**2.06 TRANSCRIPT OF TAPE-RECORDED CONVERSATION**

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

You are permitted to have the transcript for the limited purpose of
helping you follow the conversation as you listen to the tape recording,
and also to help you keep track of the speakers. Differences in meaning
between what you hear in the recording and read in the transcript may be
caused by such things as the inflection in a speaker\'s voice. It is
what you hear, however, and not what you read, that is the evidence.
~~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 paragraph should be given ~~only~~ if the parties do not
stipulate to the transcript. In *United States v. Gonzalez*, 365 F.3d
656, 660 (8^th^ Cir. 2004), the court said: A\[W\]e believe that
whenever the parties intend to introduce a transcript at trial, they
should first try \>to produce an \>official= or \>stipulated=
transcript, one which satisfies all sides,= *United States v. Cruz*, 765
F.2d 1020, 1023 (11^th^ Cir. 1985) (quoting *United States v. Wilson*,
578 F.2d 67, 69-70 (5^th^ Cir. 1978)). If they are unable to do so,
\>then each side should produce its own version of a transcript or its
own version of the disputed portions. In addition, each side may put on
evidence supporting the accuracy of its version or challenging the
accuracy of the other side=s version.= *Id.* (quoting *Wilson*, 578 F.2d
at 69-70).@ In the opinion of the Committee, one transcript with
bracketed alternatives can also be used to aid the jury where the
dispute only involves short disagreements.

**Committee Comments**

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

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

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

**2.06A TRANSCRIPT OF FOREIGN LANGUAGE**

**TAPE-RECORDED CONVERSATION** ^1^

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

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

**Notes on Use**

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

2\. ~~There is general agreement that the~~ Jurors should be instructed
to rely only on the English translation, not on their own knowledge of
the foreign language. *United States v. Gonzalez*, 365 F.3d 656, 661-62
(8^th^ Cir. 2004). The court cited with approval the Seventh Circuit
Federal Criminal Jury Instruction \' 3.18, and encouraged district
courts to Ause an instruction similar to it when introducing an English
transcript of dialogue that originally was spoken in another language.@
*Id.* at 662. ~~*See generally United States v. Valencia*, 957 F2d 1189,
1195 (5^th^ Cir. 1992), *cert. denied*, 506 U.S. 889 (1992); *United
States v. Castro-Velasquez*, 56 Fed. Appx. 846 (9^th^ Cir.
2003)(unpublished); Charles M. Grabau and Llewellyn Joseph Gibbons,
Protecting the Rights of Linguistic Minorities: Challenges to Court
Interpretation, 30 New Eng. L. Rev. 227, 252, 305-06 (1996).~~

3\. This language may be included if desired. *United States v.
Gonzalez*, 365 F.3d 656 (8^th^ Cir. 2004) ~~It comes from the Seventh
Circuit, Instruction \' 3.18.~~

**~~Committee Comments~~**

~~In *United States v. Gonzalez*, 365 F.3d 656 (8^th^ Cir. 2004), the
Eighth Circuit cited with approval Seventh Circuit Federal Criminal Jury
Instruction \' 3.18, and encouraged district courts to Ause an
instruction similar to it when introducing an English transcript of
dialogue that originally was spoken in another language.@ *Id.* at
662.~~

~~This instruction is similar to Seventh Circuit Instruction \' 3.18.
The purpose of the instruction is Ato inform the jury that it must
determine the validity of the transcript presented.@ *Id.*; *United
States v. Gutierrez*, 367 F.3d 733 (8^th^ Cir. 2004).~~

**6.18.922G(3) DRUG USER IN POSSESSION OF FIREARM (18 U.S.C. \'
922(g)(3))**

The crime of being a \[drug user\] \[drug addict\] in possession of a
firearm, as charged in \[Count of\] the indictment, has three essential
elements, which are:

*One*, the defendant \[was an unlawful user of a controlled substance,
that is, (name of substance)\]^1^ \[was a drug addict\]^2^;

*Two*, the defendant knowingly^3^ \[possessed\] \[received\] \[a
firearm\] \[ammunition\], that is (describe weapon or ammunition), while
\[he\] \[she\] was \[an unlawful user of a controlled substance\] \[a
drug addict\]; and

*Three*, the \[firearm\] \[ammunition\] was transported across a state
line at some time during or before the defendant\'s possession of it.

If you have found beyond a reasonable doubt that the firearm in question
was manufactured in a state other than (name state in which possession
occurred) and that the defendant possessed that firearm in the State of
(name state in which possession occurred) then you may, but are not
required to, find that it was transported across a state line.^4^

The term \"firearm\" means any weapon (including a starter gun) which
will or is designed to or may be readily converted to expel a projectile
by the action of an explosive.^5^

\[The ~~term~~ phrase \"unlawful user of a controlled substance\" means
a person who uses a controlled substance in a manner other than as
prescribed by a licensed physician. The defendant must have been
actively engaged in use of \[a\] controlled substance\[s\] during the
~~period of~~ time \[he\] \[she\] possessed the \[firearm\]
\[ammunition\], but the law does not require that \[he\] \[she\] used
the controlled substance\[s\] at the precise time \[he\] \[she\]
possessed the \[firearm\] \[ammunition\]. Such use is not limited to the
use of drugs on a particular day, or within a matter of days or weeks
before, but rather that the unlawful use has occurred recently enough to
indicate that the individual is actively engaged in such conduct. \[An
inference that a person \[was\] \[is\] a user of a controlled substance
may be drawn from evidence of a pattern of use or possession of a
controlled substance that reasonably covers the time the \[firearm\]
\[ammunition\] was possessed.\]^~~1~~6^

\[The term \"drug addict\" means any individual who habitually uses any
controlled substance so as to endanger the public morals, health,
safety, or welfare, or who is so far addicted to the use of a controlled
substance as to have lost the power of self-control with reference to
\[his\] \[her\] addiction.\]^~~1~~7^

You are instructed that \[name of substance(s)\] is a controlled
substance.

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

**Notes on Use**

1\. This instruction=s definition of an unlawful user of a controlled
substance is based upon the definition utilized by the Treasury
Department in its firearms regulations, 27 C.F.R. \' 478.11, which
provides in pertinent part as follows:

> \[A\]ny person who is a current user of a controlled substance in a
> manner other than as prescribed by a licensed physician. Such use is
> not limited to the use of drugs on a particular day, or within a
> matter of days or weeks before, but rather that the unlawful use has
> occurred recently enough to indicate that the individual is actively
> engaged in such conduct. A person may be an unlawful current user of a
> controlled substance even though the substance is not being used at
> the precise time the person seeks to acquire a firearm or receives or
> possesses a firearm. An inference of current use may be drawn from
> evidence of a recent use or possession of a controlled substance or a
> pattern of use or possession that reasonably covers the present time,
> e.g., a conviction for use or possession of a controlled substance
> within the past year; multiple arrests for such offenses within the
> past 5 years if the most recent arrest occurred within the past year;
> or persons found through a drug test to use a controlled substance
> unlawfully, provided that the test was administered within the past
> year.

The Eighth Circuit in *United States v. Turnbull*, 349 F.3d 558, 562
(8^th^ Cir. 2003) found the Treasury Department=s definition Aentirely
consistent with any standard for unlawful use to be gleaned from our
prior decisions@ and that the district court acted within its discretion
when it incorporated \'478.11\'s definition in its instructions. The
Eighth Circuit has held that the government need not prove that
defendant was actually using drugs at the precise moment he possessed
the firearm. Rather, the \"plain language \[of \' 922(g)(3)\] requires
that the government only prove \[defendant\] was an \>unlawful user= . .
. during the time he possessed firearms.\" *United States v. McIntosh*,
23 F.3d 1454, 1458 (8^th^ Cir. 1994).

2\. This definition is taken from 21 U.S.C. \'802(1).

3\. \"Knowingly\" is found in the penalty section of the statute, \'
924.

4\. Adapted generally from the instruction used in *Barrett v. United
States*, 423 U.S. 212, 225 (1976).

5\. This definition is taken from 18 U.S.C. \' 921(a)(3). Other portions
of this definition should be used where appropriate.

6\. *See* Note 1.

7\. *See* Note 2.

**Committee Comments**

The Firearms Owners\' Protection Act of 1986 amended prior section 922
by incorporating with it related provisions of 18 U.S.C. App. \'
1202(a)(l). *See* House Rep. #99‑495, reprinted in 1986 U.S. Code Cong.
& Admin. News 1327, 1349. *See generally* Hardy, *The Firearms Owners\'
Protection Act: A Historical and Legal Perspective*, 17 Cumb. L. Rev.
585 (1987), for an extensive discussion of the legislative history of
this amendment.

In amending section 922(g), Congress intended both to \"enhance the
ability of law enforcement to fight violent crime\" and to \"relieve the
nation\'s sportsmen and firearms owners and dealers from unnecessary
burdens under the Gun Control Act of 1968.\" House Report at 1327. These
potentially conflicting goals, coupled with a long and, at times
confusing, legislative history, can make interpretation of this statute
difficult.

Pursuant to the statute, it is unlawful for any person who is a user of
or addicted to a controlled substance to possess or receive a firearm
where the required interstate commerce nexus is established. The
defendant need not know the firearm was transported across state lines.
*United States v. Valiant*, 873 F.2d 205 (8th Cir. 1989). Challenges to
the constitutionality of section 922(g) on the theory that Congress did
not have constitutional authority to criminalize possession of a weapon
by a felon just because the weapon had been transported in interstate
commerce have been unsuccessful. *United States v. Lopez*, 514 U.S. 549,
115 S. Ct. 1624 (1995). *See, e.g., United States v. Monteleone*, 77
F.3d 1086 (8th Cir. 1996); *United States v. Rankin*, 64 F.3d 338, 339
(8th Cir. 1995); *United States v. Mosby*, 60 F.3d 454, 456 (8th Cir.
1995). ~~Courts have also rejected vagueness challenges to the statute=s
use of the term \"user of a controlled substance.\" *See*, *e.g.*,
*United States v. Purdy*, 264 F.3d 809 (9^th^ Cir. 2001) (statute not
impermissibly vague in the circumstances of the case); *United States v.
Edwards*, 182 F.3d 333 (5^th^ Cir. 1999) (same).~~

The Eighth Circuit held in *United States v. Richardson*, \_\_\_ F.3d
\_\_\_, No. 04-3472, slip op. (8^th^ Cir. Aug. 19, 2005), that
convictions under \' 922(g)(1) and (g)(3) arising out of the same act of
possession should have been merged for sentencing, because Congress did
not intend multiple punishments for a single act of possession of a
firearm.

**6.18.1341 MAIL FRAUD (18 U.S.C. \' 1341)**

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

*One*, the defendant voluntarily and intentionally \[devised or made up
a scheme to defraud another out of \[money, property or property
rights\] \[the intangible right to honest services\]^1^\] \[participated
in a scheme to defraud with knowledge of its fraudulent nature\]
\[devised or participated in a scheme to obtain \[money, property or
property rights\] \[the intangible right to honest services\] by means
of material false representations or promises\]^2^ \[which scheme is
described as follows: (describe scheme in summary form or in manner
charged in the indictment)\];^3^

*Two*, the defendant did so with the intent to defraud; \[and\]

*Three,* the defendant used, or caused to be used, \[the mail\] \[a
private interstate carrier\] \[a commercial interstate carrier\]^4^ in
furtherance of, or in an attempt to carry out, some essential step in
the scheme; \[and\]

*\[Four*, the scheme was in connection with the conduct of
telemarketing.\]

*or*

\[*Four*, the scheme was in connection with the conduct of telemarketing
and

> \(a\) victimized ten or more persons over the age of 55, or
>
> \(b\) targeted persons over the age of 55.\]

*or*

\[*Four*, that the scheme affected a financial institution.\]^5^

The phrase \"scheme to defraud\" includes any plan or course of action
intended to deceive or cheat another out of \[money, property or
property rights\] \[the intangible right to honest services\] by
\[employing material falsehoods\] \[concealing material facts\]
\[omitting material facts\]. It also means the obtaining of \[money or
property\] \[the intangible right to honest services\] from another by
means of material false representations or promises. A scheme to defraud
need not be fraudulent on its face but must include some sort of
fraudulent misrepresentation or promise reasonably calculated to deceive
a reasonable person.^6^

A statement or representation is \"false\" when it is untrue when made
or effectively conceals or omits a material fact.^7^

A \[fact\] \[falsehood\] \[representation\] \[promise\] is \"material\"
if it has a natural tendency to influence, or is capable of influencing,
the decision of a reasonable person in deciding whether to engage or not
to engage in a particular transaction.^8^ \[However, whether a \[fact\]
\[falsehood\] \[representation\] \[promise\] is \"material\" does not
depend on whether the person was actually deceived.\]^9^

To act with \"intent to defraud\" means to act knowingly and with the
intent to deceive someone for the purpose of causing some \[financial
loss\] or \[loss of property or property rights\] \[loss of an
intangible right to honest services\] to another or bringing about some
financial gain to oneself or another to the detriment of a third
party.^~~7~~10^ \[With respect to false statements, the defendant must
have known the statement was untrue when made or have made the statement
with reckless indifference to its truth or falsity.\]^~~8~~11^

\[The term property rights, as used in the mail fraud statute, includes
intangible as well as tangible property rights. It includes any property
right which has a value B not necessarily a monetary value B to the
owner of the property right. For example, a scheme to deprive a company
of the exclusive use of confidential business information obtained by
the employees would be a scheme to deprive the company of intangible
property rights.\]^~~9~~12^

It is not necessary that the use of \[the mail\] \[an interstate
carrier\] by the participants themselves be contemplated or that the
defendant do any actual \[mailing\] \[sending of material by an
interstate carrier\] or specifically intend that \[the mail\] \[an
interstate carrier\] be used. It is sufficient if \[the mail\] \[an
interstate carrier\] was in fact used to carry out the scheme and the
use of \[the mail\] \[an interstate carrier\] by someone was reasonably
foreseeable.^~~10~~13^

\[Mailings\] \[Deliveries by an interstate carrier\] which are designed
to lull victims into a false sense of security, postpone inquiries or
complaints, or make the transaction less suspect are \[mailings\]
\[deliveries\] in furtherance of the scheme.\]^~~11~~14^

\[Each separate use of \[the mail\] \[an interstate carrier\] in
furtherance of the scheme to defraud constitutes a separate
offense.\]^~~12~~15^

\[The \[mail\] fraud counts of the indictment charge that each
defendant, along with the other defendants, devised or participated in a
scheme. The Government need not prove, however, that the defendants met
together to formulate the scheme charged, or that there was a formal
agreement among them, in order for them to be held jointly responsible
for the operation of the scheme and the use of \[the mail\] \[an
interstate carrier\] for the purpose of accomplishing the scheme. It is
sufficient if only one person conceives the scheme and the others
knowingly, voluntarily and intentionally join in and participate in some
way in the operation of the scheme in order for such others to be held
jointly responsible.\]^~~13~~16^

\[It is not necessary that the Government prove \[all of the details
alleged in the indictment concerning the precise nature and purpose of
the scheme\] \[that the material \[mailed\] \[sent by an interstate
carrier\] was itself false or fraudulent\] \[that the alleged scheme
actually succeeded in defrauding anyone\] \[that the use of \[the mail\]
\[an interstate carrier\] was intended as the specific or exclusive
means of accomplishing the alleged fraud.\]^~~14~~17^

\[If you find proof beyond a reasonable doubt of a business custom
(describe custom, e.g., to date stamp only items received through the
mail), that is evidence from which you may, but are not required to,
find or infer that \[the mail\] \[an interstate carrier\] was used to
deliver those items.\]^~~15~~18^

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

**Notes on Use**

1\. Depriving another of the intangible right of honest services is
covered by the mail fraud statute. 18 U.S.C. \' 1346. In *United States
v. Jain*, 93 F.3d 436 (8th Cir. 1996), the court held that in a private
sector (as opposed to public corruption) honest services mail fraud, the
government must show an intent to harm the victim before mail fraud is
proven.

2\. The proper mail fraud theory charged in the indictment should be
selected and included in the body of the instruction. If more than one
theory is part of the evidence in the case, and the theories constitute
a separate offense or an element of the offense, such alternatives can
be submitted in the disjunctive and the jury instructed that all jurors
must agree as to the particular theory. *United States v. Blumeyer*, 114
F.3d 758 (8th Cir. 1997). In such a case, ~~if the court deems it
appropriate,~~ the jury may be instructed as follows:

> You need not find that all of the theories charged in Count \_\_\_ of
> the indictment are ~~false~~ proven; instead, you must find
> unanimously and beyond a reasonable doubt that at least one of the
> theories set out in Count \_\_ of the indictment is ~~false~~ proven.

If more than one false promise or statement is part of the evidence in
the case, and the promises or statements set out different ways of
committing the offense but do not constitute a separate offense or an
element of the offense, then the jury may be instructed that all the
jurors need not agree as to the particular theory, or the particular
false promise or statement, that was made. In such a case, ~~if the
court deems it appropriate,~~ the jury may be instructed as follows:

> Count \_\_\_ of the indictment accuses the defendant of committing the
> crime of \_\_\_ in more than one possible way. The first is that he
> \_\_\_. The second is that he \_\_\_. The government does not have to
> prove all of these for you to return a guilty verdict on this charge.
> Proof beyond a reasonable doubt of any one of these ways is enough. In
> order to return a guilty verdict, all twelve of you must agree that at
> least one of these has been proved; however, all of you need not agree
> that the same one has been proved.

*See* *Schad v. Arizona*, 501 U.S. 624 (1991) (plurality opinion), in
which the Supreme Court rejected the approach of requiring unanimity
when the means used to commit an offense simply satisfy an element of a
crime and do not themselves constitute a separate offense or an element
of an offense. In these circumstances, unanimity is not required. *Id*.
at 630-33. On the other hand, if the means used to commit an offense are
deemed an element of the crime, unanimity is required. *See also*
*Richardson v. United States*, 526 U.S. 813, 817 (1999) (plurality
opinion), in which the Court again distinguished the elements of a crime
from the means used to commit the elements of the crime. If a fact is an
element, Aa jury in a federal criminal case cannot convict unless it
unanimously finds that the Government has proved \[it\].@ *Id*. On the
other hand, if the fact is defined as a means of committing the crime,
Aa federal jury need not always decide unanimously which of several
possible sets of underlying brute facts make up a particular element,
say, which of several possible means the defendant used *to commit an
element of the crime*.@ *Richardson*, 526 U.S. at 817 (citing *Schad v.
Arizona*, 501 U.S. 624 (1991)).

3\. In a simple case a brief description of the fraud should be given in
the first element. An example would be:

> *One*, that the defendant devised a scheme to defraud the brokerage
> firm of Smith & Jones by pledging counterfeit stock certificates as
> collateral on margin loans given to the defendant, thus causing a loss
> to Smith & Jones of 5 million dollars.

Some schemes will be too complicated to lend themselves to short
descriptions. In those schemes the court may more fully summarize the
scheme or refer to the description of the scheme contained in the
indictment.

In submitting a summary of the scheme to the jury, the court should be
aware that on occasion some allegations and misrepresentations charged
in the indictment are not proven. These may be deleted from the summary;
however, the court should be aware that if many allegations are not
proven, there may be a material and prejudicial variance between what is
alleged in the indictment and what is proven at trial.

4\. After September 13, 1994, 18 U.S.C. \' 1341 covers schemes carried
out by depositing matter to be sent or delivered by any private or
commercial interstate carrier.

5\. A ~~fifth~~ fourth element is required when the indictment alleges
any facts that would result in enhanced penalties under 18 U.S.C.
\'\' 1341, 2326. *See* *Apprendi v. New Jersey*, 530 U.S. 466 (2000).
Consideration should also be given to the use of a special verdict form
(interrogatories to follow finding of guilt).

6\. \"Intent to defraud\" and \"scheme to defraud\" should be defined in
the instruction. AA scheme to defraud need not be fraudulent on its
face, but \>must involve some sort of fraudulent misrepresentations or
omissions reasonably calculated to deceive persons of ordinary prudence
and comprehension.=@ *United States v. Goodman*, 984 F.2d 235, 237 (8th
Cir. 1993).

7\. *Preston v. United States*, 312 F.3d 959 (8^th^ Cir. 2002).

8\. *Preston v. United States*, 312 F.3d 959 (8^th^ Cir. 2002).

9\. *See United States v. Henderson*, 416 F.3d 686 (8^th^ Cir. 2005)
(material under 42 U.S.C. \' 408(a)(3, 4); *United States v. Mitchell*,
388 F.3d 1139 (8^th^ Cir. 2004) (18 U.S.C. \' 1001 (materiality)).

~~7.~~10. ~~*See* 2A Kevin F. O=Malley, et al., *Federal Jury Practice
and Instructions*: Criminal \' 47.13 (5th ed. 2000), third paragraph.~~
*United States v. Ervasti*, 201 F.3d 1029 (8^th^ Cir. 2000). False
statements have been defined as those which were known to be untrue at
the time they were made, or made with reckless indifference as to their
truth or falsity, and made with the intent to deceive. *United States v.
Marley*, 549 F.2d 561 (8th Cir. 1977). Reckless indifference is
sufficient in these cases, and a deliberate ignorance instruction, Model
Instruction 7.04, should not be necessary. *Mattingly v. United States*,
924 F.2d 785 (8th Cir. 1991), is not applicable to these cases.

> 11\. *United States v. Casperson*, 773 F.2d 216 (8^th^ Cir. 1985).

~~8.~~12. 18 U.S.C. \' 1346. In *Carpenter v. United States*, 484 U.S.
19 (1987), the Supreme Court adopted a very broad definition of property
rights under the mail and wire fraud statutes. The Court stated that the
statute covered intangible as well as tangible property rights and
included the *Wall Street Journal*\'s right to control the use of
information obtained by its reporters in the course of their duties. The
Court held that the right of the *Journal* to decide how and when to use
its confidential business information obtained by its reporters was a
property right and that a scheme to deprive the *Journal* of this
confidential business information was a scheme within the scope of the
mail fraud statutes, even if no monetary loss to the *Journal* was
caused by the scheme.

In *United States v. Shyres*, 898 F.2d 647, 652 (8th Cir. 1990), the
court held that the right to exercise control over spending is a
property right protected by the mail fraud statute and approved the
following instruction:

> The term \"property rights\" as used in the mail fraud statute
> includes intangible as well as tangible property. Intangible property
> rights include any valuable right considered as a source of wealth,
> and include the right to exercise control over how one\'s money is
> spent.

*See also United States v. Granberry*, 908 F.2d 278 (8th Cir. 1990).

However, the Supreme Court held in *Cleveland v. United States*, 532
U.S. 12 (2000), that state and municipal licenses are not property under
the mail fraud statute.

~~9.~~13. *See* 2A Kevin F. O=Malley, et al., *Federal Jury Practice and
Instructions*: Criminal \' 47.04 (5th ed. 2000). *See also, Pereira v.
United States*, 347 U.S. 1, 8‑9 (1954), which holds as follows:

> The elements of the offense of mail fraud under 18 U.S.C. (Supp. V) \'
> 1341 are (1) a scheme to defraud, and (2) the mailing of a letter,
> etc., for the purpose of executing the scheme. It is not necessary
> that the scheme contemplate the use of the mails as an essential
> element. *United States v. Young*, 232 U.S. 155 (1914). Here, the
> scheme to defraud is established, and the mailing of the check by the
> bank, incident to an essential part of the scheme, is established.
> There remains only the question whether Pereira \"caused\" the
> mailing. That question is easily answered. Where one does an act with
> knowledge that the use of the mails will follow in the ordinary course
> of business, or where such use can reasonably be foreseen, even though
> not actually intended, then he \"causes\" the mails to be used.
> *United States v. Kenofskey*, 243 U.S. 440 (1917).

This Circuit has defined \"reasonably foreseeable\" in a variety of
contexts. In a mail fraud scheme in which an insurance company was a
victim, the court stated as follows:

> One who engages in carrying out a scheme to defraud is therefore
> responsible . . . for a use made of the mail to effect a necessary or
> facilitating incident thereof where such use is from the nature of the
> business and the incident one of such ordinary course as to constitute
> a matter of natural expectability. A use of the mail which is of such
> a general expectable occurrence is entitled to be found to be
> reasonably foreseeable. Thus, we observed generally . . . as to the
> ordinary course of such an insurance business as is here involved:
>
> Certainly in dealing with insurance agents it will be contemplated
> that the mails will have to be employed in carrying on business with
> the different companies for whom the agent does business.

*United States v. Minkin*, 504 F.2d 350, 353‑54 (8th Cir. 1974), *cert.
denied*, 420 U.S. 926(1975) (citation omitted).

In *United States v. Boyd*, 606 F.2d 792, 794 (8th Cir. 1979), the court
held:

> Conduct is within the mail fraud statute when, as in this case, the
> use of the mails for the purpose of executing the flow of payoff funds
> is a reasonably foreseeable possibility in furthering the transaction.

*See also United States v. Rabbitt*, 583 F.2d 1014, 1022‑23 (8th Cir.
1978), *cert. denied*, 439 U.S. 1116 (1979).

In *United States v. Brown*, 540 F.2d 364, 376 (8th Cir. 1976), the
court stated:

> \[T\]hus . . . Brown was on notice that transfer of funds from
> Reliance to Mansion House by mail rather than by hand delivery was a
> reasonable possibility. This was sufficient evidence from which the
> jury could find that Brown caused the use of the mails to accomplish
> the ultimate objective of the scheme.

~~10.~~14. *United States v. Sampson*, 371 U.S. 75 (1962); *United
States v. Brown*, 540 F.2d 364, 376 (8th Cir. 1976); *United States v.
Tackett*, 646 F.2d 1240, 1243 (8th Cir. 1981).

In *Schmuck v. United States*, 489 U.S. 705, 713 (1989), the Court held
that all mailings that are in any way part of the execution of the
scheme will supply the mailing element of the offense even if the
mailing later may turn out to be counterproductive and allow the
discovery of the scheme.

~~11.~~15. 2A Kevin F. O=Malley, et al., *Federal Jury Practice and
Instructions*: Criminal \' 47.15 (5th ed. 2000); *Atkinson v. United
States*, 344 F.2d 97 (8th Cir.), *cert. denied*, 382 U.S. 867 (1965);
*United States v. Calvert*, 523 F.2d 895, 903 n.6, 914 (8th Cir. 1975),
*cert. denied*, 424 U.S. 911 (1976).

~~12.~~16. *Reistroffer v. United States*, 258 F.2d 379, 395 (8th Cir.
1958), *cert. denied*, 358 U.S. 927 (1959); *United States v. Porter*,
441 F.2d 1204, 1211 (8th Cir.), *cert. denied*, 404 U.S. 911 (1971).

~~13.~~17. *See* 2A Kevin F. O=Malley, et al., *Federal Jury Practice
and Instructions*: Criminal \' 47.04 (5th ed. 2000); *United States v.
West*, 549 F.2d 545, 552 (8th Cir.), *cert. denied*, 430 U.S. 956
(1977); *United States v. Gross*, 416 F.2d 1205, 1210 (8th Cir. 1969),
*cert. denied*, 397 U.S. 1013 (1970); *Atkinson v. United States*, 344
F.2d 97, 98 (8th Cir.), *cert. denied*, 382 U.S. 867 (1965); *United
States v. Calvert*, 523 F.2d 895, 912 (8th Cir. 1975), *cert. denied*,
424 U.S. 911 (1976) (use of mail need not be specifically nor
exclusively intended).

~~14.~~18. *United States v. Shyres*, 898 F.2d 647, 658 (8th Cir. 1990);
*United States v. Cady*, 567 F.2d 771, 775 (8th Cir. 1977), *cert.
denied*, 435 U.S. 944 (1978); *United States v. Minkin*, 504 F.2d 350,
352‑53 (8th Cir. 1974), *cert. denied*, 420 U.S. 926 (1975); *United
States v. Joyce*, 499 F.2d 9, 17 (7th Cir.), *cert. denied*, 419 U.S.
1031 (1974); *Bolen v. United States*, 303 F.2d 870, 875 (9th Cir.
1962). Likewise mailing can be inferred from the presence of a regular
postmark. *United States v. Noelke*, 1 Fed. 426 (C.C.N.Y. 1880). *See
also* Instruction 4.13, *supra*, on specific inferences.

**Committee Comments**

The crime of mail fraud is very broad in scope. As the Eighth Circuit
restated in *United States v. Bishop*, 825 F.2d 1278, 1280 (8th Cir.
1987):

> The crime of mail fraud is broad in scope; . . . the fraudulent aspect
> of the scheme to \"defraud\" is measured by a nontechnical standard
> . . . . Law puts its imprimatur on the accepted moral standards and
> condemns conduct which fails to match the \"reflection of moral
> uprightness, of fundamental honesty, fair play and right dealing in
> the general business life of the members of society.\" This is indeed
> broad. For as Judge Holmes once observed, \"The law does not define
> fraud; it needs no definition. It is as old as falsehood and as
> versatile as human ingenuity.\"

The definition of \"scheme\" as used in these instructions is very old
and is similar to one of the first definitions used in this circuit in
*United States v. Dexter*, 154 Fed. 890, 896 (N.D. Ia. 1907). The court
there stated:

> A scheme may be said to be a design or plan formed to accomplish some
> purpose. An artifice may be said to be an ingenious contrivance or
> device of some kind and when use in a bad sense of the word
> corresponds with trick or fraud. Hence, a scheme or artifice to
> defraud within the meaning of this statute would be to form some plan
> or devise some trick to perpetrate a fraud upon another.

The scheme must be one \"reasonably calculated to deceive persons of
ordinary prudence and comprehension.\" *United States v. Goodman*, 984
F.2d 235, 237 (8th Cir. 1993), and must employ material falsehoods.
*Neder v. United States*, 527 U.S. 1 (1999). A scheme under the statute
encompasses false representations as to future intentions as well as
existing facts. *Durland v. United States*, 161 U.S. 306 (1896). Indeed,
as stated above, a scheme to defraud may be actionable even though no
actual misrepresentations are made. *See United States v. Clausen*, 792
F.2d 102, 104-05 (8th Cir.), *cert. denied*, 479 U.S. 858 (1986). A
scheme to defraud may also involve the concealment of material facts.
*United States v. Bessesen*, 433 F.2d 861, 863, 864 (8th Cir. 1970),
*cert. denied*, 401 U.S. 1009 (1971).

Because of the diverse types of mail fraud schemes prosecuted, it is
difficult to tailor a \"model\" instruction that does not refer to the
indictment in the case. Because of the broad application of the mail
fraud statute, it will be necessary to define certain terms in the
instructions to the jury.

In *Clausen*, the court stated that the mail fraud statute prohibited
both schemes to defraud *and* the obtaining of money and property by
means of false pretenses. The court held that false pretenses were not
essential in order to prove a scheme to defraud. Thus, it is proper to
instruct the jury that the mail fraud statute may be violated either by
devising a scheme to defraud or by obtaining money or property by means
of false or fraudulent pretenses, representations or promises.

One who participates in an ongoing mail fraud devised by others is
guilty of the crime of mail fraud. *United States v. Wilson*, 506 F.2d
1252, 1258 (7th Cir. 1974).

Intent to defraud is an element of mail fraud. *DeMier v. United
States*, 616 F.2d 366, 369 (8th Cir. 1980). Thus, good faith can be a
theory of defense. *United States v. Arnold*, 543 F.2d 1224 (8th Cir.
1976), *cert. denied*, 429 U.S. 1051 (1977). A defendant is entitled to
an instruction on a good faith theory of defense and one should be given
if there is evidence to support the theory, *United States v.
Casperson*, 773 F.2d 216, 222‑24 (8th Cir. 1985); *United States v.
Sherer*, 653 F.2d 334, 337 (8th Cir.), *cert. denied*, 454 U.S. 1034
(1981), but not where the defendant denies the conduct which is charged
and the issue is one of credibility. *United States v. Kimmel*, 777 F.2d
290, 292‑93 (5th Cir. 1985), *cert. denied*, 476 U.S. 1104 (1986). *See*
Instruction 9.08, *infra*, for good faith instructions. *See also* 2A
Kevin F. O=Malley, et al., *Federal Jury Practice and Instructions*:
Criminal \' 47.16 (5th ed. 2000).

The elements of wire fraud in violation of 18 U.S.C. \' 1343 are
identical to the elements of mail fraud with one exception; the
defendant must cause interstate wire facilities to be used instead of
the mail. *See generally*, *United States v. Tackett*, 646 F.2d 1240,
1242‑43 (8th Cir. 1981); *United States v. Mendenhall*, 597 F.2d 639,
641 (8th Cir.), *cert. denied*, 444 U.S. 855 (1979); *United States v.
West*, 549 F.2d 545, 549‑53 (8th Cir.), *cert. denied*, 430 U.S. 956
(1977); *United States v. Gross*, 416 F.2d 1205, 1209‑10 (8th Cir.
1969), *cert. denied*, 397 U.S. 1013 (1970). *But see United States v.
Bryant*, 766 F.2d 370 (8th Cir. 1985), *cert. denied*, 474 U.S. 1054
(1986).

Each use of the mail or the wires is a separate offense notwithstanding
the fact that the defendant devised only one scheme to defraud. *See*,
*e.g.*, *United States v. Massa*, 740 F.2d 629, 645‑46 (8th Cir. 1984),
*cert. denied*, 471 U.S. 1115 (1985); *United States v. Calvert*, 523
F.2d 895, 914 (8th Cir. 1975), *cert. denied*, 424 U.S. 911 (1976).

If a conspiracy to commit mail fraud is charged, one should be aware
that the Eighth Circuit at the present time requires proof that the
conspiracy \"contemplated the use of the mails.\" *United States v.
Donahue*, 539 F.2d 1131, 1135, 1136 (8th Cir. 1976). That decision
relied heavily on the case of *Blue v. United States*, 138 F.2d 351 (6th
Cir. 1943), *cert. denied*, 322 U.S. 736 (1944). In *United States v.
Reed*, 721 F.2d 1059 (6th Cir. 1983), the Sixth Circuit rejected *Blue*
in its entirety and held that only a reasonably foreseeable use of the
mail need be proven in a conspiracy case. Of the circuits which have
decided this issue, it appears that only the Eighth Circuit requires
that a mail fraud conspiracy \"contemplate the use of the mails.\"
*United States v. Craig*, 573 F.2d 455 (7th Cir. 1977), *cert. denied*,
439 U.S. 820 (1978).

**6.18.1503A CORRUPTLY ENDEAVORING TO INFLUENCE A JUROR**

**(18 U.S.C. \' 1503)**

The crime of corruptly endeavoring to influence a juror^1^, as charged
in \[Count \_\_\_\_\_ of\] the indictment, has three 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 endeavored^3^ to \[influence\]
\[intimidate\] \[impede\] (name of juror) in the discharge of his duty
as a \[grand\] juror\[; and\]

\[Four, (state the sentencing fact that triggers a higher maximum
sencence,^4^ e.g., the crime under consideration by the juror was (name
the Class A or Class B felony charged^5^).\]

The phrase Acorruptly 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
Aafter 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 Apending@ 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\" 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). For a
discussion of the meaning of the phrase Aknowingly . . . corruptly,@ as
used in 18 U.S.C. \' 1512(b)(2)(A), *see* *Arthur Andersen LLP v. United
States*, \_\_\_ U.S. \_\_\_, \_\_\_, 125 S. Ct. 2129, 2136. (The
Committee notes that in Fn 9 in *Andersen*, the Court observed that \'
1503 Alack\[s\] the modifier \>knowingly,= making any analogy \[to the
definition of corruptly in \' 1512\] inexact.@) The Committee recommends
that in formulating a definition, words such as \"knowingly,\"
\"willfully\" and \"specific intent\" not be used in favor of words
which precisely describe the mental state involved. *See* Instructions
7.01‑.03, *infra*.

4\. Section 1503(b) creates enhanced penalties where a juror is killed,
where an attempt on the life of a juror failed, or where the offense was
committed against a petit juror, in a case in which a class A or B
felony was charged. In *Jones v. United States*, 526 U.S. 227 (1999),
dealing with a carjacking offense under 18 U.S.C. \' 2119, the Supreme
Court stated, in footnote 6, A\[u\]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
Aendeavor@ and Acorruptly@ requirements of the statute should aid in
fashioning one.

**Committee Comments**

*See* 2A Kevin F. O=Malley, et al., *Federal Jury Practice and
Instructions*: Criminal \' 48.03 (5th ed. 2000).

The first two clauses of section 1503, covered by Instructions
6.18.1503A and B, relate to interference with or injury to actual grand
jurors, petit jurors, or court officers in the discharge of their
duties. *United States v. Aguilar*, 515 U.S. 593, 598 (1995). The third
clause referred to as the AOmnibus Clause,@ and covered by Instruction
6.18.1503C, is a catchall provision which, *inter alia*, prohibits
persons from corruptly endeavoring to influence, obstruct, or impede the
due administration of justice. *Id.* These instructions apply to counts
alleging that defendant *endeavored* to obstruct justice, not to counts
alleging actual obstruction.

The following discussion relates to all three clauses of section 1503,
but most particularly to the Omnibus Clause, which, because it is the
most general in nature, presents the most issues.

*Pendency of judicial proceedings.* Except where retaliation is charged,
a prerequisite to prosecution under all clauses of section 1503 is a
*pending* judicial proceeding. *United States v. Risken*, 788 F.2d 1361,
1368 (8th Cir. 1986). (In *United States v. Novak*, 217 F.3d 566, 572
(8^th^ Cir. 2000), the court questioned this prerequisite, noting that
Athere is nothing on the face of \' 1503 requiring a pending
proceeding,@ but assumed, arguendo, the existence of the requirement.) A
grand jury proceeding is considered a pending proceeding. *Riskin*. The
question of when a grand jury investigation commences for the purposes
of section 1503 is addressed in *United States v. Vesich*, 724 F.2d 451,
454‑55 (5th Cir. 1984), *reh. denied*, 726 F.2d 168 (5th Cir. 1984).
*See also* *United States v. Nelson*, 852 F.2d 706, 709‑11 (3d Cir.
1988); *United States v. Steele*, 241 F.3d 302 (3d Cir. 2001). A term of
supervised release also can constitute a pending proceeding, if the
obstructive conduct occurs A\>within the time after sentencing for
filing a request for reduction of sentence pursuant to Rule 35(b).=@
*United States v. Novak*, 217 F.3d at 572.

The defendant must know of the pendency of a judicial proceeding.
*Pettibone v. United States*, 148 U.S. 197, 206‑07 (1893); *United
States v. Vesich*, 724 F.2d at 457. Such knowledge may be inferred from
the circumstances and need not be detailed. *Id.* The defendant need not
know that the proceeding is federal in nature. *United States v.
Ardito*, 782 F.2d 358, 360‑62 (2d Cir. 1986). In *United States v.
McKnight*, 799 F.2d 443, 447 (8th Cir. 1986), the court held it was not
plain error where the court had not specifically instructed the jury
that 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*.

*ACorruptly endeavor@ requirement.* Although courts often define the
words Acorruptly@ and Aendeavor@ 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.

*AEndeavor@ requirement.* As the Supreme Court stated in *United States
v. Russell*, A\[t\]he word of the section is \>endeavor= and by using it
the section got rid of the technicalities which might be urged as
besetting the word \>attempt= and it describes any effort or essay to
accomplish the evil purpose that the section was enacted to prevent.@
255 U.S. at 143; *Osborn v. United States*, 385 U.S. 323, 332‑33 (1966).
However, the endeavor Amust have a relationship in time, causation, or
logic with the judicial proceedings. . . . \[It\] must have the
\>natural and probable effect= of interfering with the due
administration of justice.@ (citations omitted). *United States v.
Aguilar*, 515 U.S. at 599. Therefore, a judge=s making of false
statements to an FBI agent did not constitute obstruction in the absence
of evidence the judge knew those false statements would be given to the
grand jury. *Id.* at 600. On the other hand, submission to a sentencing
judge of a false letter seeking leniency constituted obstruction, even
though the government did not prove that the court=s sentencing decision
was actually affected by the letter, because the letter was of the type
normally received and relied upon by the judge. *United States v.
Collis*, 128 F.3d 313 (6^th^ Cir. 1997).

Success is not a prerequisite to conviction under any of the clauses of
section 1503. All that must be proved is that the defendant \"corruptly
endeavored\" to obstruct justice. *United States v. Aguilar*, 515 U.S.
593, 599 (1995); *United States v. Russell*, 255 U.S. 138, 143 (1921);
*United States v. Jackson*, 607 F.2d 1219, 1222‑23 (8^th^ Cir. 1979);
*United States v. McCarty*, 611 F.2d 220, 224 (8th Cir. 1979).

Endeavor defined.

The Seventh Circuit Model Instructions include the following definitions
of endeavor:

> *Influencing - Definition of Endeavor.* The word endeavor describes
> any effort or act to influence \[a witness, a juror, an officer in or
> of any court of the United States\]. The endeavor need not be
> successful, but it must have at least a reasonable tendency to impede
> the \[witness, juror, officer\] in the discharge of his duties.
>
> *Obstruction of Justice Generally - Definition of Endeavor.* The word
> endeavor describes any effort or act to influence, obstruct, or impede
> the due administration of justice. The endeavor need not be
> successful, but it must have at least a reasonable tendency to
> influence, obstruct, or impede the due administration of justice.

*Seventh Circuit Federal Jury Instructions Criminal* (1999).

In *United States v. Cioffi*, 493 F.2d 1111, 1119 (2d Cir. 1974),
\"endeavor\" was defined for the jury as \"any effort or any act,
however contrived, to obstruct, impede or interfere . . . .\"

In *United States v. Silverman*, 745 F.2d 1386, 1396 n.12 (11th Cir.
1984), the definition of endeavor was altered to correspond to that
case\'s definition of \"corruptly.@ A\[E\]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.@

ACorruptly@ requirement. The defendant must have acted \"corruptly\" in
order to violate the first and last clauses of section 1503.
\"Corruptly\" applies as an alternative to threats or force or
threatening letter or communication. *See* *United States v. Cioffi*,
493 F.2d 1111, 1118 n.2 (2d Cir. 1974). Instruction 6.18.1503A covers
corrupt endeavors to influence jurors and Instruction 6.18.1503B,
*infra*, covers threats and force. Instruction 6.18.1503C, *infra*,
covers conduct violating the last or \"omnibus\" clause of section 1503.

The Acorruptly@ 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, Aintent,@ which can mean either *knowledge* (of consequences) or
> *purpose* (to achieve them); in part, it results from the great range
> of varying motives that can underlie a refusal to testify (e.g.,
> loyalty of various kinds, concern as to reputation, fear of reprisal,
> concern about self-incrimination.) Further, cases that purport to be
> setting legal standards are often instead concerned with the
> inferences to be drawn from particular facts.

The term Aspecific intent\" is found in many definitions of
\"corruptly,\" including one approved by the Eighth Circuit: AIn 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 Acorruptly@ 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, A\[corruptly\] 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).

A\[I\]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: A\[t\]o act \>corruptly= as that word is used in these
instructions means to act voluntarily and deliberately and for the
purpose of improperly influencing, or obstructing, or interfering with
the administration of justice.@

The Seventh Circuit has approved the following instruction:

> Corruptly means to act with the purpose of obstructing justice. The
> United States is not required to prove that the defendant=s only or
> even main purpose was to obstruct the due administration of justice.
> The government only has to establish that the defendant should have
> reasonably seen that the natural and probable consequences of his acts
> was the obstruction of justice. Intent may be inferred from all of the
> surrounding facts and circumstances. Any act, by any party, whether
> lawful or unlawful on its face, may violate section 1503 if performed
> with a corrupt motive.

*United States v. Cueto*, 151 F.3d 620, 630-31 (7^th^ Cir. 1998).

**6.18.1503B INFLUENCING A JUROR BY THREATS (18 U.S.C. \' 1503)**

The crime of influencing a juror^1^ by threats, as charged in \[Count
of\] the indictment, has three essential elements, which are:

*One*, (name of juror) was a \[grand\] juror in (describe judicial
proceeding);^2^

*Two*, defendant knew that (describe judicial proceeding) was pending;
and

*Three*, that the defendant endeavored^3^ to \[influence\]
\[intimidate\] \[impede\] (name of juror) in the discharge of his duty
as a \[grand\] juror by \[threats\] \[force\] \[threatening letter\]
\[threatening communication\].

\[Four, (state the sentencing fact that triggers a higher maximum
sencence,^4^ e.g., the crime under consideration by the juror was (name
the Class A or Class B felony charged^5^).\]

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

**Notes on Use**

1\. This clause of the statute also applies to officers of the court and
certain other officials.

2\. The instruction is designed for the usual case in which the pendency
of a judicial proceeding is undisputed. If this question is disputed, it
should be submitted to the jury under proper definitional instructions.
~~*See* *United States v. Vesich*, 724 F.2d 451, 454 (5th Cir.), *reh.
denied*, 726 F.2d 168 (5th Cir. 1984).~~

3\. The jury should be instructed on the meaning of \"endeavor.\" *See*
Committee Comments, Instruction 6.18.1503A, *supra*, for possible
definitions.

4\. Section 1503(b) creates enhanced penalties where a juror is killed,
where an attempt on the life of a juror failed, or where the offense was
committed against a petit juror, in a case in which a class A or B
felony was charged. In *Jones v. United States*, 526 U.S. 227 (1999),
dealing with a carjacking offense under 18 U.S.C. \' 2119, the Supreme
Court stated, in footnote 6, A\[u\]nder the Due Process Clause of the
Fifth Amendment and the notice and jury trial guarantees of the Sixth
Amendment, any fact (other than prior conviction) that increases the
maximum penalty for a crime must be charged in an indictment, submitted
to a jury, and proven beyond a reasonable doubt.@ The Supreme Court made
clear in *Apprendi v. New Jersey*, 530 U.S. 466 (2000), that the
principle it enunciated in *Jones* was a rule of constitutional law
applicable to all prosecutions.

5\. If a killing or attempted killing is charged, *see* Instructions
6.18.1111, 6.18.1112, and 8.01 (attempt).

**Committee Comments**

*See* ~~Fifth Circuit Pattern Jury Instructions: Criminal \' 2.67 (1997)
and~~ Committee Comments, Instruction 6.18.1503A, *supra*.

~~Proof of direct threats is not required. A communication can be
threatening where it contains veiled threats by references to other
persons or situations sufficient to frighten or intimidate the listener.
*United States v. Cioffi*, 493 F.2d 1111, 1118 (2d Cir.), *cert.
denied*, 419 U.S. 917 (1974).~~

**6.18.1503C OBSTRUCTION OF JUSTICE (18 U.S.C. \' 1503)**

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

*One*, defendant (describe conduct and judicial proceeding^2^, e.g.,
destroyed documents which had been subpoenaed in an investigation by a
federal grand jury);

*Two*, defendant knew that (describe judicial proceeding) was pending;
and

*Three*, by (describe conduct, e.g., destroying said documents), the
defendant corruptly endeavored^3^ to \[influence\] \[obstruct\]
\[impede\] the due administration of justice.

\[Four, (state the sentencing fact that triggers a higher maximum
sencence,^4^ e.g., the crime under consideration by the juror was (name
the Class A or Class B felony charged^5^).\]

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

**Notes on Use**

1\. \"Obstruction of justice\" refers to the conduct barred by the last
clause of section 1503, known as the omnibus clause.

2\. This instruction is designed for the usual case in which the
pendency of a judicial proceeding is undisputed. If this question is
disputed, it should be submitted to the jury under proper definitional
instructions. ~~*See* *United States v. Vesich*, 724 F.2d 451, 454 (5th
Cir.), *reh. denied*, 726 F.2d 168 (5th Cir. 1984).~~

3\. The jury should be instructed on the meaning of \"corruptly
endeavored\" in this statute. As the discussion in the Committee
Comments, Instruction 6.18.1503A, *supra*, illustrates, no one
definition has been agreed on and different definitions may apply to
different factual situations. A definition which best suits the case
should be formulated and used. It should include an intent to act and
knowledge that obstruction would or could result from such act.
\"\[T\]he act must have a relationship in time, causation or logic with
the judicial proceedings,\" and \"if the defendant lacks knowledge that
his actions are likely to affect the judicial proceeding, he lacks the
requisite intent to obstruct.\" *United States v. Aguilar*, 515 U.S.
593, ~~at~~ 599 (1995). The Committee recommends that in formulating a
definition of \"corruptly endeavored,\" words such as \"knowingly,\"
\"willfully\" and \"specific intent\" not be used in favor of words
which precisely describe the mental state involved. *See* Instructions
7.01‑.03, *infra*.

4\. Section 1503(b) creates enhanced penalties where a juror is killed,
where an attempt on the life of a juror failed, or where the offense was
committed against a petit juror, in a case in which a class A or B
felony was charged. In *Jones v. United States*, 526 U.S. 227 (1999),
dealing with a carjacking offense under 18 U.S.C. \' 2119, the Supreme
Court stated, in footnote 6, A\[u\]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).

~~4. The jury should be instructed on the meaning of \"endeavor.\" *See*
Committee Comments, Instruction 6.18.1503A, *supra*, for possible
definitions.~~

**Committee Comments**

*See* Committee Comments, Instruction 6.18.1503A, *supra*; *United
States v. Frank*, 354 F.3d 910 (8^th^ Cir. 2004); *United States v.
Russell*, 234 F.3d 404 (8^th^ Cir. 2000); *United States v. Novak*, 217
F.3d 566 (8^th^ Cir.), *cert. denied*, 531 U.S. 1043 (2000); *United
States v. Lefkowitz*, 125 F.3d 608 (8^th^ Cir. 1997), *cert. denied*,
523 U.S. 1079 (1998); *United States v. McKnight*, 799 F.2d 443, 446
(8th Cir. 1986).~~; *United States v. Silverman*, 745 F.2d 1386, 1392
(11th Cir. 1984). *See generally* *United States v. Cintolo*, 818 F.2d
980, 990‑97 (1st Cir.), *cert. denied*, 484 U.S. 913 (1987).~~

~~Interference with the due administration of justice is \"conduct
designed to interfere with the process of arriving at an appropriate
judgment in a pending case and which would disturb the ordinary and
proper functions of the court.\" *Haili v. United States*, 260 F.2d 744,
746 (9th Cir. 1958). *See further* *United States v. Rasheed*, 663 F.2d
843, 851‑52 (9th Cir. 1981), *cert. denied*, 454 U.S. 1157 (1982). *See
also* 2A Kevin F. O=Malley, et al., *Federal Jury Practice and
Instructions*: Criminal \' 48.03 (5th ed. 2000).~~

The omnibus clause of section 1503 ~~still~~ applies to witnesses and
prospective witnesses where there is a pending judicial proceeding.
*United States v. Risken*, 788 F.2d 1361, 1367‑68 (8th Cir.), *cert.
denied*, 479 U.S. 923 (1986); *United States v. Shannon*, 836 F.2d 1125,
1128 (8th Cir.), *cert. denied*, 486 U.S. 1058 (1988). The Eighth
Circuit has held that the witness need not be actually scheduled to
testify nor must he or she actually give testimony at a later time.
*Shannon*, *id.* However, in *United States v. Aguilar*, 515 U.S.
~~593,~~ at 601~~, 115 S. Ct. 2357, 2363~~ ~~(1995)~~, the Supreme Court
held that the giving of false testimony to \"an investigating agent who
ha\[d\] not been subpoenaed or otherwise directed to appear before the
grand jury\" was not a violation of this section.

**6.18.1512 TAMPERING WITH A WITNESS (18 U.S.C. \' 1512(b)(1))**

The crime of tampering with a witness,^1^ as charged in \[Count of\] the
indictment, has two essential elements, which are:

*One*, the defendant knowingly used \[intimidation\]^2^ \[threats\]
\[corrupt persuasion\]^3^ against (name of witness); and

*Two*, the defendant did so with intent to \[influence\] \[delay\]
\[prevent\] the testimony of (name of witness) in (insert title of
official proceeding).^4,\ 5,\ 6^

\[To \"intimidate\" someone means intentionally to say or do something
that would cause a person of ordinary sensibilities to be fearful of
harm to himself or another. It is not necessary for the Government to
prove that (name of witness) was actually frightened.\]

\[To corruptly persuade someone means to persuade with consciousness of
wrongdoing.\]

\[To act with \"intent to influence\" the testimony of a person means to
act for the purpose of getting the person to change or color or shade
his or her testimony in some way. It is not necessary for the Government
to prove that the person\'s testimony was, in fact, changed in any
way.\]

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

**Notes on Use**

1\. The form chosen for this model instruction deals only with certain
violations under the statute as set forth in 18 U.S.C.\' 1512(b)(1). As
amended in 2002 (*see* Pub. L. No. 107-273, \' 3001, 116 Stat. 1758
(2002)), section 1512(a)(1) prohibits the killing or attempting to kill
a witness and other tampering involving an attempt to kill another
person; section 1512(a)(2) prohibits the use of physical force or the
threat of physical force in connection with witness tampering and other
activities; section 1512(b)(1), (2), and (3) also prohibit other forms
of witness tampering; section 1512(c) prohibits the destruction of
evidence (*see* Pub. L. No. 107-204, \' 1102, 116 Stat. 1745 (2002));
and section 1512(d) sets forth a misdemeanor offense of intentionally
harassing another person. For offenses committed prior to the 2002
Amendments to the statutes, this instruction should be modified to
reflect the statute as it was worded prior to the 2002 Amendments. Where
other types of violations are involved, it will be necessary to change
the form of the elements, and it may be necessary to add other elements
as well.

2\. Title 18 U.S.C. \' 1512(b)(1) specifically prohibits attempts to
violate the statute. If an attempt offense is submitted, this
instruction must be appropriately modified. *See* Instruction 8.01 of
these Model Jury Instructions.

3\. Under 18 U.S.C. \' 1515(a)(6), the term A\>corrupt persuasion= does
not include conduct which would be misleading conduct but for a lack of
a state of mind.@ There must be consciousness of wrongdoing. *See Arthur
Anderson v. United States*, \_\_\_ U.S. \_\_\_, 125 S. Ct. 2129 (2005).

4\. \"Official proceeding\" is defined in 18 U.S.C. \' 1515(a)(1). The
defendant need not know that the proceeding was a federal proceeding.
Further, it is not necessary that a proceeding actually be pending or
about to be instituted. *See* 18 U.S.C. \' 1512(n)(1) and (g)(1).
Additional definitions are contained in 18 U.S.C. \' 1515. The defendant
must, however, contemplate some particular official proceeding in which
the testimony might be material. *See Arthur Anderson v. United States*,
\_\_\_ U.S. \_\_\_, 125 S. Ct. 2129 (2005), and *United States v.
Aguilar*, 515 U.S. 593, 599 (1995).

5\. This crime allows for an enhancement of punishment where the
violation Aoccurs in connection with a trial of a criminal case.@ 18
U.S.C. \' 1512(j). In such cases, therefore, the second element of the
offense should specify that the official proceeding was a trial of a
criminal case.

6\. Title 18 U.S.C. \' 1512(e) provides: AIn a prosecution for an
offense under this section, it is an affirmative defense, as to which
the defendant has the burden of proof by a preponderance of the
evidence, that the conduct consisted solely of lawful conduct and that
the defendant=s sole intention was to encourage, induce, or cause the
other person to testify truthfully.@ Section 1515(c) states: AThis
chapter does not prohibit or punish the providing of lawful, bona fide,
legal representation services in connection with or in anticipation of
an official proceeding.@ These affirmative defenses should be submitted
under appropriate instructions to the jury if there are facts to support
these defenses at trial. *See* \' 9.00 of these Pattern Instructions
(affirmative defenses).

**Committee Comments**

*See* 18 U.S.C. \'\' 1512(f)(g) and (i) and 18 U.S.C. \' 1515 for
provisions which define or modify this statute.

Before 1982, tampering with and retaliation against federal witnesses
was covered exclusively by 18 U.S.C. \' 1503. *See* Instructions
6.18.1503A and 6.18.1503B, *supra*. Now, these offenses are specifically
proscribed by 18 U.S.C. \'\' 1512 and 1513. Section 1512 was intended to
provide greater protection for witnesses than did section 1503; however,
section 1503 still applies to certain types of conduct involving
witnesses. *See* *United States v. Risken*, 788 F.2d 1361, 1365‑69 (8th
Cir.), *cert. denied*, 479 U.S. 923 (1986), for an extensive analysis
and comparison of the respective scopes of sections 1503 and 1512.

It is not necessary that the victim be under subpoena or a scheduled
witness in a case. The statute purposely uses the term \"person\"
instead of \"witness.\" *United States v. Risken*, 788 F.2d at 1368‑69
\[dismissed witness\].

**6.18.1708A MAIL THEFT (18 U.S.C. \' 1708) (First Paragraph)**

The crime of mail theft, as charged in \[Count of\] the indictment, has
three essential elements, which are:

*One*, the defendant voluntarily \[stole\] \[took\]^1^ a
\[letter\]\[postal card\] \[package\] \[bag\];

*Two*, the \[letter\] \[postal card\] \[package\] \[bag\] \[mail\] was
in \[the United States mail\] \[(describe authorized depository for U.S.
mail matter)\];^2^ and

*Three*, in so doing the defendant intended to deprive the addressee
temporarily or permanently of the \[letter, etc.\]

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

**Notes on Use**

1\. The statute also includes obtaining or attempting to obtain mail by
fraud. In such a case, that language should be used.

2\. The statute lists specific depositories for mail. Other authorized
depositories are established by regulations of the Postmaster General.
*See* 39 C.F.R. \' 111.1, incorporating the Domestic Mail Manual
D041.1.1. If one of these is involved, it should be named in the
elements.

**Committee Comments**

*Cf.* 2A Kevin F. O=Malley, et al., *Federal Jury Practice and
Instructions: Criminal* \'\' 52.01-.05 (5^th^ ed. 2000). *See generally*
*United States v. Hopping*, 668 F.2d 398, 399‑400 (8th Cir. 1982).

Theft of mail includes the element of intent to steal at the time the
mail is taken. *United States v. Hopping*, 668 F.2d at 399‑400. Element
*Three*, which requires a finding of intent, is also a definition of
\"steal.\" *See* *United States v. Turley*, 352 U.S. 407, 417 (1957).
Accordingly, the Committee believes no further definition of \"steal\"
is necessary.

The protection of 18 U.S.C. \' 1708 is limited to mail matter which is
still in the possession or control of the Postal Service or which has
been placed in an authorized receptacle for mail matter, such as a
private letter box, and has not been lawfully removed therefrom. *Rosen
v. United States*, 245 U.S. 467 (1918); *United States v. Matzker*, 473
F.2d 408 (8th Cir. 1973). On the other hand, the protection extended by
\' 1702 is applicable until the mailed material is physically delivered
to the addressee or his agent. *United States v. Ashford*, 530 F.2d 792
(8th Cir. 1976).

**6.18.1708B POSSESSION OF STOLEN MAIL (18 U.S.C. \' 1708) (Third
Paragraph)**

The crime of unlawful \[purchase\] \[receipt\] \[concealment\]
\[possession\] of stolen mail, as charged in \[Count of\] the
indictment, has two essential elements, which are:

*One*, the defendant \[bought\] \[received\] \[concealed\] \[unlawfully
had in \[his\] \[her\] possession\] (describe letter, mail, etc. or
article or thing contained therein);

*Two*, this (describe letter, mail, etc. or article or thing contained
therein) had been stolen^1^ from (describe authorized depository for
mail matter); and

*Three*, the defendant knew (describe letter, mail, etc. or article or
thing contained therein) had been stolen.

Mail matter is \"stolen\" when it has been voluntarily taken from an
authorized depository for mail matter with intent to deprive the
addressee temporarily or permanently of its use and benefit.

The Government does not have to prove who stole the mail matter. Also,
the Government does not have to prove that the defendant knew that the
matter had been stolen from the mail, only that \[he\] \[she\] knew it
had been stolen.

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

**Notes on Use**

1\. The statute also makes illegal the receipt of mail which has been
taken, embezzled or obstructed. If one of these alternatives is charged,
the instruction should be so modified.

**Committee Comments**

*See* 2A Kevin F. O=Malley, et al., *Federal Jury Practice and
Instructions: Criminal* \'\' 52.01-.05 (5^th^ ed. 2000). *See* Committee
Comments, Instruction 6.18.1708A, *supra*; *Blue v. United States*, 528
F.2d 892, 894 (8th Cir. 1976).

The defendant must know that the letter or package was stolen, but he
need not know that it was stolen from the mails. *United States v.
Owens*, 472 F.2d 780‑87 (8th Cir.), *cert. denied*, 412 U.S. 951 (1973).

The government may prove by circumstantial evidence that the mail was
stolen. *United States v. Reece*, 547 F.2d 432, 435 (8th Cir. 1977);
*United States v. Bloom*, 482 F.2d 1162, 1164 (8th Cir. 1973).

An instruction defining actual and constructive possession in a section
1708 case was approved in *United States v. Haynes*, 653 F.2d 332, 333
(8th Cir. 1981). *See* Instruction 8.02, *infra*, for an instruction
defining possession.

Where warranted by the evidence, an instruction allowing the jury to
draw inferences of theft and knowledge of the theft from evidence of
recent possession of stolen mail may be given. *United States v. Hayes*,
631 F.2d 593, 594‑95 (8th Cir. 1980). *See also* *Barnes v. United
States*, 412 U.S. 837, 839-40 (1973); *United States v. Bloom*, 482 F.2d
at 1165‑66. *See further* Instruction 4.13, *supra*, concerning
instructions on inferences.

The defendant cannot be convicted for both theft and possession of a
single piece of mail. *United States v. Lindsay*, 552 F.2d 263, 266 (8th
Cir. 1977).

The Committee believes \"unlawfully\" is required by the statute which
proscribes the \"unlawful\" possession of stolen mail. The definition of
\"unlawfully\" as \"contrary to law\" has been called \"circular\" and
\"no definition at all.\" *United States v. Hoog*, 504 F.2d 45, 51 (8th
Cir. 1974), *cert. denied*, 420 U.S. 961 (1975). The Committee
recommends that \"unlawfully\" be defined in terms of the particular
conduct which made the possession unlawful.

If the defendant claims innocent or authorized possession, the burden is
on the defendant to produce such evidence and raise it as a defense; it
is not an element of the crime to be proved by the government. *United
States v. Tompkins*, 487 F.2d 146, 152 (8th Cir. 1973), *cert. denied*,
416 U.S. 944 (1974).

**6.18.1709A EMBEZZLEMENT OF MAIL (18 U.S.C. \' 1709) (First Clause)**

The crime of embezzling mail, as charged in \[Count \_\_\_\_\_ of\] the
indictment, has three essential elements, which are:

*One*, the defendant was an \[officer\] \[employee\] of the United
States Postal Service at the time stated in the indictment; and

*Two*, in \[his\] \[her\] position with the Postal Service, the
defendant had possession of (describe the mail matter, e.g., a letter)
that was intended to be conveyed by mail; and

*Three*, the defendant \[took\] \[removed\]^1^ the (describe the mail
matter, e.g., contents of letter) with the intent to convert it to
\[his\] \[her\] own use.

(Describe the mail matter, e.g., A letter) is Aintended to be conveyed
by mail@ if a reasonable person who saw (describe the mail matter, e.g.,
the letter) would think it was intended to be delivered through the
mail. \[The intent of the person who prepared the item for mailing or
who mailed it is irrelevant.\]

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

**Notes on Use**

1\. There are two separate methods for a postal employee to violate
section 1709: by embezzling mail matter (clause 1), which includes a
letter and its contents, or by stealing the contents of mail matter
(clause 2). The difference between the two clauses is that one can
embezzle mail matter (i.e., letter or package) and its contents, but the
Astealing clause@ applies only to theft of the contents of mail matter
(letter or package). *United States v. Selwyn*, 998 F.2d 556, 557 (8th
Cir. 1993); 2A Kevin F. O=Malley, et al., *Federal Jury Practice and
Instructions: Criminal* \'\' 52.06-.10 (5^th^ ed. 2000). *See United
States v. Selwyn*, 998 F.2d at 557-59, which applied a strict common-law
view of embezzlement to this statute. *See* an instruction on clause 2.

**Committee Comments**

*See* 2A Kevin F. O=Malley, et al., *Federal Jury Practice and
Instructions: Criminal* \'\' 52.06-.10 (5^th^ ed. 2000).

Intent to convert property to one\'s own use is required. *United States
v. Rush*, 551 F. Supp. 148, 151 (S.D. Iowa 1982).

Embezzlement presupposes lawful possession, but theft does not. *See
United States v. Selwyn*, 998 F.2d 556 (8th Cir. 1993) and Note on
Use 1. A postal employee, who does not, by nature of his duties,
originally have lawful possession of certain mail matter, can be charged
and convicted under the stealing provisions in the second clause of
section 1709. *United States v. Selwyn*, 998 F.2d at 558.

The first clause of section 1709 requires that the mail matter was
\"intended to be delivered by mail.\" In \"test letter\" cases, the
Eighth Circuit has required \"evidence from which the jury could
conclude that, judged by objective standards, the test letter appeared
to be a letter that was intended to be delivered.\" *United States v.
Costello*, 604 F.2d 589, 591 (8th Cir. 1979). *See also* *United States
v. Hergenrader*, 529 F.2d 83, 84-86 (8th Cir.), *cert. denied*, 426 U.S.
923 (1976), and *Scott v. United States*, 172 U.S. 343 (1899)
(indicating the subjective intent of the person Amailing@ the letter was
not at issue; rather, the issue is whether a reasonable person would
believe that the particular mail matter was intended to be conveyed by
mail).

**6.18.1709B THEFT OF MAIL BY POSTAL SERVICE EMPLOYEE**

**(18 U.S.C. \' 1709) (Second Clause)**

The crime of theft of mail by a Postal Service employee, as charged in
\[Count \_\_\_\_\_ of\] the indictment, has three essential elements,
which are:

*One*, the defendant was an \[officer\] \[employee\] of the United
States Postal Service at the time stated in the indictment;

*Two*, the \[letter\] \[package\] \[bag\] \[mail\] was \[in the United
States mail\] \[intended to be conveyed by mail\]; and

*Three*, the defendant \[took\] \[removed\]^1^ the (describe the
contents of the mail matter, e.g., check from the letter) with the
intent to convert it to \[his\] \[her\] own use.

\[(Describe the mail matter, e.g., a letter) is Aintended to be conveyed
by mail@ if a reasonable person who saw (describe the mail matter, e.g.,
the letter) would think it was intended to be delivered through the
mail.\] \[The intent of the person who prepared the item for mailing or
who mailed it is irrelevant.\]

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

**Notes on Use**

1\. There are two separate methods for a postal employee to violate
section 1709: by embezzling mail matter (clause 1), which includes a
letter and its contents, or by stealing the contents of mail matter
(clause 2). The difference between the two clauses is that one can
embezzle mail matter (i.e., letter or package) and its contents, but the
Astealing clause@ applies only to theft of the contents of mail matter
(letter or package). *United States v. Selwyn*, 998 F.2d 556, 557 (8th
Cir. 1993); 2A Kevin F. O=Malley, et al., *Federal Jury Practice and
Instructions: Criminal* \'\' 52.06-.10 (5^th^ ed. 2000). *Also see
United States v. Selwyn*, 998 F.2d at 557-59, which applied a strict
common-law view of embezzlement to this statute.

**Committee Comments**

*See* Instruction 6.18.1709A; 2A Kevin F. O=Malley, et al., *Federal
Jury Practice and Instructions: Criminal* \'\' 52.06-.10 (5^th^ ed.
2000).

Intent to convert property to one\'s own use is required. *United States
v. First*, 600 F.2d 170, 171 (8^th^ Cir. 1979); *United States v. Rush*,
551 F. Supp. 148, 151 (S.D. Iowa 1982).

Embezzlement presupposes lawful possession, but theft does not. *See
United States v. Selwyn*, 998 F.2d 556 (8th Cir. 1993), and Note on
Use 1. A postal employee, who does not, by nature of his duties,
originally have lawful possession of certain mail matter, can be charged
and convicted under the stealing provisions in the second clause of
section 1709. *United States v. Selwyn*, 998 F.2d at 558.

One of jurisdictional bases for a violation of section 1709 is that the
mail matter was \"intended to be delivered by mail.\" In \"test letter\"
cases, the Eighth Circuit has required \"evidence from which the jury
could conclude that, judged by objective standards, the test letter
appeared to be a letter that was intended to be delivered.\" *United
States v. Costello*, 604 F.2d 589, 591 (8th Cir. 1979). *See also*
*United States v. Hergenrader*, 529 F.2d 83, 84-86 (8th Cir.), *cert.
denied*, 426 U.S. 923 (1976), and *Scott v. United States*, 172 U.S. 343
(1899) (indicating the subjective intent of the person Amailing@ the
letter was not at issue; rather, the issue is whether a reasonable
person would believe that the particular mail matter was intended to be
conveyed by mail).

**6.18.2252A RECEIPT, POSSESSION OR DISTRIBUTION OF**

**MATERIAL CONTAINING CHILD PORNOGRAPHY**

**(18 U.S.C. \'2252A(a)(2)(A) and (B) and (a)(5)(B))**

The crime of \[receipt\] \[possession\] \[distribution\] of child
pornography\[, as charged in \[Count \] of the indictment,\] has three
essential elements, which are:

> *One*, that on or about (date) the defendant knowingly \[received\]
> \[possessed\]^1^ \[distributed\] (name of item or items, e.g., a book,
> magazine, periodical, film, videotape, computer disk, etc.) that
> \[were\] \[contained\] \[a\] \[multiple\] visual depiction(s) of child
> pornography;
>
> *Two*, that the defendant knew that the visual depiction(s) \[was\]
> \[were\] of a minor engaging in sexually explicit conduct;^2^ and
>
> *Three*, that the \[material containing the\] visual depiction(s)
> \[\[was\] \[were\] produced using materials that\]^3^ had been
> \[mailed \] \[shipped\] \[transported\] \[by computer\] in interstate
> or foreign commerce.^4^

\[You have heard evidence of more than one visual depiction involved in
the offense. You must agree unanimously as to which visual depiction(s)
defendant possessed.\]

The term Aminor@ means any person under the age of eighteen years.^5^

The phrase Achild pornography@ means any visual depiction of a minor
engaging in sexually explicit conduct, where the minor was engaged in
the sexually explicit conduct during production of the depiction.^6^ The
term Avisual depiction@includes \[a\] \[any\] \[photograph\] \[film\]
\[video\] \[picture\] \[or\] \[computer or computer-generated image or
picture\], whether made or produced by electronic, mechanical, or other
means. \[It includes undeveloped film and videotape, and data stored on
computer disk or by electronic means which is capable of conversion into
a visual image.\]^7^

The term Asexually explicit conduct@ means actual or simulated \[sexual
intercourse, including \[genital-genital\] \[oral-genital\]
\[anal-genital\] \[oral-anal\], whether between persons of the same or
opposite sex\]; \[bestiality\] \[masturbation\] \[sadistic or
masochistic abuse\]\] \[lascivious exhibition of the genitals or pubic
area of any person\].^8^

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

**Notes on Use**

1\. Presence of child pornography images in a computer=s temporary cache
file is not sufficient to establish defendant=s knowing possession of
the images. *See, e.g., United States v. Stulock*, 308 F.3d 922, 925
(8^th^ Cir. 2002) (the district court in a bench trial held that Aone
cannot be guilty of possession for simply having viewed an image on a
web site, thereby causing the image to be automatically stored in the
browser=s cache, without having purposely saved or downloaded the
image.@ The government did not appeal.); *but see, United States v.
Tucker*, 305 F.3d 1193, 1205 (10^th^ Cir. 2002) (defendant=s knowledge
that the images would be stored in the temporary cache file was
sufficient to show knowing possession of the images located there).

2\. The Supreme Court in *United States v. X-Citement Video, Inc.,* 513
U.S. 64 (1992), held with respect to a different statute, 18 U.S.C. \'
2252(a)(1) and (2), that proof of scienter as to the age of the person
depicted is required for conviction. While the phraseology of \'
2252A(a) is different, in that it uses the phrase Achild pornography@
instead of Avisual depiction involving the use of a minor,@ the statute
also contains as an element scienter of the age of the person depicted.
*See United States v. Acheson*, 195 F.3d 645, 653 (11^th^ Cir. 1999).
Courts have also held that the scienter requirement extends to knowledge
that the visual depictions were sexually explicit. *X-Citement Video,
Inc*, 513 U.S. at 78 (\' 2252(a)(2)); *United States v. Fabiano*, 169
F.3d 1299, 1303-04 (10^th^ Cir.), *cert. denied*, 528 U.S. 852 (1999);
*United States v. Cedelle*, 89 F.3d 181, 185 (4^th^ Cir. 1996).

The age of the child depicted may be proved by, *inter alia*, language
used by defendant in correspondence; Postal Inspector=s professional and
personal familiarity with child development; and a pediatrics
professor=s testimony. *United States v. Broyles*, 37 F.3d 1314, 1317-18
(8^th^ Cir. 1994), *cert. denied*, 514 U.S. 1056 (1995); *United States
v. Rayl*, 270 F.3d 709, 714 (8^th^ Cir. 2001). In *United States v.
Vig*, 167 F.3d 443, 449-50 (8^th^ Cir.), *cert. denied*, 528 U.S. 859
(1999), the court found that the jury could draw its own independent
conclusion as to whether real children were depicted by examining the
images presented to them. *But see United States v. Hilton*, 363 F.3d
58, 64-65 (1^st^ Cir. 2004) (Athe government must introduce relevant
evidence *in addition to* the images to prove the children are real.@).
Finally, in *United States v. Deaton*, 328 F.3d 454, 455 (8^th^ Cir.
2003), the court held that the government is not required to introduce
affirmative evidence that images of children were *not* computer
generated.

3\. This bracketed material, which refers to production using materials
that had been mailed, shipped or transported in interstate commerce, is
for possible inclusion [only]{.underline} in prosecutions brought under
\' 2252A(a)(5)(B). If the government alleges that multiple depictions
are involved, the court may consider submitting special interrogatories.
*See* 11.03.

4\. Whether the statute requires the defendant have knowledge that the
item traveled in interstate commerce has not yet been resolved by the
Eighth Circuit; if analyzed similarly to federal gun statutes,
interstate transportation without the knowledge of the defendant is
sufficient. *See United States v. Robinson*, 137 F.3d 652, 655 (1^st^
Cir. 1998)(\'2252); *but see United States v. Colavito*, 19 F.3d 69, 71
(2d Cir. 1994) (\' 2252) (defendant must know that he was receiving
material through interstate commerce and that the materials contained
sexually explicit depictions of minors). *See* 6.18.2252A (C) for
definitions of interstate commerce.

5\. 18 U.S.C. \' 2256(1).

6\. 18 U.S.C. \' 2256(8)(A). The Committee believes that the greatest
number of prosecutions will be brought under this subsection of the
statute. Section 2256(8)(B) and (C) contain two additional definitions
of child pornography.

Section 2256(8)(B) was amended in response to *Ashcroft v. Free Speech
Coalition*, 535 U.S. 234 (2002) to provide that:

> such visual depiction is a digital image, computer image, or computer
> generated image that is, or is indistinguishable from, that of a minor
> engaging in sexually explicit conduct.

The Committee expresses no opinion whether this provision will be found
to have the same constitutional infirmity as its predecessor.

Section 2256(8)(C) can be instructed as follows:

> The phrase Achild pornography@ means a visual depiction that has been
> created, adapted, or modified to appear that an identifiable minor is
> engaging in sexually explicit conduct.

If this subsection is used, the following definition of Aidentifiable
minor@ should be included:

> The term Aidentifiable minor@ as used in the definition of child
> pornography
>
> means a person \[who was a minor at the time the visual depiction was
> created, adapted or modified\] \[whose image as a minor was used in
> creating, adapting, or modifying the visual depiction\] and who is
> recognizable as an actual person by the person=s face, likeness, or
> other distinguishing characteristic, such as a unique birthmark or
> other recognizable feature. \[The government is not required to prove
> the actual identity of the identifiable minor.\]

18 U.S.C. \' 2256(9).

7\. 18 U.S.C. \'\' 2256(5) and (8).

8\. 18 U.S.C. \' 2256(2)(A). If the prosecution is brought under 18
U.S.C. \' 2256(8)(B), the definition of sexually explicit conduct should
be taken from 18 U.S.C. \' 2256(2)(B).

**Committee Comments**

This instruction has been drafted to comply with amendments made to \'
2252A by the Prosecutorial Remedies and Other Tools to end the
Exploitation of Children Today (PROTECT) Act of 2003, Pub. L. No.
108‑21, 117 Stat. 650 (2003). The amendments are effective April 30,
2003. If the criminal conduct occurred prior to April 30, 2003, the
instruction should be revised to comply with the unamended statute.

**6.18.2252A(1) ALASCIVIOUS@ EXPLAINED**

~~A lascivious exhibition of the genital or pubic area is an exhibition
that tends to arouse sexual desire.~~ Whether a visual depiction of the
genitals or pubic area constitutes a lascivious exhibition requires a
consideration of the overall content of the material. You may consider
such factors as (1) whether the focal point of the picture is on the
minor=s genitals ~~genitalia~~ or pubic area; (2) whether the setting of
the picture is sexually suggestive, that is, in a place or pose
generally associated with sexual activity; (3) whether the minor is
depicted in an unnatural pose or in inappropriate attire, considering
the age of the minor; (4) whether the minor is fully or partially
clothed, or nude; (5) whether the picture suggests sexual coyness or a
willingness to engage in sexual activity; (6) whether the picture is
intended or designed to elicit a sexual response in the viewer; (7)
whether the picture portrays the minor as a sexual object; and (8) the
caption(s) on the picture(s).

It is for you to decide the weight or lack of weight to be given to any
of these factors. A picture need not involve all of these factors to
constitute a lascivious exhibition of the genitals or pubic area.

**Committee Comments**

Title 18, United States Code, \' 2256(2). The first six factors are
derived from *United States v. Dost*, 636 F. Supp. 828, 832 (S.D. Cal.
1986), *aff=d* *sub. nom*. *United States v. Wiegand*, 812 F.2d 1239,
1244 (9^th^ Cir. 1987) and are generally cited. *See, e.g.*, *United
States v. Horn*, 187 F.3d 781, 789 (8^th^ Cir. 1999), *cert. denied*,
529 U.S. 1029 (2000); *United States v. Carroll*, 190 F.3d 290, 296
(5^th^ Cir. 1999); *United States v. Amirault*, 173 F.3d 28, 31 (1^st^
Cir. 1999). The seventh and eighth factors were added by the court in
*United States v. Arvin*, 900 F.2d 1385 (9th Cir. 1990) (interpreting
the definition of Alascivious@ found in 18 U.S.C. \' 2256(2)(E) for
purposes of \' 2252), *cert. denied*, 498 U.S. 1024 (1991).

The factors are Aneither comprehensive nor necessarily applicable in
every situation. . . \[T\]here may be other factors that are equally if
not more important in determining whether a photograph contains a
lascivious exhibition.@ *United States v. Amirault*, 173 F.3d at 32.

In *United States v. Rayl*, 270 F.3d 709, 714 (8th Cir. 2001), the court
held that the question whether materials depict a Alascivious exhibition
of the genitals@ is for the finder of fact. However, the meaning of
Alascivious exhibition of the genitals@ is an issue of law. The district
court therefore should, before submitting materials offered by the
government to the jury, conduct a preliminary review of whether those
materials depict sexually explicit conduct as a matter of law. *Accord*
*United States v. Horn*, 187 F.3d at 789.

**6.18.2252A(2)** A**INTERSTATE COMMERCE@ DEFINED**

The phrase \"interstate commerce\" means commerce between any
combination of states, territories, and possessions of the United
States, including the District of Columbia.^1^

\[The phrase \"foreign commerce,\" as used above, means commerce between
any state, territory or possession of the United States and a foreign
country.\]^1^

\[The term \"commerce\" includes, among other things, travel, trade,
transportation and communication.\]^1^

\[Images transmitted or received over the Internet have moved in
interstate or foreign commerce.^2^ It is for you to determine, however,
if \[the material containing\] the visual depiction \[had been
transmitted or received over the Internet\] \[was produced using
materials that had been transmitted or received over the
Internet\]\].^3^

**Notes on Use**

1\. *See* 6.18.1956J(2); *United States v. Hampton*, 260 F.3d 832 (8^th^
Cir. 2001); *United States v. Bausch*, 140 F.3d 739 (8^th^ Cir. 1998).

2\. *See United States v. Smith*, 47 M.J. 588 (1997) (relying in part on
*United States v. Carroll*, 105 F.3d 740, 742 (1^st^ Cir.), *cert.
denied*, 520 U.S. 1258 (1997); *United States v. Thomas*, 74 F.3d 701,
706-07 (6^th^ Cir.), *cert. denied*, 519 U.S. 820 (1996); *United States
v. Runyan*, 290 F.3d 223, 239 (5^th^ Cir.), *cert. denied*, 537 U.S. 888
(2002). Each item must be independently linked to the Internet. *United
States v. Henriques*, 234 F.3d 263, 266 (5^th^ Cir. 2000); *United
States v. Wilson*, 182 F.3d 737, 744 (10^th^ Cir. 1999).

3\. The last bracketed portion of this sentence is applicable only in
prosecutions under \' 2252A(a)(5)(B).

**6.18.2252A(3) ACOMPUTER@ DEFINED**

The term Acomputer@ as used in this instruction means an electronic,
magnetic, optical, electrochemical, or other high speed data processing
device performing logical, arithmetic, or storage functions, and
includes any data storage facility or communications facility directly
related to or operating in conjunction with such device, but such term
does not include an automated typewriter or typesetter, a portable hand
held calculator, or other similar device.

**Committee Comments**

*See* 18 U.S.C. \'\' 1030(e), 2252A(a)(5)(B) and 2256(6).

> **7.00 FINAL INSTRUCTIONS: CONSIDERATION OF MENTAL STATE**

**(Introductory Comment)**

The instructions in this section relate to the jury=s consideration of
the defendant=s mental state. The Committee recommends that the elements
instructions address the exact mental state required by the statute. If
this is done there is usually no need to further instruct the jury on
the meaning of general terms such as Aspecific intent,@ Aknowingly@ and
Awillfully@ except as noted in the Committee Comments in this section.

**7.01 SPECIFIC INTENT**

\[No instruction recommended.\]

**Committee Comments**

The Committee is unaware of any federal statute which actually uses the
phrase Aspecific intent@ and accordingly recommends that it not be used
in any instruction. Where a mental state is an element of an offense,
that mental state must be contained in the elements instruction. *See
Liparota v. United States,* 471 U.S. 419, 433 n.16 (1985). The verbal
formulation Aspecific intent@ need not be contained in the indictment
nor submitted to the jury, as long as the required mental state is
adequately conveyed to the jury. *United States v. Dougherty*, 763 F.2d
970, 973-74 (8^th^ Cir. 1985); *United States v. May*, 625 F.2d 186,
189-90 (8^th^ Cir. 1980); *United States v. Galyen*, 798 F.2d 331, 333
(8^th^ Cir. 1986). *United States v. Bailey*, 444 U.S. 394 (1980). The
elements instructions in Section 6, *supra*, were drafted with this
purpose in mind.

**7.02 WILLFULLY**

\[No instruction recommended except in criminal tax cases, odometer
fraud cases, health care anti-kickback statute cases, certain securities
cases, and failure to pay child support cases.\]

**Committee Comments**

The Committee recommends that the word Awillfully@ not be used in jury
instructions in most cases. Where Awillfully@ does not appear in the
statute, it should not be used in the indictment or the instructions.
Where the word Awillfully@ does appear in the statute, in most cases it
can be replaced with the words Avoluntarily and intentionally@ in the
instruction and no further definition is needed. *See United States v.
Redfearn*, 906 F.2d 352 (8^th^ Cir. 1990); *United States v.
Bettelyoun*, 16 F.3d 850, 853 (8^th^ Cir. 1994). The elements
instructions in Section 6, *supra*, follow this format.

AWillfully@ has been given a particular meaning in criminal tax
statutes. In tax prosecutions Awillfully@ may be used in the indictment
and in the instructions and should be defined as follows: AAn act is
done \>willfully= if done voluntarily and intentionally with the
purposed of violating a known legal duty.@ *United States v. Pomponio*,
429 U.S. 10, 12 (1976); *United States v. Jerde*, 841 F.2d 818, 821
(8^th^ Cir. 1988). The Supreme Court has discussed the various meanings
of the term Awillfulness@ in the criminal tax statutes in *United States
v. Bishop*, 412 U.S. 346 (1973); *Cheek v. United States*, 498 U.S. 192
(1991) (Awillfully@ in a tax evasion case means both that the defendant
knew of his duty to pay the tax and that he voluntarily and
intentionally violated that duty). This circuit has extended this
definition of willfully to odometer fraud cases under 15 U.S.C. \'
1990c. *United States v. Studna*, 713 F.2d 416, 418 (8^th^ Cir. 1983).
There may be other statutes in which Awillfully@ has this definition.

In *Ratzlaf v. United States*, 510 U.S. 135 (1994), the Court held that
for the purposes of the anti-structuring statutes at 31 U.S.C. \'\'
5313(a), 5322(a) & 5324(3) B which establish criminal penalties for
anyone who Awillfully violated@ any of the provisions in the subchapter
B the term Awillfully@ required *both* knowledge of the reporting
requirements *and* a specific purpose to disobey the law.[^1]

In *United States v. Jain*, 93 F.3d 436 (8^th^ Cir. 1996), the Eighth
Circuit interpreted the term Awillfully@ in the health care
anti-kickback statute, at 42 U.S.C. 1320a-7b, to require proof that the
defendant knew his conduct was Awrongful,@ (a heightened *mens rea*
burden), *see Jain*, 93 F.3d at 441. The trial court in *Jain*
instructed the jury that Athe word \>willfully= means unjustifiably and
wrongfully, known to be such by Defendant Swaran Jain.@ *Jain*, 93 F.3d
at 440.

In *United States v. O=Hagan*, 521 U.S. 642 (1997), the Court,
discussing criminal liability under 10b-5 of the Securities and Exchange
Act, 18 U.S.C. \' 78ff(a), noted that criminal liability required that
the government prove that a person engaging in Ainsider@ trading
Awillfully@ violated the substantive provision in question and that the
statute specifically prohibited imprisonment of a defendant who Aproves
he had no knowledge of such rule or regulation.@ *Id.* at 664. This
discussion, though brief, suggests that the Court may require proof that
the defendant Aintentionally violated a known legal duty.@

Title 18 U.S.C. \' 228 prohibits any willful failure to pay legal child
support obligations. The legislative history of this act states that the
language of the statute Awillfully fails to pay@ has been borrowed from
the tax statutes that make willful failure to pay taxes a federal crime,
and includes a requirement that the proof necessary to show a violation
of the failure to pay child support statute is the element of an
intentional violation of a known legal duty. *United States v.
Williams*, 121 F.3d 615, 620-21 (11^th^ Cir. 1997).

**7.03 KNOWINGLY**

\[No instruction recommended.\]

**Committee Comments**

Although a definition of Aknowingly@ was provided in this section in the
1985 edition of this Manual, the Committee believes that in most cases
the word Aknowingly@ does not need to be defined. *United States v.
Smith*, 635 F.2d 716, 719-20 (8^th^ Cir. 1980); *United States v. Gary*,
341 F.3d 829, 834 (8^th^ Cir. 2003). An instruction is required only
where necessary for a fair determination of the defendant=s guilt or
innocence. *United States v. Brown*, 33 F.3d 1014, 1017 (8^th^ Cir.
1994).

If a definition is requested and deemed necessary, the Committee
recommends ~~Ninth Circuit Instruction 5.06 which does not overlap with
the definition of Awillfully.@ The Ninth Circuit instruction reads as
follows:~~ the following:

> The government is not required to prove that the defendant knew that
> \[his\] \[her\] acts or omissions were unlawful. An act is done
> knowingly if the defendant is aware of the act and does not act \[or
> fail to act\] through ignorance, mistake, or accident. ~~The
> government is not required to prove that the defendant knew that
> \[his\] \[her\] acts or omissions were unlawful.~~ You may consider
> evidence of the defendant=s words, acts, or omissions, along with all
> the other evidence, in deciding whether the defendant acted knowingly.

~~This wording~~ A similar instruction was approved in *United States v.
Dockter*, 58 F.3d 1284 (8^th^ Cir. 1995).

In most statutes, the word Aknowingly@ does not require proof that the
defendant knew he was violating the law. In *Bryan v. United States*,
524 U.S. 184, 118 S. Ct. 1939 (1998), the Court explained:

> \[T\]he term Aknowingly@ does not necessarily have any reference to a
> culpable state of mind or to knowledge of the law. As Justice Jackson
> correctly observed, Athe knowledge requisite to knowing violation of a
> statute is factual knowledge as distinguished from knowledge of the
> law.@

*See, e.g., United States v. Udofot*, 711 F.2d 831, 835-37 (8^th^ Cir.),
*cert. denied*, 464 U.S. 896 (1983) \[18 U.S.C. \' 922(e)\]; *United
States v. Enochs*, 857 F.2d 491, 493 (8^th^ Cir. 1988), *cert. denied*,
490 U.S. 1022 (1989) \[18 U.S.C. \' 511(a)\]. *See also United States v.
Hutzell*, 217 F.3d 966, 968 (8^th^ Cir. 2000) (statute providing
penalties for those who Aknowingly@ violate separate statute prohibiting
possession of a firearm by one who has been convicted of misdemeanor
crime of domestic violence requires government to prove only that
defendant knew of facts constituting the offense, not that he knew it
was illegal for him to posses a gun; statute does not require knowledge
of the law nor an intent to violate it); *United States v. Sinskey*, 119
F.3d 712, 715-16 (8^th^ Cir. 1997) (to establish that the defendant
Aknowingly violated@ Clean Water Act (CWA) discharge limitations or
condition or limitation contained in implementing permit, as basis for
criminal liability, government was not required to prove that the
defendant knew that his acts violated either CWA or permit, but merely
that he was aware of conduct that resulted in permit=s violation);
*United States v. Farrell*, 69 F.3d 891, 893 (8^th^ Cir. 1995) (to prove
knowing violation of Firearms Owner=s Protection Act (FOPA) provision
which prohibits transfer of possession of machine guns, as required for
imposition of statutory penalty, government need only prove knowing and
intentional conduct, not knowledge of the law). Nor does Aknowingly@
require knowledge of federal involvement. *United States v. Yermian*,
468 U.S. 63, 75 (1984) (18 U.S.C. \' 1001).

In *Staples v. United States,* 511 U.S. 600 (1994), the Court,
interpreting the National Firearms Act, 26 U.S.C. \' 5861(d), which does
not expressly contain any *mens rea* requirement in the provision
criminalizing possession of a firearm that was not properly registered,
held that the defendant had to Aknow@ that his weapon possessed
automatic firing capability to come within the Act. The Court emphasized
a presumption in favor of a scienter requirement to statutory crimes
which criminalize otherwise innocent conduct, in the absence of a clear
legislative intent to the contrary. *But see United States v. Barr*, 32
F.3d 1320 (8^th^ Cir. 1994), in which the Eighth Circuit held that, with
respect to possession of weapons of quasi-suspect character, such as
sawed-off shotguns, Aa specific jury finding of \[the defendant=s\]
knowledge of the weapon=s incriminating characteristics is unnecessary.@
*Id*. at 1324. The Government need only prove that the defendant
possessed the weapon, and had observed its characteristics. *Id. Accord
United States v. Otto*, 64 F.3d 367, 370 (8^th^ Cir. 1995).

Also, in *United States v. X-Citement Video, Inc.*, 513 U.S. 64 (1994),
the Court held that the term Aknowingly@ applies to the requirement that
the individual who is transporting sexually explicit material must know
that it depicts minors in order to convict under 18 U.S.C. \' 2252. The
Court again expressed its preference for a scienter requirement for
statutes which criminalize otherwise innocent or constitutionally
protected conduct.

In some statutes, however, Aknowingly@ has been construed to require
knowledge that the defendant was breaking the law. In *United States v.
Marvin*, 687 F.2d 1221 (8^th^ Cir. 1982), *cert. denied*, 460 U.S. 1081
(1983) and *Liparota v. United States*, 471 U.S. 419 (1985), the word
Aknowingly@ in 7 U.S.C. \' 2024(b) was interpreted as including
knowledge that the defendant was violating the law. The statute reads in
relevant part:

> \[W\]hoever knowingly uses, transfers, acquires . . . possesses
> \[food\] coupons . . . in any manner not authorized by this chapter. .
> .

Both courts further held the jury should have been instructed that the
government had to prove that Athe defendant knowingly did an act which
the law forbids@ but not that he knew the precise law or regulation
forbidding food stamp trafficking. 687 F.2d at 1227; 471 U.S. at 434.

Where the offense requires that the defendant have some particular
knowledge, that knowledge should be included in the elements of
instruction. The elements of instruction in Section 6, *supra*, were
drafted with this purpose in mind.

**7.04 DELIBERATE IGNORANCE**

You may find that the defendant \[(name)\]^1^ acted knowingly if you
find beyond a reasonable doubt that the defendant \[(name)\] was aware
of a high probability that (state fact as to which knowledge is in
question (e.g., that \"drugs were contained in his suitcase\")) and that
\[he\] \[she\] deliberately avoided learning the truth. The element of
knowledge may be inferred if the defendant \[(name)\] deliberately
closed \[his\] \[her\] eyes to what would otherwise have been obvious to
\[him\] \[her\]. \[You may not find the defendant acted Aknowingly@ if
you find he/she was merely negligent, careless or mistaken as to (state
fact as to which knowledge is in question (e.g., that Adrugs were
contained in his suitcase@)).\]^2^

\[You may not find that the defendant \[(name)\] acted knowingly \[if
you find that the defendant \[(name)\] actually believed that (state the
proposition in the negative (e.g., that \"no drugs were contained in his
suitcase\")).\]^3^\]

**Notes on Use**

1\. If there is more than one defendant and the instruction does not
apply to all defendants, insert the name\[s\] of the defendant\[s\] to
whom the instruction applies.

2\. This language can be given if desired. It is not needed; it just
emphasizes that negligence is not sufficient.

3\. This clause should be included in an instruction if requested and
supported by the evidence. *United States v. Esquer‑Gamez*, 550 F.2d
1231, 1235‑36 (9th Cir. 1977). Although no Eighth Circuit case states
this rule, the Committee believes it to be good law and good practice.
*See United States v. Bailey*, 955 F.2d 28, 29 (8th Cir. 1992).

**Committee Comments**

*See* 1A Kevin F. O\'Malley, et al., *Federal Jury Practice and
Instructions*: Criminal \' 17.09 (5th ed. 2000);

In *United States v. Kershman*, 555 F.2d 198, 200 (8th Cir.), *cert.
denied*, 434 U.S. 892 (1977), this circuit joined the Second, Sixth,
Seventh and Ninth Circuits in approving the use of an instruction in
which the element of knowledge may be shown by deliberate ignorance
where evidence has shown a conscious purpose to avoid enlightenment.

The instruction approved in *Kershman* had two aspects; first, it
required the jury to find that the defendant deliberately and
consciously closed his eyes and second, it instructed the jury that the
defendant\'s good faith belief in the matter in question would exonerate
him. 555 F.2d at 201. The court found that the \"if you find\" language
of the instruction prevented the instruction from assuming facts not in
evidence. The court further found that the instruction did not permit
the jury to convict on an objective rather than a subjective theory of
knowledge requirements.

The analysis in *Kershman* is similar to that in *United States v.
Jewell*, 532 F.2d 697 (9th Cir. en banc), *cert. denied*, 426 U.S. 951
(1976). In a footnote, the *Jewell* court stated that a deliberate
ignorance instruction should say \"(1) that the required knowledge is
established if the accused is aware of a high probability of the
existence of the fact in question (2) unless he actually believes it
does not exist.\" *Id.* at 704 n.21. In *United States v. Valle‑Valdez*,
554 F.2d 911, 914 (9th Cir. 1977), it was held reversible error to fail
to include in the instruction element (1) of the *Jewell* footnote;
specifically, the court held that the instructions should have explained
that \"conscious purpose to avoid learning the truth\" is culpable only
where coupled with a subjective awareness of high probability of the
\"unknown\" fact.

Subsequent to *Kershman*, 1A Kevin F. O\'Malley, et al., *Federal Jury
Practice and Instructions*: Criminal \' 17.09 (5th ed. 2000), on the
same subject matter, was approved by this circuit in *United States v.
Massa*, 740 F.2d 629, 643 (8th Cir. 1984), *cert. denied*, 471 U.S. 1115
(1985), and *United States v. Graham*, 739 F.2d 351, 352 (8th Cir.
1984):

> The element of knowledge may be satisfied by inferences drawn from
> proof that a defendant deliberately closed his eyes to what otherwise
> would have been obvious to him. A finding beyond a reasonable doubt of
> a conscious purpose to avoid enlightenment would permit an inference
> of knowledge. Stated another way, a defendant\'s knowledge of a fact
> may be inferred from willful blindness to the existence of a fact. It
> is entirely up to you as to whether you find any deliberate closing of
> the eyes, and the inferences to be drawn from any such evidence. A
> showing of negligence or mistake is not sufficient to support a
> finding of willfulness of knowledge.

In *Graham*, this circuit adopted the reasons given in *Jewell* for the
necessity of such an instruction as follows:

> The substantive justification for the rule is that deliberate
> ignorance and positive knowledge are equally culpable. The textual
> justification is that in common understanding one \"knows\" facts of
> which he is less than absolutely certain. To act \"knowingly,\"
> therefore, is not necessarily to act only with positive knowledge, but
> also to act with an awareness of the high probability of the existence
> of the fact in question. When such awareness is present, \"positive\"
> knowledge is not required.

739 F.2d at 353 (quoting from 532 F.2d at 700).

In both *Graham* and *Massa* the court found that the instruction did
not allow the defendant to be convicted on the basis of negligence or
mistake. *See also* *United States v. Bussey*, 942 F.2d 1241 (8th Cir.
1991).

In *Bussey*, this circuit again approved the giving of a willful
blindness instruction to a tax fraud and false statement case where the
defendant knew certain payments he received had income tax consequences
but he specifically sought to avoid learning anything about the
specifics of those consequences and did not provide his accountant or
return preparer with any relevant information. The court noted that
specific language in the instruction which informed the jury that
negligence or mistake did not constitute willfulness or knowledge
prevented the instruction from allowing the jury to find the defendant
guilty based on simple negligence.

The instruction as drafted by the committee attempts to combine the
format of the instruction approved in *Kershman* with the language
approved in *Massa*/*Graham*, covering the essential principles required
by each of these cases.

This instruction should not be given in every case where a defendant
claims a lack of knowledge; rather, it is appropriate only in those
cases where a defendant claims a lack of guilty knowledge and there are
facts in evidence which suggest deliberate ignorance. *United States v.
Barnhart*, 979 F.2d 647 (8th Cir. 1992); *United States v. Regan*, 940
F.2d 1134 (8th Cir. 1991); *United States v. Hiland*, 909 F.2d 1114,
1130 (8th Cir. 1990); *United States v. White*, 794 F.2d 367, 371 (8th
Cir. 1986); *United States v. Hildebrand*, 152 F.3d 756, 764 (8th Cir.
1998); *United States v. Gonzalez*, 90 F.3d 1363, 1371 (8th Cir. 1996).
*Barnhart* contains a good discussion of when and under what
circumstances such an instruction should be given. It should be
consulted when such an instruction is requested. If there is evidence
supporting both actual knowledge on the part of the defendant and
deliberate ignorance, this instruction is properly given. *United States
v. Parker*, 364 F.2d 934, 946-47 (8th Cir. 2004); *United States v.
Florez*, 368 F.3d 1042 (8^th^ Cir. 2004). If there is no evidence
indicating that the defendant had a conscious purpose to avoid learning
the truth, the instruction should not be given. *United States v.
White*, 794 F.2d at 371. Likewise, if the evidence \"points solely to
either actual knowledge or no knowledge of the facts in question,\" the
instruction should not be given. *Regan*; *Hiland*, 909 F.2d at 1130. If
a statute requires actual knowledge of specific facts, this instruction
should not be given. *Mattingly v. United States*, 924 F.2d 785, 791
(8th Cir. 1991) (26 U.S.C. \' 6701). In any event, \"\[a\] deliberate
ignorance instruction should not be given in every \[criminal\] case
because there is a possibility that the jury will use a \'negligence
standard and convict a defendant on the impermissible ground that he
should have known \[an illegal act\] was taking place.=\" *United States
v. Cunningham*, 83 F.3d 218, 221 (8th Cir. 1996) (quoting *United States
v. Barnhart*, 979 F.2d at 651.) *See also* *United States v. Covington*,
133 F.3d 639, 644‑45 (8th Cir. 1998). A district court should not give
the deliberate ignorance instruction \"when the evidence points solely
to the defendant\'s actual knowledge of the facts in question,\" but the
instruction is appropriate \"when the defendant denies any knowledge of
a criminal scheme despite strong evidence to the contrary.\" *United
States v. King*, 351 F.3d 859, 866‑67 (8th Cir. 2003). *See also*
*United States v. Woodward*, 315 F.3d 1000, 1003‑04 (8th Cir. 2003);
*United States v. Marley*, 549 F.2d 561 (8^th^ Cir. 1977).

Note that where the defendant is under a specific duty to discover facts
and the facts tendered to him are suspicious, as for example, in a
securities fraud prosecution, an instruction that \"reckless deliberate
indifference to or disregard for truth or falsity\" is equivalent to
knowledge, may be proper in place of the reference to \"conscious
purpose to avoid learning the truth.\" *United States v. Weiner*, 578
F.2d 757, 787 (9th Cir.), *cert. denied*, 439 U.S. 981 (1978).

[^1]: Congress amended 31 U.S.C. \' 5322(a) to eliminate the
    applicability of the provision=s mens rea requirement to offenses
    committed under section 5324, thereby superceding by statute the
    narrow holding in *Ratzlaf*.