Number range CHAPTER **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. ~~*Roth v. Black &
Decker, U.S., Inc.*, 737 F.2d 779, 782-83 (8th Cir. 1984).~~ *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.
Robinson*, 774 F.2d 261, 272 (8th Cir. 1985).~~ *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) \[witness mentioned defendant had changed plea from
guilty to not guilty\]; *United States v. Martin*, 706 F.2d 263, 266
(8th Cir. 1983) \[court\'s reference to defendants as \"pimps\"\];
*United States v. Singer*, 660 F.2d 1295, 1304-05 (8th Cir. 1981),
*cert. denied*, 454 U.S. 1156 (1982) \[prosecutor\'s comments during
closing argument\]; *United States v. Smith*, 578 F.2d 1227, 1236 (8th
Cir. 1978) \[codefendant\'s disruptive conduct at trial\]; *United
States v. Leach*, 429 F.2d 956, 963 (8th Cir. 1970), *cert. denied*, 402
U.S. 986 (1971) \[witness characterized defendant\'s remark as
\"vulgar\"\]. 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.
~~*See*, *e.g.*, *United States v. Wyant*, 576 F.2d 1312, 1319 (8th Cir.
1978).~~ *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. ~~Other examples of instructions which
may be given during trial are in 1 Edward J. Devitt, et al., FEDERAL
JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal §§ 11.01-11.15 (4th
ed. 1992); Federal Judicial Center, Pattern Criminal Jury Instructions
§§ 5-8 (1988); Fifth Circuit Pattern Jury Instructions: Criminal Chapter
1 (1997); Ninth Cir. Crim. Jury Instr. 2.1-2.13 (1997).~~

~~The Committee recommends that any instruction which is given during
trial be repeated in the court\'s final instructions given at the end of
trial, unless valid reasons are presented to the court for doing
otherwise.~~

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 ~~your
fellow~~ 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.\]~~^3^~~

**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.

~~3. This language may be omitted for subsequent breaks during trial,
but not for overnight or weekend recesses.~~

**Committee Comments**

~~*See* 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND
INSTRUCTIONS: Civil and Criminal §§ 11.01 and 11.02 (4th ed. 1992);
Federal Judicial Center, Pattern Criminal Jury Instructions § 5 (1988);
Ninth Cir. Crim. Jury Instr. 2.1 (1997).~~

*See ~~also~~* Instruction 1.08, *supra*.

The court has considerable discretion to separate a jury before it has
reached a verdict. ~~*United States v. Williams*, 635 F.2d 744, 745 (8th
Cir. 1980) and cases cited therein~~. *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 ~~allow the jury to separate overnight without~~
fail to give a cautionary instruction ~~having been given~~ 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.

~~*See* Instruction 3.12, *infra*, for final instructions on this
topic.~~

**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**

~~*See* Ninth Cir. Crim. Jury Instr. 2.4 (1997). *See generally* 1
Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil
and Criminal § 12.03 (4th ed. 1992); Federal Judicial Center, Pattern
Criminal Jury Instructions § 12 (1988); Seventh Circuit Federal Jury
Instructions: Criminal § 3.15 (1999); West Key \# \"Stipulations\"
14(10). *See also* Committee Comments, Instruction 2.02, *supra*.~~

~~When parties enter into stipulations as to material facts, those facts
will be deemed to have been conclusively proved, and the jury may be so
instructed.~~ 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)~~; *United States v. Houston*, 547 F.2d 104, 107 (9th 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), *cert. denied*, 444 U.S. 1048 (1980). 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) ~~\[~~(stipulation to prior
convictions in habitual offender action~~\]~~)~~; *United States v.
Terrack*, 515 F.2d 558, 560-61 (9th Cir. 1975) \[whole case submitted on
stipulated facts\]~~. ~~However, the~~ 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). ~~*Terrack*, 515
F.2d at 560-61, and cases cited therein; *United States v. Miller*, 588
F.2d 1256, 1263-64 (9th Cir. 1978), *cert. denied*, 440 U.S. 947 (1979);
*United States v. Schmidt*, 760 F.2d 828 (7th Cir.), *cert. denied*, 474
U.S. 827 (1985).~~ 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.* ~~Guilty plea
safeguards may be required, however, where and by such stipulation the
defendant effectively admits guilt and waives trial on all issues.
*Schmidt*, 760 F.2d at 834~~.

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)). ~~; *United States v. Early*, 77 F.3d 242,
244 (8^th^ Cir. 1996) (defendant who does not challenge stipulation is
bound by it.) *United States v. Ferreboeuf*, 632 F.2d 832, 836 (9th Cir.
1980), *cert. denied*, 450 U.S. 934 (1981), which held:~~

> ~~\[W\]hen a stipulation to a crucial fact is entered into the record
> in open court in the presence of the defendant, and is agreed to by
> defendant\'s acknowledged counsel, the trial court may reasonably
> assume that the defendant is aware of the content of the stipulation
> and agrees to it through his or her attorney. Unless a criminal
> defendant indicates objection at the time the stipulation is made, he
> or she is ordinarily bound by such a stipulation. \[Case citations
> from Second, Seventh, Ninth and Tenth Circuits omitted.\]~~

~~In *Ferreboeuf*, the stipulation was to one of the three necessary
elements to establish the crime~~. ~~*See also Loggins v . Frey,* 786
F.2d 364, 367-68 (8^th^ Cir. 1986), upholding a stipulation that a
witness was unavailable (which allowed his prior testimony to be read
into evidence), where, although defendant's attorney did not consult him
about the stipulation, it appeared from the record that defendant
acquiesced in it and the stipulation was motivated by sound strategic
reason.~~

**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), *cert.
denied*, 421 U.S. 916 (1975), 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.),
*cert. denied*, 487 U.S. 1210 (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. The transcript,
however, is not evidence. The tape recording itself is the primary
evidence of its own contents.

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

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. You should, therefore, rely on what you hear rather
than what you read when there is a difference.

**Notes on Use**

1\. This language should be included if the accuracy of the transcript
is an issue.

**Committee Comments**

*See generally* *United States v. McMillan*, 508 F.2d 101 (8th Cir.
1974)~~, *cert. denied*, 421 U.S. 916 (1975)~~ (specifies the procedures
for use of transcripts at trial). ~~*United States v. Bentley*, 706 F.2d
1498 (8th Cir. 1983), *cert. denied*, 467 U.S. 1209 (1984).~~ *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.

~~The transcript, absent stipulation of the parties, should not go to
the jury room. *See* *United States v. Kirk*, 534 F.2d 1262 (8th Cir.
1976), *cert. denied*, 430 U.S. 906 (1977), 433 U.S. 907 (1977). Without
specific allegations, the court must assume the transcript is accurate.
*United States v. Britton*, 68 F.3d 262, 264 (8^th^ Cir. 1995); *cf.*~~
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.

**2.07 STATEMENT BY DEFENDANT**

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

First, whether the defendant (name) made the statement and

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

\[In making these two decisions you should consider all of the evidence,
including the circumstances under which the statement may have been
made.\] ^~~1~~\ 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\.
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

**Committee Comments**

~~*See* Ninth Cir. Crim. Jury Instr. 4.1 (1997); Eleventh Circuit
Pattern Jury Instructions: Criminal (Special) § 2.1 (1997). *See also* 1
Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil
and Criminal §§ 14.03 and 14.04 (4th ed. 1992); Federal Judicial Center,
Pattern Criminal Jury Instructions § 36 (1988); Fifth Circuit Pattern
Jury Instructions: Criminal § 1.26 (1997); Seventh Circuit Federal Jury
Instructions: Criminal § 3.02 (1999).~~ *See generally* 18 U.S.C. § 3501
and *United States v. Dickerson*, 530 U.S. 428 (2000)~~; West Key \#
\"Criminal Law\" 405, 406 (1-3, 5-7), 409, 411, 412(1-6), 412.1(1-4),
412.2(1-5), 414, 781(1-6), 814(16), 815(8), 823(11)~~.

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.),
*cert. denied*, 429 U.S. 1025 (1976); *United States v. Bear Killer*,
534 F.2d 1253, 1258-59 (8th Cir.), *cert. denied*, 429 U.S. 846 (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.

**2.09 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^ \[If you find that the evidence of other
acts is not proven by a preponderance of the evidence, then you shall
disregard such evidence. To prove something by a preponderance of the
evidence is to prove that it is more likely true than not true. This is
a lower standard than proof beyond a reasonable doubt.\] ^2^

~~Remember, however, that the mere fact that the defendant may have
committed \[a similar act\] \[similar acts\] in the past is not evidence
that \[he\] \[she\] committed such \[an act\] \[acts\] in this case.~~
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* Note on Use 2 to Instruction 2.08

3\. *See* Note on Use 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), *cert. denied*, 424 U.S. 911 (1976);
*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), *cert. denied*, 434
U.S. 1074 (1978); *United States v. Davis*, 551 F.2d 233, 234 (8th
Cir.), *cert. denied*, 431 U.S. 923 (1977); *United States v. Weaver*,
565 F.2d 129, 133-35 (8th Cir. 1977), *cert. denied*, 434 U.S. 1074
(1978); *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 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.), *cert.
denied*, 441 U.S. 951 (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 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
~~government attorney~~ 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., 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 ~~government attorney~~ prosecutor on that
subject may not be used by you for any other purpose.

~~The possibility~~ T~~t~~hat 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* Federal Judicial Center, Pattern Criminal Jury Instructions § 52
(1988); 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND
INSTRUCTIONS: Civil and Criminal § 11.15 (4th ed. 1992). *See generally*
Fed. R. Evid. 405(a); West Key \# \"Criminal Law\" 673(2), \"Witnesses\"
274(l).~~

*See also* 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).

~~Character testimony is limited to the reputation of a defendant, not
to specific instances of behavior. *United States v. Koessel*, 706 F.2d
271, 275 (8th Cir. 1983) (citing *Michelson*, 335 U.S. at 477).~~
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. ~~*United States v. Curtis*, 644 F.2d 263,
268 (3d Cir. 1981), *cert. denied*, 459 U.S. 1018 (1982);~~ *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. ~~*United States v.
Curtis*, 644 F.2d at 268.~~ *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 defendant's character witness on 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 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. D\'Alora~~*~~, 585 F.2d 16 (1st Cir. 1978) which
approved the following instruction:~~

> ~~For reasons which need not concern the jury, Count II has been
> withdrawn from your consideration. However, the evidence you heard
> relating to that count may be considered by you in your deliberations
> on the remaining counts~~ *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* Federal Judicial Center, Pattern Criminal Jury Instructions § 16
(1988); Ninth Cir. Crim. Jury Instr. 2.12 (1997); *United States v.
Beran*, 546 F.2d 1316, 1319-20 (8th Cir. 1976), *cert. denied*, 430 U.S.
916 (1977). *See generally* West Key \# \"Criminal Law\" 750, 867,
1166.22(2).~~

*See ~~also~~* 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. D\'Alora~~*~~, 585 F.2d 16 (1st Cir. 1978).~~
*United States v. Kelley*, 152 F.3d 886, 888 (8^th^ Cir. 1998).

**Committee Comments**

~~*See* 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND
INSTRUCTIONS: Civil and Criminal §§ 12.16 (4th ed. 1992); Federal
Judicial Center, Pattern Criminal Jury Instructions § 17 (1988); Ninth
Cir. Crim. Jury Instr. § 2.13 (1997); *United States v. Schmaltz*, 562
F.2d 558 (8th Cir.), *cert. denied*, 434 U.S. 957 (1977). *See
generally* West Key \# \"Criminal Law\" 768(l), 793.~~

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

~~Courts have split on the question of whether the jury should be told
the reason for the codefendant\'s departure or told not to concern
themselves with it. *See* discussion in *United States v. Barrientos*,
758 F.2d 1152, 1155-58 (7th Cir. 1985), *cert. denied*, 474 U.S. 1062
(1986). This instruction follows the holding of the Seventh Circuit in
that case. However, *see* *Wood v. United States*, 279 F.2d 359, 362-63
(8th Cir. 1960) in which the court approved the trial court\'s advising
the jury that certain co-defendants had pleaded guilty~~. The Eighth
Circuit has held that the trial court properly instructed a jury that
the absence of 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 the jury should become aware that a codefendant has pleaded guilty,
it should be clearly instructed that it is not to consider or discuss
the plea in deciding the case of the remaining defendant or defendants.
*Wood*, *Id.*; *United States v. Phillips*, 640 F.2d 87, 91 n. 7 (7th
Cir.), *cert. denied*, 451 U.S. 991 (1981).~~ 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.;* ~~the defense may elect to forego an
instruction if it desires to avoid calling attention to the plea.~~
*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 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 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. D\'Alora~~*~~, 585 F.2d 16 (1st Cir. 1978) which
approved the following instruction:~~

> ~~For reasons which need not concern the jury, Count II has been
> withdrawn from your consideration. However, the evidence you heard
> relating to that count may be considered by you in your deliberations
> on the remaining counts.~~ *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* 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND
INSTRUCTIONS: Civil and Criminal § 12.16 (4th ed. 1992); Ninth Cir.
Crim. Jury Instr. § 2.13 (1997); *United States v. Schmaltz*, 562 F.2d
558 (8th Cir.), *cert. denied*, 434 U.S. 957 (1977). *See generally*
West Key \# \"Criminal Law\" 750, 1166.22(2).~~

*See ~~also~~* 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 the defendant\[s\]
(name\[s\]).

**Committee Comments**

~~*See* 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND
INSTRUCTIONS: Civil and Criminal § 12.14 (4th ed. 1992); Federal
Judicial Center, Pattern Criminal Jury Instructions § 19 (1988); Ninth
Cir. Crim. Jury Instr. § 1.4 (1997); *United States v. Leach*, 429 F.2d
956, 961(8th Cir. 1970), *cert. denied*, 402 U.S. 986 (1971). *See
generally* West Key \# \"Criminal Law\" 673(2).~~

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

~~Giving this type of instruction each time evidence limited to one or
more defendants is admitted is an appropriate method to guard against
prejudice, however such interim instructions are not required and it is
within the discretion of the trial judge to determine when interim
instructions are necessary. *United States v. Oxford*, 735 F.2d 276, 280
(7th Cir. 1984). In particularly complex cases, the judge might consider
marshaling evidence at the end of the trial, thereby identifying the
limited evidence available against a particular defendant. *Cf.* *United
States v. Kelly*, 349 F.2d 720, 757 (2d Cir. 1965), *cert. denied*, 384
U.S. 947 (1966).~~ 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).

~~An exhibit admissible against only one defendant may go to the jury
room if adequate cautionary instructions are given. *United States v.
Martinez*, 428 F.2d 86 (6th Cir.), *cert. denied*, 400 U.S. 881
(1970).~~

**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 ~~in the case~~ against the other
defendant\[s\]. ~~What that means is that you may consider defendant
(name)\'s statement in the case against \[him\] \[her\] and for that
purpose rely on it as much or as little as you think proper, but y~~ 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* Federal Judicial Center, Pattern Criminal Jury Instructions § 37
(1988). *See also* 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND
INSTRUCTIONS: Civil and Criminal § 14.04 (4th ed. 1992); Seventh Circuit
Federal Jury Instructions: Criminal § 3.02 (1999). *See generally* West
Key \# \"Criminal Law\" 673(4).~~

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

~~The standard codefendant confession instruction is not as important as
it once was due to the *Bruton* rule.~~ *Bruton v. United States*, 391
U.S. 123 (1968), ~~. *Bruton*~~ 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. ~~), *cert.
denied*, 469 U.S. 1058 (~~1984), or in any ~~other~~ 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 DEFENDANT\'S TESTIMONY:**

**IMPEACHMENT BY PRIOR CONVICTION**

You \[are about to hear\] \[have heard\] evidence that the 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* Ninth Cir. Crim. Jury Instr. 4.6 (1997). *See also* 1 Edward J.
Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and
Criminal § 15.08 (4th ed. 1992); Seventh Circuit Federal Jury
Instructions: Criminal § 3.05 (1999); Federal Judicial Center, Pattern
Criminal Jury Instructions § 41 (1988). *See generally* West Key \#
\"Criminal Law\" 786(6), \"Witnesses\" 337(1-6).~~

*See ~~also~~* 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 DEFENDANT\'S TESTIMONY: IMPEACHMENT BY OTHERWISE**

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

There has been evidence that the defendant (name) was questioned at a
time prior to trial, and made certain statements. You may use that
evidence only to help you decide ~~if~~ whether \[he\] \[she\] ~~said
something different earlier,~~ made a statement before trial and ~~if~~
whether what \[he\] \[she\] said here in court was true. ~~You must not,
however, consider what was said earlier as any proof or evidence of the
defendant (name)\'s guilt.~~

**Committee Comments**

~~*See* Federal Judicial Center, Pattern Criminal Jury Instructions § 42
(1988). *See generally* West Key \# \"Witnesses\" 390.~~

*See ~~also~~* 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.), *cert.
denied*, 484 U.S. 945 (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. ~~Of course,~~ 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
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* Federal Judicial Center, Pattern Criminal Jury Instructions § 30
(1988); Ninth Cir. Crim. Jury Instr. § 4.08 (1997). *See also* 1 Edward
J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and
Criminal § 15.07 (4th ed. 1992); Fifth Circuit Pattern Jury
Instructions: Criminal § 1.11 (1997); Seventh Circuit Federal Jury
Instructions: Criminal § 3.11 (1999). *See generally* Fed. R. Evid. 609;
West Key \# \"Witnesses\" 344(l-5), 345(1-4).~~

*See also* 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.), *cert. denied*, 469 U.S. 1058 (1984). If admitted for
that purpose, the instruction should be so modified .

**Committee Comments**

~~*See generally* West Key \# \"Criminal Law\" 655(l), 673(3), 1170
½(1), 1173.2(9).~~

*See ~~also~~* 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 fn. 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.), *cert. denied*, 469 U.S. 1058 (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.), *cert. denied*, 464 U.S.
934 (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), *cert. denied*, 431 U.S. 918 (1977).

**6.18.471 COUNTERFEITING (18 U.S.C. § 471)**

The crime of counterfeiting, as charged in \[Count \] of the indictment,
has two essential 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); ~~1A~~ 2 Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal §§ ~~16.07~~ 32.01-.13 (5th ed. 2000) ~~and
Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 12
(1997) (intent to defraud). The definition of \"intent to defraud,\" for
financial gain, is noted with approval in *United States v. Speaks*, 453
F.2d 966, 969 n.9 (1st Cir.), *cert. denied*, 405 U.S. 1071 (1972)~~.

**Committee Comments**

~~*See* Seventh Circuit Federal Jury Instructions: Criminal, at 169
(1999); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) §
12 (1997); 2 Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal §§ 17.02, 32.01-.13 (5th ed. 2000).~~

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 is found in *United
States v. Lustig*, 159 F.2d 798, 802 (3d Cir. 1947); *rev\'d on the
other grounds*, 338 U.S. 74 (1949). The test is whether there is such a
likeness 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 upright and honest. *See also
United States v. Brunson*, 657 F.2d 110, 114 (7th Cir. 1981), *cert.
denied*, 454 U.S. 1151 (1982) (same definition used) and 2 Kevin F.
O'Malley, et al., *Federal Jury Practice and Instructions*: Criminal §
32.12 (5th ed. 2000), which provides:~~

~~\"The term \'~~"counterfeit~~\'~~" means made in order to bear such a
likeness or resemblance to ~~something~~ (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). ~~Should~~ 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), *cert. denied*, 421
U.S. 967 (1975).

**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 essential 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 defendant or another.
It is not necessary, however, to prove that the United States or anyone
else was in fact defrauded.~~^2^~~

(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).

~~2. *See* 1A Kevin F. O'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal § 16.07 (5th ed. 2000) and Eleventh Circuit
Pattern Jury Instructions: Criminal (Offense) § 13.1 (1997). The
definition of \"intent to defraud,\" for financial gain, is noted with
approval in *United States v. Speaks*, 453 F.2d 966, 969 n.9 (1st Cir.),
*cert. denied*, 405 U.S. 1071 (1972).~~

**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). ~~Eleventh Circuit Pattern Jury Instructions:
Criminal (Offense) § 12 (1997); Ninth Cir. Crim. Jury Instr. 8.6.2
(1997); Seventh Circuit Federal Jury Instructions: Criminal at 170
(1999). *See also* *United States v. Tucker*, 820 F.2d 234, 236 (7th
Cir. 1987).~~

~~Whether or not a specific security or obligation is an~~ Only
obligations or securit~~y~~ies of the United States ~~is a question of
law and is to be decided by the trial court. *See*~~ 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 ~~a counterfeit is found in *United
States v. Lustig*, 159 F.2d 798, 802 (3d Cir. 1947), *rev\'d on other
grounds*, 338 U.S. 74 (1949). The test is whether there is such a
likeness to genuine currency as is calculated to deceive an honest,
sensible, and unsuspecting person supposed to be upright and honest.
*See also* *United States v. Brunson*, 657 F.2d 110, 114 (7th Cir.
1981), *cert. denied*, 454 U.S. 1151 (1982) \[same definition used\] and
2 Kevin F. O'Malley, et al., *Federal Jury Practice and Instructions*:
Criminal § 32.12 (5th ed. 2000), which provides:~~

> ~~The term~~ \"counterfeit\" ~~means made in order to bear~~ is an
> item bearing such a likeness or resemblance to ~~something~~ genuine
> currency ~~that it~~ as is calculated to deceive an honest, sensible,
> and unsuspecting person of ordinary observation and ~~using~~ care
> when dealing with a person ~~who is presumed~~ 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)~~, *cert. denied*, 421
U.S. 967 (1975)~~. 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"). ~~Thus, a~~ 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), *cert. denied*, 372 U.S. 945 (1963).

Knowledge of the counterfeit character of the obligation is an essential
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. ~~), *cert. denied*, 444 U.S.
862 (~~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. ~~A critical
factor concerning the issue of guilty knowledge is whether the defendant
is in possession of or has passed more than one counterfeit obligation.
*See*~~ 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).
~~The naked act of possessing and passing counterfeit money, without
knowledge that it is counterfeit, does not establish the requisite
knowledge essential to the crime of passing or the requisite intent to
defraud. *United States v. Bishop*, 534 F.2d 214 (10th Cir. 1976).~~

\"Passing\" and \"uttering\" are sometimes treated as synonymous.
~~*See* Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) §
12 (1997): \"To \'pass\' or \'utter\' a counterfeit note includes any
attempt to spend the note or otherwise place it in circulation.\"~~
However, \"passing\" does not require any declaration that the note is
good ~~or any attempt to circulate.~~ 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*. ~~This question was
left open in *United States v. DeFilippis*, 637 F.2d 1370, 1373-74 (9th
Cir. 1981), an unusual case on the facts in which the defendants
exchanged \"raised\" notes for good ones with merchants, claiming the
merchants had mistakenly given them altered currency in change. In that
case the court held that the evidence supported \"passing\" and uttering
instructions were not appropriate since there was no declaration that
the raised note was good nor any attempt to circulate it.~~

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. ~~), cert. denied, 406 U.S. 908
(~~1972) (citing *Rader v. United States*, 288 F.2d 452, 453 (8th Cir.
~~), *cert. denied*, 368 U.S. 851 (~~1961)), a forgery case under 18
U.S.C. § 500.

**6.18.1503A CORRUPTLY ENDEAVORING TO INFLUENC~~ING~~ E A JUROR**

**(18 U.S.C. § 1503)**

The crime of corruptly endeavoring to influenc~~ing~~ e a juror^1^, as
charged in \[Count \_\_\_\_\_ of\] the indictment, has three essential
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~~^3^~~ endeavored^~~4~~\ 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 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 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\" ~~in this~~ 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, \_\_\_, 115 S. Ct. 2357, 2362 (1995). 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\. ~~The jury should be instructed on the meaning of \"endeavor.\"
*See* the Committee Comments, *infra*, for possible definitions.~~
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* Fifth Circuit Pattern Jury Instructions: Criminal § 2.67 (1997);
2A Kevin F. O'Malley, et al., *Federal Jury Practice and Instructions*:
Criminal § 48.03 (5th ed. 2000)~~; *United States v. Fasolino*, 586 F.2d
939 (2d Cir. 1978); *United States v. Jackson*, 607 F.2d 1219, 1222 (8th
Cir. 1979), *cert. denied*, 444 U.S. 1080 (1980); *United States v.
Capo*, 791 F.2d 1054, 1070 (2d Cir. 1986)~~.

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 courts
alleging that defendant [endeavored]{.underline} 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.), *cert. denied*, 479 U.S. 923 (1986)~~; *United States
v. Johnson*, 605 F.2d 729, 730 (4th Cir. 1979), *cert. denied*, 444 U.S.
1020 (1980)~~. (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 ~~included~~ 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.), *cert. denied*, 488 U.S. 909 (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.), *cert. denied*, 475 U.S. 1141
(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 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* Essential
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.* ~~In~~ As the Supreme Court stated in *United
States v. Russell*~~, the Court held~~:

> The 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).
~~\"\[A\]n \'endeavor\' under § 1503 does not require proof that would
support a charge of attempt, i.e., an \'endeavor\' is less than an
attempt.\" *United States v. Buffalano*, 727 F.2d 50, 53 (2d Cir. 1984).
*See also* *United States v. Fasolino*, 586 F.2d 939, 940-41 (2d Cir.
1978).~~ 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, ~~at~~ 1222-23 (8^th^ Cir.
1979), *cert. denied*, 444 U.S. 1080 (1980); *United States v. McCarty*,
611 F.2d 220, 224 (8th Cir. 1979), *cert. denied*, 445 U.S. 930 (1980);
~~*United States v. Ogle*, 613 F.2d 233, 239 (10th Cir. 1979), *cert.
denied*, 449 U.S. 825, *reh. denied*, 449 U.S. 1026 (1980); *United
States v. Neiswender*, 590 F.2d 1269, 1275 (4th Cir.), *cert. denied*,
441 U.S. 963 (1979). It does not matter if the result intended by the
defendant was impossible to obtain. *United States v. Nicosia*, 638 F.2d
970, 975 (7th Cir. 1980), *cert. denied*, 452 U.S. 961 (1981)~~.

*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.), *cert.
denied*, 419 U.S. 917 (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.

~~*See* subsection "c." of these Comments for a further discussion of
*Silverman*.~~

*"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). ~~This i~~ 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.

~~No consistent definition of \"corruptly\" as used in this statute has
developed in case law, and for this reason, no definition is suggested
here. C~~ 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.

~~a. *Wicked or Evil Purpose.* Several cases have held that
\"corruptly\" means that a defendant acted with an improper motive or
with an evil or wicked purpose. *See* *United States v. Partin*, 552
F.2d 621, 641 (5th Cir.), *cert. denied*, 434 U.S. 903 (1977); *United
States v. Ryan*, 455 F.2d 728, 734 (9th Cir. 1971); *United States v.
Haldeman*, 559 F.2d 31, 115 n.229 (D.C. Cir. 1976), *cert. denied*, 431
U.S. 933, *reh. denied*, 433 U.S. 916 (1977). \"\'Corruptly\' applies to
the ends of an actor\'s conduct rather than the means, so that any act,
whether lawful or unlawful on its face, may abridge § 1503 if performed
with a corrupt motive.\" *United States v. Cintolo*, 818 F.2d 980,
991-93 (1st Cir.), *cert. denied*, 484 U.S. 913 (1987).~~

~~The Eighth and Tenth Circuits have held that a trial court properly
denied a defendant\'s request to have corruptly defined for the jury in
terms of improper motive or bad, evil or wicked purpose. *United States
v. Jackson*, 607 F.2d 1219, 1221-22 (8th Cir. 1979), *cert. denied*, 444
U.S. 1080 (1980); *United States v. Ogle*, 613 F.2d at 242.~~

~~In the cases which have approved such a definition of \"corruptly,\"
the definition has often been further modified to fall within one of the
other categories. In *Partin*, the instruction defining \"corruptly\"
further stated: \"Any endeavor to influence or intimidate or impede a
witness falls within the meaning of the word corruptly.\" 552 F.2d at
641. Likewise, in *Haldeman*, the instruction defining \"corruptly\"
further stated:~~

> ~~In terms of proof, in order to convict any Defendant of obstruction
> of justice, you must be convinced beyond a reasonable doubt that the
> Defendant made some effort to impede or obstruct the Watergate
> investigation or the trial of the original Watergate defendants.~~
>
> ~~If you find, for example, that a Defendant participated in the
> payment of money to the original Watergate defendants *for the purpose
> of keeping them quiet*, you would be justified in finding that a
> corrupt endeavor to obstruct the due administration of justice
> occurred.~~

~~559 F.2d at 115 n.229.~~

~~In *Ryan*, it was further held: \"Specific intent to impede the
administration of justice is an essential element of the offense.\" 455
F.2d at 734.~~

~~b. *Intent to Influence or Obstruct.* The act must be done with the
intent to influence judicial or grand jury proceedings. *United States
v. Aguilar*, 515 U.S. at 599. In an obstruction case, \"if the defendant
lacks knowledge that his actions are likely to affect the judicial
proceeding, he lacks the requisite intent to obstruct.\" *Id.* However,
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; *United States v.
Buffalano*, 727 F.2d at 53-54; *United States v. Petzold*, 788 F.2d
1478, 1485 (11th Cir. 1986).~~

~~Many jurisdictions define \"corruptly\" in terms of acting with a
\"purpose\" to influence a juror or obstruct justice or otherwise bring
about a prohibited result.~~

~~\"We hold that the word \'corruptly\' as used in the statute means
that the act must be done with the purpose of obstructing justice.\"
*United States v. Rasheed*, 663 F.2d 843, 852 (9th Cir. 1981), *cert.
denied*, 454 U.S. 1157 (1982). *See also* *United States v. Jeter*, 775
F.2d 670, 679 (6th Cir. 1985), *cert. denied*, 475 U.S. 1142 (1986);
*United States v. Machi*, 811 F.2d 991, 997 (7th Cir. 1987). *See also*
*Haldeman*, 559 F.2d at 115 n.229, quoted above.~~

~~*See also* *United States v. Ogle*, which held:~~

> ~~\[T\]he term \"corruptly\" does not superimpose a special and
> additional element on the offense such as a desire to undermine the
> moral character of a juror. Rather, it is directed at an effort to
> bring about a particular result such as affecting the verdict . . .
> .~~

~~613 F.2d at 238.~~

~~The use of the word \"purpose\" is a good substitute for the use of
the phrase \"specific intent\" which the Committee is recommending no
longer be used in jury instructions. *See* Instruction 7.01, *infra*.
\"~~

The term "specific intent\" is found in many definitions of
\"corruptly,\" including one approved by ~~this~~ 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:

> To 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).

~~c. *Intent to do an Act which Results in Obstruction.* Some courts
have moved away from a two-step analysis of intent, in which the jury is
charged first with finding an intent to obstruct and second that such
intent can be inferred from certain circumstances, to a one-step
approach which defines the required intent as an intent to do an act
with knowledge that obstruction will result. *See* *United States v.
Neiswender*. That case recognized that the same result would be arrived
at by either approach, but preferred to shift the analysis away from one
which involved making inferences.~~

> ~~Thus we hold that a defendant who intentionally undertakes an
> arrangement, the reasonable foreseeable consequence of which is to
> obstruct justice, violates § 1503 even if his hope is that the
> judicial machinery will not be seriously impaired.~~

~~590 F.2d at 1274.~~

~~Likewise the Eleventh Circuit has held that a requirement that the
jury find an intent to obstruct is \"too demanding\":~~

> ~~One violates section 1503 by knowingly and purposefully undertaking
> an act, the natural and probable consequences of which is to
> influence, obstruct or impede due administration of justice.~~

~~*United States v. Silverman*, 745 F.2d 1386, 1396 (11th Cir. 1984).~~

~~And in *Knight v. United States*, 310 F.2d 305 (5th Cir. 1962), it was
held: \"This specific intent \[to violate § 1503\] must be to do some
act or acts which tend to impede or influence, obstruct or impede the
due administration of justice.\" 310 F.2d at 307.~~

~~d. *\"Per se\" corruption.* Although it is generally held that the
question of whether an endeavor is corrupt is for the jury, *United
States v. Fasolino*, 586 F.2d at 941; *Knight v. United States*, 310
F.2d at 307-08, in many of these cases, the court has further instructed
the jury or held that any endeavor to obstruct is \"per se\" corrupt.
*See* *United States v. Partin*, as quoted in these Comments; *United
States v. Ogle*, in which the court held \"corruptly\":~~

> ~~really means unlawful . . . . \[A\]n endeavor to influence a juror
> in the performance of his or her duty or to influence, obstruct or
> impede the due administration of justice is per se unlawful and is
> tantamount to doing the act corruptly.~~

~~613 F.2d at 242. *See also* *United States v. Cioffi*, 493 F.2d 1111,
1119 (2d Cir. 1974) in which the trial court instructed the jury that
any endeavor, as defined, was corrupt. The definition given for endeavor
in that case could be construed to encompass intent.~~

~~In other cases, courts have instructed the jury that particular
conduct charged was corrupt. In *United States v. Fasolino*, the court
instructed the jury that it could find appellant\'s intent to be corrupt
if it determined that appellant knew that an attorney (Messina) had no
personal knowledge about a defendant (Quaranta) or information relevant
to his sentencing and that appellant \"knew or thought that Mr. Messina
had some friendship or special relationship or special association with
Judge Curtin which \[appellant\] thought would, by itself, be persuasive
with Judge Curtin.\" 586 F.2d at 941.~~

~~Most often, bribery or other payment of money has been defined as
corrupt. *See* *United States v. Haldeman*, in which the court first
defined \"corruptly,\" then instructed the jury that the payment of
money to persons to keep them quiet would be corrupt. *See* language
quoted previously in these Comments. Such instructions are consistent
with the cases which have held as a general rule that bribery is
corrupt. *See*, *e.g.*, *United States v. Rasheed*, 663 F.2d at 852.~~

**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 essential 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 essential 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), *cert. denied*,
489 U.S. 1067 (1989); *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.),
*cert. denied*, 454 U.S. 857 (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.), *cert.
denied*, 488 U.S. 890 (1988); *United States v. Cauble*, 706 F.2d 1322
(5th Cir. 1983), *cert. denied,* 465 U.S. 1005 (1984).

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.), *cert. denied*, 454 U.S. 826 (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.), *cert. denied*, 479 U.S. 937 (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), *cert. denied*,
516 U.S. 870 (1995); *United States v. Oreto*, 37 F.3d 739 (1st Cir.
1994), *cert. denied*, 513 U.S. 1177 (1995); *United States v. DiSalvo*,
34 F.3d 1204 (3d Cir. 1994); *United States v. Aucoin*, 964 F.2d 1492
(5th Cir. 1992), *cert. denied*, 506 U.S. 1023 (1992); *United States v.
Tripp*, 782 F.2d 38 (6th Cir.), *cert. denied*, 475 U.S. 1128 (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.), *cert. denied*, 479
U.S. 937 (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),
*cert. denied*, 464 U.S. 1008 (1983); *Moss v. Morgan Stanley* *Inc.,*
719 F.2d 5 (2d Cir. 1983), *cert. denied*, 465 U.S. 1025 (1984); *Schact
v. Brown*, 711 F.2d 1343 (7th Cir.), *cert. denied*, 464 U.S. 1002
(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), *cert. denied*, 452 U.S. 961 (1981). 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), *cert. denied,* 517 U.S. 1149 (1996); *United States v. Bledsoe*,
674 F.2d 647 (8th Cir.), *cert. denied*, 459 U.S. 1040 (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), *cert. denied*, 511 U.S. 1076 (1994); *United States v. Masters*,
924 F.2d 1362 (7th Cir.), *cert. denied*, 500 U.S. 919 (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.), *cert. denied*, 479 U.S. 937 (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), *cert. denied*, 464 U.S. 1008 (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), *cert.
denied*, 465 U.S. 1005 (1984). 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), *cert. denied*, 504
U.S. 955 (1992). 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), *cert. denied*, 475 U. S. 1098 (1986) (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).

**6.18.1962D 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), *cert. denied*, 468 U.S. 1217 (1984). 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), *cert. denied,* 489 U.S. 1030 (1989).

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.), *cert. denied,* 488 U.S. 932 (1988);
*United States v. Lemm*, 680 F.2d 1193 (8th Cir. 1982), *cert. denied*,
459 U.S. 1110 (1983).

**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), *cert. denied*, 468 U.S. 1217 (1984). 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), *cert. denied*, 441 U.S. 933 (1979).

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.),
*cert. denied*, 488 U.S. 821 (1988); *United States v. Mazzei*, 700 F.2d
85 (2d Cir.), *cert. denied*, 461 U.S. 945 (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.), *cert. denied*, 488 U.S. 890 (1988); *United States v. Cauble*,
706 F.2d 1322 (5th Cir.), *cert. denied*, 465 U.S. 1005 (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), *cert. denied*, 464 U.S. 1008
(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.), *cert. denied*, 459 U.S.
1040 (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.), *cert. denied*, 488 U.S. 821 (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), *cert. denied by Dentico v. United States,* 468 U.S.
1217 (1984); *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), *cert. denied*, 464 U.S. 1008
(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).

**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., \[a
controlled substance\] \[name of controlled substance\] \[~~over~~ 500
grams or more of a mixture or substance containing methamphetamine) with
intent to distribute, as charged in \[Count \_\_\_\_\_ of\] the
indictment, has four essential 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., \[the amount defendant
possessed with intent to distribute was ~~over~~ 500 grams or more of a
mixture or substance containing methamphetamine\] \[the amount involved
in the offense was ~~over~~ 500 grams or more of a mixture or substance
containing methamphetamine\], \[or if that is not proved, that (describe
lesser included but still aggravated crime, e.g. \[the amount defendant
possessed with intent to distribute was ~~over~~ 50 grams or more but
less than 500 grams of a mixture or substance containing
methamphetamine\] \[the amount involved in the offense was ~~over~~ 50
grams or more but less than 500 grams of a mixture or substance
containing methamphetamine\]\]).

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 \[entrapped\] \[coerced\] \[as defined in
Instruction No. \]\], 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 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 \[entrapped\] \[coerced\] \[as defined in
Instruction No. \]\], 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 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* 11.03 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 ~~in excess of~~ \[describe substance and
amount\] 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., \[a
controlled substance\] \[name of controlled substance\] \[~~over~~ 500
grams or more of a mixture or substance containing methamphetamine) with
intent to distribute, as charged in \[Count \_\_\_\_\_ of\] the
indictment, has four essential 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. \[the amount defendant
possessed with intent to distribute was ~~over~~ 500 grams or more of a
mixture or substance containing methamphetamine\] \[the amount involved
in the offense was ~~over~~ 500 grams or more of a mixture or substance
containing methamphetamine\]).

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 \[entrapped\] \[coerced\] \[as defined in
Instruction No. \]\], 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.
\[the amount defendant possessed with intent to distribute was ~~over~~
50 grams or more but less than 500 grams of a mixture or substance
containing methamphetamine\] \[the crime involved ~~over~~ 50 grams or
more but less than 500 grams of a mixture or substance containing
methamphetamine\].

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. \[defendant
possessed with intent to distribute ~~over~~ 50 grams or more but less
than 500 grams of a mixture or substance containing methamphetamine\]
\[the crime involved ~~over~~ 50 grams or more but less than 500 grams
of a mixture or substance containing methamphetamine\]

\[and if you find unanimously and beyond a reasonable doubt that the
defendant was not \[entrapped\] \[coerced\] \[as defined in Instruction
No. \]\], 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 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 \[entrapped\] \[coerced\]
\[as defined in Instruction No. \]\] 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 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* ~~11.03~~ 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 ~~in excess of~~ \[describe substance and
amount\] 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 the defendant (name) \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_of
the crime of (insert brief

\[guilty/not guilty\]

description, e.g., possession with intent to distribute ~~over~~ 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 ~~over~~ 50 grams or more of a mixture or substance
> containing methamphetamine) as follows:

**\[LESSER INCLUDED OFFENSE\]**

\[We, the jury, find the defendant (name) \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
of the crime of (insert brief

\[guilty/not guilty\]

description, e.g., possession with intent to distribute ~~over~~ 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 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) as follows:\]

**LESSER INCLUDED OFFENSE**

We, the jury, find the 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 defendant \"guilty,\" you must answer the following:

The quantity of (describe substance, e.g. \[a mixture or substance
containing a detectable amount of\]\[name controlled substance\])
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)

**6.21.846A.1 CONSPIRACY (21 U.S.C. § 846)**

***APPRENDI*-AFFECTED CONSPIRACY**

The crime of conspiracy as charged in \[Count of\] the indictment, has
four essential 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 ~~in excess of~~ 500 grams or more of a mixture
or substance containing methamphetamine^3^ \[and ~~in excess of 500
grams~~ 5 kilograms or more of a mixture or substance containing
cocaine\]\]^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 \[entrapped\] \[coerced\] \[as defined in
Instruction No. \]\], then you must find the defendant guilty of the
crime of conspiracy (describe offense, e.g. \[to distribute ~~in excess
of~~ 500 grams or more of a mixture or substance containing
methamphetamine \[and ~~in excess of 500 grams~~ 5 kilograms or more of
a mixture or substance containing cocaine\]\]). 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 defendant conspired (describe lesser
offense, e.g. \[to distribute ~~in excess of 5~~ 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 ~~in excess of~~ 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 \[entrapped\] \[coerced\] \[as defined in Instruction
No. \]\], then you must find the defendant guilty of the crime of
conspiracy to distribute (describe substance and amount, e.g., ~~in
excess of~~ 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 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 \[entrapped\] \[coerced\] \[as defined in Instruction
No. \]\], 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 defendant has a prior felony drug
conviction .

Suggested wording for the aggravating facts listed in the above
paragraph are:

a\) the crime involved ~~in excess of~~ \[describe substance and
amount\] 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.