficult);
*see also United States v. Corona*, 885 F.2d 766, 773 (11th Cir. 1989)
(the defendant himself does not have to be involved in the offense being
facilitated). The specified unlawful activity which a defendant intends
to promote may be a continuing offense, may be still underway or may be
an offense that will be committed in the future. The financial
transaction need not be linked to a specific future offense; it is
sufficient if a defendant intended to promote a specified unlawful
activity generally. For example, issuing checks to vendors providing
beeper and mobile telephone services used in a continuing criminal
enterprise would qualify, but purchases of cellular phones not
previously used or clearly intended for use in the enterprise would not.

13\. The multiple objective situation may apply to multiple intent
allegations, i.e., sections 1956(a)(3)(A), (B) and (C). The indictment,
and the government, should provide notice of the provisions that are
meant to apply in a particular case. *See United States v. Jackson*, 935
F.2d 832, 842 (7th Cir. 1991). Although there is no case law requiring
unanimity on objectives, if an instruction to that effect is desired,
*see* Instruction 5.06(F), *supra*.

**Committee Comments**

*See* Ninth Cir. Crim. Jury Instr. 8.33.1 (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.

**6.18.1956H MONEY LAUNDERING \"STING\" \-- FINANCIAL TRANSACTION**

**WITH INTENT TO CONCEAL NATURE OF PROPERTY (18 U.S.C. §
1956(a)(3)(B))**

The crime of \[conducting\] \[attempting to conduct\] an illegal
financial transaction, as charged in \[Count\[s\] \_\_\_\_ of\] the
indictment has three elements, which are:

*One*, on or about (date),^1^ \[the defendant\] \[defendant\[s\]
(name\[s\])\] \[conducted\] \[attempted to conduct\]^2^ a financial
transaction,^3^ that is, (describe in simple terms, e.g., the purchase
of an automobile), which in any way or degree affected interstate or
foreign commerce;^4^

*Two*, the financial transaction involved (describe the \"property,\"
e.g., money) which was represented^5^ to the defendant\[s\] by \[a law
enforcement officer\] \[a person acting at the direction of or with the
approval of an agent of the (name of agency, *see* 18 U.S.C. §
1956(e))\] to be the proceeds^6^ of (describe the specified unlawful
activity,^7^ e.g., unlawful distribution of cocaine); and

*Three*, the defendant \[conducted\] \[attempted to conduct\] the
financial transaction with the intent to conceal and disguise^8^ the
nature, location, source, ownership or control of (describe the
\"property\") which the defendant believed^9^ to be the proceeds of
(describe the specified unlawful activity).

\[A defendant may be found to have attempted to conduct a financial
transaction if \[he\] \[she\] intended to conduct a financial
transaction and voluntarily and intentionally carried out some act which
was a substantial step toward conducting that financial transaction,
even if the transaction was never completed.\]^10^

\[The term \"conducted,\" as used in \[this\] \[Instruction\[s\]
\_\_\_\_\_\] includes initiating, concluding or participating in
initiating or concluding a transaction.\]^11^

\[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).\]^12^

\[It is not necessary to show that \[a\] \[the\] defendant intended to
commit (specify additional crime) \[himself\] \[herself\], it is
sufficient that in \[conducting\] \[attempting to conduct\] the
financial transaction, \[a\] \[the\] defendant \[himself\] \[herself\]
intended to make the unlawful activity easier or less difficult.\].^13^

\[The crime charged in \[Count\[s\] \_\_\_\_ of\] the indictment alleges
multiple purposes for the crime, that is, that \[the defendant\]
\[defendant\[s\] (name\[s\])\] knew that the transaction was
\[conducted\] \[attempted\] for the purposes of (list all objectives).
To find \[the defendant\] \[defendant\[s\] (name\[s\])\] guilty of the
offense\[s\], you must agree unanimously that one or more of the
objectives charged were proved beyond a reasonable doubt.\]^14^

(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 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\. Both types of activity have been proscribed since original enactment
of section 1956. *See* 18 U.S.C. §§ 1956(a)(1), (a)(2) and (a)(3).

3\. *See* Instruction 6.18.1956J(1) (Financial Transaction), *infra*.
\"Financial transaction\" is a term of art originally defined in 18
U.S.C. § 1956(c)(4) and subsequently expanded and clarified through
amendments. It encompasses another statutorily defined term of art,
\"transaction,\" which has also been expanded since the enactment of
section 1956(c)(3). The Committee recommends careful review to determine
which of the provisions of sections 1956(c)(3) and 1956(c)(4) were in
effect at the time of the alleged financial transaction. *See* Note 1,
*supra*.

4\. *See* Instruction 6.18.1956J(2) (Interstate and Foreign Commerce),
*infra*. All section 1956 offenses require proof that the financial
transaction itself or the financial institution, if one was involved, in
some way affected interstate or foreign commerce. *See* 18 U.S.C. §
1956(c)(4); *United States v. Baker*, 985 F.2d 1248, 1252 (4th Cir.
1993) (element under section 1956(a)(1)(B)(i)); *United States v.
Posters \'N\' Things Ltd.*, 969 F.2d 652, 661 n.6 (8th Cir. 1992)
(expert witness testified as to issue), *aff\'d on other grounds,* 511
U.S. 513 (1994); *United States v. Gonzalez-Rodriguez*, 966 F.2d 918,
924 (5th Cir. 1992) (discussing *United States v. Gallo*, 927 F.2d 815,
823 (5th Cir. 1991) and *United States v. Hamilton*, 931 F.2d 1046,
1051-52 (5th Cir. 1991)). The Eighth Circuit has not ruled whether the
indictment must explicitly allege the interstate/foreign commerce nexus.
*United States v. Lucas*, 932 F.2d 1210, 1219 (8th Cir. 1991) (court was
not required to reach the issue because the indictment which alleged
construction of a shopping center and purchase of merchandise could be
reasonably construed to allege the element). *See also United States v.
Green*, 964 F.2d 365, 374 (5th Cir. 1992) (citing *Lucas*); *United
States v. Lovett*, 964 F.2d 1029, 1038 (10th Cir. 1992) (under section
1957, the interstate commerce nexus is jurisdictional but not an element
of the crime charged) (citing *United States v. Kelley*, 929 F.2d 582,
586 (10th Cir. 1991)). Given the lack of controlling law on this issue,
the Committee recommends that the nexus be alleged in the indictment. In
any case, a finding of an effect on interstate or foreign commerce of
either the transaction itself or the activities of the financial
institution, if one was involved, is essential. *See United States v.
Ben M. Hogan Co., Inc.*, 769 F.2d 1293, 1297 (8th Cir. 1985) (reversible
error for a district court to give an instruction which could have been
understood to include a conclusive presumption of effect on interstate
commerce, where such a finding by the jury was essential in a
prosecution under the Sherman Anti-Trust Act).

5\. On the issue of what constitutes a sufficient representation, the
Seventh Circuit has stated, \"\[i\]t is enough that the government prove
that an enforcement officer or authorized person made the defendant
aware of circumstances from which a reasonable person would infer that
the property was drug proceeds.\" *United States v. Kaufmann*, 985 F.2d
884, 893 (7th Cir. 1993).

6\. *See* Instruction 6.18.1956J(6) (Proceeds), *infra*. The term is not
defined in 18 U.S.C. § 1956(c). In the event that the representation was
that the property \"was used to conduct or facilitate specified unlawful
activity\" rather than \"constituted proceeds,\" the following language
might be used: \"property used to \[conduct\] \[facilitate\] (describe
the specified unlawful activity).\" There is some ambiguity as to
whether this is a crime as the statute is written. *See Money Laundering
Federal Prosecution Manual*, p.277.

7\. *See* Instruction 6.18.1956J(7) (Specified Unlawful Activity),
*infra*. The term should not be confused with \"unlawful activity\" in
general and has a specific, statutory meaning, as set forth in section
1956(c)(7). Because that section has had numerous amendments, and itself
incorporates activities defined in several other statutes, the Committee
recommends careful review of both the provisions of section 1956(c)(7)
and of the incorporated statutes which were in effect at the time of the
alleged financial transaction (section 1956(a)(1)) or transportation,
transmission or transfer (section 1956)(a)(2)).

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,
*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.

8\. There must be proof of a design to conceal or disguise the nature,
location, source, ownership or control of the proceeds. A \"typical\"
money laundering transaction involving purchases in third-party names
frequently satisfies this element. Purchases in the names of close
family members, however, are problematic, especially where the
defendant\'s subsequent use of the asset is open and conspicuous.
*Compare United States v. Sanders*, 929 F.2d 1466, 1472 (10th Cir. 1991)
(contrasting *United States v. Lee*, 886 F.2d 998, 1002-03 (8th Cir.
1989)) *with United States v. Sutera*, 933 F.2d 641, 648 (8th Cir. 1991)
(money laundering statute did not require that the defendant did a good
job of laundering the proceeds; the jury simply had to find that the
defendant intended to hide them) *and United States v. Posters \'N\'
Things Ltd.*, 969 F.2d 652, 661 n.7 (8th Cir. 1992) (the defendant
commingled legitimate and illegitimate business receipts over a three
year period; despite no attempt to disguise control of the account, one
could infer from her record keeping and bank activity a design to
conceal or disguise her illegal proceeds), *aff\'d on other grounds*,
511 U.S. 513 (1994).

9\. The government must prove that the defendant believed that the
\"property\" was in fact proceeds of specified unlawful activity when
prosecuting under section 1956(a)(3)(B). *United States v. Kaufmann*,
985 F.2d 884, 896-97 (7th Cir. 1993). \"Knowledge\" and \"belief\" are
separate concepts, and a \"willful blindness\" or \"deliberate
ignorance\" theory cannot be used to establish belief in the way it can
be used to establish knowledge. *United States v. Kaufmann*.

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

11\. *See* 18 U.S.C. § 1956(c)(2). This definition was included in the
October 27, 1986, version of the statute and has not changed since.

12\. The supplemental definitions and instructions contained in
Instruction 6.18.1956J, *infra*, should be given in most cases. Whether
they are inserted in each 6.18.1956 instruction or given after a series
of 6.18.1956A through 6.18.1956I instructions is an option for the court
to consider based on the number and types of money laundering counts and
the ability of the jury to relate the definitions to the applicable
counts.

13\. *See United States v. Jackson*, 935 F.2d 832, 841 (7th Cir. 1991);
*United States v. Rogers*, 788 F.2d 1472, 1476 (11th Cir. 1986)
(facilitating the promotion of unlawful activity in the context of 18
U.S.C. § 1952(a)(3) (\"Travel Act\") cases is satisfied by proof the
defendant\'s action made the unlawful activity easy or less difficult);
*see also United States v. Corona*, 885 F.2d 766, 773 (11th Cir. 1989)
(the defendant himself does not have to be involved in the offense being
facilitated). The specified unlawful activity which a defendant intends
to promote may be a continuing offense, may be still underway or may be
an offense that will be committed in the future. The financial
transaction need not be linked to a specific future offense; it is
sufficient if a defendant intended to promote a specified unlawful
activity generally. For example, issuing checks to vendors providing
beeper and mobile telephone services used in a continuing criminal
enterprise would qualify, but purchases of cellular phones not
previously used or clearly intended for use in the enterprise would not.

14\. The multiple objective situation may apply to multiple intent
allegations, i.e., sections 1956(a)(3)(A), (B) and (C). The indictment,
and the government, should provide notice of the provisions that are
meant to apply in a particular case. *See United States v. Jackson*, 935
F.2d 832, 842 (7th Cir. 1991). Although there is no case law requiring
unanimity on objectives, if an instruction to that effect is desired,
*see* Instruction 5.06(F), *supra*.

**Committee Comments**

*See* Ninth Cir. Crim. Jury Instr. 8.33.2 (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.

**6.18.1956I MONEY LAUNDERING \"STING\" \-- FINANCIAL**

**TRANSACTION WITH INTENT TO AVOID TRANSACTION**

**REPORTING REQUIREMENT (18 U.S.C. § 1956(a)(3)(C))**

The crime of \[conducting\] \[attempting to conduct\] an illegal
financial transaction, as charged in \[Count\[s\] \_\_\_\_ of\] the
indictment has three elements, which are:

*One*, on or about (date),^1^ \[the defendant\] \[defendant\[s\]
(name\[s\])\] \[conducted\] \[attempted to conduct\]^2^ a financial
transaction,^3^ that is, (describe in simple terms, e.g., the purchase
of an automobile), which in any way or degree affected interstate or
foreign commerce;^4^

*Two*, the financial transaction involved (describe the \"property,\"
e.g., money) which was represented^5^ to the defendant\[s\] by \[a law
enforcement officer\] \[a person acting at the direction of or with the
approval of an agent of the (name of agency, *see* 18 U.S.C. §
1956(e))\] to be the proceeds^6^ of (describe the specified unlawful
activity,^7^ e.g., unlawful distribution of cocaine); and

*Three*, the defendant \[conducted\] \[attempted to conduct\] the
financial transaction with the intent to avoid a transaction reporting
requirement of State or Federal law.^8^

\[A defendant may be found to have attempted to conduct a financial
transaction if \[he\] \[she\] intended to conduct a financial
transaction and voluntarily and intentionally carried out some act which
was a substantial step toward conducting that financial transaction,
even if the transaction was never completed.\]^9^

\[The term \"conducted,\" as used in \[this\] \[Instruction\[s\]
\_\_\_\_\_\] includes initiating, concluding or participating in
initiating or concluding a transaction.\]^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^

\[The Currency Transaction Reporting (CTR) requirement of federal
law^12^ requires financial institutions to file a report for each
deposit, withdrawal, exchange of currency, or other payment or transfer,
by, through, or to such financial institution which involves a
transaction in currency of more than \$10,000. Multiple currency
transactions are treated as a single transaction if the financial
institution has knowledge that they are by or on behalf of any person
and result in either cash in or cash out totaling more than \$10,000
during any one business day. A financial institution includes all of its
domestic branch offices for purposes of this requirement. The phrase
\"financial institution\" includes (insert appropriate institution from
31 C.F.R. § 103.11(i), such as \"bank\" or \"savings & loan\").\]^13^

\[The crime charged in \[Count\[s\] \_\_\_\_ of\] the indictment alleges
multiple purposes for the crime, that is, that \[the defendant\]
\[defendant\[s\] (name\[s\])\] knew that the transaction was
\[conducted\] \[attempted\] for the purposes of (list all objectives).
To find \[the defendant\] \[defendant\[s\] (name\[s\])\] guilty of the
offense\[s\], you must agree unanimously that one or more of the
objectives charged were proved beyond a reasonable doubt.\]^14^

(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 on 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).

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\. Both types of activity have been proscribed since original enactment
of section 1956. *See* 18 U.S.C. §§ 1956(a)(1), (a)(2) and (a)(3).

3\. *See* Instruction 6.18.1956J(1) (Financial Transaction), *infra*.
\"Financial transaction\" is a term of art originally defined in 18
U.S.C. § 1956(c)(4) and subsequently expanded and clarified through
amendments. It encompasses another statutorily defined term of art,
\"transaction,\" which has also been expanded since the enactment of
section 1956(c)(3). The Committee recommends careful review to determine
which of the provisions of sections 1956(c)(3) and 1956(c)(4) were in
effect at the time of the alleged financial transaction. *See* Note 1,
*supra*.

4\. *See* Instruction 6.18.1956J(2) (Interstate and Foreign Commerce),
*infra*. All section 1956 offenses require proof that the financial
transaction itself or the financial institution, if one was involved, in
some way affected interstate or foreign commerce. *See* 18 U.S.C. §
1956(c)(4); *United States v. Baker*, 985 F.2d 1248, 1252 (4th Cir.
1993) (element under 1956(a)(1)(B)(i)); *United States v. Posters \'N\'
Things Ltd.*, 969 F.2d 652, 661 n.6 (8th Cir. 1992) (expert witness
testified as to issue), *aff\'d on other grounds,* 511 U.S. 513 (1994);
*United States v. Gonzalez-Rodriguez*, 966 F.2d 918, 924 (5th Cir. 1992)
(discussing *United States v. Gallo*, 927 F.2d 815, 823 (5th Cir. 1991)
and *United States v. Hamilton*, 931 F.2d 1046, 1051-52 (5th Cir.
1991)). The Eighth Circuit has not ruled whether the indictment must
explicitly allege the interstate/foreign commerce nexus. *United States
v. Lucas*, 932 F.2d 1210, 1219 (8th Cir. 1991) (court was not required
to reach the issue because the indictment which alleged construction of
a shopping center and purchase of merchandise could be reasonably
construed to allege the element). *See also United States v. Green*, 964
F.2d 365, 374 (5th Cir. 1992) (citing *Lucas*); *United States v.
Lovett*, 964 F.2d 1029, 1038 (10th Cir. 1992) (under section 1957, the
interstate commerce nexus is jurisdictional but not an element of the
crime charged) (citing *United States v. Kelley*, 929 F.2d 582, 586
(10th Cir. 1991)). Given the lack of controlling law on this issue, the
Committee recommends that the nexus be alleged in the indictment. In any
case, a finding of an effect on interstate or foreign commerce of either
the transaction itself or the activities of the financial institution,
if one was involved, is essential. *See United States v. Ben M. Hogan
Co., Inc.*, 769 F.2d 1293, 1297 (8th Cir. 1985) (reversible error for a
district court to give an instruction which could have been understood
to include a conclusive presumption of effect on interstate commerce,
where such a finding by the jury was essential in a prosecution under
the Sherman Anti-Trust Act).

5\. On the issue of what constitutes a sufficient representation, the
Seventh Circuit has stated, \"\[i\]t is enough that the government prove
that an enforcement officer or authorized person made the defendant
aware of circumstances from which a reasonable person would infer that
the property was drug proceeds.\" *United States v. Kaufmann*, 985 F.2d
884, 893 (7th Cir. 1993).

6\. *See* Instruction 6.18.1956J(6) (Proceeds), *infra*. The term is not
defined in 18 U.S.C. § 1956(c). In the event that the representation was
that the property \"was used to conduct or facilitate specified unlawful
activity\" rather than \"constituted proceeds,\" the following language
might be used: \"property used to \[conduct\] \[facilitate\] (describe
the specified unlawful activity).\" There is some ambiguity as to
whether this is a crime as the statute is written. *See Money Laundering
Federal Prosecution Manual*, p.277.

7\. *See* Instruction 6.18.1956J(7) (Specified Unlawful Activity),
*infra*. The term should not be confused with \"unlawful activity\" in
general and has a specific, statutory meaning, as set forth in section
1956(c)(7). Because that section has had numerous amendments, and itself
incorporates activities defined in several other statutes, the Committee
recommends careful review of both the provisions of section 1956(c)(7)
and of the incorporated statutes which were in effect at the time of the
alleged financial transaction (section 1956(a)(1)) or transportation,
transmission or transfer (section 1956)(a)(2)).

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,
*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.

8\. *See* Instruction 6.18.1956J(1) (Financial Transaction), *infra*.
Determination of the transaction reporting requirements in effect on the
date of the alleged transaction requires reviewing the provisions of
both 31 U.S.C. §§ 5311-5327 and 31 C.F.R. Chapter 103, in effect on that
date. Further, if the alleged financial transaction involves the use of
a \"financial institution,\" both 31 U.S.C. § 5312(a)(2) and the
regulations promulgated thereunder, should be reviewed to ensure that
the entity was a financial institution. *See* 18 U.S.C. § 1956(c)(6)
(incorporating by reference 31 U.S.C § 5312(a)(2) and its regulations).

The decision in *Ratzlaf v. United States*, 510 U.S. 135 (1994) is not
likely applicable to violations of 18 U.S.C. § 1956. *Ratzlaf* involved
an interpretation of 31 U.S.C. § 5324 and the mental state required
under that statute. Because the mental state requirements of 18 U.S.C. §
1956 are clearly different, the applicability of *Ratzlaf* is doubtful.

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

10\. *See* 18 U.S.C. § 1956(c)(2). This definition was included in the
October 27, 1986, version of the statute and has not changed since.

11\. The supplemental definitions and instructions contained in
Instruction 6.18.1956J, *infra*, should be given in most cases. Whether
they are inserted in each 6.18.1956 instruction or given after a series
of 6.18.1956A through 6.18.1956I instructions is an option for the court
to consider based on the number and types of money laundering counts and
the ability of the jury to relate the definitions to the applicable
counts.

12\. In addition to Currency Transaction Report (CTR) requirements under
31 U.S.C. § 5313, two other common reporting requirements are Currency
and Monetary Instrument Reports (CMIR) under 31 U.S.C. § 5316 and Forms
8300, under 26 U.S.C. § 6050I. Analogous instructions about those
reporting requirements and their applicable provisions can be tailored
for such cases.

13\. *See* 31 U.S.C. § 5313; 31 C.F.R. § 103.22. Care should be taken to
use the versions of the statutes and regulations in effect on the date
of the transaction. For CMIRs the applicable references are 31 U.S.C. §
5316 and 31 C.F.R. § 103.23. For Forms 8300, *see* 26 U.S.C. § 6050I.

14\. The multiple objective situation may apply to multiple intent
allegations, i.e., sections 1956(a)(3)(A), (B) and (C). The indictment,
and the government, should provide notice of the provisions that are
meant to apply in a particular case. *See United States v. Jackson*, 935
F.2d 832, 842 (7th Cir. 1991). Although there is no case law requiring
unanimity on objectives, if an instruction to that effect is desired,
*see* Instruction 5.06(F), *supra*.

**Committee Comments**

*See* Ninth Cir. Crim. Jury Instr. 8.33.2 (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). This 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. Other courts have held
that \"proceeds\" is a term susceptible of finding an \"ordinary,
contemporary, common meaning.\" *United States v. Gleave*, 786 F. Supp.
258, 270 (W.D.N.Y. 1992). In *Gleave*, the specified unlawful activity
was concealment of funds from the Trustee and creditors in bankruptcy;
the financial transactions included wire transfer and the use of
monetary instruments. 786 F. Supp. at 269. Similarly, in *United States
v. Ortiz*, 738 F. Supp. 1394, 1400 (S.D. Fla. 1990), the court found
that a hot water heater full of money was clearly proceeds within the
commonly accepted meaning of the word. *Id.* Drawing upon a dictionary,
law dictionary, and Supreme Court case law, the district court, in
dicta, provided an expansive definition which includes the sum, amount
or value of property sold or converted into money or other property, not
necessarily only cash or money. *Id.*

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*.

**6.18.1957 ENGAGING IN MONETARY TRANSACTIONS IN PROPERTY DERIVED**

**FROM SPECIFIED UNLAWFUL ACTIVITY (18 U.S.C. § 1957)**

The crime of engaging in a monetary transaction in property derived from
(describe specified unlawful activity), as charged in \[Count\[s\]
\_\_\_\_ of\] the indictment, has five elements, which are:

*One*, on or about (date),^1^ the defendant\[s\] knowingly (describe the
\"monetary transaction,\" e.g., withdrew funds from an account at ABC
Bank);^2^

*Two*, the (describe \"monetary transaction,\" e.g., withdrawal) was
\[of\] \[in\] property^3^ of a value greater than \$10,000 derived from
(describe \"specified unlawful activity,\" e.g., bank fraud) as defined
in Instruction No. \_\_\_\_\_;^4^

*Three*, the defendant\[s\] then knew that (describe the \"monetary
transaction\") involved proceeds of a criminal offense;^5^

*Four*, the (describe the \"monetary transaction\") took place in
(describe location of the transaction);^6^ and

*Five*, the (describe the \"monetary transaction\") in some way or
degree affected interstate commerce.

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

**Notes on Use**

1\. *See* Note 1, Instruction 6.18.1956A, *supra*. The statute became
effective October 27, 1986. Anti-Drug Abuse Act of 1986, Pub. L. No.
99-570, Title I, § 1352(a), 100 Stat. 3207-21. Effective November 18,
1988, the definition of \"monetary transaction\" was decoupled from the
definition of \"monetary instrument\" under 31 U.S.C. § 5312 and made
the same as 18 U.S.C. § 1956(c)(5). Anti-Drug Abuse Act of 1988, Pub. L.
No. 100-690, Title VI, §§ 6182, 6184 and 6469(a)(2), 102 Stat. 4354 and
4377. The statute was further amended, effective October 28, 1992. Pub.
L. 102-550, Title XV, §§ 1526(b) and 1527(b), 106 Stat. 4065. That
change decoupled the definition of \"financial institution\" from 31
U.S.C. § 5312 and made it the same as 18 U.S.C. § 1956\[(c)(6)\], thus
requiring a consideration of not only 31 U.S.C. § 5312 but its
implementing regulations.

2\. The term \"monetary transaction\" is defined in 18 U.S.C. §
1957(f)(1). The section defining \"monetary transaction\" adopts by
reference the section 1956 definition of \"financial institution,\"
which in turn adopts definitions contained in or promulgated under Title
31. Therefore, a wide variety of transactions beyond dealings with
traditional financial institutions such as banks are covered by the
statute. *See*, *e.g.*, *United States v. Kelley*, 929 F.2d 582 (10th
Cir. 1991) (section 1957 violated by purchase of automobile with
proceeds from fraud scheme). The definition of \"monetary transaction\"
excludes \"any transaction necessary to preserve a person\'s right to
representation as guaranteed by the Sixth Amendment to the
Constitution.\" The Committee recommends that the \"monetary
transaction\" be described in simple terms, e.g., \"a withdraw from ABC
Bank,\" or \"purchase of an automobile,\" according to the allegations
of the indictment and the evidence in the case. The \"monetary
transaction\" must also, by definition, be \"in or affecting interstate
or foreign commerce.\" *Cf. United States v. Kelley*, 929 F.2d at 585-86
(commerce nexus jurisdictional, but not an element of the offense).
*See* Note 4, Instruction 6.18.1956A, *supra*.

3\. The term \"property\" is not defined in the statute. In some
situations, it may be preferable to use a term such as \"currency\" to
more precisely describe the property at issue in the case. In other
situations, it may be helpful to include a separate paragraph defining
\"property\" in terms of what is included or excluded in the application
of the statute to the facts of the particular case. The statutory
language \-- \"a monetary transaction in criminally derived property\"
\-- is awkward when describing certain transactions. The Committee
recommends using \"of\" when describing transactions such as
\"withdrawal of,\" \"deposit of,\" etc.

4\. The Government must prove that the property was, in fact, derived
from \"specified unlawful activity\" as defined in section 1957(f)(3),
which adopts the definition from section 1956. *See, e.g., United States
v. Hare*, 49 F.3d 447, 451 (8th Cir. 1995). However, it is not necessary
to prove that the defendant knew that the offense from which the
property was derived was specified unlawful activity. 18 U.S.C. §
1957(c). If the underlying criminal activity, e.g., bank fraud, is
charged in the same indictment, a reference to the instruction defining
the elements of the underlying specified unlaw activity may be included
in this instruction. For example, \"The withdrawal was of funds of a
value greater than \$10,000 derived from bank fraud as defined in
Instruction No. \_\_\_\_\_.\" If the underlying criminal activity is not
charged in the same indictment, the Government will be required to prove
that the underlying criminal activity occurred by proving the elements
of the underlying offense or a prior conviction of it. In such a case,
the elements of the underlying offense should be spelled out as part of
this instruction. *See also* Note 27, Instruction 6.18.1956J, *supra*,
and Instruction 5.06C, *supra*.

5\. The knowledge element of a section 1957 offense requires proof that
the defendant knew the transaction involved \"criminally derived
property\" as defined in section 1957(f)(2), that is, \"property
constituting, or derived from, proceeds obtained from a criminal
offense.\" While reference to the definition (elements) of specified
unlawful activity is recommended in all cases, any issues about whether
the defendant believed that the activity generating the proceeds did not
amount to a criminal offense should be dealt with in a defense theory
instruction. *See* part 9 of this manual, Defenses and Theories of
Defense. The Committee has avoided use of the statutory term
\"criminally derived property\" in drafting this instruction since that
phrase would require further definition and the statutory requirement
can be explained in more understandable language.

6\. There must be proof that the offense occurred within the United
States or within special maritime and territorial jurisdiction. 18
U.S.C. § 1957(a) and (d). Special maritime and territorial jurisdiction
is defined in 18 U.S.C. § 7. When the indictment alleges such a
\"circumstance,\" the court should determine whether the evidence
permits a finding that the element has been established and then submit
to the jury the more precise question of whether the offense, or
transaction, occurred at the location alleged in the indictment. As an
alternative, the Government may allege and prove that the defendant was
a person defined in 18 U.S.C. § 3077(2)(A), (B), (C), (E) or (F). The
Committee assumes that prosecutions under the latter alternative
\"circumstance\" will be rare, but the fourth element would have to be
redrafted to fit the situation in such cases.

**Committee Comments**

Section 1957 of Title 18 applies to monetary transactions occurring
after the completion of the underlying criminal activity. *United States
v. Johnson*, 971 F.2d 562, 567-70 (10th Cir. 1992). Such an
interpretation of the statute means that the proceeds must have been
\"obtained\" from the underlying criminal activity before the monetary
transaction prohibited by section 1957 occurs. Monetary transactions
occurring simultaneously with the efforts to \"obtain\" proceeds of
crime, that is, simultaneously with the underlying drug sale, execution
of the scheme to defraud, etc., would not be covered. *Id.*, 971 F.2d at
569.

**6.18.1962A RICO-PARTICIPATION IN THE AFFAIRS THROUGH A**

**PATTERN OF RACKETEERING ACTIVITY (18 U.S.C. § 1962(c))**

The crime of participating in a racketeering enterprise^1^ as charged in
\[Count \_\_\_\_\] of the indictment has five elements, which are:

*One*, an enterprise existed as alleged in the indictment;^2^

*Two*, the enterprise \[was engaged in\] \[had some affect on\]
interstate commerce;^3^

*Three*, the defendant was \[associated with\] \[employed by\]^4^ the
enterprise;

*Four*, the defendant participated, either directly or indirectly, in
the conduct of the affairs of the enterprise^5^; and

*Five*, the defendant's participation was through a pattern of
racketeering activity,^6^ and consisted of the \[knowing\]
\[willful\]^7^ commission of at least two racketeering acts.

The term "racketeering activity," as used in \[the\] \[this\]
Instruction\[s\] includes the acts charged as separate crimes in Counts
\_\_\_, \_\_\_, and \_\_\_. The element of the crimes charged in Count
\_\_\_, \_\_\_, and \_\_\_ are defined in Instructions \_\_\_, \_\_\_,
and \_\_\_. \[If the predicate acts are not charged in separate counts,
instructions on the elements of each racketeering activity must be given
as part of the racketeering charge.\]^8^

For you to find \[a\] defendant guilty of this crime the government must
prove all of these elements beyond a reasonable doubt \[as to that
defendant\]; otherwise you must find \[that\] \[the\] defendant not
guilty.^9^

**Notes on Use**

1\. If the violation of section 1962 (c) is through the collection of an
unlawful debt, substitute "collection of an unlawful debt" for "pattern
of racketeering activity." An unlawful debt is defined at 18 U.S.C. §
1961(6). *See* Committee Comments, *infra*.

2\. The jury should be instructed on the meaning of "enterprise." *See,
infra,* Instruction D.

3\. The racketeering activity must have some effect on interstate
commerce. However, the element may be satisfied when the predicate acts
form a nexus with interstate commerce; when the interstate commerce is
affected by either the enterprise or its activities. *See* *United
States v. Muskovsky* , 863 F.2d 1319 (7th Cir. 1988); *R.A.G.S. Couture,
Inc. v. Hyatt*, 774 F.2d 1350 (5th Cir. 1985); *United States v.
Barton*, 647 F.2d 224 (2d Cir. 1981).

4\. Proof of association-in-fact enterprise requires evidence that a
group of persons associated together for a common purpose of engaging in
a course of conduct. *United States v. Turkette*, 452 U.S. 576 (1981).
The enterprise element may also be satisfied if the entity has a legal
existence. *United States v. Kirk*, 844 F.2d 660 (9th Cir. 1988);
*United States v. Cauble*, 706 F.2d 1322 (5th Cir. 1983).

5\. A defendant's participation must be in the conduct of the affairs of
the enterprise which means either some participation in the operation or
management of the enterprise itself. *Reves v. Ernst & Young*, 507 U.S.
170, (1993); *United States v. Darden*, 70 F.3d 1507, 1518 (8th Cir.
1995). Participation may be direct or indirect. *See e.g.,* *United
States v. Martino*, 648 F.2d 367 (5th Cir. 1981); *United States v.
Starnes*, 644 F.2d 673 (7th Cir. 1981).

6\. The jury should be instructed on the meaning of "pattern of
racketeering." *See, infra,* Instruction E.

7\. The RICO statute does not require any *mens rea* beyond that
necessary for the predicate acts. The Instruction should be modified to
conform to the *mens rea* requirement contained within the statute
governing the predicate act.

8\. "Racketeering activity" is defined at 18 U.S.C. § 1961 (1).

9\. The jury must be instructed that in order to convict, the government
must prove beyond a reasonable doubt each element of the charge. It is
recommended that the burden of proof paragraph be included in the
element instruction. *See United States v. Fairchild,* 122 F.3d 605, 612
(8th Cir. 1997); Instruction 3.09, *supra*.

**Committee Comments**

*See* Fifth Circuit Pattern Jury Instructions: Criminal § 2.72 (1997);
Ninth Circ. Crim. Jury Instr. 8.34.3, 8.34.4 (1997); Eleventh Circuit
Pattern Jury Instructions: Criminal § 61.1 (1997); Modern Federal Jury
Instructions, Criminal, 52-21; 2B Kevin F. O'Malley, et al., *Federal
Jury Practice and Instructions*: Criminal § 56.03 (5th ed. 2000);
Federal Criminal Jury Instructions § 60.06; *United States v. Ellison*,
793 F.2d 942 (8th Cir. 1986).

A violation of section 1962 may occur either by a defendant engaging in
a "pattern of racketeering activity" or "collection of an unlawful
debt." An unlawful debt is defined in 18 U.S.C. § 1961(6). *See, e.g*.,
*United States v. Wong*, 40 F.3d 1347 (2d Cir. 1994); *United States v.
Oreto*, 37 F.3d 739 (1st Cir. 1994); *United States v. DiSalvo*, 34 F.3d
1204 (3d Cir. 1994); *United States v. Aucoin*, 964 F.2d 1492 (5th Cir.
1992); *United States v. Tripp*, 782 F.2d 38 (6th Cir. 1986).

RICO requires proof of the conduct of an enterprise effecting commerce
through a pattern of racketeering activity involving two or more
predicate acts. *Sedima, S.P.R.L. v. Imrex Co.*, 473 U.S. 479 (1985);
*United States v. Ellison*, 793 F.2d 942 (8th Cir. 1986). *See also
Salinas v. United States*, 522 U.S. 52, \_\_, 118 S. Ct. 469, 476 (1997)
(discussing elements of substantive RICO violation). A RICO defendant
does not have to be convicted of each racketeering activity before a
substantive RICO offense may be charged, as long as the racketeering
activity is indictable under an applicable criminal statute. *Sedima,
S.P.R.L. v. Imrex Co.*, 473 U.S. at 488. While a minimum of two
predicate acts are necessary, more than two may be required to establish
a RICO violation. *H.J. Inc. v. Northwestern Bell Telephone Co.*, 492
U.S. 229 (1989). 18 U.S.C. § 1961(1) describes those state and federal
crimes which constitute racketeering activity.

A conviction under RICO requires no proof of a connection between
organized crime and the defendant. *See Bennett v. Berg*, 685 F.2d 1053
(8th Cir. 1982), *modified*, 710 F.2d 1361 (8th Cir. 1983) (en banc);
*Moss v. Morgan Stanley* *Inc.,* 719 F.2d 5 (2d Cir. 1983); *Schact v.
Brown*, 711 F.2d 1343 (7th Cir. 1983).

The RICO statute does not specify any *mens rea* beyond that specified
in the predicate acts. *United States v. Scotto*, 641 F.2d 47 (2d Cir.
1980). It is recommended that the elements of the offense instruction
clearly set out the *mens rea* requirement of the predicate acts in that
portion which pertains to the predicate acts.

To prove the existence of an enterprise, the government must prove (1) a
common purpose; (2) a formal or informal organization of the
participants in which they function as a unit; and (3) an ascertainable
structure distinct from that inherent in the conduct of a pattern of
racketeering activity. *United States v. Kehoe*, 310 F.3d 579, 586
(8^th^ Cir. 2002); *United States v. Darden*, 70 F.3d 1507 (8th Cir.
1995); *United States v. Bledsoe*, 674 F.2d 647 (8th Cir. 1982). The
enterprise element may be satisfied upon a showing either that the
entity has a legal existence or proof of an association in fact. *United
States v. Turkette,* 452 U.S. 576 (1981). The enterprise must have an
existence entirely separate and independent of the racketeering
activity. *See also United States v. Console*, 13 F.3d 641 (3d Cir.
1993); *United States v. Masters*, 924 F.2d 1362 (7th Cir. 1991);
*United States v. Tillett*, 763 F.2d 628 (4th Cir. 1985).

Section 1962(c) requires a relationship between the pattern of
racketeering and the enterprise. Conduct forms a pattern of racketeering
activity if it embraces criminal acts that have the same or similar
purpose, results, participants, victims or methods of commission or are
inextricably intertwined and not isolated events. *United States v.
Ellison*, 793 F.2d 942 (8th Cir. 1986). The necessary nexus only exists
when the defendant's predicate acts "rise to the level" of participation
in the management or operation of the enterprise. *Reves v. Ernst &
Young*, 507 U.S. 170 (1993). Mere participation in the predicate
offenses in conjunction with a RICO enterprise may be insufficient to
support a RICO charge. *Bennett v. Berg*, 685 F.2d 1053 (8th Cir. 1982),
*modified,* 710 F.2d 1361 (en banc 1983). An enterprise may be
"operated" or "managed" by others "associated with" the enterprise who
exert control of the enterprise. *Reves v. Ernst & Young*, 507 U.S. 170
(1993). A person may also be liable under section 1962(c) even though he
had no control of the enterprise but participated or operated in the
conduct of the enterprise. *United States v. Darden*, 70 F.3d 1507, 1518
(8th Cir. 1995). Yet the Eighth Circuit has held that Congress did not
mean for 1962(c) to penalize all who are employed by or associated with
a RICO enterprise, but only those, who by virtue of their association of
employment, play a part in directing the enterprise's affairs. *Handeen
v. Lemaire*, 112 F.3d 1339, 1347 (8th Cir. 1997). An attorney or other
professional does not conduct an enterprise's affairs through
run-of-the-mill professional services. *Id*.

The government need not prove that the racketeering activity benefitted
the enterprise but only that the predicate acts affected the enterprise.
*United States v. Cauble*, 706 F.2d 1322 (5th Cir. 1983). The same piece
of evidence may establish both pattern and enterprise elements. *United
States v. Darden*, 70 F.3d 1507, 1521 (8th Cir. 1995).

Isolated predicate acts do not constitute a pattern. *Sedima, S.P.R.L.
v. Imrex Co.*, 473 U.S. 479 (1985). In order to prove a pattern of
racketeering activity, the government must show both relationship and
continuity as separate elements. *H.J. Inc. v. Northwestern Bell
Telephone Co.*, 492 U.S. 229 (1989). Generally continuity over a close
period is not met when the predicate acts extend less than one year.
*Primary Care Investors, Seven, Inc. v. PHP Healthcare Corp.*, 986 F.2d
1208 (8th Cir. 1993); *see also*, *Uni\*Quality, Inc. v. Infotronx,
Inc.*, 974 F.2d 918 (7th Cir. 1992); *Aldridge v. Lily-Tulip Inc. Salary
Retirement Plan*, 961 F.2d 224 (11th Cir. 1992); *Hughes v. Consolidated
Pennsylvania Coal Co.*, 945 F.2d 594 (3d Cir. 1991). Generally pattern
requires a showing of a relationship plus continuity. However,
determining what constitutes a pattern is ultimately a question of fact.
*Diamonds Plus, Inc. v. Kolber*, 960 F.2d 765 (8th Cir. 1992); *Atlas
Pile Driving Co. v. DiCon Finanical Co.*, 886 F.2d 986 (8th Cir. 1989).

Courts have provided a broad interpretation to the interstate commerce
requirement. *See e.g., United States v. Robertson*, 514 U.S. 669 (1995)
(purchase of equipment and supplies from out of state as well as
employment of out of state persons to work mine constituted interstate
commerce); *see also*, *United States v. Qaoud*, 777 F.2d 1105 (6th Cir.
1985) (activities of United States District Court constituted interstate
commerce.)

The jury must be unanimous that predicate acts had been committed and
the defendant committed at least two of the predicate acts. It is
recommended that the instructions require the jury to be unanimous as to
which acts have specifically been committed by the defendant. *United
States v. Flynn,* 87 F.3d 996 (8th Cir. 1996); *see also*, *United
States v. Kragness*, 830 F.2d 842 (8th Cir. 1987); 2B Kevin F. O'Malley,
et al., *Federal Jury Practice and Instructions*: Criminal § 56.03 (5th
ed. 2000).

**6.18.1962B RICO - CONSPIRACY (18 U.S.C. § 1962(d))**

The crime of conspiracy^1^ to \[invest or use income derived from
racketeering activity\] \[acquire or maintain an interest in or control
of an enterprise\] \[participate, directly or indirectly, in the affairs
of an enterprise\] through a pattern of racketeering activity as charged
in \[Count \_\_\_\_\] of the indictment has five elements, which are:^2^

*One*, an enterprise existed as alleged in the indictment;^3^

*Two*, the enterprise \[was engaged in\] \[had some effect on\]
interstate commerce;^4^

*Three*, the defendant was \[associated with\] \[employed by\] an
enterprise;^5^

*Four*, that on or about \[insert date\] two \[or more\] persons reached
an agreement or came to an understanding \[to invest or use income
derived from racketeering activity\] \[to acquire or maintain an
interest in or control of an enterprise\] \[to conduct or participate in
the affairs of an enterprise, directly or indirectly,\] through a
pattern of racketeering activity; ^6^ and

*Five*, that the defendant voluntarily and intentionally joined in the
agreement or understanding, either at the time it was first reached or
at some later time while it was still in existence, and at the time the
defendant joined in the agreement or understanding \[he\] \[she\]
specifically intended to otherwise participate in the affairs of the
enterprise.^7^

For you to find \[a\] defendant guilty of this crime the government must
prove all of these elements beyond a reasonable doubt \[as to that
defendant\]; otherwise you must find \[that\] \[the\] defendant not
guilty.^8^

**Notes on Use**

1\. The general conspiracy statute is 18 U.S.C. § 371. Unlike the
general conspiracy statute, the government need not prove an overt act
was committed in furtherance of the conspiracy.

2\. Section 1962(d) prohibits conspiring to violate any provision of §
1962 (a)(b)(c).

3\. The jury should be instructed on the meaning of "enterprise." *See,
infra,* Instruction D.

4\. The racketeering activity must have some effect on interstate
commerce. Section 1962 (c) also provides that a pattern of racketeering
activity which affects foreign commerce is unlawful. If supported by
evidence, substitute foreign commerce for interstate commerce. However
the element may be satisfied when the predicate acts form a nexus with
interstate commerce; when the interstate commerce is affected by either
the enterprise or its activities. *See* *United States v. Muskovsky* ,
863 F.2d 1319 (7th Cir 1988); *R.A.G.S. Couture, Inc. v. Hyatt*, 774
F.2d 1350 (5th Cir. 1985); *United States v. Barton*, 647 F.2d 224 (2d
Cir. 1981).

5\. Proof of association-in-fact enterprise requires evidence that a
group of persons associated together for a common purpose of engaging in
a course of conduct. *United States v. Turkette*, 452 U.S. 576 (1981).
The enterprise element may also be satisfied if the entity has a legal
existence. *United States v. Kirk*, 844 F.2d 660 (9th Cir. 1988);
*United States v. Cauble*, 706 F.2d 1322 (5th Cir. 1983).

6\. The jury should be instructed on the meaning of "pattern of
racketeering." *See, infra,* Instruction E.

7\. The government must prove that the defendant objectively manifested
an agreement to participate in the affairs of the enterprise. *United
States v. Darden*, 70 F.3d 1507, 1518 (1995). The Court's statement in
Darden regarding "objectively manifested" appears to be a comment on the
amount of evidence the government must introduce to allow the jury to
infer an intent to participate. The Committee does not believe that the
term "objectively manifest" is an element of the offense because it
would lessen the level of intent. Proof of an express agreement is not
required. The government need only establish a tacit understanding
between the parties and this may be shown wholly through circumstantial
evidence of each defendant's actions. *Id.*

8\. The jury must be instructed that in order to convict, the government
must prove beyond a reasonable doubt each element of the charge. It is
recommended that the burden of proof paragraph be included in the
element instruction. *See United States v. Fairchild*, 122 F.3d 605, 612
(8th Cir. 1997); Instruction 3.09, *supra*.

**Committee Comments**

Eleventh Circuit Pattern Jury Instructions: Criminal § 61.2 (1997);
Modern Federal Jury Instructions, Criminal 52.29; 2B Kevin F. O'Malley,
et al., *Federal Jury Practice and Instructions*: Criminal § 56.11 (5th
ed. 2000); Federal Criminal Jury Instructions § 60.12; *United States v.
Darden*, 70 F.3d 1507, 1518 (8th Cir. 1995).

*See* Committee Comments and Notes on Use, Instruction 6.18.1962A,
*supra*.

Unlike the general conspiracy statute, 18 U.S.C. § 371, the RICO
conspiracy statute does not require the government to either plead or
prove that an overt act was committed in furtherance of the conspiracy.
*Salinas v. United States*, 522 U.S. 52, 63 (1997); *United States v.
Pepe*, 747 F.2d 632 (11th Cir. 1984); *United States v. Barton*, 647
F.2d 224 (2d Cir. 1981). Therefore the RICO conspiracy provision is more
comprehensive than the general conspiracy statute, 18 U.S.C. § 371.
*Salinas v. United States,* 522 U.S. at 61. Proof of an express
agreement is not required; the government need only establish a tacit
understanding between the parties. *United States v. Darden*, 70 F.3d
1507 (8th Cir. 1995). However, mere association with a RICO enterprise,
in itself, is not violative of a conspiracy under § 1962(d). *See,
e.g.*, *United States v. Neapolitan*, 791 F.2d 489 (7th Cir. 1986).

In order to prove a RICO conspiracy, the Government need only show that
the defendant agreed to the criminal objective. *Salinas v. United
States*, 522 U.S. at 52; *United States v. Bennett*, 44 F.3d 1364 (8th
Cir. 1995) (it is not necessary that the defendant personally agree to
commit requisite acts, but only that he agrees to join conspiracy).
*United States v. Leisure*, 844 F.2d 1347 (8th Cir. 1988); *United
States v. Kragness*, 830 F.2d 842 (8th Cir. 1987). In order to be guilty
of conspiracy under RICO, a defendant must simply agree to the objective
of the RICO violation and need not himself have committed or agreed to
commit the two predicate acts. *See Salinas v. United States*, 522 U.S.
at 52. A defendant may be acquitted of the substantive offense but still
convicted of conspiracy if there is proof of an agreement to commit the
substantive act. *See, e.g.*, *Salinas v. United States,* 522 U.S. at
55. *United States v. Alonso*, 740 F.2d 862 (11th Cir. 1985).

Withdrawal from a RICO conspiracy is a permissible defense but the
defendant must prove that he took affirmative steps, inconsistent with
the object of the conspiracy, to disavow or to defeat the conspiratorial
objectives. *See United States v. Starrett*, 55 F.3d 1525 (11th Cir.
1995). Further, the defendant must have made a reasonable effort to
communicate these steps to his co-conspirators or disclosed their
conspiracy to law enforcement authorities. *See* *United States v.
Finestone*, 816 F.2d 583 (11th Cir. 1987); *see also* *Hyde v. United
States*, 225 U.S. 347 (1912).

**6.18.1962C RICO- CONSPIRACY - AGREEMENT EXPLAINED**

The government must prove beyond a reasonable doubt that the defendant
knowingly reached an agreement^1^ or understanding with at least one
other person to \[invest or use income derived from racketeering
activity\] \[acquire or maintain an interest in or control of an
enterprise\] \[participate, directly or indirectly, in the affairs of an
enterprise\] through a pattern of racketeering activity.^2^ However, you
don't have to find that any racketeering acts were actually
committed.^3^

The agreement or understanding need not be an express or formal
agreement or be in writing or cover all the details of how it is to be
carried out. Nor is it necessary that the members have directly stated
between themselves the details or purpose of the scheme.

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 joined in an agreement or
understanding. A person who has no knowledge of a conspiracy but who
happens to act in a way which advances some purpose of one does not
thereby become a member.

But a person may join in an agreement or understanding, as required by
this element, without knowing all the details of the agreement or
understanding, and without knowing who all the other members are.
Further it is not necessary that a person agree to play any particular
part in carrying out the agreement or understanding. A person may become
a member of a conspiracy even if that person agrees to play only a minor
part in the conspiracy, as long as that person has an understanding of
the unlawful nature of the plan and voluntarily and intentionally joins
in it.

In determining whether the alleged conspiracy existed you may consider
the actions and statements of all the alleged participants. The
agreement may be inferred from all the circumstances and the conduct of
the alleged participants. ^4^

\[Acts and statements which are made before the conspiracy began or
after it ended are admissible only against the person making them and
should not be considered by you against any other defendant.\]^5^

**Notes on Use**

1\. Where enterprise is defined as an association in fact, proof of that
enterprise may prove an unlawful agreement. *United States v. Bennett*,
44 F.3d 1364, 1372 (8th Cir. 1995); *United States v. Pungitore*, 910
F.2d 1084, 1114 (3d Cir. 1990).

2\. The United States Supreme Court has held that it is not necessary
that a defendant personally agreed to commit the requisite acts, but
only that he agreed to join the conspiracy. *Salinas v. United States*,
522 U.S. 52, 65 (1997). *United States v. Bennett*, 44 F.3d at 1374;
*United States v. Kragness*, 830 F.2d 842 (8th Cir. 1987).

3\. A person may be liable for the RICO conspiracy even thought he was
incapable of committing the substantive offense. *See Salinas v. United
States*, 522 U.S. 52, 64 (1997).

4\. For purposes of a RICO prosecution an enterprise may only be
comprised of the defendants. *United States v. Nabors*, 45 F.3d 238, 240
(8th Cir. 1995).

5\. An explicit limiting instruction must be given if evidence of acts
or statements by any co-conspirator made before or after the conspiracy
began or ended has been admitted. *See United States v. Snider*, 720
F.2d 985, 989 (8th Cir. 1983).

**Committee Comments**

*See* Model Federal Jury Instructions, Criminal 52-31, 32; *Salinas v.
United States*, 522 U.S. 52 (1997); *United States v. Bennett*, 44 F.3d
1364 (8th Cir. 1995); *United States v. Elliott***,** 571 F.2d 880 (5th
Cir. 1978).

The RICO conspiracy statute is designed to facilitate prosecution of
multi-faceted, highly diversified criminal activity by creating a
substantive offense which ties together the diverse parties and crimes.
In order to be convicted of a RICO conspiracy, an individual must have,
by words or actions, objectively manifested an agreement to participate
in the affairs of the enterprise. *United States v. Darden,* 70 F.3d
1507, 1518 (8th Cir. 1995); *United States v. Bennett*, 44 F.3d at 1372;
see *United States v. Boffa*, 688 F.2d 919 (3d Cir. 1982); *United
States v. Winter*, 663 F.2d 1120 (1st Cir. 1981). Conspiracy to commit a
narcotics violation may be a proper predicate act for a conspiracy to
commit RICO. *United States v. Darden*, 70 F.3d 1507, 1524 (8th Cir.
1995). Simple possession cannot serve as a predicate act under the RICO
statute. *Id.* at 1525.

**6.18.1962D ENTERPRISE - DEFINITION**

An enterprise includes any individual, partnership, corporation,
association, or other legal entity, in any union or group of individuals
associated in fact, although not a legal entity.^1^

The term "enterprise," as used in these instructions, may include a
group of people associated in fact, even though this association is not
recognized as a legal entity.^2^ A group or association of people can be
an enterprise if these individuals have joined together for the purpose
of engaging in a common course of conduct. This group of people, in
addition to having a common purpose, must have personnel who function as
a continuing unit. This group of people does not have to be a legally
recognized entity, such as a partnership or corporation.^3^ Such an
association of individuals may retain its status as an enterprise even
though the membership of the association changes by adding or losing
individuals during the course of its existence.

If you find that this was, in fact, a legal entity such as a
partnership, corporation, or association, then you may find that an
enterprise existed.^4^

The government must also prove that the association had a structure
distinct from that necessary to conduct the pattern of racketeering
activity.^5^

**Notes on Use**

1\. The first paragraph of the instruction includes the entire
definition of enterprise provided by Congress and found at 18 U.S.C. §
1961(4).

2\. *United States v. Kragness*, 830 F.2d 842 (8th Cir. 1987) (approved
jury instruction as to definition of enterprise and RICO drug
prosecution, which included the definition of the term "enterprise" as
including any group of individuals associated in fact, although not a
legal entity).

3\. Associations, in fact, may include legal entities. *See* 18 U.S.C. §
1961(4); *United States v. Darden,* 70 F.3d 1507, 1541 (8^th^ Cir.
1995). *See also* Seventh Circuit Federal Jury Instructions: Criminal at
315-23 (1999). Thus, the group may be organized for a legitimate and
lawful purpose or may be organized for an unlawful purpose.

4\. Courts have provided broad interpretation as to the term "legal
entity" in the enterprise requirement. Courts have held that various
enterprise categories listed in the RICO statute are illustrative but
not exhaustive. *See United States v. Aimone*, 715 F.2d 822 (3d Cir.
1983). The enterprise concept can encompass a combination of entities.
*See, e.g., United States v. Stolfi*, 889 F.2d 378 (2d Cir. 1989);
*United States v. Feldman*, 853 F.2d 648 (9th Cir. 1988).

5\. The Fourth and Eighth Circuits have held that the government must
prove that the association or enterprise exists separate and apart from
the pattern of racketeering in which it engages. *See United States v.
Leisure*, 844 F.2d 1347 (8th Cir. 1988); *United States v. Lemm*, 680
F.2d 1193 (8th Cir. 1982).

**Committee Comments**

*See* Fifth Circuit Pattern Jury Instructions: Criminal § 2.78 (1997);
Ninth Cir. Crim. Jury Instr. 8.34.3; 8.34.4 (1997); Modern Federal Jury
Instructions; Criminal 52.22; 2B Kevin F. O'Malley, et al., *Federal
Jury Practice and Instructions*: Criminal § 56.04 (5th ed. 2000);
Federal Criminal Jury Instructions § 60.02.

Courts have given a broad reading to the term "enterprise." Congress has
mandated a liberal construction of the RICO statute in order to
effectuate its remedial purpose. Therefore, courts have held that the
various enterprise categories listed in the RICO statute are
illustrative but not exhaustive. *United States v. Aimone*, 715 F.2d 822
(3d Cir. 1983). The definition of the term "enterprise" is of a
necessity, a shifting one given the fluid nature of criminal
associations. *United States v. Swiderski*, 593 F.2d 1246 (D.C. Cir.
1978).

A RICO enterprise is a group of persons associated together for a common
purpose in a course of conduct. *United States v. Turkette*, 452 U.S.
576 (1981). A RICO enterprise must exhibit three basic characteristics:
(1) a common or shared purpose; (2) some continuity of structure and
personnel; and (3) an ascertainable structure distinct from that in a
pattern of racketeering. *United States v. Kehoe*, 310 F.3d 579, 586
(8^th^ Cir. 2002); *United States v. Nabors*, 45 F.3d 238 (8th Cir.
1995); *see also United States v. Perholtz*, 842 F.2d 343 (D.C. Cir.
1988); *United States v. Mazzei*, 700 F.2d 85 (2d Cir. 1983).

The enterprise element is satisfied upon a showing that the entity has a
legal existence. *See, e.g., United States v. Kirk*, 844 F.2d 660 (9th
Cir. 1988); *United States v. Cauble*, 706 F.2d 1322 (5th Cir. 1984).
Proof of an association in fact enterprise requires proof that a group
of persons associated together for a common purpose of engaging in a
course of conduct. *United States v. Turkette*, 452 U.S. 576 (1981).
While the enterprise in existence of a racketeering activity are
distinct elements of a RICO charge, the proof needed to establish either
can consist of the same evidence. *United States v. Turkette*, 452 U.S.
576 (1981). However, more than proof of a pattern of racketeering
activity is necessary to establish the existence of an enterprise. An
enterprise must have an existence entirely separate and independent of
the racketeering activity. *See Bennett v. Berg*, 685 F.2d 1053 (8th
Cir.), *modified*, 710 F.2d 1361 (en banc 1983). The government must
demonstrate that the alleged enterprise functions as a continuing unit
has an ascertainable structure distinct from that inherent in the
conduct of a pattern of racketeering activity and has associates who
have a common or shared purpose. *Id*.; *United States v. Bledsoe*, 674
F.2d 647 (8th Cir. 1982).

Several circuits have refused to distinguish between legal and non-legal
entity categories. *See, e.g.*, *United States v. Perholtz*, 842 F.2d
343 (D.C. Cir. 1988); *McCullough v. Suter*, 757 F.2d 142 (7th Cir.
1985); *United States v. Navarro-Ordas*, 770 F.2d 959 (11th Cir. 1985);
*United States v. Aimone*, 715 F.2d 822 (3d Cir. 1983); *see also United
States v. Turkette*, 452 U.S. 576 (1981) (rejects claim that RICO only
reaches entities performing illegal acts).

Actions brought under section 1962(a) or (b) do not require a separate
RICO defendant and enterprise. *See Bennett v. Berg*, 685 F.2d 1053,
*modified*, 710 F.2d 1361 (en banc 1983). However, section 1962(c)
requires the person liable to be separate from the enterprise which has
its affairs conducted through a pattern of racketeering. *Atlas Pile
Driving Co. v. DiCon Fin. Co.*, 886 F.2d 986 (8th Cir. 1989).

**6.18.1962E CONDUCT/PARTICIPATION -DEFINITION**

A person conducts or participates in the conduct of the affairs of an
enterprise if that person uses \[his\]\[her\] position in, or
association with^1^ the enterprise, to \[participate in the operation or
management of the enterprise itself\] ^2^ \[to perform acts which are
involved in some way in the operation or management of the
enterprise\]^3^ directly or indirectly, or if the person causes another
to do so. \[A person participates in the operation of the affairs of the
enterprise if \[he\]\[she\] has some part in directing those
affairs.\]^4^ \[An enterprise may be "operated" not just by upper
management but also by lower rung participants in the enterprise who are
under the direction of upper management.\]^5^

In order to have conducted or participated in the conduct of the affairs
of an enterprise, a person need not have participated in all the
activity alleged in \[Count(s) \_\_\_\_\] of the indictment.

**Notes on Use**

1\. There must be a distinction between those who merely participate in
the enterprise and those who are liable for the operation or management
of the enterprise. See *United States v. Darden*, 70 F.3d at 1543.
Liability under the statute, however, is not limited to those who are
employed by the enterprise, but may also extend to those outside the
enterprise, who are associated with the enterprise and who exert control
over it. *Reves v. Ernst & Young*, 507 U.S. at 184. The committee
recognizes that evidence presented at a specific trial may raise issues
regarding upper and lower rung management. .

2\. Liability is limited and excludes complete outsiders who do not
participate in the conduct of the enterprise's affairs, but rather their
own affairs. *Reves v. Ernst & Young*, 507 U.S. at 185.

3\. The Supreme Court in *Reves v. Ernst & Young*, 507 U.S. at 185,
specifically defines "to conduct or participate, directly or indirectly,
in the conduct of such enterprise's affairs", as "one must participate
in the operation or management of the enterprise itself." The Seventh
Circuit Federal Jury Instructions: Criminal at 315-18 (1999)
Conduct-Definition, defines conduct or participate, directly or
indirectly, in the conduct of such enterprise's affairs as "to perform
acts which are involved in some way in the operation or management of
the enterprise". The Committee takes no position as to whether the
Supreme Court language is mandatory, or whether the Seventh Circuit
language is sufficiently analogous.

4\. The Supreme Court in *Reves v. Ernst & Young*, 507 U.S. at 177-79,
goes into detail explaining ascertaining the meaning of the terms
"conduct" and "participation." It found by finding that in order to
participate, directly or indirectly, in the conduct of such enterprise's
affairs, "one must have some part in directing those affairs." The
Committee believes that this definition may be helpful in certain
specific cases, to assist the jury, and in such cases recommends the
inclusion of the definition.

5\. The committee recognizes that evidence presented at a specific trial
may raise issues regarding upper and lower rung management. In such
cases, the committee recommends that the bracketed language be used. The
Supreme Court, while discussing the operation and management test, did
not decide the extent the "ladder of operation" could apply. *Reves v.
Ernst & Young*, 507 U.S. at 185 n.9.

**Committee Comments**

*See* Seventh Circuit Federal Jury Instructions: Criminal at 321 (1999);
Eleventh Circuit Pattern Jury Instructions: Criminal § 61.1 (1997); 2B
Kevin F. O'Malley, et al., *Federal Jury Practice and Instructions*:
Criminal § 56.08 (5th ed. 2000); *Reves v. Ernst & Young*, 507 U.S. 170
(1993); *United States v. Darden*, 70 F.3d 1507 (8th Cir. 1996).

An enterprise may be "operated" or "managed" by others "associated with"
the enterprise who exert control of the enterprise. *Reves v. Ernst &
Young*, 507 U.S. 170, 184-85 (1993). A person may also be liable under §
1962(c) even though he had no control of the enterprise but participated
or operated in the conduct of the enterprise. *United States v. Darden*,
70 F.3d 1507, 1518 (8th Cir. 1995). The government need only prove that
the defendant had some part in the *direction,* not control of the
enterprise affairs. *Id*. (citing *Reves v. Ernst & Young*, 507 U.S. at
184-85). The Eighth Circuit has held that section 1962(c) does not
penalize all who are employed by or associated with a RICO enterprise,
but rather only those, who by virtue of their association or employment
play a part in directing the enterprise's affairs. *Handeen v. Lemaire,*
112 F.3d 1339, 1347 (8th Cir. 1997).

However, as noted by the Supreme Court in *Reves,* liability under
section 1962 may not be limited to upper management, but may also be
extended to lower rung participants who are under the direction of upper
management. *Reves v. Ernst & Young*, 507 U.S. at 184.

**6.18.1962F RICO - PATTERN OF RACKETEERING**

In order to establish a pattern of racketeering activity, the government
must prove beyond a reasonable doubt that: (1) at least two acts of
racketeering, \[list acts as detailed in the indictment or which are
defined under 18 U.S.C. § 1961(1) for which there is sufficient
evidence\]^1^ were committed within ten years of each other;^2^ (2) the
racketeering acts \[had the same or similar purpose, results,
participants, victims, or methods of commission,\] or \[are interrelated
by distinguishing characteristics and are not isolated events\];^3^ and
(3) the racketeering acts themselves amount to or otherwise constitute a
threat of continued activity.^4^ Continued activity is sufficiently
established when \[predicate acts can be attributed to a defendant
operating as part of a long-term association that exists for criminal
purposes\] \[racketeering acts were a regular way of conducting the
defendant's ongoing legitimate business\].^5^

**Notes on Use**

1\. *See* 18 U.S.C. § 1961(1) which enumerates acts which may constitute
racketeering activity.

2\. 18 U.S.C. § 1961(5); *see,* *Thornton v. Bank of Joplin*, 4 F.3d
650, 652 (8th Cir. 1993) (statute defines pattern of racketeering
activity as at least two acts of racketeering, one of which occurred
after RICO was enacted, and the last of which occurred within ten years
after the commission of a prior act of racketeering activity.)

3\. *See* *Sedima, S.P.R.L. v. Imrex Co*., 473 U.S. 479 (1985).

4\. *Sedima, S.P.R.L. v. Imrex Co.*, 473 U.S. 479 (1985); *Feinstein v.
Resolution Trust Corp.*, 942 F.2d 34 (1st Cir. 1991) (describes threat
approach).

5\. *See H.J., Inc. v. Northwestern Bell Tel. Co.*, 492 U.S. 229 (1989);
*United States v.* *Fairchild*, 122 F.3d 605, 611-12 (8th Cir. 1997).
Continuity is both a closed and open ended concept, referring either to
a closed period of repeated conduct, or to past conduct that by its
nature projects into the future with a threat of repetition. Whether
predicates proved or establish a threat of continued racketeering
activity depends on the specific facts of each case. Use of bracketed
language, is dependent on whether the government proves a closed or open
threat.

**Committee Comments**

*See* Fifth Circuit Pattern Jury Instructions: Criminal § 2.78 (1997);
Ninth Cir. Crim. Jury Instr. 8.34.7 (1997); Modern Federal Jury
Instructions, Criminal, 52.7; 2B Kevin F. O'Malley, et al., *Federal
Jury Practice and Instructions*: Criminal § 56.07 (5th ed. 2000); *H.J.,
Inc. v. Northwestern Bell Telephone Co.*, 492 U.S. 229 (1989); *Sedima,
S.P.R.L. v. Imrex Co., Inc.*, 473 U.S. 479 (1985).

RICO requires the commission of two predicate acts constituting a
pattern. In construing the pattern requirement, the Supreme Court has
held that in order to prove a pattern of racketeering activity, the
prosecutor must show both relationship and continuity as separate
elements. *H.J., Inc. v. Northwestern Bell Telephone Co.*, 492 U.S. 229
(1989). These elements may, however, overlap. *Id*. The Court has held
that criminal conduct forms a pattern if it embraces criminal acts that
have the same or similar purposes, results, participants, victims, or
methods of commission, or otherwise are interrelated by distinguishing
characteristics and are not isolated events. *Id*.

Continuity is proven if the government can show actual continuity during
a past, close period of repeated conduct or the threat of continuity of
racketeering activity in the future. *Id*. *See also, United HealthCare
Corp. v. American Trade Ins. Co., Ltd.*, 88 F.3d 563, 571-72 (8th Cir.
1996). A pattern consists of continuity plus relationship. *See Sedima
S.P.R.L. v. Imrex Co.*, 473 U.S. 479 (1985); *Diamonds Plus, Inc. v.
Kolber*, 960 F.2d 765 (8th Cir. 1992); *Atlas Pile Driving Co. v. DiCon
Financial Co.*, 886 F.2d 986 (8th Cir. 1989) (listing pattern factors,
including length of time, number of episodes and victims, and complexity
of scheme). *See also Primary Care Investors, Seven, Inc. v. PHP
Healthcare Corp.*, 986 F.2d 1208 (8th Cir. 1993) (continuity over a
closed period is not met when predicate act extends less than one year);
*Uni\*Quality, Inc. v. Infotronx, Inc.*, 974 F.2d 918 (7th Cir. 1992)
(seven to eight months insufficient). Continuity over a closed period is
generally proven by a showing of a series of related predicate acts
extending over a period of time. Continuity generally is not met when
the predicate acts extend less than a year. *See Primary Care Investors,
Seven, Inc. v. PHP Healthcare Corp.*, 986 F.2d at 1215; *Aldridge v.
Lily-Tulip, Inc. Salary Requirement Plan Benefits Committee*, 953 F.2d
587, 593 (11th Cir. 1992) (six months to a year insufficient).

**6.18.1962G SAMPLE VERDICT FORM - RICO (18 U.S.C § 1962(c))**

We, the jury, find Defendant (name)
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

guilty/not guilty

of the crime of participating in racketeering enterprise \[as charged in
Count \_\_ of the indictment\] \[under instruction No. \_\_\_ \]

If you find the defendant guilty of \[Count \_\_\_\] \[under Instruction
No. \_\_\_\] beyond a reasonable doubt check the predicate acts you
unanimously found to have been proven with respect to Defendant (name)
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_.

Racketeering Act Number 1 (Narcotics conspiracy 1989-1991)
\_\_\_\_\_\_\_\_\_\_

Racketeering Act Number 2 (Murder of Jane Doe) \_\_\_\_\_\_\_\_\_\_

Racketeering Act Number 3 (Attempted Possession of Ephedrine)
\_\_\_\_\_\_\_\_\_\_

Racketeering Act Number 4 (Narcotics Conspiracy 1996-1998)
\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Foreperson

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Date

**Notes on Use**

1\. *See* Instructions 3.09 and 3.12, *supra.* If the elements
instructions does not refer to a count in the indictment, the verdict
form should refer to the elements instruction.

**Committee Comments**

The jury must be unanimous that the predicate acts have been committed
and the defendant committed at least two of the predicate acts. It is
recommended that the instructions require the jury to be unanimous as to
which acts have specifically been committed by the defendant. *United
States v. Flynn,* 87 F.3d 996 (8th Cir. 1996); *United States v.
Kragness,* 830 F.2d 1374 (8th Cir. 1988); *see also United States v.
Ham,* 58 F.3d 78 (4th Cir. 1995).

Double jeopardy may not attach and retrial may not be barred should a
jury fail to check a predicate act. *See United States v. Petty,* 62
F.3d 265, 266-67 (8th Cir. 1995); *United States v. Ham,* 58 F.3d 78, 85
(4th Cir. 1995). A jury's failure to decide an issue will be treated as
an implied acquittal only where the jury's verdict necessarily resolves
an issue in the defendant's favor. *See Schiro v. Farley,* 510 U.S. 222,
235 (1994).

**6.18.2113A BANK ROBBERY (18 U.S.C. § 2113(a)) (First Paragraph)**

The crime of bank robbery, as charged in \[Count of\] the indictment,
has three elements, which are:

*One*, the defendant \[took\] \[attempted to take\] (describe property,
money, etc.) from the \[person\] \[presence\] of \[another\] \[(name of
person)\]^1^, while that (describe property, money, etc.) was in the
care or custody of (name of bank, etc.^2^).

*Two*, such \[taking\] \[attempted taking\] was by \[force and
violence\] \[intimidation\]^3^; and

*Three*, the deposits of (name of bank, etc.) were then insured by (name
insuring agency, e.g., the FDIC).^4^

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

**Notes on Use**

1\. In certain fact situations the money may be taken from the presence
of literally everyone in the bank, for example when the defendant has
everyone including the bank employees lie face on the floor in middle of
the bank while he enters all the tellers\' drawers. In such a fact
situation, the alternative \"taken from the presence of *another*\"
should be used rather than inserting the names of the persons.

2\. The statute also applies to robbery of any credit union or savings
and loan association. Appropriate terms should be used. The terms
\"bank,\" \"savings and loan association\" and \"credit union\" are
defined in sections 2113(f), (g) and (h).

3\. \"Intimidation\" may be defined in a proper case. A concise
definition of \"intimidation\" is as follows:

Intimidation means doing something that would make an ordinary person
fear bodily harm.

Ninth Cir. Crim. Jury Instr. 8.35.1 (1997). *See also* Fifth Circuit
Pattern Jury Instructions: Criminal § 2.79 (1997); Seventh Circuit
Federal Jury Instructions: Criminal at 325 (1999); 2B Kevin F. O'Malley,
et al., *Federal Jury Practice and Instructions*: Criminal § 57.10 (5th
ed. 2000). The meaning of \"intimidation\" is thoroughly treated in
*United States v. Brown*, 412 F.2d 381 (8th Cir. 1969).

4\. Most institutions are covered by virtue of the insurance of their
deposits by some federal agency. If the institution is one which is
covered by the statute for some other reason, Element *Three* should be
modified accordingly.

Absent a stipulation between the government and the defendant, this
instruction must include the element that the affected financial
institution was of the nature covered by the statute. *See* *United
States v. Glidden*, 688 F.2d 58 (8th Cir. 1982); *United States v.
Brown*, 616 F.2d 844 (5th Cir. 1980).

**Committee Comments**

*See* Seventh Circuit Federal Jury Instructions: Criminal at 325 (1999).

**6.18.2113B BANK ROBBERY (18 U.S.C. § 2113(d))**

The crime of bank robbery, as charged in \[Count of\] the indictment,
has four elements, which are:

*One*, the defendant \[took\] \[attempted to take\] (describe property,
money, etc.) from the \[person\] \[presence\] of \[another\] \[(name of
person)\],^1^ while that (describe property, money, etc.) was in the
care or custody of (name of bank, etc.^2^),

*Two*, such \[taking\] \[attempted taking\] was by \[force and
violence\] \[intimidation\];

*Three*, the defendant \[assaulted (name of victim)\] \[put the life of
(name of victim) in jeopardy\]^3^ by use of a dangerous \[weapon\]
\[device\]^4^ while \[taking\] \[attempting to take\] (describe
property, money, etc.); and

*Four*, the deposits of (name of bank, etc.) were then insured by (name
insuring agency, e.g., the FDIC).^5^

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

**Notes on Use**

1\. In certain fact situations the money may be taken from the presence
of literally everyone in the bank, for example when the defendant has
everyone including the bank employees lie face on the floor in middle of
the bank while he enters all the tellers\' drawers. In such a fact
situation, the alternative \"taken from the presence of *another*\"
should be used rather than inserting the names of the persons.

2\. The statute also applies to robbery of any credit union or savings
and loan association. Appropriate terms should be used. The terms
\"bank,\" \"savings and loan association\" and \"credit union\" are
defined in sections 2113(f), (g) and (h).

3\. In the ordinary case where the life of the victim was actually put
in jeopardy by the use of a dangerous weapon such as a loaded gun,
definitions of \"assault\" and \"put life in jeopardy\" such as those
that appear in Fifth Circuit Pattern Jury Instructions: Criminal § 2.79
(1997), Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) §
62.2 (1997) and 2B Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal §§ 57.07-.08 (5th ed. 2000) would be
appropriate.

Where the weapon was not recovered and there is no evidence whether it
was operable or not, the jury may infer that the weapon was loaded and
that the victim\'s life was placed in jeopardy. *Morrow v. United
States*, 408 F.2d 1390, 1391 (8th Cir. 1969). *See also* *United States
v. Terry*, 760 F.2d 939, 942 (9th Cir. 1985); *United States v. Wardy*,
777 F.2d 101, 105-06 (2d Cir. 1985).

Where the weapon is proved to be inoperable, it can still be dangerous.
*McLaughlin v. United States*, 476 U.S. 16 (1986); *United States v.
York*, 830 F.2d 885, 891 (8th Cir. 1987). These and subsequent opinions
should be consulted in drafting definitions of \"assault\" and \"put
life in jeopardy\" in this situation. The Committee has not formulated
definitions to cover this situation.

4\. An unloaded gun is a dangerous weapon or device within the meaning
of the statute. *McLaughlin v. United States*, 476 U.S. at 6. The Court
held:

Three reasons, each independently sufficient, support the conclusion
that an unloaded gun is a \"dangerous weapon.\" First, a gun is an
article that is typically and characteristically dangerous; the use for
which it is manufactured and sold is a dangerous one, and the law
reasonably may presume that such an article is always dangerous even
though it may not be armed at a particular time or place. In addition,
the display of a gun instills fear in the average citizen; as a
consequence, it creates an immediate danger that a violent response will
ensue. Finally, a gun can cause harm when used as a bludgeon.

The Court noted that Congress regarded incitement of fear as sufficient
to characterize an apparently dangerous article (such as a wooden gun)
as \"dangerous\" within the meaning of the statute.

The Eighth Circuit has followed *McLaughlin* to hold that an inoperable
gun is a \"dangerous weapon.\" *United States v. York*, 830 F.2d at 891.
Prior to *McLaughlin*, the Eighth Circuit used an \"objective\" standard
to determine what constituted a dangerous or deadly weapon. *See*
*Morrow v. United States*, 408 F.2d at 1391.

The phrase \"by use of a dangerous weapon or device\" modifies both the
\"assault\" provision and the \"putting in jeopardy\" provision of
section 2113(d). *Simpson v. United States*, 435 U.S. 6, 11 (1978).

5\. Most institutions are covered by virtue of the insurance of their
deposits by a federal agency. If the institution is one which is covered
by the statute for some other reason, Element *Four* of the instruction
should be modified accordingly.

Absent a stipulation between the government and the defendant, this
instruction must include the element that the affected financial
institution was of the nature covered by the statute. *See* *United
States v. Glidden*, 688 F.2d 58 (8th Cir. 1982); *United States v.
Brown*, 616 F.2d 844 (5th Cir. 1980).

**Committee Comments**

*See* Seventh Circuit Federal Jury Instructions: Criminal at 325 (1999).

**6.18.2119A^1^ CARJACKING (No Serious Bodily Injury or Death) (18
U.S.C. § 2119(1))**

The crime of carjacking has four elements, which are:

*One*, the defendant, \[took\] \[attempted to take\] a (describe the
motor vehicle, *e.g.*, 1998 Ford Explorer, VIN #000000000000) from the
\[person\] \[presence of another\];

*Two*, the defendant did so by means of \[force and violence\]
\[intimidation\];

*Three*, the (describe motor vehicle) had been \[transported\]
\[shipped\] \[received\] in \[interstate\] \[foreign\] commerce;

*Four*, at or during the time the defendant \[took\] \[attempted to
take\] (describe the motor vehicle) (he) (she) intended to cause death
or serious bodily injury^2^. \[

"Serious bodily injury" means an injury that involves \[a substantial
risk of death\] \[extreme physical pain\] \[long term and obvious
disfigurement\] \[the long-term loss or impairment of a function of a
bodily member or organ\] \[the long term loss or impairment of a mental
function\].

**Notes on Use**

1\. If "serious bodily injury" resulted from the commission of the
offense, Instruction 6.18.2119B should be used. If death resulted from
the commission of the offense, Instruction 6.18.2119C should be used.
The United States Supreme Court has held that the enhancements set out
in the statute which increase penalties for "serious bodily injury" and
"death" are, "distinct elements, each of which must be charged by
indictment, proven beyond a reasonable doubt, and submitted to a jury
for its verdict." *Jones v. United States*, 526 U.S. 227 (1999).

2\. The statute uses the term "harm" in some places and "injury" in
others, apparently interchangeably. A conditional intent to kill or
cause serious bodily injury is sufficient to establish the intent
requirement under the statute. "The intent requirement of section 2119
is satisfied when the Government proves that at the moment the defendant
demanded or took control over the driver's automobile the defendant
possessed the intent to seriously harm or kill the driver if necessary
to steal the car . . ." *Holloway v. United States*, 526 U.S. 1 (1999).

**Committee Comments**

The intent of Congress regarding the intended scope and purpose of the
original 1992 version of the carjacking statute can be found in section
101(b) of Pub. L. 102-519. The statute has been subsequently amended by
the Violent Crime Control and Law Enforcement Act of 1994, §
60003(a)(14), 108 Stat. 1970, and the Carjacking Correction Act of 1996,
§ 2, 110 Stat. 3020.

Guidance in interpretation of section 2119 may be obtained by reference
to similar statutes since section 2119 tracks the language used in other
federal robbery statutes (18 U.S.C. §§ 2111, 2113 and 2118). H.R. Rep.
No. 851, 102d Cong. 2d Sess., pt. 1, at 17 (1992), U.S. Code Cong. &
Admin. News 1992, p. 2834.

The term "motor vehicle" means a completely assembled automotive vehicle
of some sort. *United States v. Johnson*, 56 F. 3d 947, 957 (8^th^ Cir.
1995).

\"Intimidation\" has been defined under the bank robbery statute (18
U.S.C. § 2113) as conduct reasonably calculated to put another in fear;
under this test, subjective courageousness or timidity of the victim is
irrelevant; the acts of the defendant must constitute an intimidation to
an ordinary, reasonable person. *United States v. Smith*, 973 F.2d 603,
604 (8th Cir. 1992) (citing *United States v. Higdon*, 832 F. 2d 312,
315 (5th Cir. 1987).

The carjacking statute is a constitutional exercise of Congress\' power
under the Commerce Clause. *United States v. Robinson*, 62 F. 3d 234
(8^th^ Cir. 1995). The "carjacking statute regulates an item of
interstate commerce . . . \[t\]herefore fits squarely within the second
category of activities regulable by Congress under the commerce clause."
Also, the express findings by Congress of a direct link between
carjacking and negative effects on interstate commerce provide
additional support that the statute is constitutional. *Robinson*, 62
F.3d at 236-37. *See also United States v. Harris*, 25 F.3d 1275 (5^th^
Cir. 1994); *United States v. Johnson*, 32 F.3d 82 (4^th^ Cir. 1995);
*United States v. Martinez*, 49 F. 3d 1398, 1400-01 (9^th^ Cir. 1995);
*United States v. Overstreet*, 40 F.3d 1090 (10^th^ Cir. 1994); *United
States v. Williams*, 51 F.3d 1004, 1008-09 (11^th^ Cir. 1995).

**6.18.2119B ^1^ CARJACKING (Serious Bodily Injury) (18 U.S.C.
§2119(2))**

The crime of carjacking has five elements which are:

*One*, the defendant, \[took\] \[attempted to take\] a (describe the
motor vehicle, *e.g.*, 1998 Ford Explorer, VIN #000000000000) from a
\[person\];

*Two*, the defendant did so by means of \[force and violence\]
\[intimidation\];

*Three*, the (describe motor vehicle) had been \[transported\]
\[shipped\] \[or\] \[received\] in \[interstate\] \[foreign\] commerce;

*Four*, at the time the defendant \[took\] \[attempted to take\] the
motor vehicle (he) (she) intended to cause death or serious bodily
injury^2^.

*Five*, the defendant \[caused serious bodily injury to\] \[committed an
act of (sexual abuse) (aggravated sexual abuse) upon\] a person while
\[taking\] \[attempting to take\] the (describe the motor vehicle).

"Serious bodily injury" means an injury that involves \[a substantial
risk of death\] \[extreme physical pain\] \[ long term and obvious
disfigurement\] \[the long-term loss or impairment of a function of a
bodily member or organ\] \[the long term loss or impairment of a mental
function\].^3^

\["Sexual abuse" means to cause another person to engage in a sexual act
by threat or fear.\]

\["Aggravated sexual abuse" means to cause another person to engage in a
sexual act by \[force\] \[a threat of death or serious bodily injury\]
\[a threat of kidnaping\].\]

**Notes on Use**

1\. This Instruction should only be used where the indictment alleges
"serious bodily injury" or the defendant committed an act of sexual
abuse during the carjacking for purposes of the enhanced sentence in
accordance with 18 U.S.C. § 2119(2). The crime of carjacking subject to
the enhanced penalties under section 2119(2) may be committed by either
causing serious bodily injury as defined in 18 U.S.C. § 1365 or by an
act of sexual abuse during the course of the carjacking as defined in 18
U.S.C. §§ 2241 and 2242. There may be instances in which the indictment
alleges that both an act of sexual abuse and serious bodily injury
occurred, in which case both definitions should be given.

2\. The statute uses the term "harm" in some places and "injury" in
others, apparently interchangeably. A conditional intent to kill or
cause serious bodily injury is sufficient to establish the intent
requirement under the statute. "The intent requirement of section 2119
is satisfied when the Government proves that at the moment the defendant
demanded or took control over the driver's automobile the defendant
possessed the intent to seriously harm or kill the driver if necessary
to steal the car. . . ." *Holloway v. United States*, 526 U.S. 1 (1999).

3\. The court should, if requested by a party, give 6.18.2119A as a
lesser included offense instruction. If a lesser include offense
instruction is given, the format in Instruction 3.10 should be used.

**Committee Comments**

*See, generally,* comments for 6.18.2119A.

"Serious bodily injury" is defined in 18 U.S.C. § 1365. Serious bodily
injury may include protracted impairment of mental faculties resulting
from rape committed in the course of a carjacking even though evidence
of extreme physical pain was lacking. *United States v. Vasquez-Rivera*,
135 F.3d 172 (1^st^ Cir. 1998). *See also United States v. Lowe*, 145
F.3d 45 (1^st^ Cir. 1998).

Sexual abuse is defined in 18 U.S.C. § 2242. Aggravated sexual abuse is
defined in 18 U.S.C. § 2241.

**6.18.2119C ^1^ CARJACKING (Death Resulting) (18 U.S.C. § 2119(3))**

The crime of carjacking has five elements, which are:

*One*, the defendant(s), \[took\] \[attempted to take\] a (describe the
motor vehicle, *e. g.*, 1998 Ford Explorer, VIN #000000000000) from a
\[person\];

*Two*, the defendant did so by means of \[force and violence\]
\[intimidation\];

*Three*, the (describe motor vehicle) had been \[transported\]
\[shipped\] \[or\] \[received\] in \[interstate\] \[foreign\] commerce;

*Four*, at the time the defendant \[took\] \[attempted to take\] the
motor vehicle (he) (she) (they) intended to cause death or serious
bodily injury^2,\ 3^.

*Five*, the death of a person resulted from \[taking\] \[attempting to
take\] the (describe the motor vehicle).^4^

"Serious bodily injury" means an injury that involves \[a substantial
risk of death\] \[extreme physical pain\] \[ long term and obvious
disfigurement\] \[the long-term loss or impairment of a function of a
bodily member or organ\] \[the long term loss or impairment of a mental
function\].

**Notes on Use**

1\. This Instruction should only be used where the indictment alleges
that the defendant caused the death of a person for purposes of the
enhanced sentence in accordance with 18 U.S.C. § 2119(c).

2\. The statute uses the term "harm" in some places and "injury" in
others, apparently interchangeably.

3\. A conditional intent to kill or cause serious bodily injury is
sufficient to establish the intent requirement under the statute. "The
intent requirement of section 2119 is satisfied when the Government
proves that at the moment the defendant demanded or took control over
the driver's automobile the defendant possessed the intent to seriously
harm or kill the driver if necessary to steal the car . . ." *Holloway
v. United States,* 526 U.S. 1 (1999).

4\. The court should, if requested by a party, give Instructions
6.18.2119A, 6.18.2119B, *supra*, or both, as lesser included offense
instructions. If lesser included offense instructions are given, the
format in Instruction 3.10, *supra*, should be used.

**Committee Comments**

*See* comments for Instruction 6.18.2119A., *supra*.

**6.18.2252A RECEIPT, POSSESSION OR DISTRIBUTION OF**

**MATERIAL CONTAINING CHILD PORNOGRAPHY**

**(18 U.S.C. §2252A(a)(2)(A) and (B) and (a)(5)(B))**

The crime of \[receipt\] \[possession\] \[distribution\] of child
pornography\[, as charged in \[Count \] of the indictment,\] has three
elements, which are:

*One*, that on or about (date) the defendant knowingly \[received\]
\[possessed\]^1^ \[distributed\] (name of item or items, e.g., a book,
magazine, periodical, film, videotape, computer disk, etc.) that
\[were\] \[contained\] \[a\] \[multiple\] visual depiction(s) of child
pornography;

*Two*, that the defendant knew that the visual depiction(s) \[was\]
\[were\] of a minor engaging in sexually explicit conduct;^2^ and

*Three*, that the \[material containing the\] visual depiction(s)
\[\[was\] \[were\] produced using materials that\]^3^ had been \[mailed
\] \[shipped\] \[transported\] \[by computer\] in interstate or foreign
commerce.^4^

\[You have heard evidence of more than one visual depiction involved in
the offense. You must agree unanimously as to which visual depiction(s)
the defendant possessed.\]

The term "minor" means any person under the age of eighteen years.^5^

The phrase "child pornography" means any visual depiction of a minor
engaging in sexually explicit conduct, where the minor was engaged in
the sexually explicit conduct during production of the depiction.^6^ The
term "visual depiction"includes \[a\] \[any\] \[photograph\] \[film\]
\[video\] \[picture\] \[or\] \[computer or computer-generated image or
picture\], whether made or produced by electronic, mechanical, or other
means. \[It includes undeveloped film and videotape, and data stored on
computer disk or by electronic means which is capable of conversion into
a visual image.\]^7^

The term "sexually explicit conduct" means actual or simulated \[sexual
intercourse, including \[genital-genital\] \[oral-genital\]
\[anal-genital\] \[oral-anal\], whether between persons of the same or
opposite sex\]; \[bestiality\] \[masturbation\] \[sadistic or
masochistic abuse\]\] \[lascivious exhibition of the genitals or pubic
area of any person\].^8^

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

**Notes on Use**

1\. Presence of child pornography images in a computer's temporary cache
file is not sufficient to establish the defendant's knowing possession
of the images. *See, e.g., United States v. Stulock*, 308 F.3d 922, 925
(8^th^ Cir. 2002) (the district court in a bench trial held that "one
cannot be guilty of possession for simply having viewed an image on a
web site, thereby causing the image to be automatically stored in the
browser's cache, without having purposely saved or downloaded the
image." The government did not appeal.); *but see, United States v.
Tucker*, 305 F.3d 1193, 1205 (10^th^ Cir. 2002) (the defendant's
knowledge that the images would be stored in the temporary cache file
was sufficient to show knowing possession of the images located there).

2\. The Supreme Court in *United States v. X-Citement Video, Inc.,* 513
U.S. 64 (1992), held with respect to a different statute, 18 U.S.C. §
2252(a)(1) and (2), that proof of scienter as to the age of the person
depicted is required for conviction. While the phraseology of § 2252A(a)
is different, in that it uses the phrase "child pornography" instead of
"visual depiction involving the use of a minor," the statute also
contains as an element scienter of the age of the person depicted. *See
United States v. Acheson*, 195 F.3d 645, 653 (11^th^ Cir. 1999). Courts
have also held that the scienter requirement extends to knowledge that
the visual depictions were sexually explicit. *X-Citement Video, Inc*,
513 U.S. at 78 (§ 2252(a)(2)); *United States v. Fabiano*, 169 F.3d
1299, 1303-04 (10^th^ Cir. 1999); *United States v. Cedelle*, 89 F.3d
181, 185 (4^th^ Cir. 1996).

The age of the child depicted may be proved by, *inter alia*, language
used by the defendant in correspondence; Postal Inspector's professional
and personal familiarity with child development; and a pediatrics
professor's testimony. *United States v. Broyles*, 37 F.3d 1314, 1317-18
(8^th^ Cir. 1994); *United States v. Rayl*, 270 F.3d 709, 714 (8^th^
Cir. 2001). In *United States v. Vig*, 167 F.3d 443, 449-50 (8^th^ Cir.
1999), the court found that the jury could draw its own independent
conclusion as to whether real children were depicted by examining the
images presented to them. *But see United States v. Hilton*, 363 F.3d
58, 64-65 (1^st^ Cir. 2004) ("the government must introduce relevant
evidence *in addition to* the images to prove the children are real.").
Finally, in *United States v. Deaton*, 328 F.3d 454, 455 (8^th^ Cir.
2003), the court held that the government is not required to introduce
affirmative evidence that images of children were *not* computer
generated.

3\. This bracketed material, which refers to production using materials
that had been mailed, shipped or transported in interstate commerce, is
for possible inclusion [only]{.underline} in prosecutions brought under
§ 2252A(a)(5)(B). If the government alleges that multiple depictions are
involved, the court may consider submitting special interrogatories.
*See* 11.03.

4\. Whether the statute requires the defendant have knowledge that the
item traveled in interstate commerce has not yet been resolved by the
Eighth Circuit; if analyzed similarly to federal gun statutes,
interstate transportation without the knowledge of the defendant is
sufficient. *See United States v. Robinson*, 137 F.3d 652, 655 (1^st^
Cir. 1998)(§2252); *but see United States v. Colavito*, 19 F.3d 69, 71
(2d Cir. 1994) (§ 2252) (the defendant must know that he was receiving
material through interstate commerce and that the materials contained
sexually explicit depictions of minors). *See* 6.18.2252A (C) for
definitions of interstate commerce.

5\. 18 U.S.C. § 2256(1).

6\. 18 U.S.C. § 2256(8)(A). The Committee believes that the greatest
number of prosecutions will be brought under this subsection of the
statute. Section 2256(8)(B) and (C) contain two additional definitions
of child pornography.

Section 2256(8)(B) was amended in response to *Ashcroft v. Free Speech
Coalition*, 535 U.S. 234 (2002) to provide that:

such visual depiction is a digital image, computer image, or computer
generated image that is, or is indistinguishable from, that of a minor
engaging in sexually explicit conduct.

The Committee expresses no opinion whether this provision will be found
to have the same constitutional infirmity as its predecessor.

Section 2256(8)(C) can be instructed as follows:

The phrase "child pornography" means a visual depiction that has been
created, adapted, or modified to appear that an identifiable minor is
engaging in sexually explicit conduct.

If this subsection is used, the following definition of "identifiable
minor" should be included:

The term "identifiable minor" as used in the definition of child
pornography

means a person \[who was a minor at the time the visual depiction was
created, adapted or modified\] \[whose image as a minor was used in
creating, adapting, or modifying the visual depiction\] and who is
recognizable as an actual person by the person's face, likeness, or
other distinguishing characteristic, such as a unique birthmark or other
recognizable feature. \[The government is not required to prove the
actual identity of the identifiable minor.\]

18 U.S.C. § 2256(9).

7\. 18 U.S.C. §§ 2256(5) and (8).

8\. 18 U.S.C. § 2256(2)(A). If the prosecution is brought under 18
U.S.C. § 2256(8)(B), the definition of sexually explicit conduct should
be taken from 18 U.S.C. § 2256(2)(B).

**Committee Comments**

This instruction has been drafted to comply with amendments made to §
2252A by the Prosecutorial Remedies and Other Tools to end the
Exploitation of Children Today (PROTECT) Act of 2003, Pub. L. No.
108-21, 117 Stat. 650 (2003). The amendments are effective April 30,
2003. If the criminal conduct occurred prior to April 30, 2003, the
instruction should be revised to comply with the unamended statute.

**6.18.2252A(1) "LASCIVIOUS" EXPLAINED**

Whether a visual depiction of the genitals or pubic area constitutes a
lascivious exhibition requires a consideration of the overall content of
the material. You may consider such factors as (1) whether the focal
point of the picture is on the minor's genitals or pubic area; (2)
whether the setting of the picture is sexually suggestive, that is, in a
place or pose generally associated with sexual activity; (3) whether the
minor is depicted in an unnatural pose or in inappropriate attire,
considering the age of the minor; (4) whether the minor is fully or
partially clothed, or nude; (5) whether the picture suggests sexual
coyness or a willingness to engage in sexual activity; (6) whether the
picture is intended or designed to elicit a sexual response in the
viewer; (7) whether the picture portrays the minor as a sexual object;
and (8) the caption(s) on the picture(s).

It is for you to decide the weight or lack of weight to be given to any
of these factors. A picture need not involve all of these factors to
constitute a lascivious exhibition of the genitals or pubic area.

**Committee Comments**

Title 18, United States Code, § 2256(2). The first six factors are
derived from *United States v. Dost*, 636 F. Supp. 828, 832 (S.D. Cal.
1986), *aff'd* *sub. nom*. *United States v. Wiegand*, 812 F.2d 1239,
1244 (9^th^ Cir. 1987) and are generally cited. *See, e.g.*, *United
States v. Horn*, 187 F.3d 781, 789 (8^th^ Cir. 1999); *United States v.
Carroll*, 190 F.3d 290, 296 (5^th^ Cir. 1999); *United States v.
Amirault*, 173 F.3d 28, 31 (1^st^ Cir. 1999). The seventh and eighth
factors were added by the court in *United States v. Arvin*, 900 F.2d
1385 (9th Cir. 1990) (interpreting the definition of "lascivious" found
in 18 U.S.C. § 2256(2)(E) for purposes of § 2252).

The factors are "neither comprehensive nor necessarily applicable in
every situation. . . \[T\]here may be other factors that are equally if
not more important in determining whether a photograph contains a
lascivious exhibition." *United States v. Amirault*, 173 F.3d at 32.

In *United States v. Rayl*, 270 F.3d 709, 714 (8th Cir. 2001), the court
held that the question whether materials depict a "lascivious exhibition
of the genitals" is for the finder of fact. However, the meaning of
"lascivious exhibition of the genitals" is an issue of law. The district
court therefore should, before submitting materials offered by the
government to the jury, conduct a preliminary review of whether those
materials depict sexually explicit conduct as a matter of law. *Accord*
*United States v. Horn*, 187 F.3d at 789.

**6.18.2252A(2) "INTERSTATE COMMERCE" DEFINED**

The phrase \"interstate commerce\" means commerce between any
combination of states, territories, and possessions of the United
States, including the District of Columbia.^1^

\[The phrase \"foreign commerce,\" as used above, means commerce between
any state, territory or possession of the United States and a foreign
country.\]^1^

\[The term \"commerce\" includes, among other things, travel, trade,
transportation and communication.\]^1^

\[Images transmitted or received over the Internet have moved in
interstate or foreign commerce.^2^ It is for you to determine, however,
if \[the material containing\] the visual depiction \[had been
transmitted or received over the Internet\] \[was produced using
materials that had been transmitted or received over the
Internet\]\].^3^

**Notes on Use**

1\. *See* 6.18.1956J(2); *United States v. Hampton*, 260 F.3d 832 (8^th^
Cir. 2001); *United States v. Bausch*, 140 F.3d 739 (8^th^ Cir. 1998).

2\. *See United States v. Smith*, 47 M.J. 588 (1997) (relying in part on
*United States v. Carroll*, 105 F.3d 740, 742 (1^st^ Cir. 1997); *United
States v. Thomas*, 74 F.3d 701, 706-07 (6^th^ Cir. 1996); *United States
v. Runyan*, 290 F.3d 223, 239 (5^th^ Cir. 2002). Each item must be
independently linked to the Internet. *United States v. Henriques*, 234
F.3d 263, 266 (5^th^ Cir. 2000); *United States v. Wilson*, 182 F.3d
737, 744 (10^th^ Cir. 1999).

3\. The last bracketed portion of this sentence is applicable only in
prosecutions under § 2252A(a)(5)(B).

**6.18.2252A(3) "COMPUTER" DEFINED**

The term "computer" as used in this instruction means an electronic,
magnetic, optical, electrochemical, or other high speed data processing
device performing logical, arithmetic, or storage functions, and
includes any data storage facility or communications facility directly
related to or operating in conjunction with such device, but such term
does not include an automated typewriter or typesetter, a portable hand
held calculator, or other similar device.

**Committee Comments**

*See* 18 U.S.C. §§ 1030(e), 2252A(a)(5)(B) and 2256(6).

**6.18.2312 INTERSTATE TRANSPORTATION OF**

**STOLEN VEHICLE (18 U.S.C. §2312)**

The crime of \[interstate\] \[foreign\] transportation of a stolen motor
vehicle, as charged in \[Count of\] the indictment, has three elements,
which are:

*One*, the (describe vehicle) was stolen;

*Two*, after the vehicle was stolen, the defendant \[moved\] \[caused it
to be moved\] across a \[state line\] \[United States border\];

*Three*, at the time he \[moved the vehicle\]\[caused the vehicle to be
moved\] across a \[state line\] \[United States border\], the defendant
knew it was stolen.

Property has been \"stolen\" when it has been taken with the intent to
permanently or temporarily deprive the owner of the rights and benefits
of ownership.

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

**Committee Comments**

*See* *United States v. Harris*, 528 F.2d 1327, 1330 (8th Cir. 1975);
*United States v. Gilliss*, 645 F.2d 1269, 1279-80 n.25 (8th Cir. 1981).

\"Stolen\" is defined in *United States v. Turley*, 352 U.S. 407, 410-17
(1957).

Where a person lawfully obtains possession of a motor vehicle and later
forms an intent to convert it to his own use, and in furtherance of that
intention transports it across state lines, there is a violation of
section 2312. *United States v. Miles*, 472 F.2d 1145, 1146 (8th Cir.
1973); *United States v. Bruton*, 414 F.2d 905 (8th Cir. 1969). In such
a case, the following paragraph should be added:

It is not necessary that the taking of the vehicle be unlawful. Even if
possession of the vehicle is lawfully acquired, the vehicle will be
deemed \'stolen\' if the defendant thereafter forms the intent to
deprive the owner of the rights and benefits of ownership, and converts
the vehicle to his own use.

The taking need not be done with the intent to permanently deprive the
owner of the vehicle. *See* *United States v. Bruton*, 414 F.2d at 908.

The defendant must know that the vehicle in question is stolen, but need
not know that it is being transported across state lines. *See* *United
States v. Spoone*, 741 F.2d 680, 686 (4th Cir. 1984); *United States v.
Martinez*, 694 F.2d 71, 72 (5th Cir. 1982).

**6.18.2313 RECEIPT OR SALE OF A STOLEN**

**MOTOR VEHICLE OR AIRCRAFT (18 U.S.C. § 2313)**

The crime of \[receiving\] \[possessing\] \[concealing\] \[storing\]
\[selling\] \[disposing of\] a stolen \[motor vehicle\] \[aircraft\], as
charged in \[Count of\] the indictment, has four elements, which are:

*One*, the (describe vehicle or aircraft) was stolen;

*Two*, after it was stolen, the \[vehicle\] \[aircraft\] was moved
across a \[state line\] \[United States border\];

*Three*, after the \[vehicle\] \[aircraft\] had been stolen and moved
across a \[state line\] \[United States border\], the defendant
\[received\] \[possessed\] \[concealed\] \[stored\] \[sold\] \[disposed
of\]^1^ it; and

*Four*, at the time the defendant \[received\] \[concealed\] \[stored\]
\[sold\] \[disposed of\] the \[vehicle\] \[aircraft\], he knew it had
been stolen.

Property has been \"stolen\" when it has been taken with the intent to
permanently or temporarily deprive the owner of the rights and benefits
of ownership.

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

**Notes on Use**

1\. If acts constituting both housing of stolen vehicles and disposal of
stolen vehicles are charged, further instructions will be necessary to
assure jury unanimity on at least one theory. *See* *United States v.
Gipson*, 553 F.2d 453 (5th Cir. 1977).

**Committee Comments**

*See* 2B Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 59.06 (5th ed. 2000); *United States v.
Brady*, 425 F.2d 309, 311 (8th Cir. 1970); Seventh Circuit Federal Jury
Instructions: Criminal at 359 (1999). *BUT NOTE*: Those referenced
instructions are all based on 18 U.S.C. § 2313 *prior* to being amended
on October 25, 1984. This instruction 6.18.2313 reflects 18 U.S.C. §
2313 as amended.

Section 2313 relates to the receipt or sale of stolen motor vehicles and
aircraft. Section 2315 relates to the receipt or sale of stolen money,
securities, or other property. The elements of the two offenses are
virtually identical except that section 2315 requires that the stolen
property had a value of at least \$5,000, while section 2313 contains no
such requirement. \"Value\" means market value. *United States v.
Williams*, 657 F.2d 199, 202 (8th Cir. 1981). If the defendant is
charged under section 2315, an additional element positing a minimum
value of \$5,000.00 must be included in this instruction.

This statute was amended as of October 25, 1984, to provide that federal
criminal jurisdiction continues over a stolen motor vehicle once it
crosses a state line even after it ceases to be part of the flow of
interstate commerce. Thus it is no longer necessary to prove that a
vehicle stolen after October 25, 1984 was still in interstate commerce
at the time of receipt, possession, etc. A similar amendment was made to
section 2315 as of November 10, 1986.

With respect to stolen vehicles taken across a state line prior to
October 25, 1984, the question of whether property was moving in
interstate commerce at the relevant time is ordinarily for the jury.
*United States v. Tobin*, 576 F.2d 687, 691 (5th Cir. 1978). *See also*
*United States v. Hiscott*, 586 F.2d 1271, 1274 (8th Cir. 1978); *United
States v. Briddle*, 430 F.2d 1335, 1338-39 (8th Cir. 1970).

The defendant\'s knowledge that the property was stolen is an element of
each offense covered by sections 2312-2315. *United States v. Miller*,
725 F.2d 462, 468 (8th Cir. 1984); *United States v. Wilson*, 523 F.2d
828, 829-30 (8th Cir. 1975). Such knowledge may be established by
evidence of the defendant\'s unexplained possession of recently stolen
property. *Id.*; *United States v. Brotherton*, 427 F.2d 1286, 1288 (8th
Cir. 1970). An explanation of possession or receipt by the defendant
does not automatically preclude the jury from weighing the inference
created by possession. *United States v. Burns*, 597 F.2d 939, 943-44
n.7 (5th Cir. 1979). *See* Instruction 4.13, *supra*. Knowledge of the
involvement of interstate commerce is not necessary for conviction.
*United States v. Wilson*, 523 F.2d at 829 n.2.

\"Stolen\" is defined in *United States v. Turley*, 352 U.S. 407, 410-17
(1957).

\"Possession\" will not ordinarily need to be defined. \"Where the proof
of possession is overwhelming or where ordinary laymen\'s concepts of
possession will suffice, no legal definition is necessary.\" *Kramer v.
United States*, 408 F.2d 837, 840-41 (8th Cir. 1969) and cases cited
therein. *Kramer* does recognize that in certain factual situations it
might be more desirable to define the word \"possession\" in order to
more precisely delineate the issues. 408 F.2d at 840 n.2. *See*
Instruction 8.02, *infra*.

Likewise \"conceal\" is to be given its ordinary meaning by the jury,
although the court may illustrate or expand on that meaning. *See*
*United States v. Folsom*, 479 F.2d 1, 3 (8th Cir. 1973); *United States
v. Sherriff*, 546 F.2d 604, 608 (5th Cir. 1977), *reh. denied*, 549 F.2d
204 (5th Cir. 1977). Concealing does require some overt act beyond mere
possession. *United States v. Powell*, 420 F.2d 949, 950 (6th Cir.
1970). *See also* *United States v. Mahanna*, 461 F.2d 1110, 1117 (8th
Cir. 1972).

**6.18.2314 INTERSTATE TRANSPORTATION OF**

**STOLEN PROPERTY (18 U.S.C. § 2314) (First Paragraph)**

The crime of \[interstate\] \[foreign\] transportation of \[stolen\]
\[converted\] \[fraudulently taken\] property,^1^ as charged in \[Count
of\] the indictment, has four elements, which are:

*One*, the (describe property) was \[stolen\] \[converted\] \[taken by
fraud\];

*Two*, the (describe property) then had a value^2^ of \$5,000.00 or
more;

*Three*, after the (describe property) was \[stolen\] \[converted\]
\[taken by fraud\], the defendant \[moved it\] \[caused it to be moved\]
across a \[state line\] \[United States border\]; and

*Four*, at the time the defendant \[moved the (describe property)\]
\[caused the (describe property) to be moved\] across a \[state line\]
\[United States border\], \[he\] \[she\] knew that it had been
\[stolen\] \[converted\] \[taken by fraud\].

\[Property has been \"stolen\" when it has been taken with the intent to
permanently or temporarily deprive the owner of the rights and benefits
of ownership.\]

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

**Notes on Use**

1\. The statute specifically applies to \"goods, wares, merchandise,
securities or money.\" Any of these terms may be substituted for the
word \"property\" as is applicable. \"Money\" and \"Securities\" are
defined in section 2311.

2\. \"Value\" is defined in section 2311. If value is a disputed issue,
a definition should be given to the jury. *See* Committee Comments,
*supra*.

**Committee Comments**

*See* 2B Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 59.09 (5th ed. 2000). *See generally* *Gay v.
United States*, 408 F.2d 923, 926-29 (8th Cir. 1969); Seventh Circuit
Federal Jury Instructions: Criminal at 362 (1999).

*See* Committee Comments, Instructions 6.18.2312 and 6.18.2313, *supra*.

Knowledge that the property was stolen or taken by fraud is an element
of this offense, but \"specific intent\" is not. *United States v.
Miller*, 725 F.2d 462, 468 (8th Cir. 1984); *United States v.
Zarattini*, 552 F.2d 753, 760 (7th Cir. 1977). Knowledge or
foreseeability of interstate transportation is not necessary for
conviction. *United States v. Kibby*, 848 F.2d 920, 923 (8th Cir. 1988);
*United States v. Ludwig*, 523 F.2d 705, 707 (8th Cir. 1975).

This offense is not limited to the physical movement of tangible
property from one state to another; it is a violation of Section 2314 to
cause an interstate wire transfer of stolen funds. *See* *United States
v. Wright*, 791 F.2d 133 (10th Cir. 1986).

\"Stolen\" is defined in *United States v. Turley*, 352 U.S. 407, 410-17
(1957).

Fraud includes false representation, dishonesty and deceit. \"It may
result from reckless representation even when not made with a deliberate
intent to deceive.\" *United States v. Grainger*, 701 F.2d 308, 311 (4th
Cir. 1983).

\"Value\" is defined in section 2311. Market value is ordinarily used to
determine the value of stolen property. However any reasonable method
may be used to ascribe a monetary value to goods which have no market
value or the value of which depends on intangible components, including
development and production costs, revenues, or price in a \"thieves\'
market.\" *See* *United States v. Stegora*, 849 F.2d 291, 292 (8th Cir.
1988).

Separate transactions under \$5,000 may be aggregated for the purpose of
meeting the \$5,000 limit of 18 U.S.C. § 2314 provided they are
substantially related and charged as a single offense. *United States v.
Lagerquist*, 758 F.2d 1279 (8th Cir. 1985); *Schaffer v. United States*,
362 U.S. 511 (1960). In such a case, Element *Two* should be modified to
include \"total value.\"

**6.21.841A CONTROLLED SUBSTANCES - POSSESSION**

**WITH INTENT TO DISTRIBUTE (21 U.S.C. § 841(a)(1))**

The crime of possession of (describe substance, e.g., cocaine) with
intent to distribute, as charged in \[Count \_\_\_\_\_ of\] the
indictment, has three elements, which are:

*One*, the defendant was in possession of (describe substance, e.g.,
cocaine);^1^

*Two*, the defendant \[knew that he was\] \[intended to be\] in
possession of \[a controlled substance\] \[(describe substance, e.g.,
cocaine)\];^2^ and

*Three*, the defendant intended to distribute^3^ some or all^4^ of the
(describe substance, e.g., cocaine) to another person.

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

**Notes on Use**

1\. For jury instructions involving enhanced drug offenses under
*Apprendi v. New Jersey*, *see* 6.21.841A1 - 6.21.846A1.

2\. The defendant need not know what the controlled substance is if he
knows he has possession of some controlled substance. *United States v.
Sheppard*, 219 F.3d 766 (8^th^ Cir. 2000). The alternative language
which best fits the case should be used.

3\. In *United States v. Shurn*, 849 F.2d 1090 (8th Cir. 1988), the
court approved the following instruction on \"intent to distribute\":

I instruct you that possession of a large quantity of heroin supports an
inference of an intent to distribute.

Thus, in determining whether the defendant possessed heroin with the
specific intent to distribute it, you should consider whether the
defendant possessed a large quantity of heroin. If you believe that he
did, then you may infer that he had the specific intent to distribute.

849 F.2d at 1095 n.6.

When such an instruction is used, care must be used that the instruction
not be phrased in a manner which indicates the jury must make an
inference. Likewise, \"specific\" should be omitted as modifying intent.
The Committee recommends that such an instruction be rephrased as
suggested in Instruction 4.13, *supra*.

\"Distribute\" may be defined if the meaning is unclear in the context
of the case. The statute also makes it unlawful to manufacture, dispense
or possess with intent to manufacture, distribute or dispense. If one of
these alternatives has been charged, this element should be changed
accordingly.

4\. It is uncertain whether, in section 841(a)(1) possession with intent
to distribute cases, drugs intended only for personal use are included
in the drug quantity. In *United States v. Williams*, 247 F.3d 353, 357
(2d Cir. 2001) and *United States v. Rodriguez-Sanchez*, 23 F.3d 1488,
1494-96 (9^th^ Cir. 1994), the courts held that such amounts are not
included. The Eighth Circuit has not ruled on the precise issue;
however, in *United States v. Fraser*, 243 F.3d 473, 476 (8^th^ Cir.
2001), it concluded that in determining relevant conduct under the
guidelines for a section 841(a)(1) offense, drugs possessed for solely
personal use should not be included. The phrase \"some or all\"
therefore should be used with care.

**Committee Comments**

*See* 2B Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal §§ 64.01-.18 (5th ed. 2000); *United States v.
Hudson*, 717 F.2d 1211, 1212-13 (8th Cir. 1983); *United States v.
Brischetto*, 538 F.2d 208, 210 (8th Cir. 1976).

Any fact (other than a prior conviction) that increases the maximum
penalty for a crime must be charged in the indictment, submitted to the
jury, and proven beyond a reasonable doubt. *Apprendi v. New Jersey*,
530 U.S. 466 (2000); *United States v. Aguayo-Delgado*, 220 F.3d 926
(8^th^ Cir. 2000); *United States v. Sheppard*, 219 F.3d 766 (8^th^ Cir.
2000). Under the section 841(b) sentencing provisions, some of the facts
that may raise the statutory maximum are the quantity of drugs involved
in the offense, or whether death or serious bodily injury results from
use of the drugs involved. For jury instructions involving such enhanced
drug offenses, **see** 6.21.841A1 - 6.21.846A1. In *Harris v. United
States*, 536 U.S. 545 (2002), the Supreme Court declined to extend
*Apprendi* to facts increasing the statutory minimum sentence,
reaffirming its earlier decision in *McMillan v. Pennsylvania*, 477 U.S.
79 (1986). Therefore, such facts need not be submitted to the jury.

The element of \"possession\" ordinarily does not need to be defined.
*Johnson v. United States*, 506 F.2d 640, 643 (8th Cir. 1974). Where the
government is relying on a joint possession or constructive possession
theory, however, a definitional instruction may be required. *See*
Instruction 8.02, *infra*; *see also* Ninth Cir. Crim. Jury Instr. 9.4.1
(1997); 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 16.05 (5th ed. 2000); *United States v.
Haynes*, 653 F.2d 332, 333 (8th Cir. 1981); *United States v. Weisser*,
737 F.2d 729, 732 (8th Cir. 1984).

\"Intent to distribute\" typically is established through circumstantial
evidence. *United States v. Shurn*, 849 F.2d 1090, 1093, 1095 (8th Cir.
1988) and cases cited therein. In particular, possession of a large
quantity of a controlled substance can be sufficient evidence of an
intent to distribute. *United States v. Lopez*, 42 F.3d 463, 467-68 (8th
Cir. 1994). Other indicia of intent to distribute include \"\[drug\]
purity and presence of firearms, cash, packaging material, or other
distribution paraphernalia.\" *Id.*

It is uncertain whether, in section 841(a)(1) possession with intent to
distribute cases, drugs intended only for personal use are included in
the drug quantity. In *United States v. Williams*, 247 F.3d 353, 357 (2d
Cir. 2001) and *United States v. Rodriguez-Sanchez*, 23 F.3d 1488,
1494-96 (9^th^ Cir. 1994), the courts held that such amounts are not
included. The Eighth Circuit has not ruled on the precise issue;
however, in *United States v. Fraser*, 243 F.3d 473, 476 (8^th^ Cir.
2001), it concluded that in determining relevant conduct under the
guidelines for a §841(a)(1) offense, drugs possessed for solely personal
use should not be included. The phrase \"some or all\" therefore should
be used with care.

In an appropriate case, a lesser included offense instruction under 21
U.S.C. § 844 must be given. *See* *United States v. Brischetto*, 538
F.2d 208 (8th Cir. 1976); *see*, *e.g.*, *United States v. Swiderski*,
548 F.2d 445 (2d Cir. 1977) in which the court held that joint
purchasers and possessors of a controlled substance who intend to share
it between themselves may not be found guilty of distribution or
possession with intent to distribute, but only of simple possession.
*See* Instruction 3.10, *supra*, for a form of lesser included offense
instruction.

When distribution by a physician is charged, there must be a finding
that the defendant dispensed the drug other than for a legitimate
medical purpose and not in the usual course of medical practice. *United
States v. Green*, 511 F.2d 1062, 1069-70 (7th Cir. 1975). In such a
case, the defendant may be entitled to a \"good faith\" instruction.
*Green*, 511 F.2d at 1071-72. *See* Instructions 9.05 and 9.08, *infra*.

The question whether something is a \"controlled substance\" under 21
U.S.C. § 802(6) or a \"narcotic drug\" within the meaning of section
802(16) is a question of law. *United States v. Porter*, 544 F.2d 936,
940 (8th Cir. 1976).

**Greater and lesser included offense - short version**

**6.21.841A.1 (short) CONTROLLED SUBSTANCES - POSSESSION**

**WITH INTENT TO DISTRIBUTE (21 U.S.C. § 841(a)(1))**

***APPRENDI*-AFFECTED POSSESSION**

The crime of possession of (describe substance (and amount), e.g., \[a
controlled substance\] \[name of controlled substance\] \[500 grams or
more of a mixture or substance containing methamphetamine) with intent
to distribute, as charged in \[Count \_\_\_\_\_ of\] the indictment, has
four elements, which are:

*One*, the defendant possessed \[a controlled substance\] \[describe
substance, e.g., a mixture or substance containing methamphetamine\];

*Two*, the defendant \[knew that he\] \[intended to\] possess\[ed\] \[a
controlled substance\] \[describe substance, e.g., a mixture or
substance containing methamphetamine\];

*Three*, the defendant intended to distribute^1^ \[the controlled
substance\] \[describe substance, e.g., some or all of the mixture or
substance containing methamphetamine\]^2^; and

*Four*, (describe aggravating element,^3^ e.g., \[the amount the
defendant possessed with intent to distribute was 500 grams or more of a
mixture or substance containing methamphetamine\] \[the amount involved
in the offense was 500 grams or more of a mixture or substance
containing methamphetamine\], \[or if that is not proved, that (describe
lesser included but still aggravated crime, e.g. \[the amount the
defendant possessed with intent to distribute was 50 grams or more but
less than 500 grams of a mixture or substance containing
methamphetamine\] \[the amount involved in the offense was 50 grams or
more but less than 500 grams of a mixture or substance containing
methamphetamine\]\]).

If you find these four elements unanimously and beyond a reasonable
doubt, \[and if you find unanimously and beyond a reasonable doubt that
the defendant was not \[entrapped\] \[as defined in Instruction No.
\]\], then you must find the defendant guilty of the crime of (describe
crime). Record your determination on the Verdict Form which will be
submitted to you with these instructions.

If you do not find the defendant guilty of this crime \[under Count \],
go on to consider whether the defendant possessed with intent to
distribute some amount of (describe controlled substance). If you find
the first three elements set forth above unanimously and beyond a
reasonable doubt, \[and if you find unanimously and beyond a reasonable
doubt that the defendant was not \[entrapped\] \[as defined in
Instruction No. \]\], you must find the defendant guilty of the crime of
possession with intent to distribute (describe controlled substance,
e.g., a mixture or substance containing methamphetamine). Otherwise, you
must find the defendant not guilty. Record your determination on the
Verdict Form.

(Instruction 3.09, *supra*, which describes the Government's burden of
proof, has already been incorporated in this instruction and should not
be repeated.)

**Notes on Use**

1\. In *United States v. Shurn*, 849 F.2d 1090 (8th Cir. 1988), the
court approved the following instruction on \"intent to distribute.\"

I instruct you that possession of a large quantity of heroin supports an
inference of an intent to distribute.

Thus, in determining whether the defendant possessed heroin with the
specific intent to distribute it, you should consider whether the
defendant possessed a large quantity of heroin. If you believe that he
did, then you may infer that he had the specific intent to distribute.

849 F.2d at 1095 n.6.

When such an instruction is used, care must be used that the instruction
not be phrased in a manner which indicates the jury must make an
inference. Likewise, \"specific\" should be omitted as modifying intent.
The Committee recommends that such an instruction be rephrased as
suggested in Instruction 4.13, *supra*.

\"Distribute\" may be defined if the meaning is unclear in the context
of the case. The statute also makes it unlawful to manufacture, dispense
or possess with intent to manufacture, distribute or dispense. If one of
these alternatives has been charged, this element should be changed
accordingly.

2\. It is uncertain whether, in section 841(a)(1) possession with intent
to distribute cases, drugs intended only for personal use are included
in the drug quantity. In *United States v. Williams*, 247 F.3d 353, 357
(2d Cir. 2001) and *United States v. Rodriguez-Sanchez*, 23 F.3d 1488,
1494-96 (9^th^ Cir. 1994), the courts held that such amounts are not
included. The Eighth Circuit has not ruled on the precise issue;
however, in *United States v. Fraser*, 243 F.3d 473, 476 (8^th^ Cir.
2001), it concluded that in determining relevant conduct under the
guidelines for a section 841(a)(1) offense, drugs possessed for solely
personal use should not be included. The phrase \"some or all\"
therefore should be used with care.

3\. Any fact (other than a prior conviction) that increases the maximum
penalty for a crime must be charged in the indictment, submitted to the
jury, and proven beyond a reasonable doubt. *Apprendi v. New Jersey*,
530 U.S. 466 (2000); *United States v. Aguayo-Delgado*, 220 F.3d 926
(8^th^ Cir. 2000); *United States v. Sheppard*, 219 F.3d 766 (8^th^ Cir.
2000). Under the section 841(b) sentencing provisions, some of the facts
that may raise the statutory maximum are the quantity of drugs involved
in the offense, whether death or serious bodily injury results from use
of the drugs involved, or whether the defendant has a prior felony drug
conviction. In *United States v. Sheppard*, 219 F.3d at 768-69, the
panel suggested that the district court's submission of drug quantity to
the jury in a special interrogatory rather than as an element of the
offense was harmless error. However, in *United States v. Harris,* 310
F.3d 1105 (8^th^ Cir. 2002), the Court, without mentioning *Sheppard*,
explicitly held that it was not an *Apprendi* error to submit the issue
of drug quantity to the jury by use of a special interrogatory. The
Committee believes, therefore, that submission of drug quantity either
as a formal element, as is done in 6.21.841A.1 (short) and 6.21.841A.1
(long) or by special interrogatory is permissible. *See* 6.21.841A.1(b)
for a verdict form with special interrogatories.

In *Apprendi*, 530 U.S. at 488, the majority left open the possibility
that it might revisit the issue of whether a defendant's prior
conviction(s) must be submitted to the jury and found beyond a
reasonable doubt before an enhanced punishment based on prior
convictions is appropriate. Unless and until the Court does so, prior
convictions used to enhance a sentence need not be submitted to the jury
and proven beyond a reasonable doubt. *Almendarez-Torres v. United
States*, 523 U.S. 224, 235 (1998); *United States v. Peltier*, 276 F.3d
1003, 1006 (8^th^ Cir. 2002); *United States v. Abernathy*, 277 F.3d
1048, 1050 (8^th^ Cir. 2002). In *Harris v. United States*, 536 U.S. 545
(2002), the Supreme Court declined to extend *Apprendi* to facts
increasing the statutory minimum sentence, reaffirming its earlier
decision in *McMillan v. Pennsylvania*, 477 U.S. 79 (1986). Therefore,
such facts need not be submitted to the jury.

Suggested wording for the aggravating facts listed in the above
paragraph are:

a\) the crime involved \[describe substance and amount\] or more. \[This
alternative is to be used where the amount of drugs increasing the
maximum sentence is not in dispute. Where the offense involves two or
more controlled substances, and the indictment alleges quantities of
each substance sufficient to raise the maximum sentence, an additional
element should be submitted to the jury for a finding on each controlled
substance.\]

b\) a death resulted from use of the \[describe substance\]. \[In
*United States v. McIntosh*, 236 F.3d 968, 972 (8^th^ Cir. 2001), the
Eighth Circuit held that the \"death resulting\" charge is a strict
liability one - the court may not impose \"a foreseeability or proximate
cause requirement.\" *Accord*, *United States v. Soler*, 275 F.3d 146
(1^st^ Cir. 2002)\].

**Committee Comments**

*See* Committee Comments to 6.21.841A.

**Greater and lesser included offense** - **long version**

**6.21.841A.1 (long) CONTROLLED SUBSTANCES - POSSESSION**

**WITH INTENT TO DISTRIBUTE (21 U.S.C. § 841(a)(1))**

***APPRENDI*-AFFECTED POSSESSION**

The crime of possession of (describe substance (and amount), e.g., \[a
controlled substance\] \[name of controlled substance\] \[500 grams or
more of a mixture or substance containing methamphetamine) with intent
to distribute, as charged in \[Count \_\_\_\_\_ of\] the indictment, has
four elements, which are:

*One*, the defendant possessed \[a controlled substance\] \[describe
substance, e.g., a mixture or substance containing methamphetamine\];

*Two*, the defendant \[knew that he\] \[intended to\] possess\[ed\] \[a
controlled substance\] \[describe substance, e.g., a mixture or
substance containing methamphetamine\];

*Three*, the defendant intended to distribute^1^ \[the controlled
substance\] \[describe substance, e.g., some or all of the mixture or
substance containing methamphetamine\]^2^; and

*Four*, (describe aggravating element,^3^ e.g. \[the amount the
defendant possessed with intent to distribute was 500 grams or more of a
mixture or substance containing methamphetamine\] \[the amount involved
in the offense was 500 grams or more of a mixture or substance
containing methamphetamine\]).

If you find these four elements unanimously and beyond a reasonable
doubt, \[and if you find unanimously and beyond a reasonable doubt that
the defendant was not \[entrapped\] \[as defined in Instruction No.
\]\], then you must find the defendant guilty of the crime of (describe
crime). Record your determination on the Verdict Form which will be
submitted to you with these instructions.

\[If you do not find the defendant guilty of this crime \[under Count
\], go on to consider whether (describe lesser aggravating element, e.g.
\[the amount the defendant possessed with intent to distribute was 50
grams or more but less than 500 grams of a mixture or substance
containing methamphetamine\] \[the crime involved 50 grams or more but
less than 500 grams of a mixture or substance containing
methamphetamine\].

If you find unanimously and beyond a reasonable doubt:

The first three elements set forth above; and

Fourth, that (describe lesser aggravating element, e.g. \[the defendant
possessed with intent to distribute 50 grams or more but less than 500
grams of a mixture or substance containing methamphetamine\] \[the crime
involved 50 grams or more but less than 500 grams of a mixture or
substance containing methamphetamine\]

\[and if you find unanimously and beyond a reasonable doubt that the
defendant was not \[entrapped\] \[as defined in Instruction No. \]\],
then you must find the defendant guilty of (describe crime). Record your
determination on the Verdict Form.\]

If you do not find the defendant guilty of this crime \[under Count \],
go on to consider whether the defendant possessed with intent to
distribute some amount of (describe controlled substance).

If you find the first three elements set forth above unanimously and
beyond a reasonable doubt, \[and if you find unanimously and beyond a
reasonable doubt that the defendant was not \[entrapped\] \[as defined
in Instruction No. \]\] you must find the defendant guilty of the crime
of (describe crime). Otherwise, you must find the defendant not guilty.
Record your determination on the Verdict Form.

(Instruction 3.09, *supra*, which describes the Government's burden of
proof, has already been incorporated in this instruction and should not
be repeated.)

**Notes on Use**

1\. In *United States v. Shurn*, 849 F.2d 1090 (8th Cir. 1988), the
court approved the following instruction on \"intent to distribute.\"

I instruct you that possession of a large quantity of heroin supports an
inference of an intent to distribute.

Thus, in determining whether the defendant possessed heroin with the
specific intent to distribute it, you should consider whether the
defendant possessed a large quantity of heroin. If you believe that he
did, then you may infer that he had the specific intent to distribute.

849 F.2d at 1095 n.6.

When such an instruction is used, care must be used that the instruction
not be phrased in a manner which indicates the jury must make an
inference. Likewise, \"specific\" should be omitted as modifying intent.
The Committee recommends that such an instruction be rephrased as
suggested in Instruction 4.13, *supra*.

\"Distribute\" may be defined if the meaning is unclear in the context
of the case. The statute also makes it unlawful to manufacture, dispense
or possess with intent to manufacture, distribute or dispense. If one of
these alternatives has been charged, this element should be changed
accordingly.

2\. It is uncertain whether, in section 841(a)(1) possession with intent
to distribute cases, drugs intended only for personal use are included
in the drug quantity. In *United States v. Williams*, 247 F.3d 353, 357
(2d Cir. 2001) and *United States v. Rodriguez-Sanchez*, 23 F.3d 1488,
1494-96 (9^th^ Cir. 1994), the courts held that such amounts are not
included. The Eighth Circuit has not ruled on the precise issue;
however, in *United States v. Fraser*, 243 F.3d 473, 476 (8^th^ Cir.
2001), it concluded that in determining relevant conduct under the
guidelines for a section 841(a)(1) offense, drugs possessed for solely
personal use should not be included. The phrase \"some or all\"
therefore should be used with care.

3\. Any fact (other than a prior conviction) that increases the maximum
penalty for a crime must be charged in the indictment, submitted to the
jury, and proven beyond a reasonable doubt. *Apprendi v. New Jersey*,
530 U.S. 466 (2000); *United States v. Aguayo-Delgado*, 220 F.3d 926
(8^th^ Cir. 2000); *United States v. Sheppard*, 219 F.3d 766 (8^th^ Cir.
2000). Under the section 841(b) sentencing provisions, some of the facts
that may raise the statutory maximum are the quantity of drugs involved
in the offense, whether death or serious bodily injury results from use
of the drugs involved, or whether the defendant has a prior felony drug
conviction. In *United States v. Sheppard*, 219 F.3d at 768-69, the
panel suggested that the district court's submission of drug quantity to
the jury in a special interrogatory rather than as an element of the
offense was harmless error. However, in *United States v. Harris,* 310
F.3d 1105, 1110 (8^th^ Cir. 2002), the Court, without mentioning
*Sheppard*, explicitly held that it was not an *Apprendi* error to
submit the issue of drug quantity to the jury by use of a special
interrogatory. The Committee believes, therefore, that submission of
drug quantity either as a formal element, as is done in 6.21.841A.1
(short) and 6.21.841A.1 (long) or by special interrogatory is
permissible. *See* 6.21.841A.1(b) for a verdict form with special
interrogatories.

In *Apprendi*, 530 U.S. at 488, the majority left open the possibility
that it might revisit the issue of whether a defendant's prior
conviction(s) must be submitted to the jury and found beyond a
reasonable doubt before an enhanced punishment based on prior
convictions is appropriate. Unless and until the Court does so, prior
convictions used to enhance a sentence need not be submitted to the jury
and proven beyond a reasonable doubt. *Almendarez-Torres v. United
States*, 523 U.S. 224, 235 (1998); *United States v. Peltier*, 276 F.3d
1003, 1006 (8^th^ Cir. 2002); *United States v. Abernathy*, 277 F.3d
1048, 1050 (8^th^ Cir. 2002). In *Harris v. United States*, 536 U.S. 545
(2002), the Supreme Court declined to extend *Apprendi* to facts
increasing the statutory minimum sentence, reaffirming its earlier
decision in *McMillan v. Pennsylvania*, 477 U.S. 79 (1986). Therefore,
such facts need not be submitted to the jury.

Suggested wording for the aggravating facts listed in the above
paragraph are:

a\) the crime involved \[describe substance and amount\] or more. \[This
alternative is to be used where the amount of drugs increasing the
maximum sentence is not in dispute. Where the offense involves two or
more controlled substances, and the indictment alleges quantities of
each substance sufficient to raise the maximum sentence, an additional
element should be submitted to the jury for a finding on each controlled
substance.\]

b\) a death resulted from use of the \[describe substance\] \[In *United
States v. McIntosh*, 236 F.3d 968, 972 (8^th^ Cir. 2001), the Eighth
Circuit held that the \"death resulting\" charge is a strict liability
one - the court may not impose \"a foreseeability or proximate cause
requirement.\" *Accord*, *United States v. Soler*, 275 F.3d 146 (1^st^
Cir. 2002)\].

**Committee Comments**

*See* Committee Comments to 6.21.841A.

**6.21.841A.1(a) VERDICT FORM; WITH LESSER INCLUDED OFFENSE**

VERDICT

We, the jury, find Defendant (name) \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_of the
crime of (insert brief

\[guilty/not guilty\]

description, e.g., possession with intent to distribute 500 grams or
more of a mixture or substance containing methamphetamine) \[as charged
in Count \_\_\_\_\_ of the indictment\] \[under Instruction No.
\_\_\_\_\_\].

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Foreperson

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

(Date)

If you unanimously find Defendant (name) guilty of the above crime, have
your foreperson write \"guilty\" in the above blank space, sign and date
this verdict form. Do not consider the following verdict form.

If you unanimously find the Defendant (name) not guilty of the above
charge, have your foreperson write \"not guilty\" in the above blank
space. You then must consider whether the defendant is guilty of
(specify lesser included offense) on the following verdict form.

If you are unable to reach a unanimous decision on the above charge,
leave the space blank and decide whether the defendant is guilty of
(specify lesser included offense, e.g., possession with intent to
distribute 50 grams or more of a mixture or substance containing
methamphetamine) as follows:

**\[LESSER INCLUDED OFFENSE\]**

\[We, the jury, find Defendant (name) \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ of
the crime of (insert brief

\[guilty/not guilty\]

description, e.g., possession with intent to distribute 50 grams or more
of a mixture or substance containing methamphetamine) \[as charged in
Count \_\_\_\_\_ of the indictment\] \[under Instruction No.
\_\_\_\_\_\].

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Foreperson

\_\_\_\_\_\_\_\_\_\_\_\_\_

(Date)

If you unanimously find Defendant (name) guilty of the above crime, have
your foreperson write \"guilty\" in the above blank space, sign and date
this verdict form. Do not consider the following verdict form.

If you unanimously find Defendant (name) not guilty of the above charge,
have your foreperson write \"not guilty\" in the above blank space. You
then must consider whether the defendant is guilty of (specify lesser
included offense) on the following verdict form.

If you are unable to reach a unanimous decision on the above charge,
leave the space blank and decide whether the defendant is guilty of
(specify lesser included offense) as follows:\]

**LESSER INCLUDED OFFENSE**

We, the jury, find Defendant (name) \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ of
the crime of (insert brief

\[guilty/not guilty\]

description, e.g., possession with intent to distribute a mixture or
substance containing methamphetamine)) \[as charged in Count \_\_\_\_\_
of the indictment\] \[under Instruction No. \_\_ \].

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Foreperson

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

(Date)

**6.21.841A.1(b) SPECIAL VERDICT FORM**

**(INTERROGATORIES TO FOLLOW FINDING OF GUILT)**

VERDICT

We, the jury, find Defendant (name) \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
of possession of a controlled

(guilty/not guilty)

substance with intent to distribute \[as charged in Count \_\_\_\_\_ of
the indictment\] \[under Instruction No. \_\_\_\_\_ \].

If you find the defendant \"guilty,\" you must answer the following:

The quantity of (describe substance, e.g. \[a mixture or substance
containing a detectable amount of\] \[name controlled substance\]) the
defendant possessed with intent to distribute was:

a\. \_\_\_\_\_ (describe substance and the highest applicable quantity
range, e.g. 5 kilograms or more of a mixture or substance containing a
detectable amount of cocaine);

b\. \_\_\_\_\_ (describe substance and next lower quantity range, e.g.
500 grams or more but less than 5 kilograms of a mixture or substance
containing a detectable amount of cocaine.)

c\. \_\_\_\_\_ (describe substance and lowest quantity range, e.g., less
than 500 grams of a mixture or substance containing cocaine).

Check the drug quantity which the jury unanimously agrees was involved
in the offense. If you are unable to agree, check \[b\]\[c\](the entry
for the lowest drug quantity).

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Foreperson

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

(Date)

**6.21.841B CONTROLLED SUBSTANCES - DISTRIBUTION (21 U.S.C. §
841(a)(1))**

The crime of distributing (describe substance, e.g.,heroin), as charged
in \[Count \_\_\_\_\_\] of the indictment, has two elements, which are:

*One*, the defendant intentionally transferred^1^ (describe substance,
e.g., heroin)^2^ to (name of transferee, e.g., Special Agent Jones); and

*Two*, at the time of the transfer, the defendant knew that it was \[a
controlled substance\] \[(describe substance, e.g., heroin)\].^3^

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

**Notes on Use**

1\. The statute uses the term \"distribute.\" The Committee is of the
opinion that in many cases \"transfer\" may be more understandable.
\"Distribute,\" of course, may be used in the instruction.

2\. For jury instructions involving enhanced drug offenses under
*Apprendi v. New Jersey*, *see* 6.21.841A1 - 6.21.846A1.

3\. The defendant need not know what the controlled substance is if he
knows he has possession of some controlled substance. *United States v.
Sheppard*, 219 F.3d 766 (8^th^ Cir. 2000). The alternative language
which best fits the case should be used.

**Committee Comments**

*See* Ninth Cir. Crim. Jury Instr. 9.43 (1997); *see also* *United
States v. Jardan*, 552 F.2d 216, 219 (8th Cir. 1977) (government must
show that transfer was intentional).

*See* Committee Comments, Instruction 6.21.841A, *supra,* particularly
the discussion of *Apprendi v. New Jersey*.

**6.21.843 CONTROLLED SUBSTANCES - USE OF A**

**COMMUNICATIONS FACILITY (21 U.S.C. § 843(b))**

The crime of use of a communication facility to \[commit\] \[facilitate
the commission of\] another controlled substance offense has two
elements, which are:

*One*, the defendant knowingly used a \"communication facility\"; and

*Two*, the defendant did so with the intent to \[commit\] \[facilitate
the commission of\] the offense of (describe the offense, e.g.,
attempted possession of cocaine with intent to distribute).

The term \"communication facility\" includes (specify means alleged,
e.g., mail, telephone, wire, radio, and all other means of
communication).^1^

\[To \"facilitate\" the commission of an offense means to make easier or
less difficult or to assist or aid.\]^2^ \[It is sufficient if a
defendant\'s use of the (specify communication facility, e.g.,
telephone) facilitates either the defendant\'s own or another person\'s
commission of the offense.\]

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

**Notes on Use**

1\. Title 21 U.S.C. § 843(b) defines \"communication facility\" as \"any
and all public and private instrumentalities used or useful in the
transmission of writing, signs, signals, pictures, or sounds of all
kinds . . . .\" Ordinarily, it should not be necessary to distinguish
between public or private facilities or set forth the complete
definition.

2\. Ordinarily it should not be necessary to define facilitate. If
necessary, the definition provided should suffice. *See United States v.
Adler*, 879 F.2d 491, 495 (9th Cir. 1988); *United States v. Phillips*,
664 F.2d 971, 1032 (5th Cir. Unit B 1981), *cert. denied*, *sub nom*.
*Meinster v. United States*, 457 U.S. 1136 (1982); *Myers v. United
States*, 457 U.S. 1136 (1982); and *Platshorn v. United States*, 459
U.S. 906 (1982).

**Committee Comments**

*See* Fifth Circuit Pattern Jury Instructions: Criminal § 2.88 (1997);
Ninth Cir. Crim. Jury Instr. 9.4.5 (1997).

**6.21.846A CONSPIRACY (21 U.S.C. § 846)**

The crime of conspiracy as charged in \[Count \_\_\_ of\] the
indictment, has three elements, which are:

*One*, on or before (insert date), two \[or more\] persons reached an
agreement or came to an understanding to (insert offense, e.g.,
distribute cocaine);

*Two*, the defendant voluntarily and intentionally joined in the
agreement or understanding, either at the time it was first reached or
at some later time while it was still in effect; and

*Three*, at the time the defendant joined in the agreement or
understanding, \[he\] \[she\] knew the purpose of the agreement or
understanding.

For you to find \[a\] defendant guilty of this crime, the Government
must prove all of these elements beyond a reasonable doubt \[as to that
defendant\]; otherwise, you must find \[that\] defendant not guilty.

**Committee Comments**

*See* Committee Comments and Notes on Use, Instructions 5.06A-I,
*supra*. This instruction omits the overt act element of Instruction
5.06A of this Manual. Section 846 does not require proof of an overt
act. *United States v. Shabani*, 513 U.S. 10 (1994).

Any fact (other than a prior conviction) that increases the maximum
penalty for a crime must be charged in the indictment, submitted to the
jury, and proven beyond a reasonable doubt. *Apprendi v. New Jersey*,
530 U.S. 466 (2000); *United States v. Aguayo-Delgado*, 220 F.3d 926
(8^th^ Cir. 2000); *United States v. Sheppard*, 219 F.3d 766 (8^th^ Cir.
2000). Under the section 841(b) sentencing provisions, some of the facts
that may raise the statutory maximum are the quantity of drugs involved
in the offense, or whether death or serious bodily injury results from
use of the drugs involved. For jury instructions involving such enhanced
drug offenses, *see* 6.21.841A1 - 6.21.846A1. In *Harris v. United
States*, 536 U.S. 545 (2002), the Supreme Court declined to extend
*Apprendi* to facts increasing the statutory minimum sentence,
reaffirming its earlier decision in *McMillan v. Pennsylvania*, 477 U.S.
79 (1986). Therefore, such facts need not be submitted to the jury.

In cases where the indictment conjunctively alleges multiple objects of
a conspiracy, e.g., a conspiracy to distribute cocaine and marijuana,
the Eighth Circuit has approved instructions advising the jury that they
may convict upon proof that there was a conspiracy to distribute one or
both of the controlled substances. *United States v. Davila*, 964 F.2d
778, 783 (8th Cir. 1992); *United States v. Lueth*, 807 F.2d 719, 732-34
(8th Cir. 1986). If the evidence is not clear as to which substance was
involved in a conspiracy, the Eighth Circuit has recommended instructing
the jury to specify which controlled substance(s) the conspiracy
involved because of disparate sentencing ranges for different controlled
substances. *United States v. Owens*, 904 F.2d 411 (8th Cir. 1990); *cf.
United States v. Page-Bey*, 960 F.2d 724, 727-28 (8th Cir. 1992), *and
United States v. Watts*, 950 F.2d 508, 514-15 (8th Cir. 1991)
(distinguishing *Owens*). *See* Committee Comments to Instruction 11.03,
*infra*.

**6.21.846A.1 CONSPIRACY (21 U.S.C. § 846)**

***APPRENDI*-AFFECTED CONSPIRACY**

The crime of conspiracy as charged in \[Count of\] the indictment, has
four elements, which are:

*One*, on or about \[insert date, e.g., between January 1, 1998, and
October 1, 2000\], two \[or more\] persons reached an agreement or came
to an understanding to (describe offense, e.g., distribute a mixture or
substance containing methamphetamine \[and a mixture or substance
containing cocaine\]^1^);

*Two*, the defendant voluntarily and intentionally joined in the
agreement or understanding, either at the time it was first reached or
at some later time while it was still in effect;

*Three*, at the time the defendant joined in the agreement or
understanding, \[he\] \[she\] knew the purpose of the agreement or
understanding; and

*Four*, describe aggravating element,^2^ e.g \[the agreement or
understanding involved 500 grams or more of a mixture or substance
containing methamphetamine^3^ \[and 5 kilograms or more of a mixture or
substance containing cocaine\]\]^4^).

If you find these four elements unanimously and beyond a reasonable
doubt, \[and if you find unanimously and beyond a reasonable doubt that
the defendant was not \[entrapped\] \[as defined in Instruction No.
\]\], then you must find the defendant guilty of the crime of conspiracy
(describe offense, e.g. \[to distribute 500 grams or more of a mixture
or substance containing methamphetamine \[and 5 kilograms or more of a
mixture or substance containing cocaine\]\]). Record your determination
on the Verdict Form which will be submitted to you with these
instructions.

\[If you do not find the defendant guilty of this crime \[under Count
\], go on to consider whether the defendant conspired (describe lesser
offense, e.g. \[to distribute 50 grams or more of a mixture or substance
containing methamphetamine \[and any amount of cocaine\]\]).

If you find unanimously and beyond a reasonable doubt:

The first three elements set forth above; and

Fourth, you find that (describe lesser offense, e.g. \[the agreement or
understanding involved 50 grams or more of a mixture or substance
containing methamphetamine \[and any amount of cocaine\]\]),

\[and if you find unanimously and beyond a reasonable doubt that the
defendant was not \[entrapped\] \[as defined in Instruction No. \]\],
then you must find the defendant guilty of the crime of conspiracy to
distribute (describe substance and amount, e.g., 50 grams or more of a
mixture or substance containing methamphetamine \[and any amount of
cocaine\]). Record your determination on the Verdict Form.\]

If you do not find the defendant guilty of this crime \[under Count \],
go on to consider whether the defendant conspired to distribute
(describe substance, e.g., some amount of methamphetamine and cocaine).
If you find the first three elements unanimously and beyond a reasonable
doubt, \[and if you find unanimously and beyond a reasonable doubt that
the defendant was not \[entrapped\] \[as defined in Instruction No.
\]\], you must find the defendant guilty of the crime of conspiracy to
distribute (describe substance, e.g., methamphetamine and cocaine).
Otherwise, you must find the defendant not guilty. Record your
determination on the Verdict Form.

\[The quantity of controlled substances involved in the agreement or
understanding includes the controlled substances the defendant possessed
for personal use^5^ or distributed or agreed to distribute. The quantity
also includes the controlled substances fellow conspirators distributed
or agreed to distribute, if you find that those distributions or
agreements to distribute were a necessary or natural consequence of the
agreement or understanding and were reasonably foreseeable by the
defendant.\]^6^

**Notes on Use**

1\. In cases where the indictment conjunctively alleges multiple objects
of a conspiracy, e.g., a conspiracy to distribute cocaine and marijuana,
the Eighth Circuit has approved instructions advising the jury that they
may convict upon proof that there was a conspiracy to distribute one or
both of the controlled substances. *United States v. Davila*, 964 F.2d
778, 783 (8th Cir. 1992); *United States v. Lueth*, 807 F.2d 719, 732-34
(8th Cir. 1986).

2\. In *Apprendi*, 530 U.S. at 488, the majority left open the
possibility that it might revisit the issue of whether a defendant's
prior conviction(s) must be submitted to the jury and found beyond a
reasonable doubt before an enhanced punishment based on prior
convictions is appropriate. Unless and until the Court does so, prior
convictions used to enhance a sentence need not be submitted to the jury
and proven beyond a reasonable doubt. *Almendarez-Torres v. United
States*, 523 U.S. 224, 235 (1998); *United States v. Peltier*, 276 F.3d
1003, 1006 (8^th^ Cir. 2002); *United States v. Abernathy*, 277 F.3d
1048, 1050 (8^th^ Cir. 2002).

3\. Under the section 841(b) sentencing provisions, some of the facts
that may raise the statutory maximum are the quantity of drugs involved
in the offense, whether death or serious bodily injury results from use
of the drugs involved, or whether the defendant has a prior felony drug
conviction .

Suggested wording for the aggravating facts listed in the above
paragraph are:

a\) the crime involved \[describe substance and amount\] or more. \[This
alternative is to be used where the amount of drugs increasing the
maximum sentence is not in dispute. Where the offense involves two or
more controlled substances, and the indictment alleges quantities of
each substance sufficient to raise the maximum sentence, an additional
element should be submitted to the jury for a finding on each controlled
substance.\]

b\) a death resulted from use of the \[describe substance\]. \[In
*United States v. McIntosh*, 236 F.3d 968, 972 (8^th^ Cir. 2001), the
Eighth Circuit held that the \"death resulting\" charge is a strict
liability one - the court may not impose \"a foreseeability or proximate
cause requirement.\" *Accord, United States v. Soler*, 275 F.3d 146
(1^st^ Cir. 2002)\].

4\. Where the conspiracy involves two or more controlled substances, and
the indictment alleges quantities of each substance sufficient to raise
the maximum sentence, the jury should make a finding on each controlled
substance. *See* the last sentence of 5.06F.

5\. The amount of drugs attributable to a defendant in a conspiracy
includes drugs purchased for personal use. *United States v.
Jimenez-Villasenor*, 270 F.3d 554, 562 (8^th^ Cir. 2001).

6\. Whether *Apprendi* and sections 841(b) and 846 require a jury
finding of reasonable foreseeability for each coconspirator has not yet
been decided. In *United States v. Jones*, 965 F.2d 1507 (8^th^ Cir.
1992), the court, without explicitly stating the basis for its decision,
determined that before a district court may impose a mandatory minimum
upon a defendant based upon the activities of other defendants, it must
find that those activities were in furtherance of the conspiracy and
were known to the defendant or reasonably foreseeable to him. *Id.*, at
1517. Other circuits have explicitly stated that section 846 requires
such a foreseeability determination, and that the foreseeability
determination is governed by the relevant conduct provisions of the
Sentencing Guidelines. *See, e.g., United States v. Martinez*, 987 F.2d
920, 924-26 (2d Cir. 1993); *United States v. Irwin*, 2 F.3d 72, 77
(4^th^ Cir. 1993); *United States v. Swiney*, 203 F.3d 397, 405-06
(6^th^ Cir. 2000). Although these decisions occurred in the context of
guideline sentencing by the court, because they are based on statutory
construction of sections 846 and 841(b), they arguably establish
foreseeability as an element of the offense. However, the Eighth Circuit
in *United States v. McIntosh*, 236 F.3d 968, 974 (8^th^ Cir. 2001),
indicated that the issue is in doubt, noting that "\[i\]f the government
seeks to enhance a conspiracy defendant's sentence . . . based solely on
conduct of a coconspirator, a foreseeability analysis *may* be required
in determining whether Congress intended, under § 846, that the
defendant be held accountable for the conduct of a coconspirator"
(emphasis in the original).

The Committee believes that until the issue is decided, the district
court should instruct the jury on foreseeability, unless the defendant
agrees to an *Apprendi* waiver.

**Committee Comments**

*See* Committee Comments and Notes on Use, Instructions 5.06A-I,
*supra*. This instruction omits the overt act element of Instruction
5.06A of this Manual. Section 846 does not require proof of an overt
act. *United States v. Shabani*, 513 U.S. 10 (1994).

The penalty for conspiracy under 21 U.S.C. § 846 is the same as for the
substantive offense committed. Thus, the quantity of the drugs involved
or other facts may affect the maximum punishment authorized for the
offense. Any fact (other than a prior conviction) that increases the
maximum penalty for a crime must be charged in the indictment, submitted
to the jury as an element of the offense, and proven beyond a reasonable
doubt. *Apprendi v. New Jersey*, 530 U.S. 466 (2000); *United States v.
Aguayo-Delgado*, 220 F.3d 926 (8^th^ Cir. 2000); *United States v.
Sheppard*, 219 F.3d 766 (8^th^ Cir. 2000). Under the section 841(b)
sentencing provisions, some of the facts that may raise the statutory
maximum are the quantity of drugs involved in the offense, or whether
death or serious bodily injury results from use of the drugs involved .
*See* Notes 2 and 3, *supra*. In *Harris v. United States*, 536 U.S. 545
(2002), the Supreme Court declined to extend *Apprendi* to facts
increasing the statutory minimum sentence, reaffirming its earlier
decision in *McMillan v. Pennsylvania*, 477 U.S. 79 (1986). Therefore,
such facts need not be submitted to the jury.

In *United States v. Sheppard*, 219 F.3d 766 (8^th^ Cir. 2000), the
panel suggested that the district court's submission of drug quantity to
the jury in a special interrogatory rather than treating it as an
element of the offense was harmless error. However, in *United States v.
Harris*, 310 F.3d 1105 (8^th^ Cir. 2002), the Court, without mentioning
*Sheppard*, explicitly held that it was not an *Apprendi* error to
submit the issue of drug quantity to the jury by use of a special
interrogatory. The Committee believes, therefore, that submission of
drug quantity either as a formal element, as is done in 6.21.841A.1
(short) and 6.21.841A.1 (long) or by special interrogatory is
permissible. *See* 11.03 for a verdict form with special
interrogatories.

The verdict forms provided for 6.21.841A.1(a) and (b) offenses may be
modified for use in conspiracy cases.

**6.21.846B ATTEMPT (21 U.S.C. § 846)**

The crime of attempting to (describe conduct, e.g., distribute
methamphetamine), as charged in \[Count \_\_\_\_ of\] the indictment,
has three elements, which are:

*One*, the defendant intended to (describe conduct, e.g., distribute
methamphetamine to another person);

*Two*, the defendant knew the material he then intended to distribute
was \[a controlled substance\] \[(describe substance, e.g.,
methamphetamine)\]; and

*Three*, the defendant voluntarily and intentionally carried out some
act which was a substantial step toward (describe conduct, e.g.,
distribution of methamphetamine to another person).

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

**Committee Comments**

Any fact (other than a prior conviction) that increases the maximum
penalty for a crime must be charged in the indictment, submitted to the
jury, and proven beyond a reasonable doubt. *Apprendi v. New Jersey*,
530 U.S. 466 (2000); *United States v. Aguayo-Delgado*, 220 F.3d 926
(8^th^ Cir. 2000); *United States v. Sheppard*, 219 F.3d 766 (8^th^ Cir.
2000). Under the section 841(b) sentencing provisions, some of the facts
that may raise the statutory maximum are the quantity of drugs involved
in the offense, or whether death or serious bodily injury results from
use of the drugs involved. For jury instructions involving such enhanced
drug offenses, *see* 6.21.841A1 - 6.21.846A1. In *Harris v. United
States*, 536 U.S. 545 (2002), the Supreme Court declined to extend
*Apprendi* to facts increasing the statutory minimum sentence,
reaffirming its earlier decision in *McMillan v. Pennsylvania*, 477 U.S.
79 (1986). Therefore, such facts need not be submitted to the jury.

*See* Instructions 6.21.841A, 6.21.841A.1, and 6.21.841B, *supra*, and
Instruction 8.01, *infra*; *see also* 2 Kevin F. O'Malley, et al.,
*Federal Jury Practice and Instructions*: Criminal §§ 21.01-.04 (5th ed.
2000).

**6.21.848A CONTROLLED SUBSTANCES - CONTINUING**

**CRIMINAL ENTERPRISE (21 U.S.C. § 848(c))**

The crime of a continuing criminal enterprise as charged in Count
\_\_\_\_\_ of the indictment has five elements, which are:

*One*, the defendant committed the offense of (describe offense);

*Two*, the offense was part of a continuing series of three or more
related^1^ felony violations of the federal controlled substance laws;

*Three*, such offenses were undertaken by the defendant in concert with
five or more other persons;

*Four*, the defendant acted as organizer, supervisor or manager of those
five or more other persons;^2^ and

*Five*, the defendant obtained a substantial amount of money or other
property from the series of violations.

To act \"in concert\" means to act pursuant to a common design or plan.
The defendant must have organized, supervised or managed, either
personally or through others, five or more persons with whom \[he\]
\[she\] was acting in concert while \[he\] \[she\] committed the series
of offenses. However, it is not necessary that the defendant have
managed all five at once or that the five other persons have acted
together at any time or in the same place.

Furthermore, it is not necessary that the defendant have been the only
person who organized, managed or supervised the five or more other
persons or that \[he\] \[she\] have exercised the same amount of control
over each of the five or that \[he\] \[she\] have had the highest rank
of authority.

\[All money or property which passed through the defendant\'s hands as a
result of illegal drug dealings and not just profit may be considered by
you in determining whether the amount was substantial.\]^3^

\[An organizer is a person who puts together a number of people engaged
in separate activities and arranges them in these activities in one
operation or enterprise.\] \[A supervisor is a person who manages or
directs or oversees the activities of others.\]^4^

The \[indictment charges\] \[Government contends\] that the \[violations
charged in Counts \_\_\_\_\_ and \_\_\_\_\_\] \[the defendant\'s
previous conviction\[s\] for (list convictions)\] are part of the series
of three or more violations. \[You must unanimously agree on which three
violations constitute the series of three or more violations in order to
find that element No. Two has been proved.\]^5^

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

**Notes on Use**

1\. If the court wants to define \"continuing series of violations,\"
the following may be appropriate:

At least three violations of the federal controlled substances laws that
were connected together as a series of related or ongoing activities as
distinguished from isolated and disconnected acts.

2\. The jury is not required to unanimously agree on the identities of
the five persons. *United States v. Jelinek*, 57 F.3d 655 (8th Cir.
1995); *United States v. Rockelman*, 49 F.3d 418, 421 (8th Cir. 1995).
Even though unanimity is not required, problems can arise if more than
five persons are alleged to be supervised or managed by the defendant
and, on appeal, it is determined that some of those persons were not
properly included. *See United States v. Jerome*, 924 F.2d 170, 172-73
(9th Cir. 1991) (Kozenski, J., concurring) (conviction reversed where
jury had \"confusing array of persons presented\" and insufficient
instructions regarding who could properly be counted). This problem can
be addressed by use of a special interrogatory. *United States v.
Jelinek*.

3\. Use if \"income\" needs to be so clarified under the issues raised
at trial.

4\. Ordinarily these terms do not need definition, but these definitions
are provided should a particular need for them arise.

5\. This instruction should be given on request where more than three
violations have been alleged. If one or more of the violations is not a
prior conviction or a charged offense, the instruction should be
modified to describe that violation. The Eighth Circuit has indicated
that it is preferable to list the felonies comprising the criminal
enterprise in the CCE count of the indictment, although failure to do so
would not necessarily be error. *United States v. Becton*, 751 F.2d 250,
257 (8th Cir. 1984).

**Committee Comments**

*See* Ninth Cir. Crim. Jury Instr. 9.4.12 (1997); Eleventh Circuit
Pattern Jury Instructions: Criminal (Offense) § 76.1 (1997); *United
States v. Lewis*, 759 F.2d 1316, 1331 (8th Cir. 1985); *United States v.
Possick*, 849 F.2d 332, 335 (8th Cir. 1988).

The statute is written in disjunctive language, and the Government need
prove only that the defendant was an organizer, or a supervisor, or held
some management role, not all three. *United States v. Possick*, 849
F.2d at 335. The terms \"organizer,\" \"supervisor\" and \"manager\" are
given their plain meaning. *Id.*, 849 F.2d at 335. They should be
applied in the ordinary sense as understood by the public or the
business community. *United States v. Butler*, 885 F.2d 195 (4th Cir.
1989). Accordingly, these terms do not require specific definition.
*United States v. Hernandez-Escarsega*, 886 F.2d 1560 (9th Cir. 1989).

As summarized in *Possick*, a defendant need not be the \"king pin\" or
ultimate authority in the organization, but need only occupy some
managerial position, *United States v. Maull*, 806 F.2d 1340, 1343 (8th
Cir. 1986); *United States v. Becton*, 751 F.2d 250, 255 (8th Cir.
1984), or perform a \"central role.\" *United States v. Lewis*, 759 F.2d
at 1331. The Government need not establish that the defendant managed
five people at once, that the five acted in concert with each other,
that the defendant exercised the same kind of control over each of the
five, or even that the defendant had personal contact with each of the
five. *See*, *e.g.*, *Maull*, 806 F.2d at 1343; *United States v.
Jones*, 801 F.2d 304, 308 (8th Cir. 1986); *Becton*, 751 F.2d at 254-55.
In essence, the management element is established by demonstrating that
the defendant exerted some type of influence over another individual as
exemplified by that individual\'s compliance with the defendant\'s
directions, instructions, or terms. *See* *United States v. Grubbs*, 829
F.2d 18, 19-20 (8th Cir. 1987) (per curiam); *United States v. Lueth*,
807 F.2d 719, 732 (8th Cir. 1986); *Jones*, 801 F.2d at 310. The control
need not be exclusive or absolute. *United States v. Possick*, 849 F.2d
at 336-37. Moreover, it is irrelevant that others may have superior
control as long as the defendant occupies some managerial position.
*United States v. Becton*, 751 F.2d at 255.

The \"supervisor\" element can be met by showing that the defendant put
\"together a number of people engaged in separate activities and
arrange\[s\] them in their activities in one essentially orderly
operation or enterprise.\" *United States v. Roley*, 893 F.2d 992, 994
(8th Cir. 1990) \[citations omitted\]. \"\[A\] person can organize
persons without being able to control their actions.\" *Id.*

The five or more subordinates need not have worked in concert with each
other. *United States v. Maull*, 806 F.2d at 1343; *United States v.
Jones*, 801 F.2d at 308; *United States v. Becton*, 751 F.2d at 254-55.
The defendant need not act in concert with five or more persons at the
same time or in the same state or district. *United States v. Maull*,
806 F.2d at 1344. *See also* *United States v. Fry*, 413 F. Supp. 1269
(E.D. Mich. 1976), *aff\'d*, 559 F.2d 1221 (6th Cir. 1977). Moreover, it
is not necessary that the defendant know the name of each individual.
*Possick*, 849 F.2d at 337; *see also* *Roley*, 893 F.2d at 995.

The income received by the defendant must have been substantial.
\"Substantial\" means \"of real worth and importance \-- of considerable
value; valuable.\" *United States v. Collier*, 358 F. Supp. 1351, 1355
(E.D. Mich. 1973), *aff\'d*, 493 F.2d 327 (6th Cir. 1974). In *United
States v. Jeffers*, 532 F.2d 1101, 1116-17 (7th Cir. 1976), *aff\'d. in
part, vacated, in part, on other grounds*, 432 U.S. 137 (1977), the
court upheld an instruction stating that substantial income \"does not
necessarily mean net income . . . \[but\] could mean gross receipts or
gross income.\" In *United States v. Thomas*, 632 F.2d 837, 847 (10th
Cir. 1980), a jury instruction emphasizing cash flow rather than net
income was upheld. *See also* *United States v. Bolts*, 558 F.2d 316,
320 (5th Cir. 1977).

A \"continuing series\" of violations has been defined as three or more
violations. *United States v. Samuelson*, 697 F.2d 255, 259 n.2 (8th
Cir. 1983). *But see* *United States v. Baker*, 905 F.2d 1100, 1104 (7th
Cir. 1990) (\"continuing series\" requirement is met by two substantive
offenses). These violations must be \"related,\" *United States v.
Jones*, 801 F.2d 304, 307 (8th Cir. 1986), in the sense that they are
\"driven by a single impulse and operated by unintermittent force.\"
*Maull*, 806 F.2d at 1342-43. Proof of a violation of the drug laws may
count as a \"violation\" even though not the basis for a separate
substantive count. *United States v. Michel*, 588 F.2d 986, 1000 n.15
(5th Cir. 1979), and cases cited therein. Current charges and previous
convictions may constitute the requisite violations. *Garrett v. United
States*, 471 U.S. 773 (1985). Although most circuits allow a section 846
conspiracy to count as one of the required three offenses, one circuit
has refused to do so. *See Baker*, 905 F.2d at 1103 (citing seven
circuits which do and the basis for its disagreement).

If more than three violations are charged, the jury must unanimously
agree on which three acts constitute the continuing series of
violations. *United States v. Echeverri*, 854 F.2d 638, 642-43 (3d Cir.
1988).

CCE is a separate offense from the predicate offenses and prosecution of
one defendant for both the predicate offense and CCE does not violate
the Double Jeopardy Clause. *Garrett v. United States*, 471 U.S. at
792-93. The Double Jeopardy Clause likewise does not bar cumulative
punishment for CCE and the predicate substantive offenses. *Id.*, 473
U.S. at 793-95. However, where the predicate offense is a conspiracy
under section 846, cumulative penalties are not allowed because the
dangers posed by CCE and a conspiracy are similar. *Id.*; *Jeffers v.
United States*, 432 U.S. 137 (1977) (plurality opinion); *United States
v. Maull*, 806 F.2d 1340 (8th Cir. 1986); *United States v. Duke*, 940
F.2d 1113 (8th Cir. 1991)

Appellate courts are divided as to whether accomplice liability applies
to CCE offenses. *See* this discussion in Instruction 5.01, *supra*.

**6.21.848B FELONY VIOLATIONS OF FEDERAL NARCOTIC LAWS**

**(21 U.S.C. § 848(c)(1))**

Offenses which are felony violations of the federal narcotic laws may be
any or all of the following offenses:

\[Conspiracy to distribute cocaine\] \[Conspiracy to possess cocaine
with the intent to distribute\] \[Possession of cocaine with intent to
distribute\] \[Distribution of cocaine\] \[Unlawful use of a
communication facility in furtherance of a narcotics felony\].^1^

(Follow with elements instruction for each offense alleged to have
constituted one of the requisite felony violations or, if the violation
was the subject of a separate count, a reference to the elements
instruction for that count.)

**Notes on Use**

1\. List only those offenses which are alleged to have been part of the
series of violations and which are supported by the evidence. If an
offense not on this list, but covered by 21 U.S.C. § 848, has been
charged, it should be included. *See* additional discussion in Note 4,
Instruction 6.21.848A, *supra*.

**Committee Comments**

*See* 21 U.S.C. § 848. Any felony offense found in 21 U.S.C. §§ 841-846
is covered. The instruction covers those most commonly used.

**6.21.853 CRIMINAL FORFEITURE OF PROPERTY**

Members of the jury, you have reached a verdict that the \[defendant is,
defendants are\] guilty of (insert charges), as charged in Count(s)
(insert count numbers or titles). You now have one more task to
perform.^1^ I must ask you to render a special verdict concerning
property the United States has alleged is subject to forfeiture by
(name(s) of the defendant(s) convicted) to the United States. Forfeiture
means the defendant loses any ownership or interest \[he, she\] has or
claims to have in the property, as a part of the penalty for engaging in
criminal activity. \[You need not concern yourself with any other
person\'s interest in the property. I will take care of any such claims.
Your only concern is with defendant (name)\'s interest in the
property.\]

The United States alleges that certain properties should be forfeited
because they \[were derived from proceeds of the defendant\'s drug
offense(s)\] \[were used or intended to be used by the defendant to
facilitate the commission of the drug offense(s).\] The Count(s) (insert
count numbers or titles) alleging property to be forfeited to the United
States and \[the particular property alleged to be related to a
particular count\] \[the property alleged to be related to the count\]
\[is, are\] as follows:^2^

(List each count for which there has been a conviction and the specific
property alleged to be related to it and subject to forfeiture by the
defendant or by a particular defendant.)

You must determine what property, if any, is subject to forfeiture.
Property is subject to forfeiture if the United States has proved, by
the greater weight of the evidence \[either\]^3^ that:

\[*One*, the property constituted or was derived from any proceeds the
\[particular\] defendant obtained, directly or indirectly, as a result
of the offense(s) of which \[he, she\] has been found guilty,\] \[*or*\]

\[*Two*, the property was used or was intended to be used, in any manner
or part, to commit or to facilitate the commission of an offense of
which the defendant has been found guilty.\]

\[Property \"derived\" from the proceeds of drug violations includes any
property obtained (directly or indirectly) using money or any other
source of wealth gained as a result of having participated in drug
violations.^4^ Property which \"facilitates\" the commission of drug
violations includes property which makes the commission of the
violations easier or is used to assist in the commission of the
violation.^5^\]

\[You may, but are not required to, find that property is subject to
forfeiture if the United States has proved by the greater weight of the
evidence that:

a\. such property was acquired by the defendant during the period the
defendant was committing the offense(s) of which \[he, she\] has been
found guilty or within a reasonable time after the commission of \[that
offense, those offenses\], *and*

b\. there was no likely source for such property other than the
offense(s) for which the defendant has been found guilty.\]

To prove something by the greater weight of the evidence is to prove
that it is more likely true than not true. The decision is made by
considering all of the evidence on the subject and deciding which
evidence you believe. Each party is entitled to the benefit of all
evidence received, regardless of who offered the evidence. Greater
weight of the evidence is a lesser standard than proof beyond a
reasonable doubt.

\[Property subject to forfeiture may include (specify property which the
United States claims is subject to forfeiture), whether or not the
property has been seized by the United States.\]

All of my previous instructions \[regarding (identify the applicable
instructions by title or number, e.g., Credibility of Witnesses and Duty
to Deliberate),\] apply with respect to this special verdict.

A Special Verdict Form has been prepared for your use. With respect to
each property, you are asked to determine unanimously whether it is to
be forfeited to the United States.

You may answer by simply putting an \"X\" or a check mark in the space
provided next to the words \"yes\" or \"no.\" The foreperson must then
sign and date the special verdict form.

**[SPECIAL VERDICT FORM]{.underline}** ^6^

We, the Jury, return the following Special Verdict as to the
defendant\'s interest in each of the properties alleged in Count(s)
(insert count number(s)) to be subject to forfeiture of the United
States:

1\. (Insert dollar amount in United States currency, real property or
other tangible or intangible personal property as alleged in
indictment);

We, the jury, unanimously find this property is subject to forfeiture.

**YES \_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**NO \_\_\_\_\_\_\_\_\_\_\_\_\_\_**\_

\[Continue with these questions based upon the specific assets of the
indictment.\]

This \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_,
20\_\_\_\_\_.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Foreperson

**Notes on Use**

1\. The Committee recommends that the guilt phase of the trial be
partially bifurcated from the forfeiture phase; verdicts should first be
accepted as to the guilt or innocence of individual defendants, and the
jury should then be separately instructed as to forfeiture. In *United
States v. Sandini*, 816 F.2d 869 (3d Cir. 1987), the court required that
the guilt and forfeiture proceedings be bifurcated and that a defendant
be given the opportunity to testify at the forfeiture hearing if he so
requests. The court held that requiring the defendant to testify at his
criminal trial about the forfeiture aspects of the case, or not testify
at all, presented the defendant with a constitutionally impermissible
\"Hobson\'s choice.\"

Other courts have favored (but have not required) partially bifurcated
proceedings. These courts have recommended separate arguments and
instructions on forfeiture, but leave the issue of testimony in the
forfeiture phase to the discretion of the trial court. *United States v.
Cauble*, 706 F.2d 1322 (5th Cir. 1983); *United States v. Jenkins*, 904
F.2d 549 (10th Cir. 1990); *United States v. Feldman*, 853 F.2d 648 (9th
Cir. 1988); *United States v. Elgersma*, 971 F.2d 690 (11th Cir. 1992)
(*en banc*).

The Committee recommends the approach of the above courts. After guilty
verdicts are received, the court may allow arguments and instruct the
jury on forfeiture. Whether or not further testimony is allowed in the
forfeiture phase will be left to the sound discretion of the trial court
to be determined on a case-by-case basis.

2\. If the property is held in the name of or owned by third parties,
the following instruction may be given:

\[You will have noted that certain property is held in the name of a
person or business entity other than the defendant\'s. You should simply
disregard any such title or formal claim of ownership of such property
if you find that such property either constituted or was derived from
any proceeds the defendant obtained, directly or indirectly, as the
result of his criminal activity or was used, or intended to be used, in
any manner or part to commit or to facilitate the commission of such
criminal activity.

The defendant\'s interest in any such property becomes vested in the
United States at the moment the property was acquired by way of the
illegal acts prohibited in the statute. Any interest that another person
may claim to have in such property will be taken into account later by
this court in imposing a sentence and in disposing of the property. This
is not for your consideration as jurors. Stated differently, your sole
task is to decide whether this property, regardless in whose name it is
now held, was derived from or was intended to facilitate the
defendant\'s drug violations.\]

3\. The following two subsections of 21 U.S.C. § 853 are relevant to the
proper burden of proof in a criminal forfeiture matter.

Property Subject to Criminal Forfeiture

\(a\) Any person convicted of a violation of this subchapter or
subchapter II of this chapter punishable by imprisonment for more than
one year shall forfeit to the United States, irrespective of any
provision of State law\--

\(1\) any property constituting, or derived from, any proceeds the
person obtained, directly or indirectly, as the result of such
violation;

\(2\) any of the person\'s property used, or intended to be used, in any
manner or part, to commit, or to facilitate the commission of, such
violation; and

\(3\) in the case of a person convicted of engaging in a continuing
criminal enterprise in violation of section 848 of this title, the
person shall forfeit, in addition to any property described in paragraph
(1) or (2), any of his interest in, claims against, and property or
contractual rights affording a source of control over, the continuing
criminal enterprise.

Rebuttable Presumption

\(d\) There is a rebuttable presumption at trial that any property of a
person convicted of a felony under this subchapter or subchapter II of
this chapter is subject to forfeiture under this section if the United
States establishes by the greater weight of the evidence that\--

\(1\) such property was acquired by such person during the period of the
violation of this subchapter or subchapter II of this chapter or within
a reasonable time after such period; and

\(2\) there was no likely source for such property other than the
violation of this subchapter or subchapter II of this chapter.

Six circuit courts of appeal including the Eighth Circuit have found
that forfeiture is merely part of the punishment for a crime in addition
to any sentence that the defendant receives. Five of these circuits
including the Eighth Circuit have definitively held that the proper
burden of proof in a forfeiture matter is the preponderance of the
evidence. *United States v. Bieri*, 21 F.3d 819 (8th Cir. 1994); *United
States v. Smith*, 966 F.2d 1045 (6th Cir. 1992); *United States v.
Herrero*, 893 F.2d 1512 (7th Cir. 1990); *United States v.
Hernandez-Escarsega*, 886 F.2d 1560 (9th Cir. 1989); *United States v.
Sandini*, 816 F.2d 869 (3d Cir. 1987). A sixth court has held that the
burden is preponderance in matters involving \"proceeds\" of drug
transactions. *United States v. Elgersma*, 971 F.2d 690 (11th Cir. 1992)
(*en banc*). Other jurisdictions adhere to the reasonable doubt
standard. *United States v. Monsanto*, 852 F.2d 1400, 1412 n.1 (2d Cir.
1988); *United States v. Nichols*, 841 F.2d 1485, 1500 (10th Cir. 1988);
*United States v. Dunn*, 802 F.2d 646, 647 (2d Cir. 1986); *United
States v. Cauble*, 706 F.2d 1322, 1347-48 (5th Cir 1983); *United States
v. Pryba*, 674 F. Supp. 1518, 1520-21, *aff\'d*, 900 F.2d 748 (4th Cir.
1990). The Supreme Court has not directly addressed this issue.

The Committee recommends following the clear pronouncement of the Eighth
Circuit in *United States v. Bieri*, that the greater weight of the
evidence is the proper burden of proof.

4\. *United States v. Milicia*, 769 F. Supp. 877 (E.D. Pa. 1991).

5\. *United States v. Premises Known as 3639\--2nd St., N.E.*, 869 F.2d
1093, 1096 (8th Cir. 1989); *United States v. Schifferli*, 895 F.2d 987,
990 (4th Cir. 1990).

6\. Rule 31(e), Federal Rules of Criminal Procedure, requires that
\"special verdicts\" be used in all criminal forfeiture matters.

**Committee Comments**

*See* 21 U.S.C. § 853(a) through (d).

Two recent Supreme Court decisions deal with certain types of innocent
owners of forfeitable property and with the \"proportionality\" of
forfeitures under the excessive fine clause of the Eighth Amendment of
the U.S. Constitution. *See* *United States v. 92 Buena Vista Avenue,
Rumson, N.J.*, 507 U.S. 111 (1993); *Austin v. United States*, 509 U.S.
602 (1993). Although these cases should be carefully considered because
they will have an effect on post-trial hearings involving innocent
owners (21 U.S.C. § 853 n.(1)-n.(7), and on post-trial hearings and
findings to determine the proportionality of a particular forfeiture,
the Committee believes they should not have an effect on any of the jury
instructions in this section.

**6.21.856A. ESTABLISHMENT OF MANUFACTURING OPERATIONS**

**(Maintaining Any Place For Manufacturing)**

**21 U.S.C. § 856(a)(1)**

The crime of maintaining a place for the purpose of \[manufacturing\]
\[distributing\] \[using\]^1^ a controlled substance, as charged in
\[Count \_\_ of\] the indictment has two elements, which are:

*One*, the defendant knowingly \[opened\] \[maintained\]^2^ a\[n\]
(describe place as charged in the indictment); and

*Two*, the defendant did so for the purpose of^3^ \[manufacturing\]
\[distributing\] \[using\] a controlled substance (describe controlled
substance^4^ as charged in the indictment).

A defendant \[opens\] \[maintains\] a place for the purpose of
\[manufacturing\] \[distributing\] \[using\] (describe controlled
substance as charged in indictment) if the defendant maintains the place
for the specific purpose of \[manufacturing\] \[ distributing\]
\[using\] the controlled substance. The specific purpose need not be the
sole purpose for which the place is used, but must be one of the primary
or principal uses to which the place is used.^5^

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

**Notes on Use**

1\. *See* 21 U.S.C. § 856(a)(1).

2\. *See* 21 U.S.C. § 856(a)(1). The committee recommends that if the
place is a residence, the jury be instructed that in order for the
defendant to have maintained the residence, the defendant must have a
substantial connection to the home. *See United States v. Verners,* 53
F.3d 291, 296 (10^th^ Cir. 1995).

3\. The purpose element applies to the person charged with maintaining
the place for illegal activity. It is not sufficient that others possess
the requisite purpose. *United States v. Chen,* 913 F.3d at 189-90.

4\. If the controlled substance cannot be precisely identified, the
phrase "a controlled substance" may be used.

5\. *United States v. Verners,* 53 F.3d at 296; *United States v.
Lancaster,* 968 F.2d 1250, 1253 (D.C. Cir. 1992); *United States v.
Roberts,* 913 F.2d 211, 220 (5^th^ Cir. 1990), *cert denied sub nom,
Preston v. United States,* 500 U.S. 955 (1991).

**Committee Comments**

*See* *United States v. Chen*, 913 F.2d 183, 186 (5^th^ Cir. 1990);
*United States v. Verners*, 53 F.3d 291, 295 (10^th^ Cir. 1995); *United
States v. Clavis*, 956 F.2d 1079, 1090, *modified on other grounds*, 977
F.2d 538 (11^th^ Cir. 1992).

As part of the comprehensive drug legislation passed in October 1986,
Congress enacted section 856 to strengthen federal efforts to "outlaw
operation of houses or buildings, so-called 'crack houses,' where
'crack,' cocaine and other drugs are manufactured and used." H.R. 5484,
99^th^ Cong., 2^nd^ Sess., 132 Cong. Rec. S13779 (9/26/86). The
drug-house statute is aimed, like the drug-kingpin statute, at persons
who occupy a supervisory, managerial or entrepreneurial role in a drug
enterprise, or who knowingly allow such an enterprise to use their
premises to conduct its affairs. *United States v. Thomas*, 956 F.2d
165, 166 (7^th^ Cir. 1992). The Eleventh Circuit has held that the
statute contemplates continuity in pursuit of the alleged objective:
manufacturing, distributing or using controlled substances. As such, it
found that an isolated instance of drug use or distribution or
manufacturing is not sufficient to constitute a violation of the
statute. *United States v. Clavis*, 956 F.2d at 1090.

Proof of "dominion or control" is not necessary to establish
"maintenance." *United States v. Basinger*, 60 F.3d 1400, 1405 (9^th^
Cir. 1995); *United States v. Clavis*, 956 F.2d at 1091. However, proof
of a defendant's "dominion and control" over a place may be sufficient
to show that the defendant was maintaining a place. *See United States
v. Howell*, 31 F.3d 740, 741 (8^th^ Cir. 1994) (evidence that the
defendant had sprayed and cultivated field provided circumstantial
evidence of constructive possession and control to sufficiently support
a finding that the defendant maintained a place for the growing of
marijuana). Acts evidencing maintenance include control, duration,
acquisition of the site, renting or furnishing the site, repairing the
site, supervising, protecting, supplying food to those at the site, and
continuity. *United States v. Clavis*, 956 F.2d at 1091. *See also
United States v. Cabbell*, 35 F.3d 1255, 1261 (8^th^ Cir. 1994), *citing
with approval*, *United States v. Clavis*, 956 F.2d at 1091. The Tenth
Circuit has held that where the "place" in question is a residence, the
defendant must have a "substantial connection" to the home and must be
more than a "casual visitor" in order to satisfy the element. *United
States v. Verners,* 53 F.3d at 295*; United States v. Williams,* 923
F.2d 1397, 1403 (10^th^ Cir. 1990). When a defendant lives in the house,
the element may be satisfied. *United States v. Onick*, 889 F.2d 1425,
1431 (5^th^ Cir. 1989).

The offense has two mental elements, knowledge and purpose. *See United
States v. Clavis*, 956 F.2d 1079, 1090 (11^th^ Cir. 1992). The purpose
element in subsection (a)(1) applies to the person who is charged with
opening or maintaining the place for illegal activity. Therefore, it is
not sufficient that other individuals, rather than the defendant,
possessed the requisite purpose. *Id.*; *United States v. Banks,* 987
F.2d 463, 466 (7^th^ Cir. 1993); *United States v. Chen*, 913 F.2d at
189-90. The Seventh Circuit, drawing upon a business analogy, defined
the term "for the purpose of" as whether the defendant acted as a
supervisor, manager or entrepreneur in the drug enterprise, as opposed
to someone who merely facilitated the crime. *United States v. Banks*,
987 F.2d at 466-67. Evidence that a place is being used to run a drug
enterprise may include investment in the tools of trade, e.g., scales,
laboratory equipment, guns and ammunition; packaging materials,
financial records, profits, and the presence of multiple employees or
customers. *United States v. Verners,* 53 F.3d at 296.

While the defendant must have the specific purpose, it need not be the
sole purpose for which the place is opened or maintained. *United States
v. Verners,* 53 F.3d at 296. The Fifth Circuit held in *United States v.
Roberts*, 913 F.2d 211, 220 (5^th^ Cir. 1990), *cert. denied sub nom*,
*Preston v. United States*, 500 U.S. 955 (1991), that a finding that the
statute limited convictions to a sole purpose requirement would
eviscerate the statute. On the other hand, the manufacturing,
distributing or using of drugs must be more than a mere collateral
purpose of the residence. A casual drug user does not violate the law
because he does not maintain his house for the purpose of using drugs
but rather for the purpose of residence; the consumption of drugs is
merely incidental to that purpose. *United States v. Verners,* 53 F.3d
at 296; *United States v. Lancaster*, 968 F.2d 1250, 1253 (D.C. Cir.
1992). The manufacturing, distribution or use of drugs must be one of
the primary or principal uses to which the place is put. *Id*.

The Fifth Circuit has held that a deliberate ignorance instruction is
inappropriate and cannot be given as to a section 856(a)(1) violation,
for one cannot be deliberately ignorant and still have the purpose of
engaging in illegal drug activities. The instruction was inappropriate
for an offense which requires a specific purpose by the defendant.
*United States v. Chen*, 913 F.2d at 190.

**6.21.856B ESTABLISHMENT OF MANUFACTURING OPERATIONS**

**(Managing or Controlling a Manufacturing Place For Compensation)**

**21 U.S.C. § 856 (a)(2)**

The crime of \[managing\] \[controlling\]^1^ an establishment of
manufacturing operations, as charged in \[Count \_\_ of\] the indictment
has three elements, which are:

*One*, the defendant \[managed\] \[controlled\] (describe location as
charged in indictment);

*Two*, the defendant did so as \[owner\] \[lessee\] \[agent\]
\[employee\] \[ mortgagee\]; and

*Three*, the defendant knowingly and intentionally \[ rented\]
\[leased\] \[made available for use with or without compensation\]
(describe location as charged in indictment) for the purpose of^2^
unlawfully \[manufacturing\] \[storing\] \[distributing\] \[ using\]
(describe controlled substance as charged in indictment).

A defendant \[managed \] \[controlled\] (describe location as charged in
indictment) for the purpose of unlawfully \[manufacturing\] \[storing\]
\[distributing\] \[using\] (describe controlled substance as charged in
indictment) if a significant purpose for the location is the
\[manufacturing\] \[storing\] \[ distributing\] \[using\] of a
controlled substance. \[\[Manufacturing\] \[Storing\] \[Distributing\]
\[Using\] need not be the sole or primary purpose for which the place is
used.\]^3^

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

**Notes on Use**

1\. *See* 21 U.S.C. § 856(a)(2).

2\. The purpose element may be satisfied if the individuals using the
location are engaged in the illegal activity. *See United States v.
Banks,* 987 F.2d 463, 466 (7^th^ Cir. 1993); *United States v. Chen,*
913 F.2d 183, 189-90 (5^th^ Cir. 1990).

3\. *United States v. Meshack*, 225 F.3d 556, 571 (5^th^ Cir. 2000).
*See also* *United States v. Roberts,* 913 F.2d 211, 220 (5^th^ Cir.
1990), *cert denied sub nom, Preston v. United States,* 500 U.S. 955
(1991). Unlike subsection (a)(1), the specific requirement in subsection
(a)(2) may be satisfied if the person or persons renting, leasing or
using the property possesses the requisite purpose.

**Committee Comments**

*See* Fifth Circuit Instruction 2.91; *United States v. Chen*, 913 F.2d
183, 186-87 (5^th^ Cir. 1990).

The drug-house statute is aimed, like the drug-kingpin statute, at
persons who occupy a supervisory, managerial or entrepreneurial role in
a drug enterprise, or who knowingly allow such an enterprise to use
their premises to conduct its affairs. *United States v. Thomas*, 956
F.2d 165, 166 (7^th^ Cir. 1992). The Eleventh Circuit has held that the
statute contemplates continuity in pursuit of the alleged objective:
manufacturing, distributing or using controlled substances. As such, it
found that an isolated instance of drug use or distribution or
manufacturing is not sufficient to constitute a violation of the
statute. *United States v. Clavis*, 956 F.2d at 1090.

Subsection (a)(2) does not require the person who makes the place
available to others for drug activity to possess the purpose of engaging
in illegal activity. The purpose in issue is that of the person renting
or otherwise using the place. *United States v. Banks,* 987 F.2d 463,
466 (7^th^ Cir. 1993); *United States v. Chen*, 913 F.2d at 189-90. The
defendant may be liable if he manages or controls a building that others
use for an illicit purpose, and he either knows of the illegal activity
or remains deliberately ignorant of it. Therefore, under subsection
(a)(2), a deliberate ignorance instruction may be submitted if supported
by the evidence. *Id.*

The Fifth Circuit held in *United States v. Roberts*, 913 F.2d 211, 220
(5^th^ Cir. 1990), *cert. denied sub nom*, *Preston v. United States*,
500 U.S. 955 (1991), that a finding that the statute limited convictions
to a sole purpose requirement would eviscerate the statute.

**6.26.5861 FIREARMS\--POSSESSION OF**

**UNREGISTERED FIREARMS (26 U.S.C. § 5861(d))**

The crime of \[possession^1^ of\] \[receiving\] an unregistered firearm,
as charged in Count \_\_\_\_\_ of the Indictment, has four elements,
which are:

*One*, the defendant knew^2^ \[he\] \[she\] had the firearm in \[his\]
\[her\] possession;

*Two*, the defendant knew^2^ the firearm was \[use definitions from 26
U.S.C. § 5845(a),^3^ e.g., a shotgun having a barrel or barrels less
than 18 inches in length, etc.\]^4^;

*Three*, the firearm \[was capable of operating as designed\] \[could
readily be put in operating condition\];^5^ and

*Four*, the firearm was not registered to the defendant in the National
Firearms Registration and Transfer Record.^6^

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

**Notes on Use**

1\. The element of possession in firearms cases under section 5861(d) is
satisfied if the defendant has knowledge of presence and control.
Ownership is not controlling on the issue of guilt. *Zrust*, 835 F.2d at
193. *See* Instruction 8.02, *infra*, for an instruction on actual or
constructive possession.

2\. Title 26, U.S.C. § 5861 requires proof that a defendant knew of the
characteristics of the weapon that made it a "firearm." *Staples v.
United States*, 511 U.S. 600, 619 (1994). The holding in *Staples* is a
"narrow one." *Id.* It focuses on concern that Congress did not intend
to make outlaws of gun owners who were "wholly ignorant of the offending
characteristics of their weapons." *Id.* Post-*Staples*, the Eighth
Circuit has held that where the characteristics of the weapon itself
render it "quasi-suspect," the government need only prove that the
defendant possessed the weapon and observed its characteristics. *United
States v. Barr*, 32 F.3d 1320, 1324 (8th Cir. 1994). *Barr* involved a
sawed-off shotgun with readily visible modifications to both the barrel
and the stock.

3\. \"Firearm\" may require definition for the jury. The eight
categories of firearms are defined in 26 U.S.C. § 5845(a). In light of
the decisions in *United States v. Kurt*, 988 F.2d 73, 75-76 (9th Cir.
1993); *United States v. Dalton*, 960 F.2d 121 (10th Cir. 1992), and
*United States v. Rock Island Armory, Inc.*, 773 F. Supp. 117 (C.D. Ill.
1991), machine gun possession arguably should be charged under 18 U.S.C.
§ 922(o) rather than 26 U.S.C. § 5861(d). However, the most recent court
of appeals to consider the issue explicitly rejected the argument that
18 U.S.C. § 922(o) did not implicitly repeal and make unconstitutional
26 U.S.C. §§ 5845 & 5861. *United States v. Ardoin*, 19 F.3d 177, 180
(5th Cir. 1994) (expressly rejecting *Dalton* and *Rock Island Armory*
and adopting the analysis of the Fourth Circuit in *United States v.
Jones*, 976 F.2d 176 (4th Cir. 1992)).

4\. Further definition may be required as set forth in 26 U.S.C. §
5845(b)-(h)

5\. The Government must prove that the firearm can be operated or
readily assembled to operating condition. *United States v. Priest*, 594
F.2d 1383 (10th Cir. 1979). *United States v. Seven Miscellaneous
Firearms*, 503 F. Supp. 565 (D.D.C. 1980) (forfeiture case). This third
element of the pattern instruction will not be required in cases
involving destructive devices as it is not necessary that the device
function as intended. *United States v. Ragusa*, 664 F.2d at 700.

6\. Whether the firearm should have been registered is a jury question.
*Bryan v. United States*, 373 F.2d 403, 407 (5th Cir. 1967). The
*capability* of the weapon to be registered is not an element of the
crime. *United States v. Kurt*, 988 F.2d at 76.

**Committee Comments**

*See generally* *Staples v. United States*, 511 U.S. 600 (1994); *United
States v. Barr*, 32 F.3d 1320 (8th Cir. 1994); *United States v. Matra*,
841 F.2d 837 (8th Cir. 1988), and *United States v. Zrust*, 835 F.2d 192
(8th Cir. 1987). *See* West \"Internal Revenue\" Key \# 5265 or Westlaw
220k5265. *See also* Federal Judicial Center, Pattern Criminal Jury.
Instructions § 113 (1988); Ninth Cir. Crim. Jury Instr. 9.5.1, 9.5.2
(1997); West \"Internal Revenue\" Key \## 5265 and 2410 or Westlaw
220k5265k2410; Eleventh Circuit Pattern Jury Instructions: Criminal
(Offense) § 80.l (1997); Seventh Circuit Federal Jury Instructions:
Criminal at 405 (1999); and 2A Kevin F. O'Malley, et al., *Federal Jury
Practice and Instructions*: Criminal § 39 (5th ed. 2000).

Destructive devices are considered firearms within the meaning of the
statute. 26 U.S.C. § 5845(a).

Items deemed destructive devices have been as diverse as ten sticks of
dynamite, a length of slow fuse and a blasting cap combined with an
alarm clock and a 6-volt battery, *United States v. Harflinger*, 436
F.2d 928 (8th Cir. 1970), and six trash bags each holding a 5-gallon
container of gasoline connected by overlapping paper towels with a
trigger consisting of matchbooks fashioned to cigarettes adjacent to a
bottle of flammable liquid. *United States v. Ragusa*, 664 F.2d 696,
697-98 (8th Cir. 1981).

The individual components must be designed or intended for use as a
destructive device to meet the requirements of 26 U.S.C. § 5845(f)(3).
*See United States v. Hamrick*, 43 F.3d 877 (4th Cir. 1995) (citing
additional examples of destructive devices and affirming by an equally
divided court that an improvised, dysfunctional incendiary letter bomb
was a destructive device supporting an enhanced penalty under 18 U.S.C.
§ 924(c) as well as being a destructive device under 26 U.S.C. §§
5845(f) & 5861).

When the individual components are commercial explosives, proof of the
intended use of the components to assemble a destructive device is
required in the Eighth Circuit. *Langel v. United States*, 451 F.2d 957,
962 (8th Cir. 1971). *Accord United States v. Morningstar*, 456 F.2d 278
(4th Cir. 1972); *United States v. Greer*, 588 F.2d 1151 (6th Cir.
1979); *Burchfield v. United States*, 544 F.2d 922, 924 (7th Cir. 1976);
*United States v. Oba*, 448 F.2d 892, 894 (9th Cir. 1972). In a later
Ninth Circuit case, *United States v. Fredman*, 833 F.2d 837 (9th Cir.
1987), the court reversed a conviction as the Government failed to prove
beyond a reasonable doubt that the components were intended for use as a
weapon. The same result was reached by the First Circuit when the
Government failed to prove the dynamite was intended for use as a bomb.
*United States v. Curtis*, 520 F.2d 1300 (1st Cir. 1975).

The Second Circuit does not require proof of the intended use of the
components. In *United States v. Posnjak*, 457 F.2d 1110 (2d Cir. 1972),
the court held that commercial dynamite with unattached fuse and caps
was not a destructive device regardless of the intent of the transferor.

**6.26.7201 TAX EVASION (26 U.S.C. § 7201)**

The crime of tax evasion as charged in \[Count\[s\] of\] the indictment
has three elements, which are:

*One*, the defendant owed substantial income tax in addition to that
which \[he\] \[she\] reported on his return;

*Two*, the defendant attempted to evade^1^ and defeat that additional
tax; and

*Three*, the defendant acted willfully.

To \"attempt to evade or defeat\" a tax involves two things: first, an
intent to evade or defeat the tax; and second, some act willfully done
in furtherance of such intent. So, the word \"attempt\" contemplates
that the defendant knew and understood that, during the calendar year
charged, \[he\] \[she\] had some income which was taxable, and which he
was required by law to report; but that \[he\] \[she\] nevertheless
attempted to evade or defeat all or a substantial portion of the tax on
that income, by willfully failing to report all \[his\] \[her\] known
income which \[he\] \[she\] knew \[he\] \[she\] was required by law to
state in \[his\] \[her\] return for such year; or in some other way or
manner.

To \"evade and defeat\" a tax means to escape paying a tax by means
other than lawful avoidance.

Various schemes, subterfuges, and devices may be resorted to, in an
attempt to evade or defeat a tax. \[The one alleged in the indictment is
that of filing false and fraudulent returns with the intent to evade or
defeat the tax.\]^2^ The statute makes it a crime willfully to attempt,
in any way or manner, to evade or defeat any income tax imposed by
law.^3^

An attempt to evade an income tax for one year is a separate offense
from the attempt to evade the tax for a different year.^4^

Even though the indictment alleges a specific amount of tax due for each
of the calendar years, the proof need not show the precise amount of the
additional tax due.^5^ The Government is only required to establish,
beyond a reasonable doubt, that the defendant attempted to evade a
substantial income tax, whether greater or less than the amount charged
in the indictment.^6^

\[The fact that an individual\'s name^7^ is signed to a return means
that, unless and until outweighed by evidence in the case which leads
you to a different or contrary conclusion, you may find that a filed tax
return was in fact signed by the person whose name appears to be signed
to it. If you find proof beyond a reasonable doubt that the defendant
had signed \[his\] \[her\] tax return, that is evidence from which you
may, but are not required to, find or infer that the defendant had
knowledge of the contents of the return.^8^\]

To act \"willfully\" means to voluntarily and intentionally violate a
known legal duty.^9^

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

**Notes on Use**

1\. \"Evade\" should be defined to clarify that it means more than
lawful avoidance of a tax, *Distinctive Theatres of Columbus v. Looker*,
165 F. Supp. 410, 411 (S.D. Ohio 1958), and to avoid confusion with the
requirement of willfulness, *United States v. Bishop*, 412 U.S. 346, 360
n.8 (1973).

2\. Insert the method charged in the indictment. If more than one method
has been charged, the jury may be instructed that it need find only one
matter false, however its finding as to which matter must be unanimous.
There must be sufficient evidence to support each method charged in the
instructions. *United States v. Kneen*, 879 F.2d 345 (8th Cir. 1989).

3\. *Sansone v. United States*, 380 U.S. 343, 351 (1965); 2B Kevin F.
O'Malley, et al., *Federal Jury Practice and Instructions*: Criminal §
67.03 (5th ed. 2000).

4\. *United States v. Smith*, 335 F.2d 898, 900-01 (7th Cir. 1964).

5\. *See* *United States v. Calderon*, 348 U.S. 160, 167 (1954);
*Swallow v. United States*, 307 F.2d 81, 83 (10th Cir. 1962).

6\. *See* *United States v. Johnson*, 319 U.S. 503, 517-18 (1943);
*United States v. Gardner*, 611 F.2d 770, 775-76 (9th Cir. 1980).

7\. Section 6064, United States Code, Title 26 refers to individuals.
Corporate and partnership returns are covered by sections 6062 and 6063
of Title 26. The appropriate language should be used. *See also*
Instruction 4.13, *supra*.

8\. Volume 2B Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 67.22 (5th ed. 2000); *United States v.
Wainwright*, 413 F.2d 796, 802 n.3 (10th Cir. 1969); *United States v.
Brink*, 648 F.2d 1140 (8th Cir. 1981); *United States v. Cashio*, 420
F.2d 1132, 1135 (5th Cir. 1969).

This instruction should only be used when a signed return is involved.
Evasion may be accomplished without the filing or signing of a return.

9\. *See* *United States v. Pomponio*, 429 U.S. 10, 12 (1976); *United
States v. Jerde*, 841 F.2d 818, 821 (8th Cir. 1988) and Instruction 7.02
of this Manual.

**Committee Comments**

*See* 2B Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal §§ 67.03, 67.04, 67.08, 67.22, 67.24 (5th ed.
2000); *Sansone v. United States*, 380 U.S. 343, 351 (1965); *United
States v. Johnson*, 319 U.S. 503, 517-18 (1943); *United States v.
Frederickson*, 846 F.2d 517 (8th Cir. 1988).

Various schemes or devises may constitute tax evasion. Most commonly,
the filing of a false and fraudulent return understating income is
sufficient to satisfy the requirement of an attempt to evade. *Sansone
v. United States*, 380 U.S. at 351; *United States v. Schafer*, 580 F.2d
774 (5th Cir. 1978).

Whether the tax evaded was \"substantial\" is a jury question. *Canaday
v. United States*, 354 F.2d 849, 851 n.2 (8th Cir. 1966). That case
defined \"substantial\" as follows:

The word \"substantial,\", as applicable here, is necessarily a relative
term and not susceptible of an exact meaning. This concept is implicit
in *United States v. Nunan*, 236 F.2d 576, 585 (2d Cir. 1956), where the
court, in pertinent part, stated:

\* \* \* The showing by the government must warrant a finding that the
amount of the tax evaded is substantial. (Citing cases.) But this is not
measured in terms of gross or net income nor by any particular
percentage of the tax shown to be due and payable. All the attendant
circumstances must be taken into consideration. \* \* \* But a few
thousand dollars of omissions of taxable income may in a given case
warrant criminal prosecution, depending on the circumstances of the
particular case. Otherwise the rich and powerful could evade the income
tax with impunity.

345 F.2d at 851-52. Generally \"substantial\" is not defined in the jury
instructions.

While a defendant must intend to evade or defeat the tax, this need not
be his sole motive. For example, the defendant may also desire to
suppress information as to acts which are unrelated to tax evasion,
including other criminal acts. *Spies v. United States*, 317 U.S. 492
(1943).

The Supreme Court has recognized certain facts and circumstances as
indicating an intent to evade taxes:

By way of illustration and not by way of limitation, we would think
affirmative willful attempt may be inferred from conduct such as keeping
a double set of books, making false entries or alterations, or false
invoices or documents, or alterations, or false invoices or documents,
destruction of books or records, concealment of assets or covering up
sources of income, handling of one\'s affairs to avoid making the
records usual in transactions of the kind, and any conduct, the likely
effect of which would be to mislead or to conceal. If the tax evasion
motive plays any part in such conduct, the offense may be made out even
though the conduct may also serve other purposes such as the concealment
of other crimes.

*Spies v. United States*, 317 U.S. at 499. \"Willfulness\" may also be
shown by a consistent pattern of under-reporting, *United States v.
DiBenedetto*, 542 F.2d 490 (8th Cir. 1976).

Taxable income includes illegally acquired funds as well as legally
acquired funds. *James v. United States*, 366 U.S. 213 (1961)
\[embezzled funds taxable\]; *United States v. Fogg*, 652 F.2d 551,
555-56 (5th Cir.), *reh. denied*, 660 F.2d 499 (5th Cir. 1981)
\[commercial bribes and kickbacks taxable\]; *Hartman v. United States*,
245 F.2d 349, 352-53 (8th Cir. 1957); *United States v. Meyer*, 808 F.2d
1304 (8th Cir. 1987) \[diverted corporate funds taxable\]. In a proper
case, where there is evidence of illegal income, the jury may be so
instructed. *See* 2B Kevin F. O'Malley, et al., *Federal Jury Practice
and Instructions*: Criminal § 67.21 (5th ed. 2000). *United States v.
Renfro*, 600 F.2d 55 (6th Cir. 1979).

Gifts are not taxable items of income. If the defendant contends that
certain payments are gifts, the jury may be instructed as follows:

It is for you, the jury, to decide whether certain funds are taxable or
nontaxable to the defendant. In determining whether a payment of money
or property to the defendant is a nontaxable gift, you should look to
the intent of the parties at the time the payment was made, particularly
the intent of the person making the payment. Such payments are gifts if
they proceed from a detached and disinterested generosity, out of
affection, respect, admiration, charity, or like impulses. In making
this determination, however, you must look at all the facts and
circumstances in this case. The characterization given to a certain
payment by either the defendant or the person making the payment is not
conclusive. Rather you, the members of the jury, must make an objective
inquiry as to whether a certain payment is a gift. In this instruction a
\"payment\" includes any form of payment whether it be in cash, goods,
or services, made directly to the defendant or on his behalf. You should
look at the terms and substance of any request made by the defendant for
the payment.

*United States v. Terrell*, 754 F.2d 1139, 1149 n.3 (5th Cir. 1985);
*Commissioner of Internal Revenue v. Duberstein*, 363 U.S. 278, 285-86
(1960). In *United States v. Shelton*, 588 F.2d 1242 (9th Cir. 1978), it
was held proper to instruct the jury that whether the item was a gift
was dependable on the transferor\'s intent.

Other nontaxable items such as loans, insurance proceeds, inheritances,
etc. may also be identified and defined in the instructions as
appropriate to the case.

Good faith is a theory of defense in tax evasion. Where the defendant
has presented evidence of good faith, he is entitled to a jury
instruction. *See* Instruction 9.08, *infra*. *See also* *United States
v. Kouba*, 822 F.2d 768, 771 (8th Cir. 1987); *United States v. Meyer*,
808 F.2d 1304 (8th Cir. 1987). Advice of counsel is a form of a good
faith theory of defense. *See* Instruction 9.08 *infra*.

In *United States v. Parshall*, 757 F.2d 211 (8th Cir. 1985) the court
held it was not error to instruct the jury that \"disagreement with the
law or governmental policies does not constitute good faith
misunderstanding of the requirements of the law.\"

One method of tax evasion, known as a *Spies* evasion, consists of
failure to file a return coupled with an affirmative act of evasion.
*See* *United States v. Goodyear*, 649 F.2d 226 (4th Cir. 1981). If this
type of evasion is charged, the jury may be instructed on failure to
file in violation of Section 7203 as a lesser included offense.

**6.26.7203 FAILURE TO FILE TAX RETURN (26 U.S.C. § 7203)**

The crime of failure to file a tax return as charged in \[Count(s) of\]
the indictment has three elements, which are:

*One*, the defendant was required to file a federal income tax return
for (insert taxable year(s) charged);

*Two*, the defendant knew that \[he\] \[she\] was required to file such
a tax return; and

*Three*, the defendant willfully failed to file the required tax return
on or before (insert time required by law).

To act \"willfully\" means to voluntarily and intentionally violate a
known legal duty.^1^

\[A single person \[under\] \[over\] sixty-five years old was required
to file a federal income tax return for the year(s) (insert years
charged), if \[he\] \[she\] had gross income in excess of (insert
amount)\].^2^

\[A married individual was required to file a federal income tax return
for the year(s) (insert years charged), if \[he\] \[she\] had a separate
gross income in excess of (insert amount)^3^ and a total gross income,
when combined with that of \[his\] \[her\] spouse, in excess of (insert
amount)^4^ where \[either\] \[both\] \[is\] \[are\] \[over\] \[under\]
sixty-five years old.\]

Gross income includes the following: \[Compensation for services,
including fees, commissions and similar items\] \[Gross income derived
from business\] \[Gains derived from dealings in property\] \[Interest\]
\[Rents\] \[Royalties\] \[Dividends\] \[Alimony and separate maintenance
payments\] \[Annuities\] \[Income from life insurance and endowment
contracts\] \[Pensions\] \[Income from discharge of indebtedness\]
\[Distributive share of partnership gross income\] \[Income in respect
of a decedent\] \[Income from an interest in an estate or trust\].^5^

The fact that a person may be entitled to deductions from income in
sufficient amount so that no tax is due does not affect that person\'s
obligation to file.

The Government is not required to show that a tax was due and owing or
that the defendant intended to evade or defeat the payment of taxes,
only that \[he\] \[she\] willfully failed to file a return.

If you find beyond a reasonable doubt that the defendant had the
required gross income in (insert year, e.g., 1985), then, the defendant
was required to file a tax return on or before (insert date, e.g., April
15, 1986).^6^

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

**Notes on Use**

1\. *See* *United States v. Pomponio*, 429 U.S. 10, 12 (1976); *United
States v. Jerde*, 841 F.2d 818, 821 (8th Cir. 1988) and Instruction
7.02, *infra*.

2., 3., 4. Where more than one year is charged and the gross income
amount requiring a return be filed differs in amount, it will be
necessary to set forth the appropriate gross income for each of the
years in issue. Note also that gross income requirement may vary from
year to year depending on the amount allowed as an exemption, the age of
the defendant, and, in the case of a married defendant, the age of the
spouse. 26 U.S.C. § 6012.

5\. The instruction should be simplified by eliminating sources of
income not shown by the evidence.

6\. A return made on the basis of the calendar year must be made on or
before the 15th day of April, following the close of the calendar year.
When April 15 falls on a Saturday, Sunday, or legal holiday, returns are
due on the first day following April 15 which is not a Saturday, Sunday,
or legal holiday. 26 U.S.C §§ 6072, 6081, 7503.

Returns made on the basis of a fiscal year are generally required to be
filed on or before the 15th day of the fourth month following the close
of the fiscal year. 26 U.S.C. § 6072(a). Calendar year corporate returns
are due on or before the 15th day of March following the close of the
calendar year; fiscal year corporate returns are due on or before the
15th day of the third month following the close of the fiscal year. 26
U.S.C. § 6072(b).

Note that the statutory due dates should be adjusted so as to account
for any extensions of time for filing a return.

**Committee Comments**

*See* 2B Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal §§ 67.11, 67.12, 67.20 (5th ed. 2000); Eleventh
Circuit Pattern Jury Instructions: Criminal (Offense) § 82 (1997).

*See also* Committee Comments, Instruction 6.26.7201, *supra*.

For a discussion of instructions asserting a good faith defense in tax
cases, *see* Committee Comments, Instruction 9.08, *infra*.

If a defendant in a failure to file case is allowed to introduce legal
and other materials in support of his good faith defense, the following
limiting instruction may be appropriate:

The defendant has introduced evidence of advice he heard given by
speakers at meetings, tape recorded lectures, essays, pamphlets, court
opinions, and other material that he testified he relied on in
concluding that he was not a person required to file income tax returns
for the years \_\_\_\_\_ and \_\_\_\_\_. This evidence has been admitted
solely for the purpose of aiding you in determining whether or not the
defendant\'s failure to timely file tax returns for \_\_\_\_\_ and
\_\_\_\_\_ was knowing and willful and you should not consider it for
any other purpose. You are not to consider this evidence as containing
any law that you are to apply in reaching your verdicts, because all of
the law applicable to this case is set forth in these instructions.

*United States v. Miller*, 634 F.2d 1134, 1135 (8th Cir. 1980).

If the issue arises, the jury may be properly instructed that the
government need not prove bad purpose or evil motive. *United States v.
Jerde*, 841 F.2d 818 (8th Cir. 1988).

**6.26.7206 FALSE INCOME TAX RETURN (26 U.S.C. § 7206(1))**

The crime of willfully making and subscribing to a false (describe
document, e.g., income tax return) as charged in \[Count\[s\] \_\_\_\_\_
of\] the indictment, has five elements, which are:

*One*, the defendant made and signed (describe document, e.g., an
individual income tax return, Form 1040,)^1^ for the year in question,
that was false as to \[describe material matters, e.g., income);^2^

*Two*, the return contained a written declaration that it was signed
under the penalties of perjury;

*Three*, the defendant did not believe the return to be true and correct
as to \[describe material matter, e.g., income\];^3^

*Four*, the defendant acted willfully; and

*Five*, the false matter in the (describe document, e.g., income tax
return) was material.^4^

The tax return in question must be false as to (describe material
matter, e.g., income)^5^ that is (e.g., that the defendant must have
received income in addition to that reported on \[his\] \[her\] return,
regardless of the amount).^6^ However, the Government is not required to
prove that the defendant owed an additional tax for the years in issue.
Whether the Government has or has not suffered a monetary loss as a
result of the alleged return is not an element of this offense.^7^

The fact that an individual\'s name^8^ is signed to a return means that,
unless and until outweighed by evidence in the case which leads you to a
different or contrary conclusion, you may find that a filed tax return
was in fact signed by the person whose name appears to be signed to it.
If you find proof beyond a reasonable doubt that the defendant had
signed \[his\] \[her\] tax return, that is evidence from which you may,
but are not required to, find or infer that the defendant had knowledge
of the contents of the return.^9^

To act \"willfully\" means to voluntarily and intentionally violate a
known legal duty.^10^

\[False matter in a (describe document, e.g., income tax return) is
"material" if the matter was capable of influencing the Internal Revenue
Service.\]

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

**Notes on Use**

1\. Insert description of return filed. This statute also applies to
statements and other documents. If one of these is charged, the
instruction should be changed accordingly.

2\. Insert material matter charged as false. More than one material
matter may be charged. If that has been done, the jury may be instructed
that it need only find one matter false. *See* *Silverstein v. United
States*, 377 F.2d 269, 270 n.3 (1st Cir. 1967). Such a finding must be
unanimous as to that matter. *United States v. Duncan*, 850 F.2d 1104,
1110-13 (6th Cir. 1988).

3\. Insert material matter charged as false. More than one material
matter may be charged. If that has been done, the jury may be instructed
that it need only find one matter false. *See* *Silverstein v. United
States*, 377 F.2d 269, 270 n.3 (1st Cir. 1967). Such a finding must be
unanimous as to that matter. *United States v. Duncan*, 850 F.2d 1104,
1110-13 (6th Cir. 1988).

4\. The Committee has added materiality as an element for the jury in
light of *United States v. Gaudin*, 515 U.S. 506 (1995).

5\. Insert material matter charged as false. More than one material
matter may be charged. If that has been done, the jury may be instructed
that it need only find one matter false. *See* *Silverstein v. United
States*, 377 F.2d 269, 270 n.3 (1st Cir. 1967). Such a finding must be
unanimous as to that matter. *United States v. Duncan*, 850 F.2d 1104,
1110-13 (6th Cir. 1988).

6\. Insert definition or explanation of material matter charged as
false. \[If the amount of income is false, the amount of understatement
is irrelevant. *United States v. Hedman*, 630 F.2d 1184, 1196 (7th Cir.
1980).

7\. *United States v. Ballard*, 535 F.2d 400, 404 (8th Cir. 1976);
*United States v. Miller*, 545 F.2d 1204, 1211 n.8 (9th Cir. 1976).

8\. Section 6064, United States Code, Title 26 refers to individuals.
Corporate and partnership returns are covered by sections 6062 and 6063
of Title 26. The appropriate language should be used. *See also*
Instruction 4.13, *supra*.

9\. *See* 2B Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 67.22 (5th ed. 2000); *United States v.
Wainwright*, 413 F.2d 796, 802 n.3 (10th Cir. 1969); *United States v.
Brink*, 648 F.2d 1140 (8th Cir. 1981); *United States v. Cashio*, 420
F.2d 1132, 1135 (5th Cir. 1969). *See also* Committee Comments,
Instruction 4.13, *supra*, regarding specific inferences.

10\. *See* *United States v. Pomponio*, 429 U.S. 10, 12 (1976); *United
States v. Jerde*, 841 F.2d 818, 821 (8th Cir. 1988) and Instruction
7.02, *infra*.

**Committee Comments**

*See* *United States v. Bishop*, 412 U.S. 346, 350, 359 (1973); *United
States v. Engle*, 458 F.2d 1017, 1020 (8th Cir. 1972); and *United
States v. Oggoian*, 678 F.2d 671, 673 (7th Cir. 1982).

To prove a violation of this statute, the government must establish the
following elements: (l) that the defendant made and subscribed a return
that was false as to a material matter; (2) the return contained a
written declaration that it was made under the penalties of perjury; (3)
that the defendant did not believe the return to be true and correct as
to every material matter; and (4) that the defendant acted willfully.
*United States v. Bishop*, 412 U.S. 346 (1972); *see also* *United
States v. Engle*, 458 F.2d 1017, 1020 (8th Cir. 1972).

Both \"making,\" i.e., filing, and \"signing\" must be charged. The gist
of the offense is the false statements in the return. The signing and
filing of the return provides the jurisdictional element. *United States
v. Duncan*, 850 F.2d 1104, 1111-12 (6th Cir. 1988). *See also United
States v. Shortt Accountancy Corp.*, 785 F.2d 1448, 1453-54 (9th Cir.
1986).

In this circuit materiality has been a question of law for the court,
rather than a question of fact for the jury. *United States v. Holecek*,
739 F.2d 331, 337 (8th Cir. 1984). Presumably, materiality is now a
question of fact for the jury to decide under *United States v. Gaudin*,
515 U.S. 506 (1995). The test of materiality in a false return case is
\"whether a particular item must be reported in order that the taxpayer
estimate and compute his tax correctly.\" *United States v. Warden*, 545
F.2d 32, 37 (7th Cir. 1976) (quoting *United States v. Null*, 415 F.2d
1178, 1181 (4th Cir. 1969)).

Matters held to be material include false statements relating to gross
income, *United States v. Engle*, 458 F.2d at 1019-20; *United States v.
Hedman*, 630 F.2d 1184, 1196 (7th Cir. 1980); personal deductions,
*United States v. Warden*, 545 F.2d 32, 37 (7th Cir. 1976); and business
loss deductions, *United States v. Bliss*, 735 F.2d 294, 301 (8th Cir.
1984).

Under the statute the taxpayer is the one who \"makes\" a return even if
he has hired an accountant to prepare the return. *United States v.
Badwan*, 624 F.2d 1228, 1232 (4th Cir. 1980). If this is an issue, the
jury may be so instructed.

There is a rebuttable statutory presumption that if an individual\'s
name is signed on a return, then the return was actually signed by that
person. 26 U.S.C. § 6064. This presumption applies in criminal cases.
*United States v. Cashio*, 420 F.2d 1132, 1135 (5th Cir. 1969). *See
also* Committee Comments, Instruction 4.13, *supra*, regarding statutory
presumptions. Sections 6062 and 6063 of Title 26 cover signatures to
corporate and partnership returns.

The defendant\'s conduct must have been willful. The term \"willfully\"
as used in the criminal sections of the Internal Revenue Code is a
\"voluntary, intentional violation of a known legal duty.\" *United
States v. Pomponio*, 429 U.S. 10, 12 (1976). The Court went on to state
that a willful act is defined as one done \"voluntarily and
intentionally with specific intent to do something which the law
forbids.\"

Willfulness is a question of fact that is to be determined by a
consideration of all the facts and circumstances shown by the evidence.
*Id.; United States v. Miller*, 634 F.2d 1134, 1135 (8th Cir. 1980). An
intent to evade income taxes is not an element of section 7206(l).
*United States v. Engle*, 458 F.2d at 1019.

Various circumstances may indicate willfulness. For example, a
defendant\'s pattern of under reporting large amounts of income may give
rise to an inference of willfulness. *United States v. Vannelli*, 595
F.2d 402 (8th Cir. 1979); *United States v. DiBenedetto*, 542 F.2d 490,
493 (8th Cir. 1976). Willfulness may also be inferred from the repeated
omission of certain items of income. *United States v. Tager*, 479 F.2d
120, 122 (10th Cir. 1973). Failure to supply an accountant or return
preparer with accurate and complete information has also been held to be
indicative of willfulness. *United States v. Samara*, 643 F.2d 701, 703
(10th Cir. 1981); *United States v. Garavaglia*, 566 F.2d 1056 (6th Cir.
1977). Extensive use of currency and cashier\'s checks may also be
indicative of willfulness. *Smith v. United States*, 348 U.S. 147, 159
(1954); *United States v. Holovachka*, 314 F.2d 345, 358 (7th Cir.
1963); *Schuermann v. United States*, 174 F.2d 397, 398 (8th Cir. 1949).

Good faith is a theory of defense in false return cases. Where the
defendant has presented evidence of good faith, he is entitled to a jury
instruction. *See* Instruction 9.08, *infra*; *United States v. Kouba*,
822 F.2d 768, 771 (8th Cir. 1987). Advice of counsel is a form of a good
faith theory of defense. *See* Instruction 9.08, *infra*.

**7.00 FINAL INSTRUCTIONS: CONSIDERATION OF MENTAL STATE**

**(Introductory Comment)**

The instructions in this section relate to the jury's consideration of
the defendant's mental state. The Committee recommends that the elements
instructions address the exact mental state required by the statute. If
this is done there is usually no need to further instruct the jury on
the meaning of general terms such as "specific intent," "knowingly" and
"willfully" except as noted in the Committee Comments in this section.

**7.01 SPECIFIC INTENT**

\[No instruction recommended.\]

**Committee Comments**

The Committee is unaware of any federal statute which actually uses the
phrase "specific intent" and accordingly recommends that it not be used
in any instruction. Where a mental state is an element of an offense,
that mental state must be contained in the elements instruction. *See
Liparota v. United States,* 471 U.S. 419, 433 n.16 (1985). The verbal
formulation "specific intent" need not be contained in the indictment
nor submitted to the jury, as long as the required mental state is
adequately conveyed to the jury. *United States v. Dougherty*, 763 F.2d
970, 973-74 (8^th^ Cir. 1985); *United States v. May*, 625 F.2d 186,
189-90 (8^th^ Cir. 1980); *United States v. Galyen*, 798 F.2d 331, 333
(8^th^ Cir. 1986). *United States v. Bailey*, 444 U.S. 394 (1980). The
elements instructions in Section 6, *supra*, were drafted with this
purpose in mind.

**7.02 WILLFULLY**

\[No instruction recommended except in criminal tax cases, odometer
fraud cases, health care anti-kickback statute cases, certain securities
cases, and failure to pay child support cases.\]

**Committee Comments**

The Committee recommends that the word "willfully" not be used in jury
instructions in most cases. Where "willfully" does not appear in the
statute, it should not be used in the indictment or the instructions.
Where the word "willfully" does appear in the statute, in most cases it
can be replaced with the words "voluntarily and intentionally" in the
instruction and no further definition is needed. *See United States v.
Redfearn*, 906 F.2d 352 (8^th^ Cir. 1990); *United States v.
Bettelyoun*, 16 F.3d 850, 853 (8^th^ Cir. 1994). The elements
instructions in Section 6, *supra*, follow this format.

"Willfully" has been given a particular meaning in criminal tax
statutes. In tax prosecutions "willfully" may be used in the indictment
and in the instructions and should be defined as follows: "An act is
done 'willfully' if done voluntarily and intentionally with the purposed
of violating a known legal duty." *United States v. Pomponio*, 429 U.S.
10, 12 (1976); *United States v. Jerde*, 841 F.2d 818, 821 (8^th^ Cir.
1988). The Supreme Court has discussed the various meanings of the term
"willfulness" in the criminal tax statutes in *United States v. Bishop*,
412 U.S. 346 (1973); *Cheek v. United States*, 498 U.S. 192 (1991)
("willfully" in a tax evasion case means both that the defendant knew of
his duty to pay the tax and that he voluntarily and intentionally
violated that duty). This circuit has extended this definition of
willfully to odometer fraud cases under 15 U.S.C. § 1990c. *United
States v. Studna*, 713 F.2d 416, 418 (8^th^ Cir. 1983). There may be
other statutes in which "willfully" has this definition.

In *Ratzlaf v. United States*, 510 U.S. 135 (1994), the Court held that
for the purposes of the anti-structuring statutes at 31 U.S.C. §§
5313(a), 5322(a) & 5324(3) -- which establish criminal penalties for
anyone who "willfully violated" any of the provisions in the subchapter
-- the term "willfully" required *both* knowledge of the reporting
requirements *and* a specific purpose to disobey the law.[^1]

In *United States v. Jain*, 93 F.3d 436 (8^th^ Cir. 1996), the Eighth
Circuit interpreted the term "willfully" in the health care
anti-kickback statute, at 42 U.S.C. 1320a-7b, to require proof that the
defendant knew his conduct was "wrongful," (a heightened *mens rea*
burden), *see Jain*, 93 F.3d at 441. The trial court in *Jain*
instructed the jury that "the word 'willfully' means unjustifiably and
wrongfully, known to be such by Defendant Swaran Jain." *Jain*, 93 F.3d
at 440.

In *United States v. O'Hagan*, 521 U.S. 642 (1997), the Court,
discussing criminal liability under 10b-5 of the Securities and Exchange
Act, 18 U.S.C. § 78ff(a), noted that criminal liability required that
the government prove that a person engaging in "insider" trading
"willfully" violated the substantive provision in question and that the
statute specifically prohibited imprisonment of a defendant who "proves
he had no knowledge of such rule or regulation." *Id.* at 664. This
discussion, though brief, suggests that the Court may require proof that
the defendant "intentionally violated a known legal duty."

Title 18 U.S.C. § 228 prohibits any willful failure to pay legal child
support obligations. The legislative history of this act states that the
language of the statute "willfully fails to pay" has been borrowed from
the tax statutes that make willful failure to pay taxes a federal crime,
and includes a requirement that the proof necessary to show a violation
of the failure to pay child support statute is the element of an
intentional violation of a known legal duty. *United States v.
Williams*, 121 F.3d 615, 620-21 (11^th^ Cir. 1997).

**7.03 KNOWINGLY**

\[No instruction recommended.\]

**Committee Comments**

Although a definition of "knowingly" was provided in this section in the
1985 edition of this Manual, the Committee believes that in most cases
the word "knowingly" does not need to be defined. *United States v.
Smith*, 635 F.2d 716, 719-20 (8^th^ Cir. 1980); *United States v. Gary*,
341 F.3d 829, 834 (8^th^ Cir. 2003). An instruction is required only
where necessary for a fair determination of the defendant's guilt or
innocence. *United States v. Brown*, 33 F.3d 1014, 1017 (8^th^ Cir.
1994).

If a definition is requested and deemed necessary, the Committee
recommends the following:

The government is not required to prove that the defendant knew that
\[his\] \[her\] acts or omissions were unlawful. An act is done
knowingly if the defendant is aware of the act and does not act \[or
fail to act\] through ignorance, mistake, or accident. 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.

A similar instruction was approved in *United States v. Dockter*, 58
F.3d 1284 (8^th^ Cir. 1995).

In most statutes, the word "knowingly" does not require proof that the
defendant knew he was violating the law. In *Bryan v. United States*,
524 U.S. 184 (1998), the Court explained:

\[T\]he term "knowingly" does not necessarily have any reference to a
culpable state of mind or to knowledge of the law. As Justice Jackson
correctly observed, "the knowledge requisite to knowing violation of a
statute is factual knowledge as distinguished from knowledge of the
law."

*See, e.g., United States v. Udofot*, 711 F.2d 831, 835-37 (8^th^ Cir.
1983) \[18 U.S.C. § 922(e)\]; *United States v. Enochs*, 857 F.2d 491,
493 (8^th^ Cir. 1988) \[18 U.S.C. § 511(a)\]. *See also United States v.
Hutzell*, 217 F.3d 966, 968 (8^th^ Cir. 2000) (statute providing
penalties for those who "knowingly" violate separate statute prohibiting
possession of a firearm by one who has been convicted of misdemeanor
crime of domestic violence requires government to prove only that the
defendant knew of facts constituting the offense, not that he knew it
was illegal for him to posses a gun; statute does not require knowledge
of the law nor an intent to violate it); *United States v. Sinskey*, 119
F.3d 712, 715-16 (8^th^ Cir. 1997) (to establish that the defendant
"knowingly violated" Clean Water Act (CWA) discharge limitations or
condition or limitation contained in implementing permit, as basis for
criminal liability, government was not required to prove that the
defendant knew that his acts violated either CWA or permit, but merely
that he was aware of conduct that resulted in permit's violation);
*United States v. Farrell*, 69 F.3d 891, 893 (8^th^ Cir. 1995) (to prove
knowing violation of Firearms Owner's Protection Act (FOPA) provision
which prohibits transfer of possession of machine guns, as required for
imposition of statutory penalty, government need only prove knowing and
intentional conduct, not knowledge of the law). Nor does "knowingly"
require knowledge of federal involvement. *United States v. Yermian*,
468 U.S. 63, 75 (1984) (18 U.S.C. § 1001).

In *Staples v. United States,* 511 U.S. 600 (1994), the Court,
interpreting the National Firearms Act, 26 U.S.C. § 5861(d), which does
not expressly contain any *mens rea* requirement in the provision
criminalizing possession of a firearm that was not properly registered,
held that the defendant had to "know" that his weapon possessed
automatic firing capability to come within the Act. The Court emphasized
a presumption in favor of a scienter requirement to statutory crimes
which criminalize otherwise innocent conduct, in the absence of a clear
legislative intent to the contrary. *But see United States v. Barr*, 32
F.3d 1320 (8^th^ Cir. 1994), in which the Eighth Circuit held that, with
respect to possession of weapons of quasi-suspect character, such as
sawed-off shotguns, "a specific jury finding of \[the defendant's\]
knowledge of the weapon's incriminating characteristics is unnecessary."
*Id*. at 1324. The Government need only prove that the defendant
possessed the weapon, and had observed its characteristics. *Id. Accord
United States v. Otto*, 64 F.3d 367, 370 (8^th^ Cir. 1995).

Also, in *United States v. X-Citement Video, Inc.*, 513 U.S. 64 (1994),
the Court held that the term "knowingly" applies to the requirement that
the individual who is transporting sexually explicit material must know
that it depicts minors in order to convict under 18 U.S.C. § 2252. The
Court again expressed its preference for a scienter requirement for
statutes which criminalize otherwise innocent or constitutionally
protected conduct.

In some statutes, however, "knowingly" has been construed to require
knowledge that the defendant was breaking the law. In *United States v.
Marvin*, 687 F.2d 1221 (8^th^ Cir. 1982) and *Liparota v. United
States*, 471 U.S. 419 (1985), the word "knowingly" in 7 U.S.C. § 2024(b)
was interpreted as including knowledge that the defendant was violating
the law. The statute reads in relevant part:

\[W\]hoever knowingly uses, transfers, acquires . . . possesses \[food\]
coupons . . . in any manner not authorized by this chapter. . .

Both courts further held the jury should have been instructed that the
government had to prove that "the defendant knowingly did an act which
the law forbids" but not that he knew the precise law or regulation
forbidding food stamp trafficking. 687 F.2d at 1227; 471 U.S. at 434.

Where the offense requires that the defendant have some particular
knowledge, that knowledge should be included in the elements of
instruction. The elements of instruction in Section 6, *supra*, were
drafted with this purpose in mind.

**7.04 DELIBERATE IGNORANCE**

You may find that the defendant \[(name)\]^1^ acted knowingly if you
find beyond a reasonable doubt that the defendant \[(name)\] was aware
of a high probability that (state fact as to which knowledge is in
question (e.g., that \"drugs were contained in his suitcase\")) and that
\[he\] \[she\] deliberately avoided learning the truth. The element of
knowledge may be inferred if the defendant \[(name)\] deliberately
closed \[his\] \[her\] eyes to what would otherwise have been obvious to
\[him\] \[her\]. \[You may not find the defendant acted "knowingly" if
you find he/she was merely negligent, careless or mistaken as to (state
fact as to which knowledge is in question (e.g., that "drugs were
contained in his suitcase")).\]^2^

\[You may not find that the defendant \[(name)\] acted knowingly \[if
you find that the defendant \[(name)\] actually believed that (state the
proposition in the negative (e.g., that \"no drugs were contained in his
suitcase\")).\]^3^\]

**Notes on Use**

1\. If there is more than one defendant and the instruction does not
apply to all defendants, insert the name\[s\] of the defendant\[s\] to
whom the instruction applies.

2\. This language can be given if desired. It is not needed; it just
emphasizes that negligence is not sufficient.

3\. This clause should be included in an instruction if requested and
supported by the evidence. *United States v. Esquer-Gamez*, 550 F.2d
1231, 1235-36 (9th Cir. 1977). Although no Eighth Circuit case states
this rule, the Committee believes it to be good law and good practice.
*See United States v. Bailey*, 955 F.2d 28, 29 (8th Cir. 1992).

**Committee Comments**

*See* 1A Kevin F. O\'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 17.09 (5th ed. 2000);

In *United States v. Kershman*, 555 F.2d 198, 200 (8th Cir. 1977), this
circuit joined the Second, Sixth, Seventh and Ninth Circuits in
approving the use of an instruction in which the element of knowledge
may be shown by deliberate ignorance where evidence has shown a
conscious purpose to avoid enlightenment.

The instruction approved in *Kershman* had two aspects; first, it
required the jury to find that the defendant deliberately and
consciously closed his eyes and second, it instructed the jury that the
defendant\'s good faith belief in the matter in question would exonerate
him. 555 F.2d at 201. The court found that the \"if you find\" language
of the instruction prevented the instruction from assuming facts not in
evidence. The court further found that the instruction did not permit
the jury to convict on an objective rather than a subjective theory of
knowledge requirements.

The analysis in *Kershman* is similar to that in *United States v.
Jewell*, 532 F.2d 697 (9th Cir. en banc 1976). In a footnote, the
*Jewell* court stated that a deliberate ignorance instruction should say
\"(1) that the required knowledge is established if the accused is aware
of a high probability of the existence of the fact in question (2)
unless he actually believes it does not exist.\" *Id.* at 704 n.21. In
*United States v. Valle-Valdez*, 554 F.2d 911, 914 (9th Cir. 1977), it
was held reversible error to fail to include in the instruction element
(1) of the *Jewell* footnote; specifically, the court held that the
instructions should have explained that \"conscious purpose to avoid
learning the truth\" is culpable only where coupled with a subjective
awareness of high probability of the \"unknown\" fact.

Subsequent to *Kershman*, 1A Kevin F. O\'Malley, et al., *Federal Jury
Practice and Instructions*: Criminal § 17.09 (5th ed. 2000), on the same
subject matter, was approved by this circuit in *United States v.
Massa*, 740 F.2d 629, 643 (8th Cir. 1984), and *United States v.
Graham*, 739 F.2d 351, 352 (8th Cir. 1984):

The element of knowledge may be satisfied by inferences drawn from proof
that a defendant deliberately closed his eyes to what otherwise would
have been obvious to him. A finding beyond a reasonable doubt of a
conscious purpose to avoid enlightenment would permit an inference of
knowledge. Stated another way, a defendant\'s knowledge of a fact may be
inferred from willful blindness to the existence of a fact. It is
entirely up to you as to whether you find any deliberate closing of the
eyes, and the inferences to be drawn from any such evidence. A showing
of negligence or mistake is not sufficient to support a finding of
willfulness of knowledge.

In *Graham*, this circuit adopted the reasons given in *Jewell* for the
necessity of such an instruction as follows:

The substantive justification for the rule is that deliberate ignorance
and positive knowledge are equally culpable. The textual justification
is that in common understanding one \"knows\" facts of which he is less
than absolutely certain. To act \"knowingly,\" therefore, is not
necessarily to act only with positive knowledge, but also to act with an
awareness of the high probability of the existence of the fact in
question. When such awareness is present, \"positive\" knowledge is not
required.

739 F.2d at 353 (quoting from 532 F.2d at 700).

In both *Graham* and *Massa* the court found that the instruction did
not allow the defendant to be convicted on the basis of negligence or
mistake. *See also* *United States v. Bussey*, 942 F.2d 1241 (8th Cir.
1991).

In *Bussey*, this circuit again approved the giving of a willful
blindness instruction to a tax fraud and false statement case where the
defendant knew certain payments he received had income tax consequences
but he specifically sought to avoid learning anything about the
specifics of those consequences and did not provide his accountant or
return preparer with any relevant information. The court noted that
specific language in the instruction which informed the jury that
negligence or mistake did not constitute willfulness or knowledge
prevented the instruction from allowing the jury to find the defendant
guilty based on simple negligence.

The instruction as drafted by the committee attempts to combine the
format of the instruction approved in *Kershman* with the language
approved in *Massa*/*Graham*, covering the essential principles required
by each of these cases.

This instruction should not be given in every case where a defendant
claims a lack of knowledge; rather, it is appropriate only in those
cases where a defendant claims a lack of guilty knowledge and there are
facts in evidence which suggest deliberate ignorance. *United States v.
Barnhart*, 979 F.2d 647 (8th Cir. 1992); *United States v. Regan*, 940
F.2d 1134 (8th Cir. 1991); *United States v. Hiland*, 909 F.2d 1114,
1130 (8th Cir. 1990); *United States v. White*, 794 F.2d 367, 371 (8th
Cir. 1986); *United States v. Hildebrand*, 152 F.3d 756, 764 (8th Cir.
1998); *United States v. Gonzalez*, 90 F.3d 1363, 1371 (8th Cir. 1996).
*Barnhart* contains a good discussion of when and under what
circumstances such an instruction should be given. It should be
consulted when such an instruction is requested. If there is evidence
supporting both actual knowledge on the part of the defendant and
deliberate ignorance, this instruction is properly given. *United States
v. Parker*, 364 F.2d 934, 946-47 (8th Cir. 2004); *United States v.
Florez*, 368 F.3d 1042 (8^th^ Cir. 2004). If there is no evidence
indicating that the defendant had a conscious purpose to avoid learning
the truth, the instruction should not be given. *United States v.
White*, 794 F.2d at 371. Likewise, if the evidence \"points solely to
either actual knowledge or no knowledge of the facts in question,\" the
instruction should not be given. *Regan*; *Hiland*, 909 F.2d at 1130. If
a statute requires actual knowledge of specific facts, this instruction
should not be given. *Mattingly v. United States*, 924 F.2d 785, 791
(8th Cir. 1991) (26 U.S.C. § 6701). In any event, \"\[a\] deliberate
ignorance instruction should not be given in every \[criminal\] case
because there is a possibility that the jury will use a \'negligence
standard and convict a defendant on the impermissible ground that he
should have known \[an illegal act\] was taking place.'\" *United States
v. Cunningham*, 83 F.3d 218, 221 (8th Cir. 1996) (quoting *United States
v. Barnhart*, 979 F.2d at 651.) *See also* *United States v. Covington*,
133 F.3d 639, 644-45 (8th Cir. 1998). A district court should not give
the deliberate ignorance instruction \"when the evidence points solely
to the defendant\'s actual knowledge of the facts in question,\" but the
instruction is appropriate \"when the defendant denies any knowledge of
a criminal scheme despite strong evidence to the contrary.\" *United
States v. King*, 351 F.3d 859, 866-67 (8th Cir. 2003). *See also*
*United States v. Woodward*, 315 F.3d 1000, 1003-04 (8th Cir. 2003);
*United States v. Marley*, 549 F.2d 561 (8^th^ Cir. 1977).

Note that where the defendant is under a specific duty to discover facts
and the facts tendered to him are suspicious, as for example, in a
securities fraud prosecution, an instruction that \"reckless deliberate
indifference to or disregard for truth or falsity\" is equivalent to
knowledge, may be proper in place of the reference to \"conscious
purpose to avoid learning the truth.\" *United States v. Weiner*, 578
F.2d 757, 787 (9th Cir. 1978).

**7.05 PROOF OF INTENT OR KNOWLEDGE**

\[Intent or knowledge may be proved like anything else. You may consider
any statements made and acts done^1^ by the defendant, and all the facts
and circumstances in evidence which may aid in a determination of the
defendant\'s knowledge or intent.\]

\[You may, but are not required to, infer that a person intends the
natural and probable consequences of acts knowingly done or knowingly
omitted.\]

**Notes on Use**

1\. If the defendant has not testified, this language may need
modification to make it clear that the instruction is referring to acts
done or statements made in connection with the offense and not failure
to testify in court. *See* Committee Comments, Instruction 4.01,
*supra*.

**Committee Comments**

*See* 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 17.07 (5th ed. 2000); *United States v.
Lawson*, 483 F.2d 535, 536 (8th Cir. 1973). *See generally* West Key \#
\"Criminal Law\" 778(6), 784(4), 784(8).

A more expanded version of both bracketed paragraphs of this instruction
has been repeatedly approved by this circuit. *See* *United States v.
Lawson*, 483 F.2d at 536-38 and cases cited therein approving
instructions based on 1A Kevin F. O'Malley, et al., *Federal Jury
Practice and Instructions*: Criminal § 17.07 (5th ed. 2000). *See also*
*United States v. Martin*, 772 F.2d 1442, 1445 (8th Cir. 1985), in which
this circuit approved the giving of the expanded instruction and
expressly declined to overrule or reconsider prior opinions approving it
and further held that the second paragraph was distinguishable from the
presumption held unconstitutional in *Sandstrom v. Montana*, 442 U.S.
510 (1979). 772 F.2d at 1445-46. Likewise the Tenth Circuit has
expressly recommended the use of both paragraphs of 1A Kevin F.
O'Malley, et al., *Federal Jury Practice and Instructions*, Criminal §
17.07 (5th ed. 2000), when instructing on this concept. *United States
v. Bohlmann*, 625 F.2d 751, 753 (6th Cir. 1980).

**8.00 FINAL INSTRUCTIONS: DEFINITIONS (Introductory Comment)**

In this section the Committee has included definitions of general terms
found in many criminal statutes. More definitions are provided in the
Instructions, Committee Comments, and Notes on Use in Sections 5, 6 and
7.

**8.01 ATTEMPT^1^**

The crime charged in \[Count \_\_\_\_\_ of\] the indictment is an
attempt to (describe attempted act, e.g., sell counterfeit currency.) A
person may be found guilty of an attempt if \[he\] \[she\] intended to
(describe attempted act, i.e., sell counterfeit currency) and
voluntarily and intentionally carried out some act which was a
substantial step^2^ toward that (describe attempted act, i.e., sale).

**Notes on Use**

1\. This definition should follow the elements instruction for the
substantive crime.

2\. An instruction defining \"substantial step\" may be given. This
circuit has held the following definition to \"adequately and correctly
articulate the law\":

A substantial step, as used in the previous instruction, must be
something more than mere preparation, yet may be less than the last act
necessary before the actual commission of the substantive crime. In
order for behavior to be punishable as an attempt, it need not be
incompatible with innocence, yet it must be necessary to the
consummation of the crime and be of such a nature that a reasonable
observer, viewing it in context could conclude beyond a reasonable doubt
that it was undertaken in accordance with a design to violate the
statute. Crimes such as attempt to manufacture methamphetamine require a
defendant to engage in numerous preliminary steps which brand the
enterprise as criminal.

*United States v. Wagner*, 884 F.2d 1090 (8th Cir. 1989).

**Committee Comments**

*See* 2 Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 21.03 (5th ed. 2000); Seventh Circuit Federal
Jury Instructions: Criminal § 4.07 (1999); Ninth Cir. Crim. Jury Instr.
5.3 (1997). *See generally* West Key \# \"Criminal Law\" 44.

There is no general statute which makes \"attempt\" a federal crime, and
thus it may be prosecuted only where a specific statute makes attempting
to do an act a crime. *United States v. Manley*, 632 F.2d 978 (2d Cir.
1981); *United States v. York*, 578 F.2d 1036 (5th Cir. 1978). In this
Manual, Instructions 6.18.472, 6.18.751, 6.18.1113, 6.18.1341,
6.18.1344, 6.18.1512, 6.18.1708, 6.18.1951, 6.18.2113, 6.18.2112, and
6.21.841A and C are all based on statutes which include certain
attempted acts as offenses.

This circuit has adopted the definition of \"attempt\" set forth in
section 5.01 of the A.L.I. Model Penal Code (Proposed Official Draft
1962) as requiring (l) an intent to engage in criminal conduct, and (2)
conduct constituting a \"substantial\" step toward commission of the
intended offense which strongly corroborates the actor\'s criminal
intent. *See* *United States v. Joyce*, 693 F.2d 838, 841 (8th Cir.
1982). At the same time, this circuit rejected a verbal formulation
dividing acts of preparation from acts of attempt as not useful and for
this reason language to the effect that \"mere acts of preparation will
not suffice,\" is not included. *See* *United States v. Joyce*. An
attempt need not be successful to be culpable. *United States v. Joyce*.

\"Factual impossibility,\" which refers to those situations in which a
circumstance or condition, unknown to the defendant, makes the
consummation of his intended criminal conduct impossible, is not a
defense to an attempt. *United States v. Frazier*, 560 F.2d 884, 888
(8th Cir. 1977), noting that the \"oft-recited example\" is the would-be
thief who attempts to pick a pocket. The attempt is still a crime even
if the pocket turns out to be empty.

On the other hand \"legal impossibility\" is a defense to attempt but
arises only in very limited circumstances. *Frazier*, defining \"legal
impossibility\" as follows:

\"Legal impossibility\" refers to those situations in which the intended
acts, even if successfully carried out, would not amount to a crime.
Thus, attempt is not unlawful where success is not a crime, and this is
true even though the defendant believes his scheme to be criminal.

560 F.2d at 888. Many cases cannot be reconciled with the above
principles. *See* *United States v. Berrigan*, 482 F.2d 171, 188-89 (3d
Cir. 1973) and other examples enumerated in the *Berrigan* opinion at
pp. 185-86.

**8.02 POSSESSION: ACTUAL, CONSTRUCTIVE, SOLE, JOINT**

The law recognizes several kinds of possession. A person may have actual
possession or constructive possession. A person may have sole or joint
possession.

A person who knowingly has direct physical control over a thing, at a
given time, is then in actual possession of it.

A person who, although not in actual possession, has both the power and
the intention at a given time to exercise dominion or control over a
thing, either directly or through another person or persons, is then in
constructive possession of it.

If one person alone has actual or constructive possession of a thing,
possession is sole. If two or more persons share actual or constructive
possession of a thing, possession is joint.

Whenever the word \"possession\" has been used in these instructions it
includes actual as well as constructive possession and also sole as well
as joint possession.

**Committee Comments**

*See* 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*, Criminal § 16.05 (5th ed. 2000); Fifth Circuit Pattern
Jury Instructions: Criminal § 1.31 (1997); Eleventh Circuit Pattern Jury
Instructions: Criminal (Special) § 6 (1997); *United States v. Smith*,
104 F.3d 145, 148 n.2 (8th Cir. 1997); *United States v. Ali*, 63 F.3d
710 (8th Cir. 1995); *United States v. Johnson*, 857 F.2d 500, 501-02
n.2 (8th Cir. 1988); *United States v. Montgomery*, 819 F.2d 847, 851
(8th Cir. 1987); *Sewell v. United States*, 406 F.2d 1289, 1293 n.3 (8th
Cir. 1969). *See also* *United States v. Henneberry*, 719 F.2d 941, 945
(8th Cir. 1983) \[definition of constructive possession\].

**9.00 FINAL INSTRUCTIONS: DEFENSES AND THEORIES OF DEFENSE**

**(Introductory Comment)**

The instructions in this section cover matters raised by the defense.
Instructions 9.01-9.04 cover matters which are commonly referred to as
\"affirmative defenses.\" It should be noted that the defendant must
carry the burden of proof only as to the defenses of coercion
(Instruction 9.02), insanity (Instruction 9.03) and withdrawal from
conspiracy (Instruction 5.06H). As to the defenses dealt with in
Instructions 9.01 and 9.04, a defendant has only the burden of
introducing sufficient evidence to raise the issue; once that has
occurred, the Government has the burden of disproving the defense beyond
a reasonable doubt.

When any affirmative defense covered by Instruction 9.01 (entrapment) or
9.04 (self defense, etc.) is in issue, a requirement that the Government
disprove the defense, phrased in the negative, should be added to the
verdict directing (elements) instruction, as provided for in the final
paragraph of Instruction 3.09, *supra*, followed separately by the
appropriate definition instruction from this Section 9. When the
affirmative defense of coercion or duress (9.02), or insanity (9.03) is
in issue, the final paragraph of the elements instruction should be
modified as provided for in Note 3, Instruction 3.09, *supra*, and
followed separately by Instruction 9.02 or 9.03. *See* *United States v.
Norton*, 846 F.2d 521, 524-25 (8th Cir. 1988), holding that the
affirmative defense should be included in the verdict directing
(elements) instruction.

In some situations a defendant may be entitled to a \"theory of
defense\" instruction, which is a different concept from an
\"affirmative defense.\" An \"affirmative defense\" introduces an
additional element into the case which must be proved by the defendant,
in the case of insanity, coercion or withdrawal from conspiracy, or
disproved by the Government, in the case of entrapment or self-defense.
A \"theory of defense,\" on the other hand, is a denial of one of the
original elements of the offense. Since a theory of defense instruction
would necessarily be drafted in terms of the particular facts and issues
of each case, no attempt has been made to draft a general model
instruction. Cases covering theory of defense instructions are discussed
in Committee Comments, Instruction 9.05, to give guidance in drafting
such an instruction. Specific theory of defense instructions which may
be requested in certain circumstances are covered in Instructions 9.06,
Intoxication; 9.07, Alibi; and 9.08, Good Faith.

**9.01 ENTRAPMENT ^1^**

One of the issues in this case is whether the defendant was entrapped.
If the defendant was entrapped, \[he\] \[she\] must be found not guilty.
The Government has the burden of proving beyond a reasonable doubt that
the defendant was not entrapped.

If the defendant before contact with (describe law enforcement officer
or agents by name and capacity)^2^ did not have any intent or
disposition to commit the crime charged and was induced or persuaded by
(officer or agent)^2^ to commit that crime, then \[he\] \[she\] was
entrapped. On the other hand, if the defendant before contact with
(officer or agent)^2^ did have an intent or disposition to commit the
crime charged, then \[he\] \[she\] was not entrapped, even though
(officer or agent) provided a favorable opportunity to commit the crime
or made committing the crime easier or even participated in acts
essential to the crime.

**Notes on Use**

1\. When this instruction is submitted, the government\'s burden of
proof that the defendant was not entrapped must be included in the
elements instruction. *See* Instruction 3.09, *supra*. This instruction
should immediately follow.

2\. The Committee recommends that the law enforcement officer or agent
who had contact with the defendant or who is shown by evidence to be
responsible for inducing the defendant to commit a criminal act,
designing the criminal act, etc., be identified by name and that his
capacity as government agent, informant, etc., be described. If
\"agency,\" rather than the conduct of an admitted agent, is an issue, a
supplement to this instruction may be required.

**Committee Comments**

*See* 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 19.04 (5th ed. 2000); Fifth Circuit Pattern
Jury Instructions: Criminal § 1.28 (1997); Seventh Circuit Federal Jury
Instructions: Criminal § 6.04 (1999); Ninth Cir. Crim. Jury Instr. 6.2.1
(1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Special) §
12.1 (1997). *See generally* West Key \# \"Criminal Law\" 37(1-8), 330,
569, 739.1(1), 772(6), 814(8), 815(5), 822(8), 823(6).

This instruction has been revised to conform to *Jacobson v. United
States*, 503 U.S. 540, 547 n.1 (1992), which clarified the issue of
\"timing.\" *Jacobson* held that the government must prove that the
defendant was disposed to commit the criminal act prior to first being
approached by government agents. *Id.*, n.2; *United States v. Loftus*,
992 F.2d 793 (8th Cir. 1993).

For general discussions of the law of entrapment, *see United States v.
Norton*, 846 F.2d 521 (8th Cir. 1988), and *United States v. Dion*, 762
F.2d 674 (8th Cir. 1985). \"The purpose behind the entrapment defense is
to prevent law enforcement officers from manufacturing crime.\" *United
States v. Hinton*, 908 F.2d 355, 358 (8th Cir. 1990). The focus of the
entrapment defense, however, is on the intent or predisposition of the
defendant to commit the crime, rather than upon the conduct of the
government\'s agents. *Hampton v. United States*, 425 U.S. 484, 488
(1976). Even after *Jacobson*, a defendant\'s ready response to an
opportunity to commit an offense may show (1) that there was no
\"inducement,\" as well as (2) that the defendant was independently
predisposed to commit the offense. *See*, *e.g.*, *United States v.
LaChapelle*, 969 F.2d 632 (8th Cir. 1992).

\"Entrapment is an affirmative defense which consists of two elements:
government action to induce or otherwise cause the defendant to commit
the crime, and the defendant\'s lack of predisposition to commit the
crime.\" *United States v. Pfeffer*, 901 F.2d 654, 656 (8th Cir. 1990)
(citing *United States v. Foster*, 815 F.2d 1200, 1201 (8th Cir. 1987)).
A defendant is entitled to an entrapment instruction when there is
\"sufficient evidence from which a reasonable jury could find
entrapment.\" *United States v. Felix*, 867 F.2d 1068, 1074 (8th Cir.
1989) (quoting *Mathews v. United States*, 485 U.S. 58, 61 (1988)); *see
also United States v. Kutrip*, 670 F.2d 870, 877 (8th Cir. 1982). *Cf.,
United States v. Osborne*, 935 F.2d 32, 38 (4th Cir. 1991) (seldom, if
ever, appropriate to decide prior to trial that the defendant is not
entitled to an entrapment instruction). (For a list of evidentiary
factors that may assist in determining whether an entrapment instruction
is appropriate, *see United States v. Dion*, 762 F.2d at 687-88.) The
government is not required to prove predisposition unless there is
evidence of government inducement to commit the offense. To show
inducement, there must be evidence of government conduct creating a
substantial risk that an undisposed person would commit the offense.
*United States v. Loftus*, 992 F.2d at 798; *United States v. Stanton*,
973 F.2d 608, 609 (8th Cir. 1992).

When entrapment is an issue to be resolved, it is ordinarily for the
jury. *United States v. Hinton*, 908 F.2d at 357; *United States v.
Pfeffer*, 901 F.2d at 656; *United States v. Williams*, 873 F.2d 1102,
1104 (8th Cir. 1989). A finding of entrapment as a matter of law,
followed by judgment of acquittal, is appropriate when the evidence
clearly shows (1) that the government induced the defendant to engage in
the criminal conduct, and (2) that the defendant lacked the necessary
predisposition to perform the criminal conduct. *United States v.
Crump*, 934 F.2d 947, 956 (8th Cir. 1991); *United States v. Hinton*,
908 F.2d at 357; *see also United States v. Pfeffer*, 901 F.2d at 656.
The court of appeals stated in *Crump*, 934 F.2d at 956, that the
government\'s failure to establish the defendant\'s predisposition will
result in reversal of a conviction only when the evidence clearly
indicates:

\"\[t\]hat a government agent originated the criminal design; that the
agent implanted in the mind of an innocent person the disposition to
commit the offense; and that the defendant then committed the criminal
act at the urging of the government.\" *United States v. Beissel*, 901
F.2d 1467, 1469 (8th Cir. 1990) (quoting *United States v. Resnick*, 745
F.2d 1179, 1186 (8th Cir. 1984)).

\"The issue of whether an informant should be considered a government
agent is generally an issue of fact for the jury.\" *United States v.
York*, 830 F.2d 885, 889 (8th Cir. 1987) (citing *United States v.
Hoppe*, 645 F.2d 630, 633 (8th Cir. 1981)). The entrapment defense does
not extend to inducement by private citizens unless they are acting as
agents of the government. *United States v. Leroux*, 738 F.2d 943, 947
(8th Cir. 1984). For a discussion of issues associated with activities
of \"private agents,\" standing to raise the entrapment defense, and
\"indirect entrapment,\" *see United States v. Neal*, 990 F.2d 355 (8th
Cir. 1993); Marcus, *The Entrapment Defense*, §§ 802 and 803 (1989).

*Mathews v. United States*, 485 U.S. 58 (1988) holds that a defendant
who denies the commission of the crime may nevertheless assert and have
the jury instructed on the inconsistent defense of entrapment. However,
for the defendant to be entitled to an instruction under these
circumstances, there must be sufficient evidence from which a jury could
find entrapment. *United States v. Felix*, 867 F.2d at 1074 n.11.

\"Outrageous government conduct\" in procuring the commission of an
offense which would amount to a violation of due process, is frequently
discussed, but infrequently (if ever) established. *See Gunderson v.
Schlueter*, 904 F.2d 407, 410 n.8 (8th Cir, 1990); *United States v.
Ford*, 918 F.2d 1343, 1349 (8th Cir. 1990), and *United States v.
Musslyn*, 865 F.2d 945 (8th Cir. 1989). A claim of \"outrageous
conduct\" is addressed to the court; no jury submission on the issue is
required. *United States v. Dougherty*, 810 F.2d 763, 770 (8th Cir.
1987); *United States v. Quinn*, 543 F.2d 640 (8th Cir. 1976). The
Eighth Circuit has acknowledged that \"sentencing entrapment\" may arise
where outrageous official conduct has overcome the predisposition of a
defendant to commit only low-quantity, low-value \[thus lower offense
level\] crimes by inducing such a person to commit greater crimes
subject to greater punishment under the Sentencing Guidelines. *United
States v. Nelson*, 988 F.2d 798, 809 (8th Cir. 1993); *United States v.
Stein*, 973 F.2d 600, 602 (8th Cir. 1992). These cases only recognize
the possibility of \"sentencing entrapment;\" the opinions did not find
it to exist. As a sentencing issue, \"sentencing entrapment\" would not
be submitted to the jury.

A related issue may arise when the Government agent engages in the
conduct which forms the only basis for federal jurisdiction. *See United
States v. Coates*, 949 F.2d 104 (4th Cir. 1991). Such issues are usually
for the court and not a matter for jury instructions.

\"Entrapment by estoppel\" is a defense based on advice from a
government official that certain conduct is legal. The defendant has the
burden to establish that he was misled by the statements of a government
official into believing his conduct was lawful. *United States v.
Austin*, 915 F.2d 363 (8th Cir. 1990). The issue of \"entrapment by
estoppel\" is a jury issue; however, Model Instruction 9.01 does *not*
describe the defense. *Cf.*, the proposed (but not approved)
instruction, in *United States v. LaChapelle*, 969 F.2d at 637.

**9.02 COERCION OR DURESS ^1^**

If the defendant \[committed\] \[participated in\] the crime of
(describe offense) only because \[he\] \[she\] reasonably feared that
immediate, serious bodily harm would be inflicted upon \[him\] \[her\]
\[another person\], if \[he\] \[she\] did not \[commit\] \[participate
in\] the crime, and if the defendant had no reasonable opportunity to
avoid that harm, then \[he\] \[she\] was coerced.

**Notes on Use**

1\. When this instruction is submitted, the jury must be advised that
the defendant has the burden of proof on it. *See* Instruction 3.09,
Note 3, *supra*. This instruction should immediately follow.

**Committee Comments**

*See* 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 19.02 (5th ed. 2000); Federal Judicial Center,
Pattern Criminal Jury Instructions § 56 (1988); Seventh Circuit Federal
Jury Instructions: Criminal § 6.08 (1999); Ninth Cir. Crim. Jury Instr.
6.4.1 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal
(Special) § 15 (1997). *See generally* West Key \# \"Criminal Law\" 38,
330, 356, 569, 739(l), 772(6), 814(8), 815(5), 822(8), 823(6).

Coercion and duress are used interchangeably. *United States v.
Michelson*, 559 F.2d 567 n.3 (9th Cir. 1977). In *United States v.
Bailey*, 444 U.S. 394, 409 (1980), the Court distinguished duress from
necessity:

Common law historically distinguished between the defenses of duress and
necessity. Duress was said to excuse criminal conduct where the actor
was under an unlawful threat of imminent death or serious bodily injury,
which threat caused the actor to engage in conduct violating the literal
terms of the criminal law. While the defense of *duress* covered the
situation where the *coercion* had its source in the actions of other
human beings, the defense of necessity, or choice of evils,
traditionally covered the situation where physical forces beyond the
actor\'s control rendered illegal conduct the lesser of two evils.
(Emphasis added.)

Duress and coercion are treated as synonymous in Ninth Cir. Crim. Jury
Instr. 6.4.1 (1997). Duress, coercion and compulsion are treated as
synonymous in 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 19.02 (5th ed. 2000). Coercion and
intimidation are treated as synonymous in Eleventh Circuit Pattern Jury
Instructions: Criminal (Special) § 15 (1997).

The definition of coercion is set forth in *United States v. May*, 727
F.2d 764, 765 (8th Cir. 1984) (quoting *Shannon v. United States*, 76
F.2d 490, 493 (10th Cir. 1935)):

Coercion which will excuse the commission of a criminal act must be
immediate and of such nature as to induce a well-grounded apprehension
of death or serious bodily injury if the act is not done. One who has
full opportunity to avoid the act without danger of that kind cannot
invoke the doctrine of coercion and is not entitled to an instruction
submitting that question to the jury.

*See also* *United States v. Blankenship*, 67 F.3d 673, 677-78 (8th Cir.
1995); *United States v. Campbell*, 609 F.2d 922, 924 (8th Cir. 1979;
*United States v. Saettele*, 585 F.2d 307, 309 (8th Cir. 1978).

The defendant has the initial burden of introducing facts sufficient to
trigger consideration of the coercion defense and must prove it by a
preponderance of the evidence. *Dixon v. United States*, \_\_\_ U.S.
\_\_\_, 126 S. Ct. 2437 (2006).

This defense cannot be invoked if the defendant had a full opportunity
to avoid the criminal act without danger of immediate death or serious
bodily injury. *United States v. Saettele*, 585 F.2d at 309 n.2; *United
States v. Logan*, 49 F.3d 352 (8th Cir. 1995). Similarly, the defense
must fail if there was a reasonable, legal alternative which would not
violate the law and which would also avoid the threatened harm. *United
States v. Uthe*, 686 F.2d 636, 637 (8th Cir. 1982).

In escape from custody situations, in order to be entitled to a duress
instruction an escapee must offer evidence \"justifying his continued
absence from custody as well as his initial departure, and . . . an
indispensable element of such offer is testimony of a bona fide effort
to surrender or return to custody as soon as the claimed duress or
necessity has lost its coercive force.\" *United States v. Bailey*, 444
U.S. 394, 412-13 n.9 (1980). The defendant must have submitted himself
to proper authorities after obtaining safety.

Coercion typically is not a defense to murder. *See* *R.I. Recreation
Center v. Aetna Casualty & Surety Co.*, 177 F.2d 603, 605 (1st Cir.
1949).

As with the use of defensive force, the defense of coercion or duress
can exist not only when the defendant is personally threatened with the
harm, but also when the harm threatened is to a third person. *See*
*LaFave & Scott*, *Criminal Law*, 374-75, 385-88 (1972).

**9.03 INSANITY (18 U.S.C. § 20)**

A defendant was insane if, at the time of the alleged criminal conduct,
as a result of a severe mental disease or defect, \[he\] \[she\] was
unable to appreciate the nature and quality or the wrongfulness of
\[his\] \[her\] acts.^1^

**Notes on Use**

1\. This instruction should be used with and follow the burden of proof
instruction contained in Note 3, Instruction 3.09, *supra*.

**Committee Comments**

*See* 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 19.03 (5th ed. 2000); Seventh Circuit Federal
Jury Instructions: Criminal § 6.02 (1999); Ninth Cir. Crim. Jury Instr.
6.3 (1997). *See generally* West Key \# \"Criminal Law\" 47-57, 331,
354, 474, 570(1-3), 723(22), 740, 773, 778(7), 782(14), 814(10), 815(5),
822(9), 823(7).

The present instruction has been drafted to conform to the relevant
provisions of the Comprehensive Crime Control Act of 1984, Public Law
98-473, §§ 401 *et seq.*, 18 U.S.C. § 20. As regards the defense of
insanity, the Act has four features of particular importance here:

\(a\) The burden of proof with respect to the defense is placed *upon
the defendant*. *See* section 402(b). This reverses the situation which
existed in the past. *See*, *e.g.*, *United States v. Gilliss*, 645 F.2d
1269, 1280 (8th Cir. 1981).

\(b\) The quantum of proof necessary to sustain the defense is \"clear
and convincing\" evidence. *See* section 402(b); *United States v.
Amos*, 803 F.2d 419, 420-22 (8th Cir. 1986).

\(c\) The substantive test for insanity is changed, at least as concerns
the law previously adopted in the Eighth Circuit. *See*, *e.g.*, *United
States v. Frazier*, 458 F.2d 911, 917 (8th Cir. 1972); *United States v.
Lewellyn*, 723 F.2d 615 (8th Cir. 1983). In essence, the statute has now
eliminated the \"irresistible impulse\" alternative. *See* section
402(a). The language employed in the present instruction is a verbatim
recitation of that employed by the statute.

\(d\) If the jury accepts the defense, the necessary finding is \"not
guilty by reason of insanity,\" rather than simply \"not guilty.\" *See*
section 403(a) (amendment of 18 U.S.C. § 4242(b)). Thus, in a case where
the defense is raised, the jury will have a choice between three
verdicts: (a) guilty; (b) not guilty; and (c) not guilty by reason of
insanity.

Additionally, although not relevant for instructional purposes, the
Committee notes the amendment to Fed. R. Evid. 704, which will prohibit
an expert witness from stating \"an opinion or inference as to whether
the defendant did or did not have the mental state or condition
constituting an element of the crime charged or of a defense thereto.\"
*See* section 406. *But see* *United States v. Bartlett*, 856 F.2d 1071
(8th Cir. 1988) (Insanity Defense Reform Act allows defense to present
expert evidence that a mental disease or defect, including diminished
responsibility, at the time of the alleged crime rendered the defendant
incapable of forming the requisite intent. The case suggests that the
instructions specifically or as a whole should permit the defendant to
argue this as a theory of defense. *See* Instruction 9.05, *infra*.)

A bracketed instruction which appears in earlier printings of this
edition, advising the jury that a defendant found not guilty by reason
of insanity will be committed, has been removed since the decision on
which it was based has been vacated. *United States v. Neavill*, 868
F.2d 1000 (8th Cir.), *vacated*, 877 F.2d 1394 (8th Cir. *en banc*
1989).

**9.04 SELF DEFENSE; DEFENSE OF THIRD PERSON ^1^**

If a person reasonably believes that force is necessary to protect
\[himself\] \[herself\] \[another person\] from what \[he\] \[she\]
reasonably believes to be unlawful physical harm about to be inflicted
by another and uses such force, then \[he\] \[she\] acted in \[self
defense\] \[defense of \].

\[However, self defense which involves using force likely to cause death
or great bodily harm is justified only if the person reasonably believes
that such force is necessary to protect \[himself\] \[herself\] \[the
third person\] from what \[he\] \[she\] reasonably believes to be a
substantial risk of death or great bodily harm.\]^2^

**Notes on Use**

1\. When this instruction is submitted, the government\'s burden of
proof that the defendant was not acting in self defense must be included
in the elements instruction. *See* Instruction 3.09, *supra*. This
instruction should immediately follow.

2\. Use only if an issue in the case.

**Committee Comments**

*See* *United States v. Walker*, 817 F.2d 461, 463 (8th Cir. 1987); 2A
Kevin F. O'Malley, et al., *Federal Jury Practice and Instructions*:
Criminal § 45.19 (5th ed. 2000); Seventh Circuit Federal Jury
Instructions: Criminal § 6.01 (1999); Ninth Cir. Crim. Jury Instr. 6.5
(1997). *See generally* West Key \# \"Criminal Law\" 38, 330, 356,
739(l), 763(23), 772(6), 814(8), 815(5), 822(8), 823(6).

A defendant asserting self defense is admitting the commission of the
offense charged, but is offering a justification for his actions. The
defendant may also raise other, inconsistent defenses. *United States v.
Fay*, 668 F.2d 375, 378 (8th Cir. 1981).

Although a defendant asserting self defense is not required to have
retreated before resorting to force, *United States v. Peterson*, 483
F.2d 1222, 1236 (D.C. Cir. 1973), the availability of retreat may be a
factor for the jury to consider in evaluating whether unreasonable force
was used. *United States v. Goodface*, 835 F.2d 1233, 1235-36 (8th Cir.
1987); *United States v. Loman*, 551 F.2d 164, 168 (7th Cir. 1977). An
aggressor need not have been armed in order for a defendant to raise a
self defense issue, although whether an aggressor was armed may be
relevant in determining the degree of force a defendant was entitled to
use. *United States v. Fay*, 668 F.2d at 378.

The right to use self defense is not necessarily restricted to \"pure\"
assault situations. For example, one would presumably be entitled to use
self defense to prevent himself from being kidnapped. Even though
kidnapping certainly would, in a general, theoretical sense, involve
\"unlawful physical harm,\" the instruction might well need to be
modified in that situation to state more accurately the harm being
defended against.

**9.05 THEORY OF DEFENSE**

\[No model instruction provided\] ^1^

**Notes on Use**

1\. As stated in the Introductory Comment, Section 9.00, *supra*, no
general model instruction is provided because each such instruction must
be drafted in accord with the particular issues of the case. Some
particular instructions follow in Instructions 9.06, 9.07 and 9.08,
*infra*.

**Committee Comments**

*See generally* West \"Criminal Law\" Key \# 770(2), 770(3), 772(6),
805(1), 811(1), 829(1), 1038.3.

*See also* Introductory Comment, Section 9.00, *supra*.

A criminal defendant is entitled to have the jury instructed on a
defense theory if a timely submission is made of an instruction that
correctly states the law and is supported by the evidence. *United
States v. Mercer*, 853 F.2d 630, 633 (8th Cir. 1988); *United States v.
Jerde*, 841 F.2d 818, 820 (8th Cir. 1988); *United States v.
Montgomery*, 819 F.2d 847, 851 (8th Cir. 1987); *United States v.
Johnson*, 767 F.2d 1259, 1267 (8th Cir. 1985); *United States v. Lisko*,
747 F.2d 1234, 1237-38 (8th Cir. 1984); *United States v. Brake*, 596
F.2d 337, 339 (8th Cir. 1979); *United States v. Brown*, 540 F.2d 364,
380 (8th Cir. 1976).

It has been held reversible error not to give a properly requested
instruction, which is supported by the evidence, contains a correct
statement of law and is not otherwise covered in the instructions.
*United States v. Manning*, 618 F.2d 45, 47-48 (8th Cir. 1980) \[failure
to instruct that mere presence or proximity to an unregistered weapon is
an insufficient basis for conviction\]; *United States v. Prieskorn*,
658 F.2d 631, 636 (8th Cir. 1981) \[failure to instruct that the
relationship between buyer and seller of drugs does not alone establish
a conspiracy, but *note* Judge Henley\'s dissent, p.637\]; *United
States v. Vole*, 435 F.2d 774, 776-77 (7th Cir. 1970) \[failure to give
a requested instruction that the defendant was framed\].

It is equally axiomatic, however, that a defendant is not entitled to a
particularly worded instruction setting out his position where the
instructions given by the trial judge correctly cover the substance of
the requested instruction. *United States v. Brake*, 596 F.2d at 339;
*United States v. Lisko*, 747 F.2d at 1237-38. *See also* *United States
v. Mercer*, 853 F.2d at 633, holding that the defendant\'s proposed
instruction (which had been required by the Fifth Circuit in *United
States v. Lewis*, 592 F.2d 1282, 1285 (5th Cir. 1979)) was cumulative
and hence failure to give it was not error. Even if the tendered
instruction is proper and in form suitable for use by the court, the
court retains discretion in framing the instruction. *United States v.
Brown*, 540 F.2d at 380-81.

Moreover, instructions that do not meet all of the above criteria may be
properly refused. Thus instructions that do not contain a proper
statement of the law are properly refused. *United States v. Johnson*,
767 F.2d 1259, 1266-69 (8th Cir. 1985) \[proposed instruction did not
properly state the law as to when property can \"lose\" its \"stolen\"
character\]; *United States v. Montgomery*, 819 F.2d 847, 851-52 (8th
Cir. 1987) \[proposed instruction did not properly cover the elements of
constructive possession\]. *United States v. McQuarry*, 726 F.2d 401,
402 (8th Cir. 1984) \[proposed instruction that failure to flee was
evidence of innocence was not the law\]. *See also* *United States v.
Clark*, 701 F.2d 68, 70 (8th Cir. 1983).

The trial court can properly refuse an instruction which merely
rephrases the jury\'s obligation to find all of the elements beyond a
reasonable doubt. *United States v. Rabbitt*, 583 F.2d 1014, 1024 (8th
Cir. 1978); *United States v. Shigemura*, 682 F.2d 699, 703-05 (8th Cir.
1982).

Instructions not based on the evidence can be properly refused. *United
States v. Montgomery*, 819 F.2d at 851-52 \[no evidence at trial that
witness made the statements on which proffered instruction was based\];
*United States v. Peltier*, 585 F.2d 314, 328-29 (8th Cir. 1978) \[no
evidence at trial that government induced witnesses to testify
falsely\]. There must be some evidence to support the defense, even if
it is \"weak, inconsistent or dubious.\" *United States v. Casperson*,
773 F.2d 216, 223 n.12 (8th Cir. 1985). However a defense need not be
submitted to a jury unless it can be said that a reasonable person
\"might conclude\" the evidence supports the defendant\'s position.
*United States v. Kabat*, 797 F.2d 580, 590-91 (8th Cir. 1986).

It is further essential that the instructions be in a form suitable for
use by the court. *United States v. Nance*, 502 F.2d 615, 619 (8th Cir.
1974). There must be an appropriate statement of law for the jury to
apply to the facts. Instructions which depart from this have been
uniformly rejected. Thus instructions which are merely argumentative may
be properly refused. *United States v. Meyer*, 808 F.2d 1304, 1307 (8th
Cir. 1987); *United States v. Finestone*, 816 F.2d 583, 590 (11th Cir.
1987); *United States v. Bolts*, 558 F.2d 316, 323 (5th Cir. 1977).

Instructions which are long and verbose and contain detailed
descriptions of the purported evidence and inferences drawn therefrom by
defense counsel have been properly refused. *United States v. Lisko*,
747 F.2d at 1237-38; *United States v. Nance*, 502 F.2d at 619-22. A
narrative recitation of the defendant\'s version of the facts is
likewise unacceptable:

\"A trial judge may refuse an instruction if its language gives undue
emphasis to defendant\'s version of the facts rather than being (a
statement of appropriate principles of \[the\] law for the jury to apply
to the facts,\" (*United States v. Nevitt*, 563 F.2d 406, 409 (9th Cir.
1977)) or if it would tend to influence the jury towards accepting the
defendant\'s version of the facts. *United States v. Hall*, 552 F.2d
273, 275 (9th Cir. 1977).

*United States v. Davis*, 597 F.2d 1237, 1240 (9th Cir. 1979). Likewise
the court may refuse an instruction which only comments on evidence
favorable to the defendant without presenting a legally cognizable
defense. *United States v. Silverman*, 745 F.2d 1386, 1399-1400 (11th
Cir. 1984).

It has also been held that certain obvious concepts cannot be elevated
to a \"theory of defense.\" *United States v. Peltier*, 585 F.2d at 328
\[if government induced witnesses to testify falsely, this is
affirmative evidence of weakness of government\'s case\--rejected\];
*Laughlin v. United States*, 474 F.2d 444, 455 (D.C. Cir. 1972) \[if the
jury believes defense testimony denying guilt, it should
acquit\--rejected\]. *Peltier* quoted *Laughlin* as follows:

What is required before the theory of the case rule comes into play is a
more involved theory involving \'law\' or fact, or both, that is not so
obvious to any jury.

585 F.2d at 328.

There is no duty to give a theory of defense instruction that has not
been requested, *United States v. Hamilton*, 420 F.2d 1096, 1098-99 (7th
Cir. 1970), and failure to give an instruction without a request is
ordinarily not plain error. *United States v. Peltier*, 585 F.2d at
329-30.

**9.06 INTOXICATION; DRUG USE**

One of the issues in this case is whether the defendant was
\[intoxicated\] \[taking drugs\] at the time the acts charged in the
indictment were committed.

Being under the influence of \[alcohol\] \[a drug\], \[even one taken
for medical purposes,\] provides a legal excuse for the commission of a
crime only if the effect of the \[alcohol\] \[drug\] makes it impossible
for the defendant to have (insert mental state required by statute.)
Evidence that the defendant acted while under the influence of
\[alcohol\] \[drug or drugs\] may be considered by you, together with
all the other evidence, in determining whether or not \[he\] \[she\] did
in fact have (insert mental state required by statute.)

**Committee Comments**

*See* 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 19.05 (5th ed. 2000); Seventh Circuit Federal
Jury Instructions: Criminal § 6.09 (1999); Ninth Cir. Crim. Jury Instr.
6.06 (1997). *See generally* West Key \# \"Criminal Law\" 53, 55, 57,
332, 355, 474, 570(1-3), 739(5), 774, 782(14), 814(10), 815(5), 822(9),
823(7).

*See also* Committee Comments, Instructions 9.00, 9.05, *supra*; *United
States v. Fay*, 668 F.2d 375, 377 (8th Cir. 1981).

\"Intoxication\" is a theory of defense which may be submitted to the
jury upon a proper request if there is a foundation in the evidence and
if the crime charged is one which has traditionally fallen in the
\"specific intent\" category. *United States v. Fay* \[reversible error
not to give instruction\].

Voluntary intoxication might serve to negate the required mental element
in a crime involving what has historically been termed \"specific
intent.\" This is the view the Eighth Circuit has taken for many years.
*See*, *e.g.*, *United States v. Fay* \[assault with a deadly weapon
under 18 U.S.C. §§ 1153 and 113(c) is a specific intent offense, as to
which voluntary intoxication can be a defense; assault resulting in
serious bodily harm, under 18 U.S.C. §§ 153 and 113(b), is not\];
*United States v. Hanson*, 618 F.2d 1261 (8th Cir. 1980) \[assault on a
federal officer in violation of 18 U.S.C. § 111 is a \"general intent\"
offense and voluntary intoxication is no defense\]; *United States v.
Bald Eagle*, 849 F.2d 361 (8th Cir. 1988) \[voluntary manslaughter is a
crime of general intent\]; *United States v. Johnston*, 543 F.2d 55 (8th
Cir. 1976) \[bank robbery, under 18 U.S.C. § 2113(a), is a \"general
intent\" offense, and intoxication is irrelevant\]. *United States v.
Lavallie*, 666 F.2d 1217 (8th Cir. 1981) \[rape is a general intent
offense and intoxication is not a defense\].

The definition and use of the terms \"specific\" and \"general\" intent
in jury instructions has been abandoned in this manual, however these
concepts must be addressed by the court to determine if an intoxication
instruction would be applicable. It would be necessary to examine the
case law under a particular statute to determine whether the crime has
been held to be one involving a \"specific intent.\"

**9.07 ALIBI**

One of the issues in this case is whether the defendant was present at
the time and place of the alleged crime. If, after considering all the
evidence, you have a reasonable doubt that the defendant was present,
then you must find \[him\] \[her\] not guilty.

**Committee Comments**

*See* 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 19.07 (5th ed. 2000); Federal Judicial Center,
Pattern Criminal Jury Instructions. § 53 (1988); Seventh Circuit Federal
Jury Instructions: Criminal § 6.03 (1999); Ninth Cir. Crim. Jury Instr.
6.1 (1997). *See generally* West Key \# \"Criminal Law\" 333, 358, 572,
629, 739(2), 772(6), 775(1-6), 778(8), 782(15), 814(11).

*See also* Committee Comments, Instruction 9.05, *supra*; Committee
Notes, Seventh Circuit Instruction 4.03.

\"Alibi\" is a theory of defense which may be submitted to the jury upon
a proper request if there is a foundation in the evidence, and when the
defendant\'s presence at the scene of the crime is necessary for
conviction. *United States v. Webster*, 769 F.2d 487, 490 (8th Cir.
1985).

Where the defendant\'s presence at the scene is not necessary, as for
example in conspiracy or aiding and abetting cases, this instruction
should not be given. *United States v. Anderson*, 654 F.2d 1264, 1270-71
(8th Cir. 1981). Likewise this instruction should not be given where
there is no foundation in the evidence or if it has not been requested.

**9.08 GOOD FAITH (Income Tax and Fraud Cases)**

One of the issues in this case is whether the defendant acted in good
faith. Good faith is a complete defense to the charge of (insert charge)
if it is inconsistent with (insert mental state required by statute,
e.g., intent to defraud or willfully)^1^ which is an element of the
charge.

\[(Insert further instruction defining good faith in terms of the
particular statute and requisite mental state, incorporating the
specific factors on which the defendant relies, if appropriate.)\]^2^

Evidence that the defendant acted in good faith may be considered by
you, together with all the other evidence, in determining whether or not
\[he\] \[she\] acted (insert mental state required by statute, e.g.,
with intent to defraud or willfully).

**Notes on Use**

1\. *See* Committee Comments, Instructions 7.01, 702, *supra*, and
appropriate elements instruction from Section 6, *supra*. \"Mental
state\" as used in this instruction refers to the intent required by the
statute.

2\. *See* *United States v. Ammons*, 464 F.2d 414, 417 (8th Cir. 1972).
Some examples of further definitions are as follows:

a\. Willfulness - preparing a false return:

If a person in good faith believes that an income tax return as prepared
by \[him\] \[her\], truthfully reports the taxable income and allowable
deductions of the taxpayer under the internal revenue laws, that person
cannot be guilty of willfully preparing or presenting, or causing to be
prepared or presented, a false or fraudulent return.

*See* *United States v. Kouba*, 822 F.2d 768, 771 (8th Cir. 1987).

b\. Willfulness - failure to file a return:

If a person in good faith believes that he is not required to file an
income tax return, then that person cannot be guilty of willfully
failing to file a return.

*See* *United States v. Jerde*, 841 F.2d 818, 822 (8th Cir. 1988). This
may be followed with a further explanation:

In this connection, it is for you to decide whether the defendant acted
in good faith \-- that is, whether he sincerely misunderstood the
requirements of the law \-- or whether the defendant knew that he was
required to file a return and did not do so. Mere disagreement with the
law in and of itself does not constitute good faith misunderstanding of
the requirements of the law, because it is the duty of all persons to
obey the law whether or not they agree with it. Also, a person\'s belief
that the tax laws violate his constitutional rights does not constitute
a good faith misunderstanding of the requirements of the law.
Furthermore, a person\'s disagreement with the Government\'s monetary
system and policies does not constitute a good faith misunderstanding of
the requirements of the law.

*See* *United States v. Miller*, 634 F.2d 1134, 1135 (8th Cir. 1980).

c\. Intent to defraud:

One who expresses an opinion honestly held by him, or a belief honestly
entertained by him, is not chargeable with fraudulent intent even though
his opinion is erroneous or his belief is mistaken; and, similarly,
evidence which establishes only that a person made a mistake in judgment
or an error in management, or was careless, does not establish
fraudulent intent.

On the other hand, an honest belief on the part of the defendant that a
particular business venture was sound and would ultimately succeed would
not, in and of itself, constitute \"good faith\" as used in these
instructions if, in carrying out that venture, the defendant knowingly
made false or fraudulent representations to others with the specific
intent to deceive them.

*See* Eleventh Circuit Pattern Jury Instructions: Criminal (Special) §
16 (1997); 2A and B Kevin F. O'Malley, et al., *Federal Jury Practice
and Instructions*: Criminal §§ 40.16, 67.25 (5th ed. 2000). *See also*
*United States v. Ammons*, 464 F.2d 414, 417 (8th Cir. 1972); *United
States v. Casperson*, 773 F.2d 216, 222-24 (8th Cir. 1985).

d\. Reliance on advise of counsel:

Advice of counsel is not a defense to the crime. It is only a
circumstance that may be considered in determining whether the defendant
acted in good faith and lacked (insert mental state required by statute,
e.g., intent to defraud or willfulness).

The defendant would not be acting (insert mental state required by
statute, e.g., with intent to defraud or willfully) if, before taking
any action with regard to the alleged offense, \[he\] \[she\] consulted
in good faith an attorney whom \[he\] \[she\] considered competent,
\[and for the purpose of securing advice on the lawfulness of \[his\]
\[her\] possible future conduct\] made a full and accurate report to
that attorney of all material facts of which \[he\] \[she\] had the
means of knowledge, and then acted strictly in accordance with the
advice given to \[him\] \[her\] by that attorney.

Whether the defendant acted in good faith for the purpose of seeking
advice concerning questions about which \[he\] \[she\] was in doubt, and
whether \[he\] \[she\] made a full and complete report to that attorney,
and whether \[he\] \[she\] acted strictly in accordance with the advice
\[he\] \[she\] received, are all questions for you to determine.

Advice of counsel does not under all circumstances confer complete
immunity on a defendant. No one can intentionally and knowingly violate
the law and excuse \[himself\] \[herself\] from the consequences by
claiming that \[he\] \[she\] followed advice of counsel.

*See* *United States v. Poludniak*, 657 F.2d 948, 958-59 (8th Cir.
1981). Eleventh Circuit Pattern Jury Instructions: Criminal (Special) §
17 (1997).

To be entitled to the advice of counsel theory of defense, the defendant
must have disclosed all relevant facts. *United States v. Hecht*, 705
F.2d 976 (8th Cir. 1983).

**Committee Comments**

*See* Eleventh Circuit Pattern Jury Instructions: Criminal (Special) §
16, 17 (1997); *United States v. Ammons*, 464 F.2d 414, 417 (8th Cir.
1972); *United States v. Kouba*, 822 F.2d 768, 771 (8th Cir. 1987).

*See also* Introductory Comment, Section 9, and Committee Comments,
Instruction 9.05, *supra*.

The same principles apply to the giving of a good faith instruction as
apply to theory of defense instructions in general. *United States v.
Brake*, 596 F.2d 337, 339 (8th Cir. 1979), holding:

There is no question that a defendant in a criminal case is entitled to
have the jury know what he contends, and that ordinarily he is entitled
to a \"theory of defense\" or a \"position\" instruction if he makes a
timely request for such an instruction, if the request is supported by
evidence, and if it sets out a correct declaration of law. *United
States v. Hill*, 589 F.2d 1344 (8th Cir. 1979); *United States v.
Rabbitt*, 583 F.2d 1014 (8th Cir. 1978); *United States v. Nance*, 502
F.2d 615 (8th Cir. 1974).

However, a defendant is not entitled to a particularly worded
instruction setting out his position where the instructions actually
given by the trial judge adequately and correctly cover the substance of
the requested instruction. *United States v. Brown*, 540 F.2d 364, 380
(8th Cir. 1976). And, of course, the instructions of the trial court
must be considered as a whole.

*See also* *United States v. Cegelka*, 853 F.2d 627, 628-29 (8th Cir.
1988); *United States v. Jerde*, 841 F.2d 818, 823 (8th Cir. 1988);
*United States v. Casperson*, 773 F.2d 216, 223 (8th Cir. 1985).

Since a good faith instruction is essentially a converse of the intent
to defraud instruction, adequate instructions on intent to defraud have
been held sufficient to present the issue to the jury, especially where
no good faith instruction was requested. *See*, *e.g.*, *United States
v. Scherer*, 653 F.2d 334, 338 (8th Cir. 1981). *But see* *United States
v. Goss*, 650 F.2d 1336, 1344-45 (5th Cir. 1981) \[reversible error to
refuse a requested good faith instruction in mail fraud case;
instruction requiring specific intent insufficient to direct jury\'s
attention to good faith defense.\]

The general good faith instruction for mail fraud cases approved in this
circuit is found in *United States v. Ammons*, 464 F.2d at 417 and reads
as follows:

Fraudulent intent is not presumed or assumed; it is personal and not
imputed. One is chargeable with his own personal intent, not the intent
of some other person. Bad faith is an essential element of fraudulent
intent. Good faith constitutes a complete defense to one charged with an
offense of which fraudulent intent is an essential element. One who acts
with honest intention is not chargeable with fraudulent intent. Evidence
which establishes only that a person made a mistake in judgement or an
error in management, or was careless, does not establish fraudulent
intent. In order to establish fraudulent intent on the part of a person,
it must be established that such person knowingly and intentionally
attempted to deceive another. One who knowingly and intentionally
deceives another is chargeable with fraudulent intent notwithstanding
the manner and form in which the deception was attempted.

*See also* *Casperson*, 773 F.2d at 223, holding: \"The *Ammons*
instruction they proffered has previously been approved by this court
and is an acceptable statement of the applicable law.\" *Casperson* went
on to hold that the failure to give any good faith instruction was
reversible error.

A good faith instruction must make it clear to the jury that good faith
would be an absolute defense to the crime. *United States v. Nance*, 502
F.2d 615, 620 (8th Cir. 1974). Both *Ammons* and *Nance* suggest but do
not require that a good faith instruction incorporate the specific
factors on which the appellant relied to show he acted in good faith.
464 F.2d at 417; 502 F.2d at 620. An example of such an instruction was
approved in *United States v. Kimmel*, 777 F.2d 290, 292-93 n.l (5th
Cir. 1985). However, *Ammons* makes clear that \"\[t\]he jury need not
be instructed on every inference that it might draw bearing on the issue
of good faith.\" 464 F.2d at 417. *Nance* found a proposed instruction
which was long and verbose and contained a detailed description of the
purported evidence and inferences drawn therefrom by defense counsel did
not meet a standard of adequacy. 502 F.2d at 619. A good faith
instruction is not required where it is not supported by the evidence.
*United States v. Sherer*, 653 F.2d at 337, \[the defendant doctor
claimed to have actually treated patient, not that bills were the result
of mistake or inadvertence\].

Good faith instructions in tax cases which have been found proper
include *United States v. Kouba*, 822 F.2d at 771 and *United States v.
Jerde*, 841 F.2d at 822. In both of those cases the court also defined
\"good faith\" for the jury using or paraphrasing the definition from
Black\'s Law Dictionary 623 (5th ed. 1979). *Kouba*, 822 F.2d at 771;
*Jerde*, 841 F.2d at 822. *See also* 2B Kevin F. O'Malley, et al.,
*Federal Jury Practice and Instructions*: Criminal § 67.25 (5th ed.
2000). The jury may also be instructed as to what is not included in a
good faith defense. *United States v. Miller*, 634 F.2d 1134 (8th Cir.
1980). For an example of a good faith defense based on reliance on the
Fifth Amendment in a tax case, see *United States v. Reed*, 670 F.2d
622, 624 (5th Cir. 1982).

It should be noted that \"good faith\" is only a defense where the
defendant\'s mental state is one of the elements of the offense.

**10.00 SUPPLEMENTAL INSTRUCTIONS (Introductory Comment)**

This section addresses instructions which may be given after the jury
has begun its deliberations.

**10.01 RESPONSE TO QUESTIONS NECESSITATING**

**SUPPLEMENTAL INSTRUCTIONS**

MEMBERS OF THE JURY:

I have received a note signed by your foreperson which reads as follows:

\"(Insert note.)\"

(Insert response.)

\[\[This\] \[these\] instruction\[s\] should be taken together with the
instructions I previously gave to you. The instructions must be
considered as a whole. \[Remember that the defendant is presumed to be
innocent and this presumption can be overcome only if the Government
proves, beyond a reasonable doubt, each element of the crime
charged.^1^\]\]^2^

**Notes on Use**

1\. This language is recommended if the burden of proof or presumption
of innocence is not otherwise covered in the supplemental instruction.

2\. This paragraph is recommended if supplemental instructions are given
or original instructions are reread.

**Committee Comments**

*See* 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 20.07 (5th ed. 2000). *See also* West Key \#
Criminal Law 863(1) and (2).

The response to a jury request for supplemental instructions is a matter
within the sound discretion of the trial judge. *United States v.
Skarda*, 845 F.2d 1508, 1512 (8th Cir. 1988); *United States v. Neiss*,
684 F.2d 570, 572 (8th Cir. 1982); *United States v. Piatt*, 679 F.2d
1228, 1231 (8th Cir. 1982). If a supplemental instruction is given, it
must be responsive. \"When a jury makes explicit its difficulties a
trial judge should clear them away with concrete accuracy.\" *Bollenbach
v. United States*, 326 U.S. 607, 612-13 (1946); *United States v.
Skarda*, 845 F.2d at 1512; *United States v. Neiss*, 684 F.2d at 572;
*United States v. Piatt*, 679 F.2d at 1231. The discretion of the court
goes to the decision to reply and, if a reply is given, whether that
reply should refer back to or reread instructions already given or
consist of new instructions. A response need not address more than the
question specifically requested. *United States v. Piatt*, 679 F.2d at
1231. Thus, there is no requirement that all instructions be reread.
*United States v. Piatt*, 679 F.2d at 1231; *United States v. Humphrey*,
696 F.2d 72, 75 (8th Cir. 1982). \"\[A\] trial court is not required to
speculate upon the purpose of the jury\'s inquiry during its
deliberations\[;\] the court, if it chooses to reply, should answer the
inquiry within the specific limits of the questions presented.\" *United
States v. Neiss*, 684 F.2d at 572. *See also* *United States v. Arpan*,
887 F.2d 873 (8th Cir. *en banc* 1989).

Any supplemental instructions must be impartial. \"A trial judge must be
painstakingly impartial anytime he communicates with the jury during
deliberations. He must insure that any supplemental instructions are
accurate, clear, neutral and nonprejudicial.\" *United States v.
Skarda*, 845 F.2d at 1512. Accuracy may sometimes require a response
which correctly states the law rather than a yes or no answer which
would not help the jury address the issues it is supposed to decide.
*See* *United States v. Felak*, 831 F.2d 794, 798 (8th Cir. 1987). If
the response is already contained in the jury instructions, a reference
to the original charge is all that is necessary. *United States v.
White*, 794 F.2d 367, 370 (8th Cir. 1986) \[definition of conspiracy\].
*See also* *United States v. Hicks*, 619 F.2d 752, 758 (8th Cir. 1980)
\[jury told to consider instructions as a whole in response to inquiry
about discrepancy in wording between indictment and instructions\].

Generally an instruction setting out the elements of an offense or
defining a term therein is considered neutral. If the jury requests a
rereading of such an instruction, the court may properly limit its
reinstruction to the issues requested, and is not required to also
reread instructions setting out the defendant\'s theory. *United States
v. Neiss*, 684 F.2d at 572; *United States v. Skarda*, 845 F.2d at 1512
(citing *Felak*, 831 F.2d at 798 and *Humphrey*, 696 F.2d at 75).

While not required, the better practice is to remind the jury to
consider supplemental instructions in the context of all instructions.
*Skarda*, 845 F.2d at 1512; *United States v. Piatt*, 679 F.2d at 1231.
Likewise reinstruction on reasonable doubt and presumption of innocence,
while not required, helps assure impartiality. *See*, *e.g.*, *Piatt*,
679 F.2d at 1231.

Where the court has granted a jury\'s request for specific evidence
during deliberations, such as the replaying of a tape recording, it is
likewise good practice to caution the jury to consider that evidence in
the context of all the evidence. *United States v. Koessel*, 706 F.2d
271, 275 (8th Cir. 1983).

**10.02 DUTY TO DELIBERATE (\"Allen\" Charge)**

As stated in my instructions, it is your duty to consult with one
another and to deliberate with a view to reaching agreement if you can
do so without violence to your individual judgment. Of course you must
not surrender your honest convictions as to the weight or effect of the
evidence solely because of the opinions of other jurors or for the mere
purpose of returning a verdict. Each of you must decide the case for
yourself; but you should do so only after consideration of the evidence
with your fellow jurors.

In the course of your deliberations you should not hesitate to
re-examine your own views, and to change your opinion if you are
convinced it is wrong. To bring twelve minds to a unanimous result you
must examine the questions submitted to you openly and frankly, with
proper regard for the opinions of others and with a willingness to
re-examine your own views.

Remember that if in your individual judgment the evidence fails to
establish guilt beyond a reasonable doubt, then the defendant should
have your vote for a not guilty verdict. If all of you reach the same
conclusion, then the verdict of the jury must be not guilty. Of course
the opposite also applies. If in your individual judgment the evidence
establishes guilt beyond a reasonable doubt, then your vote should be
for a verdict of guilty and if all of you reach that conclusion then the
verdict of the jury must be guilty. As I instructed you earlier, the
burden is upon the Government to prove beyond a reasonable doubt every
element of the crime\[s\] charged.

Finally, remember that you are not partisans; you are judges \-- judges
of the facts. Your sole interest is to seek the truth from the evidence.
You are the judges of the credibility of the witnesses and the weight of
the evidence.

You may conduct your deliberations as you choose. But I suggest that you
carefully \[re\]consider all the evidence bearing upon the questions
before you. You may take all the time that you feel is necessary.

There is no reason to think that another trial would be tried in a
better way or that a more conscientious, impartial or competent jury
would be selected to hear it. Any future jury must be selected in the
same manner and from the same source as you. If you should fail to agree
on a verdict, the case is left open and must be disposed of at some
later time.^1^

\[Please go back now to finish your deliberations in a manner consistent
with your good judgment as reasonable persons.\]^2^

**Notes on Use**

1\. A more expanded version of this instruction, 1A Kevin F. O'Malley,
et al., *Federal Jury Practice and Instructions*: Criminal § 20.08 (5th
ed. 2000), has been approved by this Circuit. *See United States v.
Smith*, 635 F.2d 716, 722-23 (8th Cir. 1980); *United States v.
Singletary*, 562 F.2d 1058, 1060-61 (8th Cir. 1977); *United States v.
Hecht*, 705 F.2d 976, 979 (8th Cir. 1983).

2\. Use this sentence when this charge is being given after
deliberations have begun.

**Committee Comments**

*See* 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 20.08 (5th ed. 2000); Federal Judicial Center,
Pattern Jury Criminal Instructions § 10 (1988); Fifth Circuit Pattern
Jury Instructions: Criminal § 1.43 (1997); Seventh Circuit Federal Jury
Instructions: Criminal § 7.06 (1999); Ninth Cir. Crim. Jury Instr. 7.1
(1997). *See generally* West Key \# \"Criminal Law\" 768(3), 865(1),
1174(1).

It is preferable that an \"Allen\" type instruction be given as part of
the regular final instructions, before the jurors begin their
deliberations. *United States v. Webb*, 816 F.2d 1263, 1266 n.4 (8th
Cir. 1987); *Potter v. United States*, 691 F.2d 1275, 1277 (8th Cir.
1982), and cases cited therein. *See* Instruction 3.12, *supra*.

If that has been done, and if the circumstances are appropriate, either
the same instruction may be repeated later or this instruction 10.02 may
be given if the jury announces difficulty in reaching a verdict. *United
States v. Singletary*, 562 F.2d 1058, 1061 (8th Cir. 1977); *United
States v. Cortez*, 935 F.2d 135, 140 (8th Cir. 1991). *See also* ABA
Standards Relating to Trial by Jury § 5.4.

The language of this instruction covers the essential points of the
traditional \"Allen\" charge, taken from the instruction approved in
*United States v. Smith*, 635 F.2d 716, 722-23 (8th Cir. 1980). Judge
Gibson noted in *Potter*, 691 F.2d at 1277 that \"caution . . . dictates
. . . that trial courts should avoid substantial departures from the
formulations of the charge that have already received judicial
approval.\" This instruction has been approved in *United States v.
Thomas*, 946 F.2d 73 (8th Cir. 1991).

According to the holding in *Potter*, it would be permissible to give
the present instruction as a supplemental charge upon deadlock, in lieu
of repeating the paragraphs under the \"Second\" point in Instruction
3.12, *supra*.

As to when and in what circumstances a supplemental instruction may be
appropriate, *see generally* *Potter v. United States*; *United States
v. Smith*, 635 F.2d 716 (8th Cir. 1980). As the Eighth Circuit has
repeatedly cautioned, supplemental charges of this nature should be
utilized with \"great care.\" *United States v. Young*, 702 F.2d 133
(8th Cir. 1983); *Potter v. United States*; *United States v. Smith*.

It is not necessarily reversible error for the trial court to give a
supplemental instruction *sua sponte* and even without direct
announcement by the jury of its difficulty. *United States v. Smith*.
The safe practice, however, would be to give such an instruction only
after the jury has directly communicated its difficulty or the length of
time spent in deliberations, compared with the nature of the issues and
length of trial, and makes it clear that difficulty does exist. A
premature supplemental charge certainly could, in an appropriate case,
be sufficient cause for reversal.

The trial court may make reasonable inquiries to determine if a jury is
truly deadlocked, but may not ask the jury of the nature and extent of
its division. *Lowenfield v. Phelps*, 484 U.S. 231 (1988); *Brasfield v.
United States*, 272 U.S. 448 (1926); *United States v. Webb*, 816 F.2d
at 1266. The fact that the court inadvertently learns the division of
the jurors does not, by itself, prevent the giving of a supplemental
charge. *United States v. Cook*, 663 F.2d 808 (8th Cir. 1981); *Anderson
v. United States*, 262 F.2d 764, 773-74 (8th Cir. 1959). Such an
instruction can be coercive, however, where the sole dissenting juror is
aware that the court knows his identity. *United States v. Sae-Chua*,
725 F.2d 530 (9th Cir. 1984).

In this Circuit the defendant does not have a right to an instruction
that the jury has the right to reach no decision. *United States v.
Arpan*, 887 F.2d 873 (8th Cir. *en banc* 1989).

**10.03 RETURN TO DELIBERATIONS AFTER POLLING**

The poll of the jury shows that there is not a unanimous verdict. Please
return to the jury room and continue your deliberations.

**Committee Comments**

*See* 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 20.09 (5th ed. 2000); Seventh Circuit Federal
Jury Instructions: Criminal § 7.07 (1999); Ninth Cir. Crim. Jury Instr.
7.6 (1997).

Under Rule 31(d), Fed. R. Crim. P., the court has the discretion, when a
poll of the jury does not reveal unanimous concurrence in the verdict,
to either discharge the jury or direct the jury to continue
deliberations. *United States v. Williams*, 873 F.2d 1102 (8th Cir.
1989); *United States v. Johnson*, 720 F.2d 519, 521 (8th Cir. 1983).
Concurrence means agreeing that the elements of the offense have been
proved beyond a reasonable doubt. Reservations of a juror going to
extraneous matters, such as the conduct of defense counsel, does not
affect the unanimity or certainty of the verdict where the juror agrees
that the elements have been proved beyond a reasonable doubt. *United
States v. Antwine*, 873 F.2d 1144 (8th Cir. 1989).

If a jury is sent back for further deliberations it may be instructed on
the requirement of unanimity. *See* Committee Comments, Instructions
3.12 and 10.02, *supra*.

**10.04 PARTIAL VERDICT**^1^

Members of the jury, if you have reached unanimous agreement as to
\[some of the defendants\]^2^ \[and/or\] \[some of the counts\]^3^, you
may return a verdict as to \[those defendants\] \[and/or\] \[those
counts\], and then continue deliberating on the others.

If you do choose to return a verdict as to \[some of the defendants\]
\[and/or\] \[some of the counts\] now, that verdict will be final. You
will not be able to change your minds about it later on.

**Notes on Use**

1\. This instruction should be used if the jurors ask about, attempt to
return, or otherwise indicate that they have reached a partial verdict.
It may also be appropriate after extended deliberations.

2\. Omit this language when there is a single defendant.

3\. Omit this language when there is a single count.

**Committee Comments**

Rule 31(b) of the Federal Rules of Criminal Procedure permits the return
of a verdict at any time during the jury's deliberation as to any
defendant or any count about which it has agreed. *See United States v.
Haren*, 952 F.2d 190, 197 (8^th^ Cir. 1991). The Eighth Circuit joins
all other circuits which have addressed the issue in holding that the
practice of taking a partial verdict in a single-defendant case is not
per se invalid. *United States v. Benedict*, 95 F.3d 17, 19 (8^th^ Cir.
1996).

This instruction is not mandatory, *see United States v. Dilapi*, 651
F.2d 140, 146-47 (2d Cir. 1981); Rule 31(b) only requires that the
district court judge accept a partial verdict upon request, and refrain
from instructing the jury that they may not return a partial verdict.
*See United States v. Burke*, 700 F.2d 70, 80 (2d Cir. 1983). Because of
prolonged jury deliberation, in its discretion a district court may give
the partial verdict instruction, or instruct the jury in an evenhanded,
non-coercive manner that it would prefer a unanimous verdict if
accomplished without any juror yielding a conscientious conviction which
he or she may have. *See United States v. Cortez*, 935 F.2d 135, 140-42
(8^th^ Cir. 1991) (citing *Allen v. United States*, 164 U.S. 492(1896)).
*See also*, Instruction 10.02, *supra*.

**11.00 VERDICT FORMS (Introductory Comment)**

This section includes sample verdict forms for a general verdict, a
verdict on a lesser offense instruction, and a verdict followed by
special findings. The verdict forms set forth in this section are not
intended to be a comprehensive list of verdict forms.

**11.01 GENERAL VERDICT**

VERDICT

We, the jury, find Defendant (name) \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_of the
crime of (insert brief

\[guilty/not guilty\]

description, e.g., \"bank robbery\") \[as charged in Count \_\_\_\_\_ of
the indictment\] \[under Instruction No. \_\_\_\_\_ \].^1^

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Foreperson

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

(Date)

**Notes on Use**

1\. *See* Instructions 3.09 and 3.12, *supra*. If the elements
instruction does not refer to a count in the indictment, the verdict
form should refer to the elements instruction.

**Committee Comments**

General verdicts are preferred in criminal cases; verdicts based on
special interrogatories and answers have been held to be inappropriate.
*Gray v. United States*, 174 F.2d 919 (8th Cir. 1949). A
\"step-by-step\" approach to reaching a verdict in a criminal case has
been described as creating the unacceptable possibility of judicial
control of a verdict by the manner in which questions to the jury are
framed. *United States v. Spock*, 416 F.2d 165, 182 (1st Cir. 1969).
*Cf. United States v. Melvin*, 27 F.3d 710, 716 (1st Cir. 1994)
(discussing when exceptions to rule against special interrogatories are
appropriate under *Spock*). As a corollary to the concern over judicial
control, a court may not \"bifurcate\" the elements of an offense so
that a jury is precluded from considering all elements of the charged
offense, thus being deprived of information that would be likely to
affect the jury\'s assessment of whether a crime had been committed and
proved. *United States v. Barker*, 1 F.3d 957 (9th Cir. 1993), amended
at 20 F.3d 365 (9th Cir. 1994).

**11.02 GENERAL VERDICT; WITH LESSER INCLUDED OFFENSE**

VERDICT

We, the jury, find Defendant (name) \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_of the
crime of (insert brief

guilty/not guilty

description, *e.g.*, "possession with intent to distribute
\_\_\_\_\_\_\_\_\_\_") \[as charged in Count \_\_\_\_\_ of the
indictment\] \[under Instruction No. \_\_\_\_\_ \].

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Foreperson

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

(Date)

Note: If you unanimously find Defendant (name) guilty of the above
crime, have your foreperson write \"guilty\" in the above blank space,
sign and date this verdict form. Do not consider the following verdict
form.

If you unanimously find Defendant (name) not guilty of the above charge,
have your foreperson write \"not guilty\" in the above blank space. You
then must consider whether the defendant is guilty of (specify lesser
included offense) on the following verdict form.

If you are unable to reach a unanimous decision on the above charge,
leave the space blank and decide whether the defendant is guilty of
(specify lesser included offense) on the following verdict form.

**\[LESSER INCLUDED OFFENSE\]**^1^

We, the jury, find Defendant (name) \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ of
the crime of (insert brief

\[guilty/not guilty\]

description, *e.g.*, "possession of \_\_\_\_\_\_\_\_\_\_") \[as charged
in Count \_\_\_\_\_ of the indictment\] \[under Instruction No.
\_\_\_\_\_ \].

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Foreperson

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

(Date)

**Notes on Use**

1\. *See* Instruction 3.10, *supra*. *See also*, *e.g.*, *United States
v. Friend*, 50 F.3d 548, 554 (8th Cir. 1995).

**Committee Comments**

A defendant has a nonwaivable right to a unanimous jury verdict. *United
States v. Eagle Elk*, 820 F.2d 959, 961 (8th Cir. 1987); Fed. R. Crim.
P. 31(a). However, indictments frequently allege a violation of federal
law by \"one or more specified means\" as permitted by Fed. R. Crim. P.
7(c)(1). *See*, *e.g.*, *United Sates v. Lueth*, 807 F.2d 719, 733 (8th
Cir. 1986). As a general rule, a general verdict of guilty is not
subject to attack on the ground that one of the alternative means of
committing the crime was not proved by sufficient evidence. The
presumption is that the jury sorted out the evidence and that the
verdict was based on the alternative supported by sufficient evidence.
*See Griffin v. United States*, 502 U.S. 46 (1991). On the other hand,
if one alternative basis for guilt is legally insufficient, and it
cannot be determined whether the jury\'s verdict was based on a
supportable ground or on an illegal or unconstitutional ground, the
verdict must be set aside. *United States v. Goodner Brothers Aircraft,
Inc.*, 966 F.2d 380, 384 (8th Cir. 1992) (citing *Griffin, supra*).
However, if a jury's finding of guilt of a greater offense necessarily
includes a finding of guilt of a lesser offense, the verdict can stand
as to the lesser offense even if there was insufficient evidence to
support the verdict on the greater offense. *United States v. Friend*,
50 F.3d 548, 554 (8th Cir. 1995).

Beyond the general principles outlined above, there are cases which
discuss the need for more definition of \"the level of factual
specificity at which jurors must concur to convict a defendant.\" Scott
W. Howe, *Jury Fact-Finding in Criminal Cases: Constitutional Limits on
Factual Disagreements Among Convicting Jurors*, 58 Mo. L. Rev. 1 (1993).
For a general discussion of the need for unanimity as to facts
supporting a conviction, *see* *United States v. Correa-Ventura*, 6 F.3d
1070 (5th Cir. 1993).

**11.03 SAMPLE SPECIAL VERDICT FORM**

**(INTERROGATORIES TO FOLLOW FINDING OF GUILT)**

VERDICT

We, the jury, find Defendant (name) \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
of the use of a firearm during

guilty/not guilty

and in relation to a crime of violence \[as charged in Count \_\_\_\_\_
of the indictment\] \[under Instruction No. \_\_\_\_\_ \].

If you find the defendant \"guilty,\" you must answer the following: ^1^

Which of the following firearms do you find were used by the defendant?

\_\_\_\_\_ A 9mm semi-automatic pistol.

\_\_\_\_\_ An M-16 fully automatic rifle.

\_\_\_\_\_ A short-barreled 12-gauge shotgun.

(Check each firearm which the jury unanimously agrees the defendant
used.)

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Foreperson

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

(Date)

**Notes on Use**

1\. *See* Instruction 6.18.924, *supra*. This instruction may be used in
a case where several firearms are charged in a single count as having
been used by the defendant in violation of 18 U.S.C. § 924(c), and the
minimum punishment will differ according to the type of firearm. *See*,
*e.g.*, *United States v. Correa-Ventura*, 6 F.3d 1070, 1087 n.35 (5th
Cir. 1993). *Cf.* *United States v. Melvin*, 27 F.3d 710, 714 (1st Cir.
1994) (enhanced penalty available only if jury identifies an
\"enhancing\" firearm as supporting the conviction).

**Committee Comments**

Special interrogatories to the jury, to be answered after finding guilt,
have been approved or recommended in various situations. Several courts
have considered situations in which special findings by the jury would
have avoided error. In *United States v. Owens*, 904 F.2d 411 (8th Cir.
1990), the Court of Appeals found unacceptable instructions which had
allowed the jury to convict if it found that either amphetamine or
methamphetamine was the object of the charged conspiracy. The *Owens*
opinion states, at p. 415:

Because the establishment of Owens\' base offense level required a
determination of which drug the conspiracy involved, and because the
Sentencing Guidelines provide disparate sentencing ranges for
amphetamine and methamphetamine, the district court should have used a
special verdict form to permit the jury to indicate which substance it
found to be the object of the conspiracy.

*See also United States v. Baker*, 16 F.3d 854, 858 (8th Cir. 1994);
*cf. United States v. Watts*, 950 F.2d 508, 514-15 (8th Cir. 1991)
(distinguishing *Owens* in a case where evidence of the drug involved in
the conspiracy was uncontradicted).

In *Newman v. United States*, 817 F.2d 635 (10th Cir. 1987), a general
verdict on a charge of conspiracy to distribute both narcotic and
non-narcotic drugs was held to be unacceptable because the sentencing
court could not know which of two possible maximum sentences applied.
The *Newman* opinion states, \"The use of a special verdict identifying
which underlying offenses were the objects of the conspiracy would have
eliminated this ambiguity.\" 817 F.2d at 637. *Cf.* *United States v.
Stanberry*, 963 F.2d 1323 (10th Cir. 1992) (the defendant not entitled
to have special jury interrogatory on when conspiracy terminated since
interrogatory was relevant only to sentencing factors). In *United
States v. Holley*, 942 F.2d 916 (5th Cir. 1991), convictions on two
counts of perjury were reversed for failure of the district court to
give the defendant\'s requested \"specific unanimity instruction.\" The
counts of the indictment each alleged two or more false statements, any
one of which would violate the statute. The court of appeals agreed with
the defendant\'s argument that the jury should have been required to
agree unanimously on at least one statement in each count. *See United
States v. Bellrichard*, 62 F.3d 1046 (8th Cir. 1995) (majority opinion
distinguishing *Holley*; dissent finding *Holley* on point). In *United
States v. Pungitore*, 910 F.2d 1084, 1136 (3d Cir. 1990), the court
noted that the jury\'s return of special interrogatories indicating the
theory of murder on which it relied in finding RICO predicates
eliminated concerns about unanimity of the verdict.

Special interrogatories to the jury may be helpful to the court in
resolving sentencing issues, although a defendant is not entitled to
jury determination of sentencing issues, and the court is not bound by
the jury\'s findings on such issues. *United States v. Page-Bey*, 960
F.2d 724, 728 n.5 (8th Cir. 1992); *United States v. Romo*, 914 F.2d
889, 895 (7th Cir. 1990). *Cf.* *United States v. Stanberry*, 963 F.2d
1323, 1326 n.2 (10th Cir. 1992) (commenting that special verdicts
\"promise increased complexity and may debase the Sentencing
Guidelines\").

Special interrogatories to the jury should be submitted as questions to
be answered only after finding guilt to avoid prejudice to the defendant
in the form of leading the jury to a result. *See*, *e.g.*, appendix to
the opinion in *United States v. Ryan*, 9 F.3d 660, 676 (8th Cir. 1993),
*vacated on reh'g*, 41 F.3d 361 (1994). In *United States v. Console*,
13 F.3d 641, 663 (3d Cir. 1993), the court stated:

The district court has discretion in determining whether to submit
special interrogatories to the jury regarding the elements of an
offense. \[However, such interrogatories are not required.\] . . .
Moreover, even when special interrogatories regarding RICO are submitted
to the jury, the court is permitted to give an instruction to the jury
to answer the interrogatories only after it votes to convict, thereby
alleviating the danger of prejudice to the defendant. \[Footnote
omitted.\]

**12.00 HOMICIDE - DEATH PENALTY - SENTENCING**

**(18 U.S.C. §§ 3591 et seq.)**

Instructions 12.01-.03 are to be given at the beginning of the
sentencing phase, before the introduction of evidence. They are intended
to be a concise overview, so that the jury has a basic understanding of
the decisions it will be called upon to make.

Instructions 12.04-.22 are to be given after all evidence has been
presented and prior to deliberations.

**12.01 INTRODUCTION TO PRELIMINARY INSTRUCTIONS**

Members of the jury, you have unanimously found the defendant^1^ guilty
of the offense of as charged in Count \[repeat for each offense\] of the
indictment. You must now consider whether imposition of a sentence of
death is justified, or whether the defendant should be sentenced to life
imprisonment without the possibility of release^2^\[, or a lesser
sentence\] for commission of this \[these\] crime\[s\].

This decision is left exclusively to you, the jury. If you determine^3^
that the defendant should be sentenced to death, or to life imprisonment
without possibility of release, the court is required to impose that
sentence.

Before you may consider whether to impose a sentence of death, you must
make each of the following three findings unanimously and beyond a
reasonable doubt:

\[First, you must find unanimously and beyond a reasonable doubt that
the defendant was at least 18 years of age at the time of the
offense\[s\]^4^; and\]

\[First\] \[Second\], you must find unanimously and beyond a reasonable
doubt that the defendant

\[intentionally killed (name of victim)\]

\[intentionally inflicted serious bodily injury that resulted in the
death of (name of victim)\]

\[intentionally participated in an act, contemplating that the life of a
person would be taken or intending that lethal force would be used in
connection with a person, other than one of the participants in the
offense, and (name of victim) died as a direct result of the act\]

\[intentionally and specifically engaged in an act of violence, knowing
that the act created a grave risk of death to a person, other than one
of the participants in the offense, such that participation in the act
constituted a reckless disregard for human life and (name of victim)
died as a direct result of the act\]; and

\[Second\] \[Third\], you must find unanimously and beyond a reasonable
doubt that the government has proved the existence of at least one
statutory aggravating factor. I will define the term \"aggravating
factors\" for you shortly.

If, after fair and impartial consideration of all the evidence in this
case, any one of you does not make these \[two\] \[three\] findings
beyond a reasonable doubt, your deliberations will be over. If you do
unanimously make these \[two\] \[three\] findings beyond a reasonable
doubt, you will then proceed to determine whether you unanimously find
that the government has proved the existence of any nonstatutory
aggravating factors beyond a reasonable doubt, and whether any of you
find that the defendant has proved any mitigating factors by a
preponderance of the evidence. You must then engage in a weighing
process. If you unanimously find that the aggravating factor or factors,
which you all found to exist, sufficiently outweigh any mitigating
factor or factors, which any one of you^5^ found to exist to justify
imposition of^6^ a sentence of death, or, if, in the absence of a
mitigating factor or factors, you find that the aggravating factor or
factors alone are sufficient to justify imposition of a sentence of
death, and that death is therefore the appropriate sentence in this
case, the law provides that the defendant must^7^ be sentenced to death.

If, after weighing the aggravating and mitigating factors, any one of
you finds that a sentence of death is not justified, the jury must then
determine whether the defendant should be sentenced to life imprisonment
without possibility of release, or be given a lesser sentence to be
determined by the court.

Again, whether or not the circumstances in this case justify a sentence
of death is a decision that is [entirely]{.underline} yours. \[You must
not take anything I may say or do during this phase of the trial as
indicating \[what I think of the evidence or\] what I think your verdict
should be.\]

Two terms that you have already heard and will hear throughout this
phase of the case are \"aggravating factors\" and \"mitigating
factors.\" These factors concern the circumstances of the crime or the
personal traits, character or background of the defendant \[and the
effect of the offense on the victim (and the victim's family\]^8^.

\[The word \"aggravate\" means \"to make worse or more offensive\" or
\"to intensify.\" The word \"mitigate\" means \"to make less severe\" or
\"to moderate.\"\]^9^ An aggravating factor\[, then,\] is a fact or
circumstance which would tend to support imposition of the death
penalty. A mitigating factor is any aspect of a defendant\'s character
or background, any circumstance of the offense(s), or any other relevant
fact or circumstance which might indicate that the defendant should not
be sentenced to death.

In the death penalty statute, a number of aggravating factors are
listed. These are called \"statutory aggravating factors.\" As I
instructed you earlier, before you may consider imposition of the death
penalty, you must find that the government proved at least one of these
aggravating factors specifically listed in the death penalty statute,
and your finding must be unanimous and beyond a reasonable doubt. \[In
addition to statutory aggravating factors, there may also be aggravating
factors not specifically set out in the death penalty statute. Again,
your finding that any non statutory aggravating factor exists must be
unanimous and beyond a reasonable doubt.\]

The defendant has the burden of proving any mitigating factors. However,
there is a different standard of proof as to mitigating factors. You
need not be convinced beyond a reasonable doubt about the existence of a
mitigating factor; you need only be convinced that it is more likely
true than not true in order to find that it exists. A unanimous finding
is not required. Any one of you may find the existence of a mitigating
factor, regardless of the number of other jurors who may agree.

If you have unanimously found that at least one statutory aggravating
factor exists, you then must weigh the aggravating factors you have all
found to exist against any mitigating factors you have individually
found to exist, to determine the appropriate sentence. Any juror may
also weigh a mitigating factor found by another juror, even if he or she
did not also find that factor to be mitigating.^10^ I will give you
detailed instructions regarding the weighing of aggravating \[and
mitigating\] factors before you begin your deliberations. However, I
instruct you now that you must not simply count the number of
aggravating \[and mitigating\] factors and reach a decision \[based on
which number is greater\]; you must consider the weight and value of
each factor.

\[The government alleges the following statutory aggravating factors:
\[list factors\] The government also alleges the following nonstatutory
aggravating factors: \[list factors\] The defendant alleges the
following mitigating factors: \[list factors\]\]^11^

**Notes on Use**

1\. These instructions have been prepared in a single-defendant format.
Appropriate modifications for proceedings involving multiple defendants
would be necessary.

2\. In *Simmons v. South Carolina*, 512 U.S. 154, 156 (1994), the
Supreme Court held that where a defendant\'s future dangerousness was at
issue and the only sentencing alternative to the death penalty under
state law was life imprisonment without possibility of parole, due
process required that the sentencing jury be informed that the defendant
was ineligible for parole. The Court reiterated that holding in *Shafer
v. South Carolina*, 532 U.S. 36, 51 (2001).

Sections 3593(e) and 3594, Title 18, United States Code, provide that
the jury shall make a recommendation regarding whether the defendant
should be sentenced to death or life imprisonment without the
possibility of release, which would require that they be informed of
this option for offenses under sections 3591(b)(1)-(2). The practice in
most states is to inform the sentencing jury of life without parole as
an alternative to capital punishment. *Simmons v. South Carolina*, 512
U.S. at 167-68 nn.7-8.

3\. Although the statute uses the word \"recommend,\" the jury\'s
determination is binding; the court MUST impose the sentence the jury
\"recommends\" unless a new trial is ordered. The Committee recommends
use of the word \"determine,\" because of concern that use of the word
\"recommend\" might tend to diminish the jury\'s sense of its ultimate
responsibility for determining the sentence. *See Caldwell v.
Mississippi*, 472 U.S. 320 (1985).

4\. Courts have consistently held that where a statute requires that a
defendant be of a certain age in order to be guilty of an offense, the
defendant's age is an element of the offense and must be proven beyond a
reasonable doubt. *See*, *e.g.,* *Watson v. State*, 140 N.E.2d 109,
110-11 (Ind. 1957); *State v. Thompson*, 365 N.W.2d 40, 41-42 (Iowa
1985); *Barnett v. State*, 488 So. 2d 24 (Ala. Crim. App. 1986); *State
v. Lauritsen*, 261 N.W.2d 755, 756 (Neb. 1978); *Lee v. State*, 481
S.E.2d 264, 265-66 (Ga. App. 1997); *State in the Interest of A.N., A
Juvenile*, 630 A.2d 1183, 1184 (N.J. Super. 1993); *State v. Collins*,
620 A.2d 1051, 1053 (N.J. Super. 1993). Therefore, the Committee
recommends that the issue be submitted to the jury, unless the defendant
agrees to stipulate that he/she was at least 18 years of age at the time
of the offense.

5\. In *Jones v. United States*, 527 U.S. 373, 377 (1999), the Supreme
Court held that the jury may consider a mitigating factor in its
weighing process so long as one juror accepts the factor as mitigating
by a preponderance of the evidence.

6\. The Committee was concerned that absence of the words \"imposition
of\" rendered the decision before the jury too abstract.

7\. In *United States v. Allen*, 247 F.3d 741, 780 (8^th^ Cir. 2001),
*judgment vacated and remanded on other grounds*, 536 U.S. 953 (2002),
the Eighth Circuit held that this instruction and Instruction12.11 (the
weighing instruction), which the defendant had attacked as impermissibly
mandatory in nature, \"accurately explain the jury's role in sentencing
under the FDPA.\" The court also held that the district court did not
abuse its discretion in refusing to give the defendant's \"mercy\"
instruction, which closely followed the language in the Title 21
statute, to the effect that the jury, \"regardless of its findings with
respect to aggravating and mitigating factors, is never required to
impose a death sentence.\" It concluded that

Under the FDPA, the jury exercises complete discretion in its
determination of whether the aggravating factors outweigh the mitigating
factors. The jury was informed that whether or not the circumstances
justify a sentence of death was a decision left entirely to them. Mercy
is not precluded from entering into the balance of whether the
aggravating circumstances outweigh the mitigating circumstances. The
FDPA merely precludes the jurors from arbitrarily disregarding its
unanimous determination that a sentence of death is justified.

*Id.* at 781. The Eighth Circuit reaffirmed its holding in *Allen* in
*United States v. Ortiz*, 315 F.3d 873 (8^th^ Cir. 2002).

8\. This phrase should be used with extreme caution. Section 3593(a),
Title 18, United States Code, provides that aggravating factors \"may
include factors concerning the effect of the offense on the victim and
the victim\'s family, and may include oral testimony, a victim impact
statement that identifies the victim of the offense and the extent and
scope of the injury and loss suffered by the victim and the victim\'s
family . . .\" Some kinds of \"victim impact\" evidence are clearly
admissible, i.e., evidence which amounts to \"circumstances of the
crime.\" *See Payne v. Tennessee*, 501 U.S. 808 (1991). Other \"personal
traits\" of the victim are clearly not to be considered as part of the
sentencing determination, i.e., race, color, religion, national origin
or gender. *See* 18 U.S.C. § 3593(f); *Zant v. Stephens*, 462 U.S. 862,
885 (1983). Some \"victim impact\" evidence might be mitigating and must
be submitted as such under *Lockett v. Ohio*, 438 U.S. 586, 604-08
(1978).

9\. Whether to define the words \"aggravate\" and \"mitigate\" is a
decision best left to the district court.

10\. *See* Note 1, Instruction 12.09, *infra*.

11\. Whether to list the aggravating and mitigating factors for the jury
at the preliminary stage of the sentencing phase is a decision for the
district court to make depending on the circumstances of the case before
it.

In *Ring v. Arizona*, 536 U.S. 584, 609 (2002), the Supreme Court held
that statutory aggravating factors must be found by the jury beyond a
reasonable doubt. By implication, those factors, as well as the
requisite intent state, must also be alleged in the indictment. *Id.*;
*United States v. Cotton*, 535 U.S. 625 (2002). Further, section 3593(a)
requires the government to give notice of aggravating factors prior to
trial or plea of guilty. The government is therefore precluded from
offering evidence during the penalty phase of additional statutory
aggravating factors which were not alleged in the indictment and of
nonstatutory aggravating factors for which notice was not given.
However, the statute does not require the defendant to disclose
mitigating factors. Therefore, the district court should not limit the
defendant in presenting evidence of any mitigating factor. Further,
although Rule 16 gives the district court broad discretion to regulate
discovery, the Committee takes no position on whether the district court
can order the defendant to disclose, prior to the penalty phase hearing,
the mitigating factors he or she intends to prove.

**12.02 BURDEN OF PROOF**

**This instruction is to be given at the beginning of the**

**sentencing phase,** **before the introduction of evidence.**

As I have just instructed you, the government must meet its burden of
proof beyond a reasonable doubt. A \"reasonable doubt\" is a doubt based
upon reason and common sense after careful and impartial consideration
of all the evidence^1^ received in this trial. It is the kind of doubt
that would make a reasonable person hesitate to act. Proof beyond a
reasonable doubt, therefore, must be proof of such a convincing
character that a reasonable person would not hesitate to rely and act
upon it. However, proof beyond a reasonable doubt does not mean proof
beyond all possible doubt.

The defendant does not have the burden of disproving the existence of
anything the government must prove beyond a reasonable doubt. The burden
is wholly upon the government; the law does not require the defendant to
produce any evidence at all.

It is the defendant\'s burden to establish any mitigating factors, by a
preponderance of the evidence. To prove something by the preponderance
of the evidence is to prove that it is more likely true than not true.
It is determined by considering all of the evidence and deciding which
of the evidence is more believable. \[If, on any issue in the case, the
evidence is equally balanced, you cannot find that issue has been
proved.\]

\[The preponderance of the evidence is not necessarily determined by the
greater number of witnesses or exhibits presented by the government or
the defendant.\]

\[To prove something by the preponderance of the evidence is a lesser
standard of proof than proof beyond a reasonable doubt.\]

**Notes on Use**

1\. The Supreme Court has emphasized the importance of providing the
jury with all relevant and reliable [information]{.underline}, *Jurek v.
Texas*, 428 U.S. 262, 276 (1976); *Gregg v. Georgia*, 428 U.S. 153,
203-04 (1976) (opinion of Stewart, Powell, and Stevens, JJ.) (\"it
\[is\] desirable for the jury to have as much information as possible
when it makes the sentencing decision\"); *accord* *Payne v. Tennessee*,
501 U.S. 808, 820-21 (1991) (the prosecutor is free to offer \"a wide
range of relevant material\" in a capital sentencing proceeding). *See
also* 18 U.S.C. § 3661 (use of information for sentencing) (\"No
limitation shall be placed on the information concerning the background,
character, and conduct of \[the defendant\].\"); *accord* Fed. R. Crim.
P. 32(a).

Probably for this reason, section 3593(c) uses the word \"information\"
rather than \"evidence.\" It provides that \"\[i\]nformation is
admissible regardless of its admissibility under the rules governing
admission of evidence at criminal trials except that information may be
excluded if its probative value is outweighed by the danger of creating
unfair prejudice, confusing the issues, or misleading the jury.\"
Nevertheless, the Committee recommends use of the word \"evidence,\" to
avoid the possibility of juror confusion.

The Eighth Circuit has rejected the contention that the \"relaxed\"
evidentiary standards applicable at the penalty phase of the trial
violate a capital defendant's constitutional rights. *United States v.
Allen*, 247 F.3d 741, 759-60 (8^th^ Cir. 2001), *judgment vacated and
remanded on other grounds*, 536 U.S. 953 (2002). For a discussion of
some of the issues that have arisen because of the nonapplicability of
the Federal Rules of Evidence in capital sentencing proceedings, *see
United States v. Beckford*, 964 F. Supp. 993 (E.D. Va. 1997); *United
States v. Fell*, 217 F. Supp. 2d 469 (D. Vt. 2002) (holding FDPA
unconstitutional because imposition of death penalty based on
information not subject to constitutional guarantees of evidentiary
admissibility.)

**Committee Comments**

*See* Instructions 3.11, 6.21.853, *supra*; *Eighth Circuit Manual of
Model Civil Jury Instructions*, § 3.04.

**12.03 EVIDENCE** **^1^**

**This instruction is to be given at the beginning of the**

**sentencing phase, before the introduction of evidence.**

In making all the determinations you are required to make in this phase
of the trial, you may consider any evidence that was presented during
the guilt phase of the trial as well as evidence that is presented at
this sentencing phase of the trial.

In deciding what the facts are, you may have to decide what testimony
you believe and what testimony you do not believe. You may believe all
of what a witness said, or only part of it, or none of it. \[In deciding
what testimony of any witness to believe, consider the witness\'s
intelligence, the opportunity the witness had to have seen or heard the
things testified about, the witness\'s memory, any motives that witness
may have for testifying a certain way, the manner of the witness while
testifying, whether that witness said something different at an earlier
time, the general reasonableness of the testimony, and the extent to
which the testimony is consistent with other evidence that you
believe.\]

**Notes on Use**

1\. *See* Note 1, Instruction 12.02.

**Committee Comments**

*See* Instructions 1.03-.05, *supra*.

**12.04 INTRODUCTION TO FINAL INSTRUCTIONS**

Regardless of any opinion you may have as to what the law may be - or
should be - it would be a violation of your oaths as jurors to base your
verdict upon any view of the law other than that given to you in these
instructions.

Some of the legal principles that you must apply to this sentencing
decision duplicate those you followed in reaching your verdict as to
guilt or innocence. Others are different. The instructions I am giving
you now are a complete set of instructions on the law applicable to the
sentencing decision. I have prepared them to ensure that you are clear
in your duties at this extremely serious stage of the case. I have also
prepared a special verdict form that you must complete. The form details
special findings you must make in this case and will help you perform
your duties properly.

**Committee Comments**

The Committee recommends that the court give each jury member a copy of
the instructions and the Special Verdict Form to read and notate.

**12.05 FINDING AS TO DEFENDANT'S AGE**

**(18 U.S.C. § 3591) (Homicide)**

\[Before you may consider the imposition of the death penalty, you must
first unanimously agree beyond a reasonable doubt that the defendant was
eighteen years of age or older at the time of the offense.

If you unanimously make that finding, you should so indicate on \[the
appropriate\] page \[\_\_\_\] of the Special Verdict Form and continue
your deliberations. If you do not unanimously make that finding, you
should so indicate on \[the appropriate\] page \[\_\_\_\] of the Special
Verdict Form and follow the directions on page \[ \] of the form. No
further deliberations will be necessary.\]^1^

**Notes on Use**

1\. *See* Note 4, Instruction 12.01, *supra*.

**12.06 FINDING OF REQUISITE MENTAL STATE**

**(18 U.S.C. § 3591) (Homicide)**

Before you may consider the imposition of the death penalty, you must
\[also\] unanimously find beyond a reasonable doubt that the defendant
intentionally \[killed\] \[committed acts resulting in the death of\]
(name of victim) in \[the\] \[one of the\] manner(s)^1^ described below.
If you unanimously make that finding \[as to the murder of (name of
victim)\], you should so indicate on \[the appropriate\] page \[\_\_\_\]
of the Special Verdict Form and continue your deliberations. If you do
not unanimously make that finding \[as to the murder of (name of
victim)\], you should so indicate on \[the appropriate\] page \[\_\_\_\]
of the Special Verdict Form, and follow the direction on page \[ \]. No
further deliberations will be necessary \[as to that murder\].

The government alleges that \[LIST SEPARATELY FOR EACH MURDER AS
APPROPRIATE\]:^2^

\[Examples\]

1(A). \[The defendant\] intentionally killed the victim, \[name of
victim\], by \[summarize pertinent predicate facts, e.g., shooting her
in the head\]. To establish that the defendant intentionally killed the
victim, the government must prove that the defendant killed the victim
with a conscious desire to cause the victim\'s death.

1(B). \[The defendant\] intentionally inflicted serious bodily injury
that resulted in the death of the victim, \[name of victim\], by
\[summarize pertinent predicate facts, e.g., (inflicting a severe blow
to the head of) (shooting) (stabbing)\] \[name of victim\], which
resulted in the death of (name of victim). The government must prove
that the defendant deliberately caused serious injury to the victim\'s
body which in turn caused the victim\'s death. \"Serious bodily injury\"
means a significant or considerable amount of injury which involves a
substantial risk of death, unconsciousness, extreme physical pain,
protracted and obvious disfigurement, or protracted loss or impairment
of a body member, organ or mental faculty.

1(C). \[The defendant\] intentionally participated in an act,
\[contemplating that the life of a person \[name of victim\] would be
taken\] \[intending that lethal force would be used in connection with a
person, other than one of the participants in the offense, and the
victim, \[name of victim\] died as a direct result of the act\], by
\[summarize pertinent predicate facts, e.g., (ordering) (directing)
(hiring) (another) (others) to (inflict a severe blow to the head of)
(shoot) (stab) \[name of victim\], which directly resulted in the death
of \[name of victim\]\]. The government must prove that the defendant
deliberately \[describe act(s) committed\] with a conscious desire that
a person be killed or that lethal force be employed against a person.
The phrase \"lethal force\" means an act \[or acts\] of violence capable
of causing death.

1(D). \[The defendant\] intentionally and specifically engaged in an act
of violence, knowing that the act created a grave risk of death to a
person, other than one of the participants in the offense, such that
participation in the act constituted a reckless disregard for human life
and \[name of victim\] died as a direct result of the act, by
\[summarize pertinent predicate facts\].

\[Intent or knowledge may be proved like anything else. You may consider
any statements made and acts done by the defendant, and all the facts
and circumstances in evidence which may aid in a determination of the
defendant\'s knowledge or intent.\]^3^

\[You may, but are not required to, infer that a person intends the
natural and probable consequences of acts knowingly done or knowingly
omitted.\]

**Notes on Use**

1\. If the court instructs on multiple intent states, it must ensure the
instructions state clearly that the jury's finding as to a particular
mental state be unanimous. *See* Special Verdict Form, pp. 83-84.

2\. Impermissible duplication. In a death penalty case arising under 21
U.S.C. § 848(e), which defines these mental states as aggravating
factors, the court in *United States v. Tipton*, 90 F.3d 861, 899 (4th
Cir. 1996), stated that the purpose for requiring the finding of intent
is

to focus the jury's attention upon the different levels of moral
culpability that these specific circumstances might reasonably be
thought to represent, thereby channeling jury discretion in the weighing
process.

The court went on to note that:

To allow cumulative findings of these intended alternative
circumstances, all of which do involve different forms of criminal
intent, runs a clear risk of skewing the weighing process in favor of
the death penalty and thereby causing it to be imposed arbitrarily,
hence unconstitutionally.

*Id.*; *accord United States v. McCullah*, 87 F.3d 1136, 1137-38 (10th
Cir. 1996); *United States v. Beckford*, 968 F. Supp. 1080 (E.D. Va.
1997) (jury could consider any mental states supported by the evidence,
but could return a finding as to only one of the submitted factors);
*United States v. Johnson*, 1997 WL 534163 (N.D. Ill. Aug. 20, 1997);
*but see United States v. Flores*, 63 F.3d 1342, 1369-72 (5th Cir.
1995). Although section 3591(a)(2) does not define 1(A) - (D) as
statutory aggravating factors which are weighed in determining whether
to impose the death penalty, *see* Instruction 12.11, and therefore the
same concerns addressed in *Tipton* and *McCullah* are not present, the
Committee suggests that, to avoid any concern over \"stacking the deck\"
in favor of the death penalty, the court instruct only on those mental
states clearly supported by the evidence.

3\. If \"intent\" is included in other instructions in addition to this
one, the Committee recommends that a separate intent instruction be
given based upon Instruction 7.05, *supra*.

**Committee Comments**

The mental states set forth in 18 U.S.C. § 3591(a)(2) concern the
defendant\'s state of mind at the time of perpetrating or participating
in the killing. At least one of the following mental states must be
found to exist before the death penalty may be considered.

\(A\) The defendant intentionally killed the victim. *See Baldwin v.
Alabama*, 472 U.S. 372, 385 (1985).

\(B\) The defendant intentionally inflicted serious bodily injury which
resulted in the death of the victim. *See Lowenfield v. Phelps*, 484
U.S. 231, 246 (1988).

\(C\) The defendant intentionally engaged in conduct intending that the
victim be killed or that lethal force be employed against the victim,
which resulted in the death of the victim. *See Enmund v. Florida*, 458
U.S. 782, 801 (1982).

\(D\) The defendant intentionally engaged in conduct which --

\(i\) the defendant knew would create a grave risk of death to a person,
other than one of the participants in the offense; and

\(ii\) resulted in the death of the victim. *See Tison v. Arizona*, 481
U.S. 137, 158 (1987).

In *United States v. Paul*, 217 F.3d 989, 997 (8^th^ Cir. 2000), the
court stated that \"\[t\]he best way to comply with section 3591(a)(2)
is to actually use the language of the statute in the jury
instruction.\" Instruction 12.06(1)(A) - (D) use the exact language of
the statute.

*See* Instruction 7.05, *supra*. *Francis v. Franklin*, 471 U.S. 307,
315 (1985); *Sandstrom v. Montana*, 442 U.S. 510, 515 (1979); 1A Kevin
F. O'Malley, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal §
17.07 (5th ed. 2000).

**12.07 STATUTORY AGGRAVATING FACTORS**

**(18 U.S.C. § 3592) (Homicide)**

If you unanimously find beyond a reasonable doubt that \[the defendant\]
intentionally \[committed the murder of\] \[committed acts resulting in
the death of\] (name of victim) in the manner described in Instruction
\[ \], you must then proceed to determine whether the government has
proved beyond a reasonable doubt the existence of \[any of\] the
following alleged statutory aggravating factor(s) \[with respect to the
same murder(s).\] If you unanimously make that finding in the
affirmative \[as to the murder of (name of victim)\], you should so
indicate in Section III on \[the appropriate\] page \[\_\_\_\] of the
Special Verdict Form and continue your deliberations. If you do not
unanimously make that finding in the affirmative \[as to the murder of
(name of victim)\], you should so indicate on \[the appropriate\] page
\[\_\_\_\] of the Special Verdict Form, and follow the directions on
page \[ \]. No further deliberations will be necessary \[as to that
murder\].

The first statutory aggravating factor alleged by the government is that
\[LIST AGGRAVATING FACTOR FROM §§ 12.07A THROUGH 12.07P SEPARATELY FOR
EACH KILLING AS APPROPRIATE\]:

The second statutory aggravating factor alleged by the government is
that \[LIST AGGRAVATING FACTOR FROM §§ 12.07A THROUGH 12.07P SEPARATELY
FOR EACH KILLING AS APPROPRIATE\]:

The law directs you to consider and decide at this point the existence
or nonexistence of only the statutory aggravating factors specifically
claimed by the government. You are reminded that to find the existence
of a statutory aggravating factor, your decision must be unanimous and
beyond a reasonable doubt.

**Committee Comments**

The Constitution requires that the class of defendants eligible for the
death penalty be narrowed by means of statutory aggravating factors that
furnish principled guidance for the choice between death and a lesser
penalty. *See Maynard v. Cartwright*, 486 U.S. 356, 361-64 (1988);
*Godfrey v. Georgia*, 446 U.S. 420, 427-33 (1980); *Gregg v. Georgia*,
428 U.S. 153, 201 & n.54 (1976).

Identifying at least one nonduplicative statutory aggravating factor at
either the guilt phase or the penalty phase of the trial is sufficient
to meet this requirement. *See Gregg v. Georgia*, 428 U.S. 153, 206-07
(1976); *Jurek v. Texas*, 428 U.S. 262, 276 (1976); *Proffitt v.
Florida*, 428 U.S. 242, 259-60 (1976). An \"aggravating circumstance may
be contained in the definition of the crime or in a separate sentencing
factor (or in both),\" *Tuilaepa v. California*, 512 U.S. 967, 972
(1994).

The statutory aggravating factors under 18 U.S.C. § 3592(c) correspond
generally to \"traditional\" statutory aggravating factors upheld by the
Supreme Court in reviewing state death penalty statutes. An issue that
commonly arises is whether one aggravating factor impermissibly
duplicates another. Justice Thomas, joined by three other justices,
noted in *Jones v. United States*, 527 U.S.373, 398 (1999) that:

\[w\]e have never before held that aggravating factors could be
duplicative so as to render them constitutionally invalid, nor have we
passed on the \"double counting\" theory that the Tenth Circuit advanced
in *McCullah* and the Fifth Circuit appears to have followed here. What
we have said is that the weighing process may be impermissibly skewed if
the sentencing jury considers an invalid factor. (citations and
footnotes omitted).

Justice Thomas went on to point out that, even accepting for the sake of
argument the duplication theory, in the *Jones* case the factors \"as a
whole were not duplicative - at best, certain evidence was relevant to
two different aggravating factors.\" *Id.* at 399.

Lower courts have expressed concern about the problem of duplicative
factors. As noted above in Note 2, Instruction 12.06, *supra*, courts
have warned of the dangers of submitting duplicative mental intent
states to the jury. As to aggravating factors, in *United States v. Bin
Laden*, 126 F. Supp.2d 290, 299 (S.D.N.Y. 2001), the court held that

an aggravating factor that is necessarily and wholly subsumed by a
different aggravator within the same death penalty notice is invalid per
se and should not be submitted to the penalty jury for sentencing
consideration. . . \[A\] duplicative aggravator of this sort serves no
significant sentencing role other than to cloud the issues and place an
unwarranted thumb on death's scale.

The court went on to state that

the Government's attempt to spin off multiple freestanding aggravators
from what should really only be one represents a strategy that should
not be permitted. . . \[T\]he sole motivation for doing so is to ratchet
up the number of aggravating factors and \"give the government free
reign to trump whatever mitigating factors are raised by the
defendant.\" (*United States v. Bradley*, 880 F. Supp. 271, 285 (M.D.
Pa. 1994).)

The *Bin Laden* court also reserved until after the jury returned a
liability verdict the issue of whether a single aggravating factor may
be alleged more than once, *i.e.*, for each capital offense in a
prosecution of multiple murders. The court noted that a \"grouping\"
approach was taken in the *McVeigh* prosecution: each aggravating factor
was alleged only once, even though both defendants faced eleven capital
counts each. *Id.* n.14.

The Committee recommends that care be taken to ensure that aggravating
factors, whether statutory or nonstatutory, are submitted in such a way
that they do not impermissibly duplicate the requirements under sections
3591(a) and (b) or each other. As the Eighth Circuit held in *Sloan v.
Delo*, 54 F.3d 1371, 1385 (8th Cir. 1995), where the death penalty
statute calls for the weighing of aggravating circumstances against
mitigating circumstances, \"the invalidation of an aggravating
circumstance is of tremendous import because the removal of that factor
from the equation might change the result. *See Stringer v. Black*, 503
U.S. 222, 230-32 (1992).\"

**12.07A DEATH OR INJURY RESULTING IN DEATH DURING THE**

**COMMISSION OF AN OFFENSE LISTED UNDER 18 U.S.C. § 3592(c)(1)**

The \[death\] \[injury resulting in death\] occurred \[during the
\[attempted\] commission of\] \[during the immediate flight from the
commission of\] \[state the qualifying offenses, e.g., kidnaping, listed
under section 3592(c)(1)\]. The government must prove beyond a
reasonable doubt that \[list elements of qualifying offense or attempt
as in the corresponding verdict director, e.g., first, the defendant
knowingly and willfully seized, confined, kidnaped, abducted, or carried
away (name of victim); second, (name of victim) was thereafter
transported in interstate commerce while so seized, confined, kidnaped,
or abducted; and third, the defendant held (name of victim) for ransom,
reward, or other benefit or reason.\] \[Alternatively, refer to separate
count for which the defendant was found guilty at the first stage.\]^1^

**Notes on Use**

1\. There may be instances in which the qualifying offense listed under
section 3592(c)(1) was not charged in the indictment. It is not
necessary for the government to charge the qualifying offense in the
indictment for it to be alleged as an aggravating factor.

**Committee Comments**

Section 3592(c)(1) establishes as an aggravating factor that the death,
or injury resulting in death, occurred during the commission or
attempted commission of, or during the immediate flight from the
commission of an offense under one of the following sections:

*Title 18:*

\-- 32 (destruction of aircraft or aircraft facilities),

\-- 33 (destruction of motor vehicles or motor vehicle facilities),

\-- 36 (violence at international airports),

\-- 351 (violence against Members of Congress, Cabinet Officers, or
Supreme Court Justices),

\-- 751 (prisoners in custody of institution or officer),

\-- 794 (gathering or delivering defense evidence to aid foreign
government),

\-- 844(d) (transportation of explosives in interstate commerce for
certain purposes),

\-- 844(f) (destruction of Government property by explosives),

\-- 1118 (prisoners serving life term),

\-- 1201 (kidnaping),

\-- 844(i) (destruction by explosives of property affecting interstate
commerce),

\-- 1116 (killing or attempted killing of diplomats),

\-- 1203 (hostage taking),

\-- 1992 (wrecking trains),

\-- 2280 (maritime violence),

\-- 2281 (maritime platform violence),

\-- 2332 (terrorist acts abroad against U.S. Nationals),

\-- 2339 (use of weapons of mass destruction),

\-- 2381 (treason),

*Title 49:*

\-- 1472(i) (aircraft piracy within special aircraft jurisdiction),
and/or

\-- 1472(n) (aircraft piracy outside special aircraft jurisdiction).

In *United States v. Jones*, 132 F.3d 232, 249 (5th Cir. 1998), *aff'd*,
527 U.S. 373 (1999), the court rejected the defendant's contention that
a statutory aggravating factor providing that the defendant caused the
death of the victim, which occurred during the commission of a
kidnaping, failed to genuinely narrow the class of persons eligible for
the death penalty. The court concluded that

Although the jury had already found the defendant guilty of kidnaping
with death resulting at the guilt phase of the trial, the jury did not
consider whether \[the defendant\] caused the death of the victim during
the commission of the crime of kidnaping until the penalty phase of the
trial. The jury could have convicted \[the defendant\] of kidnaping with
death resulting in the guilt phase of the trial and still answered
\"no\" to statutory aggravating factor 2(A) in the penalty phase if the
jury found that \[the defendant\] did not cause the death of the victim
during the commission of the crime of kidnaping. The submission of the
elements of the crime as an aggravating factor merely allowed the jury
to consider the circumstances of the crime when deciding whether to
impose the death penalty. Thus, the kidnaping was weighed only once by
the jury during the penalty phase of the trial. Consequently, the
repetition of the elements of the crime as an aggravating factor did not
contradict the constitutional requirement that aggravating factors
genuinely narrow the jury's discretion.

*Accord United States v. Hall*, 152 F.3d 381, 416-17 (5^th^ Cir. 1998),
*abrogated in part on other grounds*, *United States v.
Martinez-Salazar*, 528 U.S. 304 (2000).

In a closely related issue, the courts are divided on the question
whether this statutory aggravating factor is impermissibly duplicative
and therefore improperly tilts the jury in favor of the death penalty.
In *United States v. Bin Laden*, 126 F. Supp.2d 290, 301 (S.D.N.Y.
2001), the court rejected the duplication argument, concluding that it
was proper for the jury to consider the crimes for which it had found
the defendant guilty in determining sentencing, and that \"the
impermissible double-counting caused by an aggravator that is
duplicative of another aggravator is simply not at issue here.\" *Accord
United States v. Johnson*, 136 F. Supp.2d 553, 559 (W.D. Va. 2001);
*United States v. Cooper*, 91 F. Supp.2d 90, 108-09 (D.D.C. 2000);
*United States v. Frank*, 8 F. Supp.2d 253, 276 (S.D.N.Y. 1998); *United
States v. Edelin*, 134 F. Supp.2d 59 (D.D.C. 2001) (§ 848).

On the other hand, the courts in *United States v. McVeigh*, 944 F.
Supp. 1478, 1489-90 (D. Colo. 1996), and *United States v. Kaczynski*,
1997 WL 716487, at \*23 (E.D. Cal. 1997), dismissed statutory
aggravating factors which were based on the crimes alleged in those
cases. The court in *Kaczynski*, at \*23, stated that:

To allow the jury to weigh as an aggravating factor a crime which they
had already necessarily found beyond a reasonable doubt would unfairly
tip the scale toward death. This skews the weighing process by beginning
the penalty phase with one aggravating factor already on death's side of
the scale. Furthermore, when dealing with a weighing statute, there is
always the danger that one or more jurors will weigh by counting.
(internal citations omitted)

**12.07B DEFENDANT'S PRIOR CONVICTION OF A VIOLENT FELONY**

**INVOLVING A FIREARM (18 U.S.C. § 3592(c)(2))**

\[The defendant\] has been \[previously\] convicted^1^ of \[describe the
federal or state offense punishable by a term of imprisonment of more
than one year, involving the \[use\] \[attempted use\] \[threatened
use\] of a firearm against another person.\] \[The term \"firearm\"
means \[any weapon (including a starter gun) which will or is designed
to or may readily be converted to expel a projectile by the action of an
explosive\] \[the frame or receiver of any such weapon\] \[any firearm
muffler or firearm silencer\] \[any destructive device\]. \[It does not
include an antique firearm.\]

**Notes on Use**

1\. Although section 3592(c)(2) uses language that the defendant \"has
previously been convicted,\" the statute does not make clear whether the
jury may only consider convictions which occurred prior to the date of
the murder with which the defendant was charged. Although there are as
yet no federal cases on the issue, the majority of state courts that
have examined this question have found that the term \"prior
conviction\" in the context of a statutory aggravating factor simply
means a conviction that has become final prior to the date of
sentencing, regardless of the date of occurrence of the crime itself.
*Daugherty v. State*, 419 S.2d 1067, 1069 (Fla. 1982); *Ruffin v.
State*, 397 S.2d 277, 282 (Fla. 1981); *State v. Brooks*, 541 S.2d 801,
809-10 (La. 1989); *People v. White*, 870 P.2d 424, 442-46 (Colo., *en
banc*, 1994); *People v. McClain*, 757 P.2d 569 (1988); *People v.
Grant*, 755 P.2d 894 (1988); *People v. Hendrix*, 737 P.2d 1350 (1987);
*Stephens v. Hopper*, 247 S.E.2d 92, 97 (Ga. 1978); *Templeman v.
Commonwealth*, 785 S.W.2d 259, 260 (Ky. 1990); *State v. Biegenwald*,
542 A.2d 442, 446 (N.J. 1988); *State v. Teague*, 680 S.W.2d 785, 789-90
(Tenn. 1984). Thus, criminal activity subsequent to the present homicide
has been found sufficient to support statutory aggravating factors
requiring \"prior convictions.\" *See also State v. Coffey*, 444 S.E.2d
431 (N.C. 1994), in which the North Carolina Supreme Court interpreted a
statutory provision referring to \"prior criminal activity\" as opposed
to \"prior convictions.\" Of note, another North Carolina court has
concluded that the term \"prior convictions\" includes convictions for
offenses which occurred subsequent to the charged offense but became
final prior to trial. *See State v. McCullers*, 335 S.E.2d 348, 350
(N.C. App. 1985).

On the other hand, in *Thompson v. State*, 492 N.E.2d 264 (Ind. 1986),
the court held that the phrase \"prior convictions\" included only
convictions which occurred prior to the presently charged murder.
However, the court also held that the Indiana death penalty provisions
specifically allow the use as a statutory aggravating factor of the
commission of another [murder]{.underline}, regardless of when
committed. *Id.* at 269.

Subsequent serious criminal activity can be used as nonstatutory
aggravating evidence. *United States v. Pitera*, 795 F. Supp. 546, 564
(E.D.N.Y.), *aff'd*, 986 F.2d 499 (2d. Cir. 1992).

**12.07C DEFENDANT'S PRIOR CONVICTION OF AN OFFENSE RESULTING IN**

**DEATH FOR WHICH A SENTENCE OF LIFE IMPRISONMENT OR DEATH**

**WAS AUTHORIZED BY STATUTE (18 U.S.C. § 3592(c)(3), (d)(1))**

\[The defendant\] has been \[previously\] convicted^1^ of \[name of
offense\], a \[federal\] \[state\] offense which resulted in the death
of \[name of victim\], for which a sentence of life imprisonment or a
sentence of death was authorized by statute.

**Notes on Use**

1\. *See* Note 1, Instruction 12.07B, *supra*.

**12.07D DEFENDANT'S PRIOR CONVICTION OF TWO OR MORE**

**OFFENSES INVOLVING THE INFLICTION OF SERIOUS BODILY**

**INJURY OR DEATH (18 U.S.C. §§ 3592(c)(4), (d)(2))**

\[The defendant\] has \[previously\] been convicted^1^ of two or more
\[state\] \[federal\] offenses each of which is punishable by a term of
imprisonment of more than one year, committed on different occasions,
and involves the \[infliction of\] \[attempted infliction of\] serious
bodily injury upon another person, \[summarize pertinent aspects of the
predicate offense(s) including name of each offense and whether each
offense involved infliction of or attempted infliction of seriously
bodily injury upon another person\].

**Notes on Use**

1\. *See* Note 1, Instruction 12.07B, *supra*.

**12.07E CREATION OF A GRAVE RISK OF DEATH TO ONE OR**

**MORE PERSONS IN ADDITION TO THE VICTIM**

**(18 U.S.C. § 3592(c)(5); 21 U.S.C. § 848(n)(5))**

\[In the commission of the offense\] \[In escaping apprehension for the
offense\], \[the defendant\] knowingly created a grave risk of death to
one or more persons in addition to (the \[intended\]^1^ victim\[s\])
\[summarize pertinent predicate facts\].

To establish the existence of this factor, the government must prove
that the defendant knowingly created a grave risk of death^2^ to one or
more persons in addition to the victim(s) of the offense, \[in
committing the offense\] \[or\] \[in escaping apprehension for the
offense\]. \"Persons in addition to the victim(s)\" include innocent
bystanders in the zone of danger created by the defendant\'s acts, but
does not include other participants in the offense.\]^3^ \"Grave risk of
death\" means a significant and considerable possibility that another
person might be killed. \"Knowingly\" creating such a risk means that
the defendant was conscious and aware that his conduct in the course of
\[committing the offense\] \[or\] \[escaping apprehension for the
offense\] might have this result.

\[Knowledge may be proved like anything else. You may consider any
statements made and acts done by the defendant(s), and all the facts and
circumstances in evidence which may aid in a determination of the
defendant\'s(s') knowledge.\]

**Notes on Use**

1\. This factor is broadly worded, and may be applicable to intended
victims who escape death. *See, e.g.*, *United States v. Tipton*, 90
F.3d 861, 869, 894 (4th Cir. 1996). However, the court in *United States
v. Glover*, 43 F. Supp.2d 1217, 1221-22 (D. Kan. 1999), held that this
factor and the factor enumerated in section 3592(c)(16), that \"the
defendant attempted to kill more than one person,\" were impermissibly
duplicative, and that the government had to strike one of the
aggravators in advance of trial.

Some states whose capital punishment statutes include a similar
aggravating factor have construed that aggravating factor as not
including surviving intended victims. *See, e.g., State v. Bracy*, 703
P.2d 464, 481 (Ariz. En Banc 1985); *State v. Rossi*, 706 P.2d 371, 378
(Ariz. En Banc 1985); *State v. McCall*, 677 P.2d 920, 934 (Ariz. En
Banc 1983). Proximity to the murderous act is an important factor in
applying this aggravating circumstance. *See Commonwealth v. Stokes*,
615 A.2d 704, 713 (Pa. 1992) (\"the aggravating circumstance at issue
applies to situations when the defendant in the course of killing his
particular victim acts in a manner which endangers the lives of others
close in proximity to the intended or actual victim.\"); *State v.
Wood*, 881 P.2d, 1158, 1174-75 (Ariz. En Banc 1994) (\"The grave risk of
death to another factor applies only if the defendant's murderous act
itself put other people in the zone of danger. . . . No single factor is
dispositive of this circumstance. Our inquiry is whether during the
course of the killing, the defendant engaged in conduct that created a
real and substantial likelihood that a specific third person might
suffer fatal injury.\")

2\. The term \"knowingly create a grave risk of death\" has been
interpreted to mean \"reckless disregard for human life,\" *Tison v.
Arizona*, 481 U.S. 137, 157-58 (1987), or \"extreme indifference to
human life,\" *Enmund v. Florida*, 458 U.S. 782, 790-91 (1982).

The instruction given at the *McVeigh* trial reads as follows:

This aggravating factor requires you to find that the defendant's
conduct not only resulted in death but also posed a significant risk of
death to other persons who were in close proximity to those who died in
terms of time and location. The defendant must have acted knowingly in
creating this grave risk of death to other persons, which means that he
must have been conscious and aware of the grave risk of death, must have
realized what he was doing, and must not have acted because of
ignorance, mistake or accident.

3\. *See* Note 1, *supra*.

**Committee Comments**

*See Profitt v. Florida*, 428 U.S. 242, 256 (1976); *Tison v. Arizona*,
481 U.S. 137, 157-58 (1987); *Francis v. Franklin*, 471 U.S. 307, 315
(1985); *Enmund v. Florida*, 458 U.S. 782, 790-91 (1982); *Sandstrom v.
Montana*, 442 U.S. 510, 515 (1979); 1A Kevin F. O'Malley, et al.,
FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal §§ 17.04 and 17.07 (5th
ed. 2000).

In *United States v. Allen*, 247 F.3d 741, 786-87 (8^th^ Cir. 2001),
*judgment vacated and remanded on other grounds*, 536 U.S. 953 (2002),
the court rejected the defendant's challenges that the \"grave risk of
death\" aggravator was unconstitutionally vague and did not serve a
narrowing function because it applied to too large a class of
defendants.

**12.07F COMMISSION OF THE OFFENSE IN AN ESPECIALLY**

**HEINOUS CRUEL OR DEPRAVED MANNER**

**(18 U.S.C. § 3592(c)(6))**

\[The defendant\] committed the offense in an especially \[heinous\]
\[cruel\] \[or\] \[depraved\] manner in that it involved \[torture\]
\[or\] \[serious physical abuse\] to the victim, (name of victim)
\[summarize pertinent predicate facts\]. To establish that the defendant
killed the victim in an especially heinous, cruel, or depraved manner,
the government must prove that the killing involved either torture or
serious physical abuse to the victim. You must not find this factor to
exist unless you unanimously agree as to which alternative - torture or
serious physical abuse - has been proved beyond a reasonable doubt. In
other words, all twelve of you must agree that it involved torture and
was thus heinous, cruel or depraved, or all twelve of you must agree
that it involved serious physical abuse to the victim and was thus
heinous, cruel or depraved.\]^1^

\[\"Heinous\" means extremely wicked or shockingly evil, where the
killing was accompanied by such additional acts of torture or serious
physical abuse of the victim as to set it apart from other killings.\]

\[\"Cruel\" means that the defendant intended to inflict a high degree
of pain by torturing the victim in addition to killing the victim.\]

\[\"Depraved\" means that the defendant relished the killing or showed
indifference to the suffering of the victim, as evidenced by torture or
serious physical abuse of the victim.\]

\[\"Torture\" includes mental as well as physical abuse of the victim.
In either case, the victim must have been conscious of the abuse at the
time it was inflicted, and the defendant must have specifically intended
to inflict severe mental or physical pain or suffering upon the victim,
in addition to the killing of the victim.\]

\[Severe mental pain or suffering means prolonged mental harm caused by
or resulting from \[intentionally inflicting or threatening to inflict
severe physical pain or suffering\] \[administering or applying, or
threatening to administer or apply, mind-altering substances or other
procedures calculated to disrupt profoundly the senses or the
personality\] \[the threat of imminent death\] \[the threat that another
person will imminently be subjected to death, severe physical pain or
suffering\] \[the threat that another person will imminently be
subjected to the administering or applying, or threatening to administer
or apply, mind altering substances or other procedures calculated to
disrupt profoundly the senses or the personality.\]

\[\"Serious physical abuse\" means a significant or considerable amount
of injury or damage to the victim's body. Serious physical abuse \--
unlike torture \-- may be inflicted either before or after death and
does not require that the victim be conscious of the abuse at the time
it was inflicted. However, the defendant must have specifically intended
the abuse in addition to the killing.\]

Pertinent factors in determining whether a killing was especially
\[heinous\] \[cruel\] \[or\] \[depraved\] include: an infliction of
gratuitous violence upon the victim above and beyond that necessary to
commit the killing; the needless mutilation of the victim's body; the
senselessness of the killing; and the helplessness of the victim.

The word \"especially\" means highly or unusually great, distinctive,
peculiar, particular, or significant, when compared to other killings.

**Notes on Use**

1\. This statutory aggravator contains the disjunctive phrases \"torture
or serious physical abuse.\" The Committee concluded that juror
unanimity as to one of these two disjunctive elements is required to
support a finding of this aggravator. The Committee notes that in
*United States v. Jones*, 132 F.3d 232 (5th Cir. 1998), *aff'd*, 527
U.S. 373 (1999), the instruction given did not require specific
unanimity as to whether the defendant inflicted torture or serious
physical abuse. *Id.* at 250 n.12.

**Committee Comments**

\"Heinous\" means that a killing was \"extremely wicked or shockingly
evil.\" *Sochor v. Florida*, 504 U.S. 527, 537 (1992) (quoting *State v.
Davis*, 283 S.2d 1, 9 (Fla. 1973)). \"Cruel\" means that the defendant
intended \"to inflict a high degree of pain.\" *Id.* \"Depraved\" means
that the defendant \"relished\[d\] the murder\" or show\[ed\]
indifference to the suffering of the victim.\" *Walton v. Arizona*, 497
U.S. 639, 654-55 (1990). Torture includes psychological as well as
physical abuse of the victim. *Id.* at 652-56. However, the defendant
must have specifically intended the abuse apart from the killing
(*Richmond v. Lewis*, 506 U.S. 40, 45, 51 (1992), and the victim must
have been conscious of the abuse (*Sochor v. Florida*, 504 U.S. at 537).
*See also* 18 U.S.C. 2340 (2); *United States v. Jones*, 132 F.3d 232,
249-50 (5th Cir.), *aff'd*, 527 U.S. 373 (1999); *United States v.
Hall*, 152 F.3d 381, 414-16 (5th Cir. 1998); *abrogated in part on other
grounds*, *United States v. Martinez-Salazar*, 528 U.S. 304 (2000).

This statutory language has been challenged as impermissibly vague and
overbroad on its face. *Maynard v. Cartwright*, 486 U.S. 356, 362-65
(1988). *But see Proffitt v. Florida*, 428 U.S. 242, 255-56 (1976)
(\"especially heinous, atrocious, or cruel\" language is not
unconstitutionally vague when limited to \"conscienceless or pitiless
crime which is unnecessarily torturous to the victim\").

In *United States v. Paul*, 217 F.3d 989, 1001 (8^th^ Cir. 2000), the
court concluded that the limiting instruction extensively defining the
words \"heinous,\" \"cruel\" and \"depraved\" cured any vagueness
problem. The court also rejected the defendant's contention that this
factor and the vulnerable victim factor (4.03K) were impermissibly
duplicative, finding that each of the factors was directed to entirely
distinct aspects of the offense. *Id.*

**12.07G PROCUREMENT OF COMMISSION OF THE OFFENSE BY**

**PAYMENT OF SOMETHING OF PECUNIARY VALUE**

**(18 U.S.C. § 3592(c)(7); 21 U.S.C. § 848(n)(6) and (7))**

\[The defendant\] procured the commission of the offense by \[payment\]
\[promise of payment\] of anything of pecuniary value \[summarize
pertinent predicate facts\]. To establish that the defendant procured
the commission of the offense by \[payment\] \[promise of payment\] of
anything of pecuniary value, the government must prove, in essence, that
the defendant arranged to have someone else commit the offense or assist
in committing it. \[There is no requirement that the government prove
that something of pecuniary value actually changed hands.\] To \"procure
commission of the offense\" means to obtain it or bring it about. The
words \"payment or promise of payment\" should be given their ordinary,
everyday meaning which includes giving or offering compensation in
return for services. \"Anything of pecuniary value\" means anything in
the form of money, property, or anything else having some economic
value, benefit, or advantage.

**Committee Comments**

Section 1958(b)(1), Title 18, United States Code, describes the term
\"anything of pecuniary value\" as \"anything of value in the form of
money, a negotiable instrument, a commercial interest, or anything else
the primary significance of which is economic advantage.\" *United
States v. Ransbottom*, 914 F.2d 743, 745-46 (6th Cir. 1990).

The court in *United States v. Edelin*, 134 F. Supp.2d 59, 80-81 (D.D.C.
2001) (§ 848), rejected vagueness and overbreadth challenges to this
aggravator.

**12.07H COMMISSION OF THE OFFENSE FOR PECUNIARY GAIN**

**(18 U.S.C. § 3592(c)(8); 21 U.S.C. § 848(n)(7))**

\[The defendant\] committed the offense \[as consideration for the
receipt\] \[in the expectation of the receipt\] of anything of pecuniary
value \[summarize pertinent predicate facts\].

To establish that a defendant committed an offense \[as consideration
for the receipt\] \[in the expectation of the receipt\] of anything of
pecuniary value, the government must prove that the defendant committed
the offense \[in consideration for\] \[in the expectation of\] anything
in the form of money, property, or anything else having some economic
value, benefit, or advantage. \[\"Consideration\" in this context means
a payment or promise of payment in return for services.\] \[There is no
requirement that the government prove that something of pecuniary value
actually changed hands.\] \[The words \"receipt or expectation of
receipt\" should be given their ordinary, everyday meaning which
includes obtaining or expecting to obtain something.\]

**Committee Comments**

In *United States v. Bernard*, 299 F.3d 467, 483 (5^th^ Cir. 2002), the
Fifth Circuit held that \"the application of the 'pecuniary gain'
aggravating factor is limited to situations where 'pecuniary gain' is
expected 'to follow as a direct result of the \[murder\],'\" (quoting
*United States v. Chanthadara*, 230 F.3d 1237, 1263 (10^th^ Cir. 2000)).
The *Bernard* court concluded that \"this aggravating factor is only
applicable where the jury finds beyond a reasonable doubt that the
murder itself was committed 'as consideration for, or in the expectation
of' pecuniary gain.\" 299 F.3d at 483.

However, in *United States v. Walker*, 910 F. Supp. 837 (N.D.N.Y. 1995),
the district court addressed identical language contained in the Title
21 death penalty provision, 21 U.S. C. § 848(n)(7), and determined that
the clause has two prongs: (1) \"the offense was committed 'as
consideration for the receipt' or (2) 'in expectation of the receipt' of
something of pecuniary value.\" It held that the first prong is intended
to cover murder-for-hire situations, but the second prong has a much
wider scope and includes any murder where the murderer expected to
receive anything of pecuniary value. 910 F. Supp. at 848-49. It also
noted that the source of the pecuniary gain is irrelevant. 910 F. Supp.
at 848-49. *Accord United States v. Cooper*, 91 F. Supp.2d 90, 105-06
(D.D.C. 2000).

The phrase \"anything of pecuniary value\" appears in 18 U.S.C. §
1958(b)(1). That statute defines the phrase as \"anything of value in
the form of money, a negotiable instrument, a commercial interest, or
anything else the primary significance of which is economic advantage.\"
*United States v. Ransbottom*, 914 F.2d 743, 745-46 (6th Cir. 1990).

The courts in *United States v. Spivey*, 958 F. Supp. 1523, 1531 (D.N.M.
1997) and *United States v. Davis*, 904 F. Supp. 554, 558 (E.D. La.
1995), rejected vagueness and overbreadth challenges to sections
848(n)(7) and 3592(c)(8), respectively.

As to impermissible duplication, the Eighth Circuit in *United States v.
Paul*, 217 F.3d 989, 1001 (8^th^ Cir. 2000), found that any error in the
use of pecuniary gain as a statutory aggravating factor because it was
also an element of the underlying offense was harmless, given that the
jury found two other aggravators beyond a reasonable doubt.

**12.07I COMMISSION OF THE OFFENSE AFTER SUBSTANTIAL PLANNING**

**AND PREMEDITATION (18 U.S.C. § 3592(c)(9); 21 U.S.C. § 848(n)(8))**

\[The defendant\] committed the offense of (name of offense)\[, as
charged in Count of the indictment\], for which you have found \[him\]
\[her\] guilty, after substantial planning and premeditation to cause
the death of (name of victim). \"Planning\" means mentally formulating a
method for doing something or achieving some end. \"Premeditation\"
means thinking or deliberating about something and deciding whether to
do it beforehand. \"Substantial\" planning and premeditation means a
considerable or significant amount of planning and premeditation.^1^

**Notes on Use**

1\. *See United States v. McCullah*, 76 F.3d 1087, 1110-11 (10th Cir.
1996) (\"'Substantial' planning does not require \`considerably more
planning than is typical' but rather it means 'considerable' or 'ample
for commission of the crime.'\"); *United States v. Tipton*, 90 F.3d
861, 896 (4th Cir. 1996) (\"substantial\" means \"more than the minimum
amount sufficient to commit the offense\" or \"'more than merely
adequate.'\"); *United States v. Flores*, 63 F.3d 1342, 1374 (5th Cir.
1995) (\"substantial\" denotes \"a thing of high magnitude\" and \"the
term alone, without further explanation, \[is\] sufficient to convey
that meaning and to enable the jury to make an objective assessment.").

**Committee Comments**

The court in *United States v. Glover*, 43 F. Supp.2d 1217, 1225 (D.
Kan. 1999), rejected a vagueness challenge to section 3592(c)(9). The
court in *United States v. Spivey*, 958 F. Supp. 1523, 1531 (D.N.M.
1997), rejected vagueness and overbreadth challenges to the comparable
aggravator in the Title 21 death penalty statute, section 848(n)(8).

**12.07J DEFENDANT'S PRIOR CONVICTIONS FOR TWO OR MORE**

**FELONY DRUG DISTRIBUTION OFFENSES**

**(18 U.S.C. § 3592(c)(10), (d)(2); 21 U.S.C. § 848(n)(4))**

\[The defendant\] has \[previously\]^1^ been convicted of two or more
\[State\] \[Federal\] offenses punishable by a term of imprisonment of
more than one year, committed on different occasions, involving the
distribution of a controlled substance, to wit: \[summarize pertinent
aspects of the predicate offense(s), including name of each offense and
how each offense involved distribution of a controlled substance\].

**Notes on Use**

1\. *See* Note 1, Instruction 12.07B, *supra*.

**12.07K VULNERABLE VICTIM**

**(18 U.S.C. § 3592(c)(11); 21 U.S.C. § 848(n)(9))**

\[Name of victim\] was particularly vulnerable due to \[old age\]
\[youth\] \[infirmity\] \[summarize pertinent predicate facts\].

To establish the existence of this factor, the government must prove
that the victim was particularly vulnerable due to old age, youth, or
infirmity. The words \"particularly\" and \"vulnerable\" should be given
their plain, ordinary, everyday meaning.

\"Particularly\" means especially, significantly, unusually, or high in
degree. \"Vulnerable\" means subject to being attacked or injured by
reason of some weakness. Thus, to be \"particularly vulnerable\" means
to be especially or significantly vulnerable, or vulnerable to an
unusual or high degree.

\"Old age\" means advanced in years, aged, elderly, or an old person,
that is: any person who was, by reason of a condition related to old
age, significantly less able: (1) to avoid, resist, or withstand any
attacks, persuasions, or temptations, or (2) to recognize, judge, or
discern any dangers, risks, or threats.

\"Youth\" means that the victim was a child, a juvenile, a young person,
or a minor, that is: any person who was, by reason of youthful
immaturity or inexperience, significantly less able: (1) to avoid,
resist, or withstand any attacks, persuasions, or temptations, or (2) to
recognize, judge, or discern any dangers, risks, or threats.

\"Infirmity\" means a mental or physical weakness, disability,
deficiency, illness or condition which makes a person less able: (1) to
avoid, resist, or withstand any attacks, persuasions, or temptations, or
(2) to recognize, judge, or discern any dangers, risks, or threats.

**Committee Comments**

*See* Webster's Ninth New Collegiate Dictionary, 233, 424, 656, 858,
1323, 1335, 1369 (1990); *Francis v. Franklin*, 471 U.S. 307, 315
(1985); *Sandstrom v. Montana*, 442 U.S. 510, 515 (1979); 1A Kevin F.
O'Malley, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal §§
17.04 and 17.07 (5th ed. 2000); *United States v. Pretlow*, 779 F. Supp.
758, 774 (D.N.J. 1991) (youth).

In *United States v. Johnson*, 136 F. Supp.2d 553, 560 (W.D. Va 2001),
the court struck this aggravator, which was based on the fact that the
victim was pregnant. The court rejected the government's contention that
it was not required to show a nexus between the victim's pregnancy and
the crime, relying on the fact that \"those state courts which have
interpreted and applied similar aggravating factors have universally
required that the victim's pregnancy-based vulnerability somehow
contribute to the victim's injury or death.\" The court concluded that
no nexus was shown - the victim was killed instantaneously by an
explosive device, and nothing about her pregnancy weakened her ability
to withstand the blast.

In *United States v. Paul*, 217 F.3d 989, 1001 (8^th^ Cir. 2000), the
court rejected the defendant's contention that the heinous, cruel and
depraved factor (Instruction 12.07F) and the vulnerable victim factor
were impermissibly duplicative, finding that each of the factors was
directed to entirely distinct aspects of the offense. *Id.*

**12.07L PREVIOUS CONVICTION FOR A FEDERAL NARCOTICS VIOLATION**

**FOR WHICH A SENTENCE OF FIVE OR MORE YEARS MAY BE IMPOSED, OR**

**PRIOR CONVICTION FOR A CONTINUING CRIMINAL ENTERPRISE**

**(18 U.S.C. § 3592(c)(12), (d)(3); 21 U.S.C. § 848(n)(10))**

\[The defendant\] had been convicted^1^ of \[\[federal narcotics
violation\] for which a sentence of five or more years may be imposed\]
\[engaging in a continuing criminal enterprise\] \[summarize pertinent
aspects of the predicate offense(s)\].

**Notes on Use**

1\. The use of the past perfect tense \"had\" in this subsection makes
it clear that the conviction must predate the charged murder. Compare
Instructions 12.07B, 12.07C, 12.07D and 12.07J in which the past tense
\"has\" is used. Subsequent serious criminal activity can be used as
nonstatutory aggravating evidence. *See United States v. Pitera*, 795 F.
Supp. 546, 564 (E.D.N.Y.), *aff'd*, 986 F.2d 499 (2d. Cir. 1992).

**12.07M CONTINUING CRIMINAL ENTERPRISE INVOLVING DRUG**

**SALES TO MINORS (18 U.S.C. §§ 3592(c)(13), (d)(5)(6) and (7);**

**21 U.S.C. § 848(n)(11); 21 U.S.C. §§ 802(8) (11))**

The defendant committed the offense of \[describe the pertinent offense,
e.g., the details of distribution^1^ in violation of 21 U.S.C. § 848(c)
of controlled substances to persons under 21 in violation of 21 U.S.C. §
859\] in the course of engaging in a continuing criminal enterprise in
violation of section 408(c) of the Controlled Substances Act.

**Notes on Use**

1\. The term \"distribution\" may be defined if the meaning is unclear
in the context of the case.

**Committee Comments**

*See* 21 U.S.C. 802(10) (\"\'dispense\' means to deliver a controlled
substance to an ultimate user\"). Congress, by using the word
\"distribute\" rather than the word \"dispense,\" did not limit factor
(n)(11) only to the distribution of drugs to minors for ingestion.
Section (n)(11)\'s reference to section 845 does not change this result.
Section 845 (and section 859, to which it was transferred) proscribe
\"distributing a controlled substance to a person under twenty-one years
of age\" without any limitation that such distribution must be for the
recipient\'s use. This applies equally to the similarly-worded
aggravating factor contained in 18 U.S.C. § 3592(c)(13) for Title 18
homicides. *Cf.* 18 U.S.C. § 3592(d) (statutory aggravating factors for
nonhomicidal drug offenses in violation of 18 U.S.C. § 3591(b)(1)-(2) at
sections 3592(c)(5)-(7) separately enumerating distribution to persons
under 21, distribution near schools, and using minors in trafficking).
Had Congress intended this same distinction for the statutory
aggravating factors for Title 21 and 18 homicides under sections
848(n)(11) and 3592(c)(13), respectively, Congress could (and presumably
would) have indicated this in the same manner. Thus, such a distinction
should not be \"read into\" the statutory aggravating factors under
sections 848(n)(11) and 3592(c)(13) where, evidently, it was not
intended by Congress.

**12.07N COMMISSION OF THE OFFENSE AGAINST A HIGH PUBLIC OFFICIAL**

\[The defendant\] committed the offense against \[name of victim\], who
was at that time \[specify position and/or activity which makes the
victim a high public official as designated in section 3592(c)(14)\].

**Committee Comments**

Section 3592(c)(14) establishes as an aggravating factor that the
defendant committed the offense against:

\(A\) the President of the United States, the President-elect, the Vice
President, the Vice President-elect, the Vice President-designate, or,
if there is no Vice President, the officer next in order of succession
to the office of the President of the United States, or any person who
is acting as President under the Constitution and laws of the United
States;

\(B\) a chief of state, head of government, or the political equivalent,
of a foreign nation;

\(C\) a foreign official listed in section 1116(b)(3)(A), if the
official is in the United States on official business; or

\(D\) a Federal public servant who is a judge, a law enforcement
officer, or an employee of a United States penal or correctional
institution \--

\(i\) while he or she is engaged in the performance of his or her
official duties;

\(ii\) because of the performance of his or her official duties; or

\(iii\) because of his or her status as a public servant.

For purposes of this subparagraph, a \"law enforcement officer\" is a
public servant authorized by law or by a Government agency or Congress
to conduct or engage in the prevention, investigation, or prosecution or
adjudication of an offense, and includes those engaged in corrections,
parole, or probation functions.

**12.07O DEFENDANT'S PREVIOUS CONVICTION FOR**

**SEXUAL ASSAULT, CHILD MOLESTATION**

**(18 U.S.C. § 3592(c)(15))**

\[The defendant\] has previously been convicted of \[describe the
predicate offense of sexual assault or child molestation\].^1^

**Notes on Use**

1\. *See* Note 1, Instruction 12.07B, *supra*.

**Committee Comments**

This factor can be applied only where the defendant is being sentenced
pursuant to 18 U.S.C. §§ 2245 or 2251. *See* 18 U.S.C. §§ 2241-45 for
pertinent definitions regarding \"sexual assault\" and \"child
molestation.\"

**12.07P MULTIPLE KILLINGS OR ATTEMPTED KILLINGS**

**(18 U.S.C. § 3592(c)(16); 18 U.S.C. § 3591(a)(2)(A))**

\[The defendant\] intentionally \[killed\] \[attempted to kill\] \[more
than one person\] \[name or names of additional persons, if known\] in a
single criminal episode.

To establish the existence of this factor, the government must prove
that the defendant intentionally killed or attempted to kill more than
one person in a single criminal episode.

\"More than one person\" means one or more other people in addition to
killing the victim, \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_,
named in Count \_\_\_\_\_. In this case, the government alleges that the
defendant intentionally killed or attempted to kill \[describe the
person(s) by name or other sufficient detail\] in addition to killing
the victim.

\"Intentionally killing\" a person means killing a person on purpose,
that is: willfully, deliberately, or with a conscious desire to cause a
person's death (and not just accidentally or involuntarily).

\"Attempting to kill\" a person means purposely doing some act which
constitutes a substantial step (beyond mere preparation or planning)
toward killing a person, and doing so with the intent to cause a
person's death.

\"A single criminal episode\" is an act or series of related criminal
acts which occur within a relatively limited time(s) and place(s), or
are directed at the same person(s), or are part of a continuous course
of conduct related in time, place, or purpose.

A person of sound mind and discretion may be presumed to have intended
the ordinary, natural, and probable consequences of his knowing and
voluntary acts. However, this presumption is not required. Thus, you may
infer from the defendant\'s conduct that the defendant intended to kill
a person if you find: (1) that the defendant was a person of sound mind
and discretion; (2) that person\'s death was an ordinary, natural, and
probable consequence of the defendant\'s acts (even if the person's
death did not actually result, in the case of an attempt); and (3) that
the defendant committed these acts knowingly and voluntarily. But once
again, you are not required to make such an inference.

**Committee Comments**

*See Black's Law Dictionary*, 127, 810-11 (6th ed. 1990); *Francis v.
Franklin*, 471 U.S. 307, 315 (1985); *Sandstrom v. Montana*, 442 U.S.
510, 515 (1979); 1A Kevin F. O'Malley, et al., FEDERAL JURY PRACTICE AND
INSTRUCTIONS: Criminal § 17.07 (5th ed. 2000); *United States v.
Graham*, 858 F.2d 986, 992 (5th Cir. 1988); *United States v. Reeves*,
594 F.2d 536, 541 (6th Cir. 1979); *United States v. Washington*, 898
F.2d 439, 440-42 (5th Cir. 1990); *Zito v. Moutal*, 174 F. Supp. 531,
535-37 (N.D. Ill. 1959).

In *United States v. Bin Laden*, 126 F. Supp.2d 290, 300 (S.D.N.Y.
2001), the court rejected the defendants' argument that the \"multiple
killings or attempted killings\" aggravator was impermissibly
duplicative of the \"grave risk of death\" aggravator or the \"victim
impact\" aggravator. The court concluded that the multiple killings
aggravator related to the defendants' \"particular desire that there be
multiple victims, rather than just one - i.e., the sheer magnitude of
the crime.\" It stated that the \"grave risk of death\" aggravator
related to \"defendants' mental state with respect to persons who were
not the intended victims of the bombings.\" The \"victim impact\"
aggravator, on the other hand, \"highlight\[ed\] the objective human
effects of Defendants' actions, as distinct from Defendants' subjective
mindset.\"

**12.08 NONSTATUTORY AGGRAVATING FACTORS**

\[If you have found the existence of one or more statutory aggravating
factors unanimously and beyond a reasonable doubt, you must then
consider whether the government has proved the existence of \[a\]
\[any\] non-statutory aggravating factor\[s\]. As in the case for
statutory aggravating factors, you must unanimously agree that the
government has proved beyond a reasonable doubt the existence of \[any
of\] the alleged non-statutory aggravating factor\[s\]^1^ before you may
consider such factor\[s\] in your deliberations on the appropriate
punishment for the defendant in this case.

In addition to any statutory aggravating factors you have found, you are
permitted to consider and discuss only the nonstatutory aggravating
factor\[s\] specifically claimed by the government and listed below. You
must not consider any other facts in aggravation which you think of on
your own.

The \[first\] non-statutory aggravating factor alleged by the government
is that \[LIST AS APPROPRIATE\] \[THE FOLLOWING ARE EXAMPLES\]:

1\. \[The defendant\] participated in additional uncharged murders,
attempted murders, or other serious crimes of violence \[describe
pertinent facts\]^2^, and his

participation in those acts tends to support imposition of the death
penalty.^3^

2\. \[The defendant\] would be a danger in the future to the lives and
safety of other persons,^4^ as evidenced by \[describe pertinent
facts\]:

a\. specific threats of violence,^5^

b\. continuing pattern of violence,^6^

c\. low rehabilitative potential,^7^

d\. lack of remorse,^8^

e\. mental evaluation, i.e., psychopathic personality,^9^

f\. custody classification, and/or

g\. other.

and his dangerousness tends to support imposition of the death
penalty.^10^

3\. \[The defendant\] obstructed a criminal investigation, tampered with
or retaliated against a witness, \[describe pertinent facts\],^11^ and
that \[obstruction\] \[tampering\] \[retaliation\] tends to support
imposition of the death penalty.^12^

4\. \[Victim impact - the wording of this aggravator must be tailored to
the facts of the case.\]^13^

At this point you must record your findings regarding whether you
unanimously find that the government has proven beyond a reasonable
doubt the existence of \[this\] \[any of these\] non-statutory
aggravating factor\[s\] \[with respect to the same murder\]. Please
enter that finding on \[Page \] \[the appropriate page\] of the Special
Verdict Form, and continue your deliberations.\]

**Notes on Use**

1\. Whether a factor is aggravating is a question of law, rather than a
question of fact for the jury to decide. *United States v. McCullah*, 76
F.3d 1087, 1107 (10th Cir. 1996); *United States v. McVeigh*, 944 F.
Supp. 1478, 1486 (D. Colo. 1996).

2\. In *United States v. Allen*, 247 F.3d 741, 789-90 (8^th^ Cir. 2001),
*judgment vacated and remanded on other grounds*, 536 U.S. 953 (2002),
the court rejected the defendant's contention that the \"other criminal
acts\" aggravator is impermissibly duplicative of the six statutory
aggravating factors based upon prior criminal acts and violates the
Constitution. The court also held, on the facts of the case, that the
aggravator was not impermissibly duplicative of the future dangerousness
factor, because the government's evidence used to support the finding of
each factor was sufficiently different. In *United States v. Johnson*,
136 F. Supp. 2d 553, 556 (W.D. Va. 2001), the court struck the
\"criminal livelihood\" aggravator because there was nothing about the
factor, and the non-adjudicated, non-violent criminal acts which the
government presented in support of the factor, that were \"particularly
relevant to the sentencing decision.\"

3\. To avoid jury confusion in the event that the jury finds that the
facts supporting the aggravator have been proved but the jury does not
consider those facts to be aggravating, each nonstatutory aggravating
factor submitted to the jury should include language that the factor is
aggravating as that term is defined in Instruction 12.01, *supra*.

4\. The Supreme Court has approved consideration of a defendant\'s
future dangerousness in capital sentencing, as both statutory and
non-statutory aggravation. *See Simmons v. South Carolina*, 512 U.S.
154, 162-63 (1994) (and cases cited therein). *See also Jurek v. Texas*,
428 U.S. at 272-73 (\"probability that the defendant would commit
criminal acts of violence that would constitute a continuing threat to
society\").

As a general rule, \"relevant, unprivileged evidence \[of future
dangerousness\] should be admitted and its weight left to the
factfinder\[.\]\" *Barefoot v. Estelle*, 463 U.S. 880, 898 (1983)
(allowing expert testimony on future dangerousness). *See, e.g., Johnson
v. Texas*, 509 U.S. 350, 355-56 (1993) (affirming a death sentence where
a finding of future dangerousness was based in part upon lay witness
testimony about unadjudicated acts of violence committed by the
defendant *both* prior and subsequent to the instant capital murder).

In *United States v. Allen*, 247 F.3d 741, 789-90 (8^th^ Cir. 2001),
*judgment vacated and remanded on other grounds*, 536 U.S. 953 (2002),
the court rejected the defendant's contention that future dangerousness
is duplicative of the statutory aggravating factors and violative of the
Constitution. The court also reiterated the Supreme Court's holding in
*Simmons v. South Carolina*, 512 U.S. at 178, that when future
dangerousness is asserted as an aggravating factor, the jury must be
instructed that the defendant is parole ineligible. *Id.* *See*
Instruction 12.12. However, the court noted that \"we have little doubt
that future dangerousness to society and to prison officials and other
inmates during incarceration is relevant to the jury's final
determination. . . . A defendant in prison for life is still a risk to
prison officials and to other inmates, and even though a life sentence
without the possibility of parole greatly reduces the future danger to
society from that particular defendant, there is still a chance that the
defendant might escape from prison or receive a pardon or commutation of
sentence.\" 247 F.3d at 788.

5\. In *United States v. Davis*, 912 F. Supp. 938, 947 (E.D. La. 1996),
*aff'd*, 132 F.3d 1454 (5th Cir. 1997), the court held that
\"\[t\]hreatening words and warped bravado, without affirmative acts\"
were not admissible to prove future dangerousness.

6\. Participation in additional uncharged homicides, attempted
homicides, or other serious crimes of violence. *See, e.g., United
States v. Allen*, 247 F.3d 741, 789 (8^th^ Cir. 2001), *judgment vacated
and remanded on other grounds*, 536 U.S. 953 (2002); *United States v.
Pitera*, 795 F. Supp. at 564 (holding that the evidence of the
defendant\'s participation in other murders was \"relevant to his
character and his propensity to commit violent crimes\"). For the
appropriateness of the nonstatutory aggravating factor of causing the
death of a fetus, *see United States v. Johnson*, 136 F. Supp.2d 553,
561-62 (W.D. Va. 2001). *See United States v. Glover*, 43 F. Supp.2d
1217, 1226 (D. Kan. 1999); *United States v. Beckford*, 964 F. Supp. 993
(E.D. Va. 1997), *United States v. Walker*, 910 F. Supp. 837, 852-54
(N.D.N.Y. 1995), and *United States v. Bradley*, 880 F. Supp. 271,
286-87 (M.D. Pa. 1994), for a discussion on whether and in what
circumstances evidence of unadjudicated criminal conduct is admissible
to prove future dangerousness.

7\. Two courts have stricken \"low potential for rehabilitation\" as
duplicative of future dangerousness, where the government alleged each
as a separate nonstatutory aggravating factor. *United States v. Davis*,
912 F. Supp. 938, 946 (E.D. La. 1996), *aff'd*, 132 F.3d 1454 (5th Cir.
1997); *United States v. Nguyen*, 928 F. Supp. 1525, 1543 (D. Kan.
1996). In *United States v. Spivey*, 958 F. Supp. 1523, 1535 (D.N.M.
1997), the court rejected the defendant's contention that the phrase
\"low rehabilitative potential\" was void for vagueness. In *United
States v. Davis*, 912 F. Supp. at 946, the court concluded that, while
the phrase was too vague to stand on its own as a separate nonstatutory
aggravator, it could be used to prove future dangerousness.

8\. In *United States v. Nguyen*, 928 F. Supp. 1523, 1541-42 (D. Kan.
1996), the court cautioned the government that the evidence it submits
to prove lack of remorse must be \"more than mere silence . . . and it
may not implicate \[the defendant's\] constitutional right to remain
silent.\" In *United States v. Davis*, 912 F. Supp. 938, 946 (E.D. La.
1996), *aff'd*, 132 F.3d 1454 (5th Cir. 1997), the court held that the
government may not assert lack of remorse as an independent nonstatutory
factor, but could argue it as probative of the defendant's future
dangerousness. *Accord United States v. Cooper*, 91 F. Supp. 2d 90, 113
(D.D.C. 2000).

9\. Mental evaluation evidence may also be mitigating, and the jury must
be allowed to give full effect to it as such. *Penry v. Johnson*, 532
U.S. 782, 797 (2001).

10\. *See* Note 3, *supra*.

11\. *See* 18 U.S.C. §§ 1510, 1512, and 1513; *United States v. Edelin*,
134 F. Supp.2d 59, 77 (D.D.C. 2001). In *United States v. Friend*, 92 F.
Supp.2d 534, 537, 545 (E.D. Va. 2000), the court struck the nonstatutory
aggravating factor that the defendant discussed killing a potential
witness after the murder of the victim because it did not meet the
relevance and heightened reliability standards required under the FDPA
and the Supreme Court's death penalty jurisprudence.)

12\. *See* Note 3, *supra*

13\. In *Payne v. Tennessee*, 501 U.S. 808 (1991), the Supreme Court
overruled its prior decisions in *South Carolina v. Gathers*, 490 U.S.
805 (1989), and *Booth v. Maryland,* 482 U.S. 496 (1987), and held that
the victim\'s personal characteristics and the impact of the murder on
the victim\'s family may be considered in capital sentencing. Section
3593(a)(2) states that:

The factors for which notice is provided under this subsection may
include factors concerning the effect of the offense on the victim and
the victim\'s family, and may include oral testimony, a victim impact
statement that identifies the victim of the offense and the extent and
scope of the injury and loss suffered by the victim and the victim\'s
family, and any other relevant information.

In *United States v. Jones*, 132 F.3d 232, 251 (5th Cir. 1998), the
court concluded that language referring to the victim's \"young age, her
slight stature, her background, and her unfamiliarity with San Angelo,
Texas,\" where the crime occurred, \"fail\[ed\] to guide the jury's
discretion, or distinguish this murder from any other murder.\" The
court also noted that \"the district court offered no additional
instructions to clarify the meaning\" of that language.
[Id.]{.underline} The court concluded that submission of a \"victim
vulnerability\" nonstatutory aggravating factor in these circumstances
was error, but that the error was harmless. *Id.* at 252. A plurality of
four Justices of the Supreme Court disagreed, concluding that because
the victim impact aggravator directed the jury to evidence specific to
the case before it, the aggravator was not overbroad in a way that
offends the Constitution. *Jones v. United States*, 527 U.S. 373, 401-02
(1999). Three of the Justices agreed with the lower court. *Id.* at 420.

Several Courts of Appeals have approved the admission of victim impact
testimony: *United States v. Allen*, 247 F.3d 741, 778-79 (8^th^ Cir.
2001), *judgment vacated and remanded on other grounds*, 536 U.S. 953
(2002); *United States v. Barnette*, 211 F.3d 803, 818-819 (4^th^ Cir.
2000); *United States v. Hall*, 152 F.3d 381 (5^th^ Cir. 1998),
*abrogated in part on other grounds*, *United States v.
Martinez-Salazar*, 528 U.S. 304 (2000); *United States v. Webster*, 162
F.3d 308 (5th Cir. 1998) (companion case to *Hall*, same result.

Before you may consider the appropriate punishment, you must consider
whether the defendant has established the existence of \[a\] \[any\]
mitigating factor\[s\]. A mitigating factor is a fact about the
defendant\'s life or character, or about the circumstances surrounding
the offense(s) that would suggest, in fairness, that a sentence of death
is not the most appropriate punishment, or that a lesser sentence is the
more appropriate punishment.

Unlike aggravating factors, which you must unanimously find proved
beyond a reasonable doubt in order to consider them in your
deliberations, the law does not require unanimous agreement with regard
to mitigating factors. [Any]{.underline} juror persuaded of the
existence of a mitigating factor [must]{.underline} consider it in this
case. Further, [any]{.underline} juror [may]{.underline} consider a
mitigating factor found by another juror, even if he or she did not find
that factor to be mitigating.^1^

It is the defendant\'s burden to establish any mitigating factors, but
only by a preponderance of the evidence. This is a lesser standard of
proof under the law than proof beyond a reasonable doubt. A factor is
established by a preponderance of the evidence if its existence is shown
to be more likely so than not so. In other words, a preponderance of the
evidence means such evidence as, when considered and compared with that
opposed to it, produces in your mind the belief that what is sought to
be established is, more likely than not, true. \[In Part V of the
Special Verdict Form relating to mitigating factors, you are asked \[,
but not required,\]^2^ to report the total number of jurors that find a
particular mitigating factor established by a preponderance of the
evidence.\]

**Notes on Use**

1\. In *Jones v. United States*, 527 U.S. 373, 377 (1999), the Supreme
Court held that the jury may consider a mitigating factor in its
weighing process so long as one juror accepts the factor as mitigating
by a preponderance of the evidence.

2\. The court in *United States v. Chandler*, 996 F.2d 1073, 1087 (11th
Cir. 1993), construed similar language in 21 U.S.C. § 848(k) as
requiring that the jury be informed that it has the **option** to return
written findings as to mitigating factors. The Committee recommends
that, in order to facilitate appellate review, the jury be required to
make written findings as to mitigating factors. However, if the
defendant objects to the return of written findings, the court may be
advised, based on *Chandler*, to give the jury the option. Note that in
*United States v. Paul*, 217 F.3d 989, 999, n.6 (8^th^ Cir. 2000), the
court questions whether it is even able to review the jury's findings
regarding the number of jurors who found a particular mitigator, because
the FDPA does not require the jury to make special findings regarding
mitigating factors.

**Committee Comments**

The Constitution requires that a death penalty statute must permit the
defendant to raise any aspect of character or background and the
circumstances of the offense as a mitigating factor. *Penry v. Johnson*,
532 U.S. 782, 797 (2001); *Penry v. Lynaugh*, 492 U.S. 302, 319-28
(1989); *Lockett v. Ohio*, 438 U.S. 586, 604 (1978). This includes a
wide range of relevant factors. *See, e.g., Johnson v. Texas*, 509 U.S.
350, 367-68, 113 S. Ct 2658, 2668-69 (1993) (lack of maturity and
underdeveloped sense of responsibility); *Graham v. Collins*, 506 U.S.
461, 475-76 (1993) (family background and positive character traits);
*Penry v. Lynaugh*, 492 U.S. at 328 (mental retardation and childhood
abuse); *Skipper v. South Carolina*, 476 U.S. 1, 4 (1986) (good conduct
in jail between arrest and trial); *Eddings v. Oklahoma*, 455 U.S. 104,
115 (1982) (youth and susceptibility to influence); *Lockett v. Ohio*,
438 U.S. at 607-08 (victim involvement, impaired capacity, and
substantial duress, coercion, or provocation).

In *Lockett v. Ohio*, the Court cautioned that \"\[n\]othing in this
opinion limits the traditional authority of a court to exclude, as
irrelevant, evidence not bearing on the defendant\'s character, prior
record, or the circumstances of his offense.\" 438 U.S. at 604 n.12.
*See California v. Brown*, 479 U.S. 538, 542 (1987) (holding that \"mere
sympathy\" is not a proper consideration in determining whether to
impose a death sentence); *United States v. Edelin*, 134 F. Supp.2d 59,
69 (D.D.C. 2001) (holding that, while race in and of itself is not a
proper mitigating factor, \"\`the [effects]{.underline} and
[experiences]{.underline} of race may be admissible,'\" (quoting *United
States v. Webster*, 162 F.3d 308, 356-57 (5^th^ Cir. 1998) (emphasis in
original)).

The question exists whether the fact that, if the jury does not impose
the death sentence, the defendant must be sentenced to life in prison
without the possibility of parole, is a mitigating factor. In *Simmons
v. South Carolina*, 512 U.S. 154, 156 (1994), the Supreme Court held
that where a defendant\'s future dangerousness was at issue and the only
sentencing alternative to the death penalty under state law was life
imprisonment without possibility of parole, due process required that
the sentencing jury be informed that the defendant was ineligible for
parole. The Court reiterated that holding in *Shafer v. South Carolina*,
532 U.S. 36, 51 (2001). However, the court in *United States v.
Chandler*, 996 F.2d 1073, 1086 (11th Cir. 1993), held that the
\"possibility\" of receiving a sentence of life imprisonment without
parole is not a relevant mitigating factor); *accord Byrne v. Butler*,
845 F.2d 501, 507 (5th Cir. 1988).

Evidence of mitigating factors, like that of aggravating factors, may be
considered regardless of admissibility under the Federal Rules of
Evidence, except where its probative value is outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading of the jury.
18 U.S.C.§ 3593(c). (Under 21 U.S.C. § 848(j), evidence is admissible
except where its probative value is [substantially]{.underline}
outweighed by the danger of unfair prejudice.)

Both 21 U.S.C. § 848(k) and 18 U.S.C. § 3593(d) provide that any
mitigating factor may be considered without limitation by the jury. In
*Jones v. United States*, 527 U.S. 373, 377 (1999), the Supreme Court
indicated that [all]{.underline} jurors may consider a mitigating factor
found by any juror. No special finding or unanimous verdict \-- or even
a vote \-- is required. *See McKoy v. North Carolina*, 494 U.S. 433
(1990) (statutory requirement for unanimous finding as to mitigating
factors violated Eighth and Fourteenth Amendments); *Mills v. Maryland*,
486 U.S. 367 (1988) (death sentence reversed because the instructions
and verdict form could be interpreted as precluding jury consideration
of any mitigating factor in the absence of unanimous agreement).

**12.10 MITIGATING FACTORS ENUMERATED**

**(18 U.S.C. § 3592(a))**

The mitigating factors which the defendant asserts he has proved by a
preponderance of the evidence are: (Include any of the following
applicable mitigating factors)

1\. \[The defendant\'s\] capacity to appreciate the wrongfulness of his
conduct or to conform his conduct to the requirements of the law was
significantly impaired, regardless of whether his capacity was so
impaired as to constitute a defense to the charge.

2\. \[The defendant\] was under unusual and substantial duress,
regardless of whether the duress was of such a degree as to constitute a
defense to the charge.

3\. \[The defendant\] is punishable as a principal in the offense, which
was committed by another, but his participation was relatively minor,
regardless of whether the participation was so minor as to constitute a
defense to the charge.

4\. Another defendant or defendants, equally culpable in the crime, will
not be punished by death.

5\. \[The defendant\] does not have a significant prior history of other
criminal conduct.

6\. \[The defendant\] committed the offense under severe mental or
emotional disturbance.

7\. The victim consented to the criminal conduct that resulted in the
victim\'s death.

\[8. \[The defendant\] demonstrated severe learning problems in school,
which led to academic failure, increased frustration, and eventual
dropout, and those problems tend to indicate that the defendant should
not be sentenced to death.\]^1^

You are permitted to consider [anything]{.underline} else about the
commission of the crime or about \[the defendant\'s\] background or
character that would mitigate against imposition of the death penalty.
If there are any such mitigating factors, whether or not specifically
argued by defense counsel, which are established by a preponderance of
the evidence, you are free to consider them in your deliberations.

In Part V on Page of the Special Verdict Form, you are \[asked\] to
identify any mitigating factors that any one of you finds has been
proved by a preponderance of the evidence \[, but you are not required
to do so\]^2^.

**Notes on Use**

1\. To avoid jury confusion in the event that a juror concludes that the
facts supporting the mitigator have been proved but does not consider
those facts to be mitigating, each mitigating factor falling within the
\"catch-all\" section 3592(a)(8) provision should include language that
the factor is mitigating as that term is defined in Instruction 12.01.

2\. *See* Note 1, Instruction 12.09, *supra*.

**Committee Comments**

**Source:** 18 U.S.C. § 3593(d). *See Penry v. Lynaugh*, 492 U.S. 302,
319-28 (1989); *Lockett v. Ohio*, 438 U.S. 586, 604, 607-08 (1978);
*United States v. Chandler*, 996 F.2d 1073, 1086-88 (11th Cir. 1993);
*United States v. Pitera*, 795 F. Supp. 546, 564 (E.D.N.Y.), *aff\'d*,
986 F.2d 499 (2d Cir. 1992). *See also Johnson v. Texas*, 509 U.S. 350,
367-68, 113 S. Ct 2658, 2668-69 (1993); *Graham v. Collins*, 506 U.S.
461, 475-76 (1993); *Skipper v. South Carolina*, 476 U.S. 1, 4 (1986);
*Eddings v. Oklahoma*, 455 U.S. 104, 115 (1982).

Many factors, both aggravating and mitigating, may be factually true,
and yet not be perceived by a juror as aggravating or mitigating. For
instance, in *United States v. Paul*, 217 F.3d 989, 1000 (8^th^ Cir.
2000), one of the mitigating factors submitted to the jury was the fact
that the defendant was eighteen when he committed the offense. The court
found no error in the failure of six jurors to find his age as
mitigating, concluding that a juror is not required to give mitigating
effect to any factor. *Accord United States v. Bernard*, 299 F.3d 467,
485-86 (5^th^ Cir. 2002). To prevent confusion, the Committee suggests
that nonstatutory aggravating and mitigating factors include some
version of the phrase \"and that fact tends to \[support\] \[mitigate\]
imposition of the death penalty.\" *See* Note 4, Instruction 12.08,
*supra*.

**12.11 WEIGHING AGGRAVATION AND MITIGATION**

If you find unanimously and beyond a reasonable doubt \[that the
defendant was eighteen years of age or older when he committed the
offenses;\] that he acted with the requisite intent; and that the
government proved the existence of at least one statutory aggravating
factor; and after you then determine whether the government proved the
existence of the nonstatutory aggravating factors submitted to you, and
whether the defendant proved the existence of any mitigating factors,
you will then engage in a weighing process.^1^ In determining the
appropriate sentence, all of you must weigh the aggravating factor or
factors that you unanimously found to exist \-- whether statutory or
nonstatutory - and each of you must weigh any mitigating factor(s) that
you individually found to exist, and may weigh any mitigating factor(s)
that \[another\] \[others\] of your fellow jurors found to exist. In
engaging in the weighing process, you must avoid any influence of
passion, prejudice, or undue sympathy. Your deliberations should be
based upon the evidence you have seen and heard and the law on which I
have instructed you.

Again, whether or not the circumstances in this case justify a sentence
of death is a decision that the law leaves entirely to you.

The process of weighing aggravating and mitigating factors against each
other \[or weighing aggravating factors alone, if there are no
mitigating factors,\] in order to determine the proper punishment is not
a mechanical process. In other words, you should not simply count the
number of aggravating \[and mitigating\] factors and reach a decision
\[based on which number is greater\]; you should consider the weight and
value of each factor.

The law contemplates that different factors may be given different
weights or values by different jurors. Thus, you may find that one
mitigating factor outweighs all aggravating factors combined, or that
the aggravating factor(s) proved \[does\] \[do\] not, standing alone,
justify imposition of a sentence of death. If one or more of you so
find, you must return a sentence of life in prison without possibility
of release \[or a lesser sentence to be determined by the court\].
Similarly, you may unanimously find that a particular aggravating factor
sufficiently outweighs all mitigating factors combined to justify a
sentence of death. You are to decide what weight or value is to be given
to a particular aggravating or mitigating factor in your decision-making
process.

If you unanimously conclude that the aggravating factor or factors found
to exist sufficiently outweigh any mitigating factor or factors which
any of you found to exist to justify a sentence of death, \[or in the
absence of any mitigating factors, that the aggravating factor or
factors alone are sufficient to justify a sentence of death\], and that
therefore death is the appropriate sentence in this case, you must
record your determination that a sentence of death shall be imposed in
Section \[V\] \[VI\](a), on \[Page of\] the Special Verdict Form.

\[Continue with Option A or Option B, as appropriate\]

**Option A**: To be given if the statute requires that the sentence be
death or life imprisonment without possibility of parole:

If you determine that death is not justified, you must complete Section
\[V\] \[VI\](a) of the Special Verdict Form, and you must then record
your determination that the defendant be sentenced to life imprisonment
without possibility of release^2^ in Section \[V\] \[VI\](b)on \[Page
of\] the Special Verdict Form.\]

**Option B**: To be given if the statute allows a sentence less than
life imprisonment without possibility of release:

If you determine that death is not justified, you must complete Section
\[V\] \[VI\](a) of the Special Verdict Form, and then determine whether
the appropriate punishment is life in prison without possibility of
release. Record that determination in Section \[V\] \[VI\](b)on \[Page
of\] the Special Verdict Form.\] If you do not return a punishment of
death or life imprisonment without possibility of release, the court
must sentence the defendant to a lesser punishment as provided by law.
\[That sentence may or may not be life imprisonment.\] \[There is no
parole in the Federal system.\]

**Notes on Use**

1\. If no mitigators are offered, the Committee suggests that a record
be made that the defendant knows he has the right to offer evidence of
mitigating factors, and agrees with his attorneys' decision not to do
so. If no evidence of mitigating factors is offered, the instructions
should be modified so that the defendant will not be prejudiced by
references to mitigating factors when there are none.

2\. In *Shafer v. South Carolina*, 532 U.S. 36 (2001), the Supreme Court
reiterated its holding in *Simmons v. South Carolina*, 512 U.S. 154
(1994), that a jury considering whether to impose the death penalty or
life imprisonment must be instructed that life imprisonment means life
imprisonment without possibility of parole whenever the defendant's
future dangerousness is placed in issue.

**Committee Comments**

In *United States v. Allen*, 247 F.3d 741, 780-82 (8^th^ Cir. 2001),
*judgment vacated and remanded on other grounds*, 536 U.S. 953 (2002),
the Eighth Circuit held that this instruction and Instruction 1.01 (the
preliminary instruction), which were given to the jury in the case,
\"accurately explain the jury's role in sentencing under the FDPA.\" The
court also held that the district court did not abuse its discretion in
refusing to give the defendant's \"mercy\" instruction, which closely
followed the language in the Title 21 statute to the effect that the
jury, \"regardless of its findings with respect to aggravating and
mitigating factors, is never required to impose a death sentence.\" It
concluded that

Under the FDPA, the jury exercises complete discretion in its
determination of whether the aggravating factors outweigh the mitigating
factors. The jury was informed that whether or not the circumstances
justify a sentence of death was a decision left entirely to them. Mercy
is not precluded from entering into the balance of whether the
aggravating circumstances outweigh the mitigating circumstances. The
FDPA merely precludes the jurors from arbitrarily disregarding its
unanimous determination that a sentence of death is justified.

The Eighth Circuit reaffirmed its holding in *Allen* in *United States
v. Ortiz*, 315 F.3d 873 (8^th^ Cir. 2002).

**12.12 CONSEQUENCES OF DELIBERATIONS**

**(18 U.S.C. § 3594)**

At the end of your deliberations, if you unanimously determine that the
defendant should be sentenced to death, or to life imprisonment without
possibility of release, the court is required to impose that sentence.
\[Continue with Option A or Option B, as appropriate\]

**Option A, to be given if the defendant may be sentenced to death, life
without parole, or a lesser sentence:**

If you determine the defendant should be sentenced to a lesser sentence,
or if you cannot unanimously agree whether \[the defendant\] should be
sentenced to death or life imprisonment without possibility of release,
the court will sentence the defendant to a sentence other than death,
which must be a term of imprisonment without parole and may be up to
life imprisonment without the possibility of release.^1^ The court will
determine what that sentence should be, and you should not speculate on
the sentence the defendant might receive.\] \[There is no parole in the
federal system.\]

**Option B, to be given if the defendant must be sentenced either to
death or life in prison without possibility of parole:**

If you cannot unanimously agree whether \[the defendant\] should be
sentenced to death or life imprisonment without possibility of release,
the court will sentence the defendant to a minimum of life in prison and
may sentence the defendant to life imprisonment without the possibility
of release. \[There is no parole in the federal system.\]

**Notes on Use**

1\. In *Jones v. United States*, 527 U.S. 373, 380 (1999), the Supreme
Court held that if the jury reaches a result other than a unanimous
verdict recommending a sentence of death or of life imprisonment without
possibility of release, the district court shall impose a sentence less
than death. The Court also held that the Eighth Amendment does not
require that the jury be instructed regarding the consequences of their
failure to agree. *Id.* Finally, the Court declined to exercise its
supervisory powers to require that such an instruction be given in every
case. *Id.* at 382-83.

**Committee Comments**

*See* U.S.S.G. §§ 2A1.1 and 5K2.0; *Simmons v. South Carolina*, 512 U.S.
154, 156 (1994); *California v. Ramos*, 463 U.S. 992, 1011-14 (1983);
*United States v. Chandler*, 996 F.2d 1073, 1086 (11th Cir. 1993);
*United States v. Villarreal*, 963 F.2d 725, 727 (5th Cir. 1992); *Byrne
v. Butler*, 845 F.2d 501, 507 (5th Cir. 1988); *United States v.
Pitera*, 795 F. Supp. 546, 552 (E.D.N.Y.), *aff\'d*, 986 F.2d 499 (2d
Cir. 1992). *See generally* \"Prejudicial effect of statement or
instruction of court as to possibility of parole or pardon,\" 12 A.L.R.
3d 832 (1967).

**12.13 JUSTICE WITHOUT DISCRIMINATION**

**(18 U.S.C. § 3593(f))**

In your consideration of whether the death sentence is justified, you
must not consider the race, color, religious beliefs, national origin,
or sex of either the defendant or the victim(s). You are not to return a
sentence of death unless you would return a sentence of death for the
crime in question without regard to the race, color, religious beliefs,
national origin, or sex of either the defendant \[and\] \[or any\]
victim.^1^

To emphasize the importance of this consideration, Section \[VI\]
\[VII\] of the Special Verdict Form contains a certification statement.
Each juror should carefully read the statement, and sign in the
appropriate place if the statement accurately reflects the manner in
which each of you reached your decision.

**Notes on Use**

1\. Some courts have held that section 3593(f) only prohibits
consideration of these factors as aggravating; the jury may consider
them as mitigating factors in appropriate circumstances. *See, e.g.,
United States v. Walker*, 910 F. Supp. 837, 857 (N.D.N.Y. 1995); *United
States v. Nguyen*, 928 F. Supp. 1525, 1547 (D. Kan. 1996) and cases
cited therein. However, the court in *United States v. Cooper*, 91 F.
Supp.2d 90, 101-02 (D.D.C. 2000), concludes that \"in light of the
Supreme Court's mandate in Zant that race be 'totally irrelevant to the
sentencing process,' 462 U.S. at 318, 103 S. Ct. at 2368, . . . this
interpretation may be problematic.\" It cites the court's conclusion in
*United States v. Webster*, 162 F.3d 308, 355 (5^th^ Cir. 1998) that
these factors cannot be considered as either mitigating or aggravating
factors. It goes on to make the distinction that neither the
Constitution nor the FDPA precludes the jury from considering \"the
defendant's experiences resulting from his race, color, religion,
national origin or gender, and the effect those experiences have had on
his life.\" *Cooper*, 91 F. Supp.2d at 90. *Accord United States v.
Edelin*, 134 F. Supp.2d 59, 69 (D.D.C. 2001).

**Committee Comments**

*See Zant v. Stephens*, 462 U.S. 862, 885 (1983).

**12.14 DEFENDANT'S RIGHT NOT TO TESTIFY**

\[The defendant\] did not testify. There is no burden upon a defendant
to prove that he or she should not be sentenced to death. The burden is
entirely on the prosecution to prove that a sentence of death is
justified. Accordingly, the fact that \[a\] defendant did not testify
must not be considered by you in any way, or even discussed, in arriving
at your decision.

**Committee Comments**

*See* Instruction 4.01, *supra*. This instruction should only be given
upon request of the defendant. The Committee recommends the practice of
inquiring, on the record, whether the defendant desires this
instruction.

**12.15 - 12.19 \[Reserved for Future Use\]**

**12.20 SPECIAL VERDICT**

**(18 U.S.C. § 3593(d); 21 U.S.C. § 848(k), (q))**

I have prepared a form entitled \"Special Verdict Form\" to assist you
during your deliberations. You are required to record your decisions on
this form.

\[Section I of the Special Verdict Form contains space to record your
findings on the defendant's age;\] Section \[I\] \[II\] contains space
to record your findings on the requisite mental state; Section \[II\]
\[III\] contains space to record your findings on statutory aggravating
factors; and Section \[III\] \[IV\] contains space to record your
findings on non-statutory aggravating factors. Section \[IV\] \[V\] of
the Special Verdict Form contains space to record your findings on
mitigating factors. \[Add the following language, if the court
determines that written findings should not be required.
[See]{.underline} Note 1, Instruction 12.09, [supra]{.underline}\] \[if
you choose to do so. If you choose not to do so, cross out each page of
Section \[IV\] \[V\] with a large \"X.\" \[In this case, \[the
defendant\] has requested that you \[do\] \[do not\] record written
findings on the mitigating factors.\]\]

You are each required to sign the Special Verdict Form.

**Committee Comments**

*See United States v. Chandler*, 996 F.2d 1073, 1086-88 (11th Cir.
1993). *See Schad v. Arizona*, 501 U.S. 624, 644 (1991).

**12.21 CONCLUDING INSTRUCTION**

If you want to communicate with me at any time during your
deliberations, please write down your message or question and pass the
note to the \[marshal\] \[bailiff\] who will bring it to my attention.

I will respond as promptly as possible, either in writing or by having
you return to the courtroom so that I can address you orally.

I caution you, however, with any message or question you might send,
that you should not tell me any details of your deliberations or how
many of you are voting in a particular way on any issue.

Let me remind you again that nothing that I have said in these
instructions \-- and nothing that I have said or done during the trial
\-- has been said or done to suggest to you what I think your decision
should be. The decision is your exclusive responsibility.

**Committee Comments**

*Lowenfield v. Phelps*, 484 U.S. 231, 239-40 (1988); *Brasfield v.
United States*, 272 U.S. 448, 450 (1926); *United States v. Ulloa*, 882
F.2d 41, 44 (2d Cir. 1989).

The district court has the option to give an *Allen* instruction in
appropriate circumstances. *Jones v. United States*, 527 U.S. 373, 382
n. 5 (1999); *Lowenfield v. Phelps*, 484 U.S. 231, 237-40 (1988); *Allen
v. United States*, 164 U.S. 492, 501-02 (1896). Instruction 10.02,
*supra*, must be modified if it is to be used in a death penalty case.

**12.22 SPECIAL VERDICT FORM**

**IN THE UNITED STATES DISTRICT COURT**

**FOR THE \_\_\_\_\_\_\_\_ DISTRICT OF \_\_\_\_\_**

**UNITED STATES OF AMERICA \*\***

**\***

**v. \* CRIMINAL NO. \_\_\_\_\_\_\_\_\_\_**

**\***

**\[THE DEFENDANT\] \***

\*

**[SPECIAL VERDICT FORM]{.underline}**

**[MURDER OF (Name of Victim) BY (DEFENDANT)]{.underline}**

**\[[I.]{.underline} \[[AGE OF THE DEFENDANT]{.underline}** (Unless the
defendant stipulates that he/she was eighteen years of age at the time
of the offense. [See]{.underline} Note 4, Instruction 12.01,
[supra]{.underline}.)

[Instructions]{.underline}: Answer \"YES\" or \"NO.\" Do you, the jury,
unanimously find that the government has established beyond a reasonable
doubt that:

(The defendant) was eighteen years of age or older at the time of the
offense.

YES \_\_\_\_\_\_\_\_\_\_

NO \_\_\_\_\_\_\_\_\_\_

Foreperson

[Instructions]{.underline}: If you answered \"NO\" with respect to the
determination in this section, then stop your deliberations, cross out
Sections II, III, IV, V and VI of this form, and proceed to Section VII.
Each juror should then carefully read the statement in Section VII, and
sign in the appropriate place if the statement accurately reflects the
manner in which he or she reached his or her decision. You should then
advise the court that you have reached a decision.

If you answered \"YES\" with respect to the determination in this
Section I, proceed to Section II which follows.\]

**\[I\] \[II.\]** **[REQUISITE MENTAL STATE]{.underline}**

[Instructions]{.underline}: \[For each of the following,\] answer
\"YES\" or \"NO.\"

\[1(A) Do you, the jury, unanimously find that the government has
established beyond a reasonable doubt that (the defendant) intentionally
killed (name of victim).\]^1^

YES \_\_\_\_\_\_\_\_\_\_

NO \_\_\_\_\_\_\_\_\_\_

Foreperson

\[1(B) Do you, the jury, unanimously find that the government has
established beyond a reasonable doubt that (the defendant) intentionally
inflicted serious bodily injury which resulted in the death of (name of
victim).\]

YES \_\_\_\_\_\_\_\_\_\_

NO \_\_\_\_\_\_\_\_\_\_

Foreperson

\[1(C) Do you, the jury, unanimously find that the government has
established beyond a reasonable doubt that (the defendant) intentionally
participated in an act, contemplating that the life of a person would be
taken [and/or]{.underline} intending that lethal force would be used in
connection with a person, other than one of the participants in the
offense, and the victim (name of victim) died as a direct result of the
act.\]

YES \_\_\_\_\_\_\_\_\_\_

NO \_\_\_\_\_\_\_\_\_\_

Foreperson

\[1(D) Do you, the jury, unanimously find that the government has
established beyond a reasonable doubt that (the defendant) intentionally
and specifically engaged in an act of violence, knowing that the act
created a grave risk of death to a person, other than one of the
participants in the offense, such that participation in the act
constituted a reckless disregard for human life and the victim (name of
victim) died as a direct result of the act.\]

YES \_\_\_\_\_\_\_\_\_\_

NO \_\_\_\_\_\_\_\_\_\_

Foreperson

[Instructions]{.underline}: If you answered \"NO\" with respect to \[all
of\] the determination\[s\] in this section, then stop your
deliberations, cross out Sections \[II\], III, IV, \[and\] V \[and VI\]
of this form, and proceed to Section \[VI\] \[VII\]. Each juror should
carefully read the statement in Section \[VI\] \[VII\], and sign in the
appropriate place if the statement accurately reflects the manner in
which he or she reached his or her decision. You should then advise the
court that you have reached a decision.

If you answered \"YES\" with respect to \[one or more of\] the
determination\[s\] in this Section \[I\] \[II\], proceed to Section
\[II\] \[III\] which follows.

**\[II\] \[III\]. [STATUTORY AGGRAVATING FACTORS]{.underline}**

[Instructions]{.underline}: \[For each of the following,\] \[A\]nswer
\"YES\" or \"NO.\" \[List all aggravating factors supported by the
evidence, using the language contained in 18 U.S.C. § 3592(c)(1)-(16);
the following are examples\]:

1\. Do you, the jury, unanimously find that the government has
established beyond a reasonable doubt that (the defendant) \[procured
the commission of the offense by payment \[promise of payment\] of
anything of pecuniary value\], as set out in Instruction No. \_\_\_?

YES \_\_\_\_\_\_\_\_\_\_

NO \_\_\_\_\_\_\_\_\_\_

Foreperson

2\. Do you, the jury, unanimously find that the government has
established beyond a reasonable doubt that the defendant committed the
offense of (name of offense) after substantial planning and
premeditation \[to cause the death of a person\] \[commit an act of
terrorism\], as set out in Instruction No. ?

YES \_\_\_\_\_\_\_\_\_\_

NO \_\_\_\_\_\_\_\_\_\_

Foreperson

[Instructions]{.underline}: If you answered \"NO\" with respect to \[all
of\] the Statutory Aggravating Factor\[s\] in this Section \[II\]
\[III\], then stop your deliberations, cross out Sections \[III\], IV,
\[and\] V \[and VI\] of this form, and proceed to Section \[VI\] \[VII\]
of this form. Each juror should then carefully read the statement in
Section \[VI\] \[VII\], and sign in the appropriate place if the
statement accurately reflects the manner in which he or she reached his
or her decision. You should then advise the court that you have reached
a decision.

If you found \[the requisite age in Section I\], the requisite mental
state in Section \[I\] \[II\] and answered \"Yes\" with respect to \[one
or more of\] \[the\] aggravating factor\[s\] in this Section \[II\]
\[III\], proceed to Section \[III\] \[IV\] which follows.

**\[III\] \[IV\]. [NON-STATUTORY AGGRAVATING FACTORS]{.underline}**

[Instructions]{.underline}: \[For each of the following,\] \[A\]nswer
\"YES\" or \"NO.\" \[List all nonstatutory aggravating factors supported
by the evidence; the following is an example:

1\. Do you, the jury, unanimously find that the government has
established beyond a reasonable doubt that (the defendant) caused
\[DESCRIBE THE IMPACT OF THE KILLING ON THE VICTIM'S FAMILY\], and that
this factor tends to support imposition of the death penalty?\]^2^

YES \_\_\_\_\_\_\_\_\_\_

NO \_\_\_\_\_\_\_\_\_\_

Foreperson

[Instructions]{.underline}: Regardless of whether you answered \"YES\"
or \"NO\" with respect to the Non-Statutory Aggravating Factor\[s\] in
this Section \[III\] \[IV\], proceed to Section \[IV\] \[V\], which
follows.

**\[IV\] \[V\]. [MITIGATING FACTORS]{.underline}**

[Instructions]{.underline}: For each of the following mitigating
factors, \[you have the option to\] indicate, in the space provided, the
number of jurors who have found the existence of that mitigating factor
to be proven by a preponderance of the evidence. \[If you choose not to
make these written findings, cross out each page of Section V with a
large \"X\" and then continue your deliberations in accordance with the
instructions of the court.\]

A finding with respect to a mitigating factor may be made by one or more
of the members of the jury, and any member of the jury who finds the
existence of a mitigating factor may consider such a factor established
in considering whether or not a sentence of death shall be imposed,
regardless of the number of other jurors who agree that the factor has
been established. Further, any juror may also weigh a mitigating factor
found by another juror, even if he or she did not also find that factor
to be mitigating:

\[List only those mitigating factors for which evidence has been
offered, using the language contained in 18 U.S.C. § 3592(a)(1)-(7); the
following are examples\]

1\. (The defendant)\'s capacity to appreciate the wrongfulness of his
conduct or to conform his conduct to the requirements of the law was
significantly impaired, regardless of whether the capacity was so
impaired as to constitute a defense to the charge.

Number of jurors who so find \_\_\_\_\_\_\_\_\_\_.

2\. (The defendant) was under unusual and substantial duress, regardless
of whether the duress was of such a degree as to constitute a defense to
the charge.

Number of jurors who so find \_\_\_\_\_\_\_\_\_\_.

3\. (The defendant) is punishable as a principal in the offense, which
was committed by another, but the defendant's participation was
relatively minor, regardless of whether the participation was so minor
as to constitute a defense to the charge.

Number of jurors who so find \_\_\_\_\_\_\_\_\_\_.

\[Submit section 3592(a)(8) factors in accordance with the following
example:

4\. The defendant demonstrated severe learning problems in school, which
led to academic failure, increased frustration, and eventual dropout,
and those problems tend to indicate that the defendant should not be
sentenced to death.^3^

Number of jurors who so find \_\_\_\_\_\_\_\_\_\_.\]

\[List additional section 3592(a)(8) factor(s) in \[the defendant\]\'s
background or character, the circumstances of the crime(s), or other
relevant fact or circumstance as mitigation:

\_\_.
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_.

Number of jurors who so find \_\_\_\_\_\_\_\_\_\_.

\_\_.
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_.

Number of jurors who so find \_\_\_\_\_\_\_\_\_\_.

\_\_.
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_.

Number of jurors who so find \_\_\_\_\_\_\_\_\_\_.\]

The following extra spaces are provided to write in additional
mitigating factors, if any, found by any one or more jurors. If none,
write \"NONE\" and line out the extra spaces with a large \"X.\" If more
space is needed, write \"CONTINUED\" and use the reverse side of this
page.

\_\_.
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_.

Number of jurors who so find \_\_\_\_\_\_\_\_\_\_.

\_\_.
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_.

Number of jurors who so find \_\_\_\_\_\_\_\_\_\_.

\_\_.
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_.

Number of jurors who so find \_\_\_\_\_\_\_\_\_\_.

\_\_.
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_.

Number of jurors who so find \_\_\_\_\_\_\_\_\_\_.

[Instructions]{.underline}: \[Regardless of whether you chose to make
written findings for the Mitigating Factors in Section \[IV\] \[V\]
above, \] \[P\]\[p\]roceed to Section \[V\] \[VI\] and Section \[VI\]
\[VII\] which follow.

**\[V\] \[VI\]**. **[DETERMINATION]{.underline}**

Based upon consideration of whether the aggravating factor\[s\] found to
exist sufficiently outweigh any mitigating factor or factors found to
exist, or in the absence of any mitigating factors, whether the
aggravating factor\[s\] \[is\] \[are\] \[itself\] \[themselves\]
sufficient to justify a sentence of death, and whether death is
therefore the appropriate sentence in this case:

**A. Death Sentence**

We determine, by unanimous vote, that a sentence of death shall be
imposed.

YES \_\_\_\_\_\_\_\_\_\_

NO \_\_\_\_\_\_\_\_\_\_

If you answer \"YES,\" the foreperson must sign here, and you must then
proceed to Section \[VI\] \[VII\]. If you answer \"NO,\" the foreperson
must sign, and you must then proceed to Section \[V\] \[VI\](B):

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Foreperson

Date: \_\_\_\_\_\_\_\_ \_\_, \_\_\_\_

**B. Sentence of Life in Prison Without Possibility of Release**

We determine, by unanimous vote, that a sentence of life imprisonment
without possibility of release shall be imposed.

YES \_\_\_\_\_\_\_\_\_\_

NO \_\_\_\_\_\_\_\_\_\_

If you answer \"YES,\" the foreperson must sign here, and then you must
proceed to Section \[VI\] \[VII\]. \[If you answer \"NO,\" the
foreperson must sign, and you must proceed to Section \[V\] \[VI\](C)\]
:

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Foreperson

Date: \_\_\_\_\_\_\_\_ \_\_, \_\_\_\_

**C. Lesser Sentence.**

We recommend, by unanimous vote, that a sentence lesser than death or
life imprisonment without possibility of release shall be imposed.

YES \_\_\_\_\_\_\_\_\_\_

NO \_\_\_\_\_\_\_\_\_\_

If you answer \"YES,\" the foreperson must sign here, and then you must
proceed to Section \[VI\] \[VII\]:

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Foreperson

Date: \_\_\_\_\_\_\_\_ \_\_, \_\_\_\_\]

**\[VI\] \[VII\]. [CERTIFICATION]{.underline}**

By signing below, each juror certifies that consideration of the race,
color, religious beliefs, national origin, or sex of the defendant or
\[the\] \[any\] victim was not involved in reaching his or her
individual decision, and that the individual juror would have made the
same recommendation regarding a sentence for the crime or crimes in
question regardless of the race, color, religious beliefs, national
origin, or sex of the defendant, or the victim(s).

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Foreperson

Date: \_\_\_\_\_\_\_\_ \_\_, \_\_\_\_\_

**Notes on Use**

1\. The Committee again suggests that, to avoid any concern over
\"stacking the deck\" in favor of the death penalty, the court instruct
only on those mental states clearly supported by the evidence. *See*
Note 2, Instruction 12.06, *supra*.

2\. Each nonstatutory aggravating factor should include language that
the factor tends to support imposition of the death penalty.

3\. Each section 3592(a)(8) mitigating factor should include language
that the factor is mitigating as defined in Instruction 12.01, *supra*.

[^1]: Congress amended 31 U.S.C. § 5322(a) to eliminate the
    applicability of the provision's mens rea requirement to offenses
    committed under section 5324, thereby superceding by statute the
    narrow holding in *Ratzlaf*.