**2.06 TRANSCRIPT OF TAPE-RECORDED CONVERSATION**

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

You are permitted to have the transcript for the limited purpose of
helping you follow the conversation as you listen to the tape recording,
and also to help you keep track of the speakers. The transcript,
however, is not evidence. The tape recording itself is the primary
evidence of its own contents.

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

Differences in meaning between what you hear in the recording and read
in the transcript may be caused by such things as the inflection in a
speaker\'s voice. You should, therefore, rely on what you hear rather
than what you read when there is a difference.

**Notes on Use**

1\. ~~This language should be included if the accuracy of the transcript
is an issue.~~ 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: "\[W\]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)." 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^

**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, "\[w\]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)." 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. *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).

**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 "use 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
Seventh Circuit also has language which says, "\[i\]n 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." The Committee does not believe that
additional language is necessary. The purpose of the instruction is "to
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).

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

The crime of being a \[drug user\] \[drug addict\] in possession of a
firearm, as charged in \[Count of\] the indictment, has three 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 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 \"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 \[firearm\] \[ammunition\].
~~\[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^

\[The term \"drug addict\" means any individual who habitually uses any
controlled substance so as to endanger the public morals, health,
safety, or welfare, or who is so far addicted to the use of a controlled
substance as to have lost the power of self-control with reference to
his addiction.\]^2^

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. § **~~1~~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]{.underline}, 349
F.3d 558, 562 (8^th^ Cir. 2003) found the Treasury Department's
definition "entirely consistent with any standard for unlawful use to be
gleaned from our prior decisions" and that the district court acted
within its discretion when it incorporated §478.11\'s definition in its
instructions.** ~~The Eighth Circuit has held that the government need
not prove that 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).~~ ~~The
definition of the term \"user\" is the subject of ongoing litigation.
*See, e.g.,* *United States v. Herrera*, 2002 WL 575651 (5^th^ Cir.
2002), where the court gave an extremely limited interpretation to the
term, holding that:~~

> ~~\[A\]n \"unlawful user\" is one who uses narcotics so frequently and
> in such quantities as to lose the power of self control and thereby
> pose a danger to the public morals, health, safety, or welfare. In
> other words, an \"unlawful user\" is someone whose use of narcotics
> falls just short of addiction, as that term is defined by the
> Controlled Substances Act. This reading of the term is consistent with
> the language of the legislative history as well as holdings of our
> sister circuits. (Citations omitted).~~

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.

**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).

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

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^ ~~\[physical
force\]^1^~~ \[threats\] \[corrupt persuasion\]^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).^~~2~~\ 4,\ 5,\ 6^

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

~~\[To use \"physical force\" against someone means to take physical
action against another and includes confinement.\]^3^~~

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

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

**Notes on Use**

~~1. Title 18 U.S.C. § 1512 is quite broad, and covers a variety of
things: knowingly threatening or attempting to threaten another person,
by intimidation or physical force, or engaging in misleading conduct
toward another person, with intent to influence that person\'s testimony
in an official proceeding, or with intent to cause that person to
withhold testimony or do a variety of other things related to an
official proceeding; hindering, delaying or preventing communication
with federal law enforcement officials or judges regarding federal
offenses, probation violations, etc.; or harassing another person with
the effect of hindering, delaying, preventing, etc., that person from
testifying in an official proceeding or from reporting federal crimes,
making federal arrests, etc.~~

~~The form chosen for this model instruction deals only with one
particular form of violation under the statute. Where other types of
violations are involved, it will obviously be necessary to change the
form of the elements, and it may be necessary to add other elements as
well.~~

~~Additional definitions are contained in 18 U.S.C. § 1515.~~

~~2.~~ 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. § 1518(a)(6), the term "corrupt persuasion" does not
include conduct which would be misleading conduct but for a lack of a
state of mind.

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(c)(1) and (f)(1)~~
1512(n)(1) and (g)(1). Additional definitions are contained in 18 U.S.C.
§ 1515.

~~3. \"Physical force\" is defined in 18 U.S.C. § 1515(a)(2).~~

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

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

**Committee Comments**

*See* Eleventh Circuit Pattern Jury Instructions: Criminal ~~(Offense) §
47.2 (1997)~~ § 57.2 (2003).

*See* 18 U.S.C. §§ ~~sections~~ 1512~~(d)(e)~~(f)~~and~~(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 ~~section~~ 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.

~~Success is not a prerequisite to conviction under section 1512. Nor
must the government show that the defendant intended to carry out the
threat. All that must be proved is that the defendant intended to
impermissibly influence the witness. *United States v. Maggitt*, 784
F.2d 590, 593-94 (5th Cir. 1986); *United States v. Wilson*, 796 F.2d
55, 57 (4th Cir. 1986), *cert. denied*, 479 U.S. 1039 (1987); *United
States v. Murray*, 751 F.2d 1528, 1534 (9th Cir.), *cert. denied*, 474
U.S. 979 (1985).~~

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
\[dismissed witness\]~~; *United States v. Wilson*, 796 F.2d at 57 n.4
\[excused witness\]; *United States v. DiSalvo*, 631 F. Supp. 1398, 1402
(E.D. Pa. 1986) \[potential witness\]~~.

**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
\[letter\]\[postal card\] \[package\] \[bag\]; and

*Two*, the \[letter\] \[postal card\] \[package\] \[bag\] \[mail\] was
in \[the United States mail\] \[(describe authorized depository for U.S.
mail matter)\];~~^1\ and^~~

~~^*Two*,\ the\ defendant\ voluntarily\ \[stole\]\ \[took\]2\ it\ from\ the\ \[mail\]\ \[(describe\ authorized\ depository)\];\ and^~~

^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*.)

**~~Committee Comments~~**

~~*See* 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND
INSTRUCTIONS: Criminal §§ 44.01-44.05 (4th ed. 1990); Seventh Circuit
Federal Jury Instructions: Criminal at 284-85 (1999); Eleventh Circuit
Pattern Jury Instructions: Criminal (Offense) § 52.1 (1997). *See
generally* *United States v. Hopping*, 668 F.2d 398, 399-40 (8th Cir.
1982); *United States v. Lampson*, 627 F.2d 62, 66 (7th Cir. 1980).~~

~~Theft of mail includes the element of intent to steal at the time the
mail is taken. *United States v. Lampson*, 627 F.2d at 66; *United
States v. Hopping*, 688 F.2d at 399-40; *Walker v. United States*, 342
F.2d 22, 25 (5th Cir.), *cert. denied*, 382 U.S. 859 (1965). 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. *United
States v. Matzker*, 473 F.2d 408 (8th Cir. 1973). On the other hand the
protection extended by section 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).~~

**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.

~~2. The statute also includes obtaining or attempting to obtain mail by
fraud. In such a case, this language should be used.~~

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

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

*~~Two~~Three*, the defendant ~~thereafter \[bought\] \[received\]
\[concealed\] \[unlawfully had in his possession\] such mail matter with
knowledge that it~~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 knew it had been
stolen.

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

Text Moved Here: 1 **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.

End Of Moved Text

**Committee Comments**

*See* ~~2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND
INSTRUCTIONS: Criminal §§ 44.01-44.05 (4th ed. 1990); Fifth Circuit
Pattern Jury Instructions: Criminal § 2.71 (1997); Ninth Cir. Crim. Jury
Instr. 8.38.1 (1997); Eleventh Circuit Pattern Jury Instructions:
Criminal (Offense) § 52.2 (1997).~~

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 ~~and *Barnes v. United States*, 412 U.S. 837 (1973)~~. *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).

~~None of the published instructions cited in the first paragraph above
uses the word \"unlawfully\" to modify possession.~~ The Committee
believes \"unlawfully\" is required by the statute which proscribes the
\"unlawful\" possession of stolen mail. ~~The Committee did not find a
useful definition of \"unlawfully.\"~~ 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)~~, *cf.*, *United States v. Mavrick*, 601 F.2d 921,
926-27 (7th Cir. 1979) \[construing 18 U.S.C. § 659\].~~

~~Text Was Moved From Here: 1~~

**~~6.18.1709~~** .

**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 ~~a~~an \[officer\]\[employee\] of the United
States Postal Service ~~\[officer\] \[employee\]~~ at the time stated in
the indictment; and

*Two*, in his position with the Postal Service,~~^1^~~ 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
own use.

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

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

**~~Committee Comments~~**

~~*See* Seventh Circuit Federal Jury Instructions: Criminal at 290-91
(1999); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) §
53 (1997); 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND
INSTRUCTIONS: Criminal §§ 44.06-44.10 (4th ed. 1990).~~

~~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; *United States v. Trevino*, 491 F.2d 74, 75 (5th Cir. 1974). 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. Dollard*, 780 F.2d 1118, 1122 (4th Cir. 1985). In a case
arising under the second clause, the instruction would have to be
modified.~~

~~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).~~

**Notes on Use**

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

**Committee Comments**

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

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

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

The first clause of § 1709 requires that the mail matter was \"intended
to be delivered by mail.\" In \"test letter\" cases, the Eighth Circuit
has ~~taken a very~~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 "mailing" the letter was
not at issue; rather, the issue is whether a reasonable person would
believe that the particular mail matter was intended to be conveyed by
mail).

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

**(18 U.S.C. § 1709) (Second Clause)**

The crime of theft of mail by a Postal Service employee, as charged in
\[Count \_\_\_\_\_ of\] the indictment, has three 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*, 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 own use.

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

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

**Notes on Use**

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

**Committee Comments**

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

Intent to convert property to one\'s own use is required. *United States
v. 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 §
1709. *United States v. Selwyn*, 998 F.2d at 558.

One of jurisdictional bases for a violation of § 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 "mailing" the
letter was not at issue; rather, the issue is whether a reasonable
person would believe that the particular mail matter was intended to be
conveyed by mail).

**6.18.2252A 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 "minor" means any person under the age of eighteen years.^5^

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

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

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

**Notes on Use**

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

2\. The Supreme Court in *United States v. X-Citement Video, Inc.,* 513
U.S. 64 (1992), held with respect to a different statute, 18 U.S.C. §
2252(a)(1) and (2), that proof of scienter as to the age of the person
depicted is required for conviction. While the phraseology of § 2252A(a)
is different, in that it uses the phrase "child pornography" instead of
"visual depiction involving the use of a minor," the statute also
contains as an element scienter of the age of the person depicted. *See
United States v. Acheson*, 195 F.3d 645, 653 (11^th^ Cir. 1999). Courts
have also held that the scienter requirement extends to knowledge that
the visual depictions were sexually explicit. *Excitement 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) ("the government must introduce relevant
evidence *in addition to* the images to prove the children are real.").
Finally, in *United States v. Deaton*, 328 F.3d 454, 455 (8^th^ Cir.
2003), the court held that the government is not required to introduce
affirmative evidence that images of children were *not* computer
generated.

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

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

5\. 18 U.S.C. § 2256(1).

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

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

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

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

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

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

If this subsection is used, the following definition of "identifiable
minor" should be included:

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

18 U.S.C. § 2256(9).

7\. 18 U.S.C. §§ 2256(5) and (8).

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

**Committee Comments**

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

**6.18.2252A (B)** **LASCIVIOUS - Explained ~~Defined~~**

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 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, Section 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 "lascivious" found in 18 U.S.C. § 2256(2)(E) for
purposes of § 2252), *cert. denied*, 498 U.S. 1024 (1991).

The factors are "neither comprehensive nor necessarily applicable in
every situation. . . \[T\]here may be other factors that are equally if
not more important in determining whether a photograph contains a
lascivious exhibition." *United States v. Amirault*, 173 F.3d at 32.

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

**6.18.2252A (C)** "**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 (D) "COMPUTER" DEFINED**

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

**Committee Comments**

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

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

**(Introductory Comment)**

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

**7.01 SPECIFIC INTENT**

\[No instruction recommended.\]

**Committee Comments**

The Committee is unaware of any federal statute which actually uses the
phrase "specific intent" and accordingly recommends that it not be used
in any instruction. Where a mental state is an element of an offense,
that mental state must be contained in the elements instruction. *See
Liparota v. United States,* 471 U.S. 419, 433 n.16 (1985). The verbal
formulation "specific intent" need not be contained in the indictment
nor submitted to the jury, as long as the required mental state is
adequately conveyed to the jury. *United States v. Dougherty*, 763 F.2d
970, 973-74 (8^th^ Cir. 1985); *United States v. May*, 625 F.2d 186,
189-90 (8^th^ Cir. 1980); *United States v. Galyen*, 798 F.2d 331, 333
(8^th^ Cir. 1986). *See also* Ninth Cir. Crim. Jury Instr. 4.08 (1997);
Seventh Circuit Federal Jury Instructions: Criminal § 5.4 (1999);
*United States v. Bailey*, 444 U.S. 394 (1980). ~~*United States v.
Arambasich*, 597 F.2d 609, 611-13 (7^th^ Cir. 1979).~~ The elements
instructions in Section 6, *supra*, were drafted with this purpose in
mind.

**7.02 WILLFULLY**

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

**~~Committee Comments~~**

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

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

[In *Ratzlaf v. United States*, 510 U.S. 135, 114 S .Ct. 655 (1994),
~~the defendant was convicted of structuring financial transactions to
avoid federal currency reporting requirements. *Ratzlaf*, 510 U.S. at
138.~~ the Court held that for the purposes of the ~~money laundering~~
anti-structuring statutes at 31 U.S.C. §§ 5313(a), 5322(a) & 5324(3) --
which establish criminal penalties for anyone who "willfully violated"
any of the provisions in the subchapter -- the term "willfully" ~~had
consistently been interpreted by the Courts of Appeals to~~ required
*both* knowledge of the reporting requirements *and* a specific purpose
to disobey the law. ~~*See Ratzlaf*, 510 U.S. at 141. The Court further
noted that many other decisions interpreting statutory provisions making
criminal the avoidance of reporting requirements described a "'willful'
actor as one who violates a 'known legal duty'." *See id.* at 142. The
Court in *Ratzlaf* thus ultimately concluded that the government had to
prove not just that the defendant knew of the bank's duty to report cash
transactions in excess of \$10,000, *id*. at 147, but also that the
defendant acted with knowledge that "the structuring in which he engaged
was unlawful." *Id*. at 149.~~]{.mark}[^1]

[~~The *Ratzlaf* court went to great lengths to explain that "willfully"
should be defined to mean "knowledge that one's conduct was unlawful,
*and* a specific intent to disobey the law," because the conduct
proscribed by the statute -- structuring of cash transactions --
"\[was\] not inevitably nefarious." *Ratzlaf*, 510 U.S. at 144. The
money-laundering anti-structuring statutes, however, are not the only
federal regulatory statutes that prohibit conduct that could be deemed
"not inevitably nefarious."~~]{.mark}

[In *United States v. Jain*, 93 F.3d 436 (8^th^ Cir. 1996), the Eighth
Circuit ~~acknowledged that the prohibitions of the Medicare potentially
included conduct that is "not inevitably nefarious," and in accordance
with *Ratzlaf*,~~ interpreted the term "willfully" in the health care
anti-kickback statute, at 42 U.S.C. 1320a-7b,]{.mark} ~~in the statute
to require a heightened *mens rea* for prosecutions under that statute.
*Jain*, 93 F.3d at 441. Although the *Jain* Court did not go so far as
to require proof that the defendant "intentionally violated a known
legal duty" in prosecutions under the anti-kickback statute, holding
only that the statute~~ to require~~s~~ proof that the defendant knew
his conduct was "wrongful," (a heightened *mens rea* burden), *see
Jain*, 93 F.3d at 441. ~~the Eighth Circuit's analysis suggests that the
reasoning of *Ratzlaf* remains vital.~~ [The trial court in *Jain*
instructed the jury that "the word 'willfully' means unjustifiably and
wrongfully, known to be such by Defendant Swaran Jain." *Jain*, ~~at~~
93 F.3d at 440.]{.mark}

[In *United States v. O'Hagan*, 521 U.S. 642~~, 117 S. Ct. 2199~~
(1997), ~~Justice Ginsburg, writing for a 7-2 majority, briefly
addressed the question of *mens rea* in the context of the Securities
and Exchange Act. She noted first that the provision of~~ the Court,
discussing criminal liability under 10b-5 of the Securities and Exchange
Act, 18 U.S.C. § 78ff(a), noted that ~~established~~ criminal liability
required that the government prove that a person engaging in "insider"
trading "willfully" violated the substantive provision in question and
that the statute specifically prohibited imprisonment of a defendant who
"proves he had no knowledge of such rule or regulation." *Id*. at 664
~~2214~~. ~~She noted that, under this provision, a defendant could
avoid criminal liability by demonstrating that he had no specific
knowledge of the provision being violated. *Id.*~~ This discussion,
though brief, suggests that the Court may require ~~has grafted onto the
criminal liability provisions of the Securities and Exchange Act a
definition of "willfully" that requires~~ proof that the defendant
"intentionally violated a known legal duty." ~~(18 U.S.C. § 1348 amends
the mail fraud statute by making it a crime "to defraud any persons in
connection with any security . . . or to obtain by means of false or
fraudulent pretenses, representations or promises, any money or prospect
in connection with the purchase or sale of any security . . . and does
not contain a willfulness requirement.)~~]{.mark}

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

**7.03 KNOWINGLY**

\[No instruction recommended.\]

**Committee Comments**

Although a definition of "knowingly" was provided in this section in the
1985 edition of this Manual, the Committee believes that in most cases
the word "knowingly" does not need to be defined. *United States v.
Smith*, 635 F.2d 716, 719-20 (8^th^ Cir. 1980[); *United States v.
Gary*, 341 F.3d 829, 834 (8^th^ Cir. 2003).]{.mark} 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 "willfully." The Ninth Circuit instruction reads as
follows:

> 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 was approved in *United States v. Dockter*, 58 F.3d 1284
(8^th^ Cir. 1995).

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

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

*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. Fierros*, 692 F.2d 1291, 1293-94 (9^th^ Cir. 1982), *cert.
denied*, 462 U.S. 1120 (1983) \[18 U.S.C. § 1324(a)\]; *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 "knowingly" violate separate statute prohibiting
possession of a firearm by one who has been convicted of misdemeanor
crime of domestic violence requires government to prove only that
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 defendant
"knowingly violated" Clean Water Act (CWA) discharge limitations or
condition or limitation contained in implementing permit, as basis for
criminal liability, government was not required to prove that 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 ~~specific~~ knowledge of the law ~~statutory
offense~~).]{.mark} Nor does ~~it~~ "knowingly" require knowledge of
federal involvement. *United States v. Yermian*, 468 U.S. 63, 75 (1984)
(18 U.S.C. § 1001).

[~~Thus, in *United States v. Bailey* . . . we held that the prosecution
fulfills its burden of proving a knowing violation of the escape statute
"if it demonstrates that an escapee knew his actions would result in his
leaving physical confinement without permission." . . . And in *Staples
v. United States* . . . we held that a charge that the defendant's
possession of an unregistered machinegun was unlawful required proof
"that he knew the weapon he possessed had the characteristics that
brought it within the statutory definition of a machinegun." . . . It
was not, however, necessary to prove that the defendant knew that his
possession was unlawful. . . . *Thus, unless the test of the statute
dictates a different result, the term "knowingly" merely requires proof
of knowledge of the facts that constitute the offense.*~~]{.mark}

[~~*Id*. at 192 (emphasis added).~~]{.mark}

In *Staples v. United States,* 511 U.S. 600~~, 114 S. Ct. 1793~~ (1994),
the Court, interpreting the National Firearms Act, 26 U.S.C. § 5861(d),
which does not expressly contain any *mens rea* requirement in the
provision criminalizing possession of a firearm that was not properly
registered, held that the defendant had to "know" that his weapon
possessed automatic firing capability to come within the Act. The Court
emphasized a presumption in favor of a scienter requirement to statutory
crimes which criminalize otherwise innocent conduct, in the absence of a
clear legislative intent to the contrary. *~~See also~~ But see United
States v. Barr*, 32 F.3d 1320 (8^th^ Cir. 1994), in which the Eighth
Circuit ~~addressed whether an instruction concerning the requisite
"knowledge" for a conviction under the National Firearms Act was
sufficient under *Staples*.~~

[~~In *Barr*, the defendant proposed an instruction stating that the
government must prove that she was in possession of a weapon that "she
knew possessed the characteristics which cause it to fall within the
meaning of 'firearm' as defined by the National Firearms Act." *Barr*,
32 F.3d at 1322. The trial court declined, choosing instead to use a
more general intent instruction which required the jury to find that
Barr "knew she had a firearm in her possession." *Id*. at n.3. The
*Barr* court~~ held that, with respect to possession of weapons of
quasi-suspect character, such as sawed-off shotguns, "a specific jury
finding of \[the defendant's\] knowledge of the weapon's incriminating
characteristics is unnecessary." *Id*. at 1324. ~~The Eighth Circuit so
held because in cases where such weapons are the subject of the
prosecution, the same concerns that were present in *Staples* -- that
the incriminating character of the weapon was not immediately apparent
to the possessor -- were not present with respect to quasi-suspect
weapons such as sawed-off shotguns. *Id.* The court thus held that where
the characteristics of the weapon itself render it "quasi-suspect,"
*Staples* does not require the government to prove that the defendant
knew of the specific characteristics which make the weapon subject to
the National Firearms Act. *Id*.~~ 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).]{.mark}

Also, in *United States v. X-Citement Video, Inc.*, 513 U.S. 64~~, 115
S. Ct. 464~~ (1994), the Court held that the term "knowingly" applies to
the requirement that the individual who is transporting sexually
explicit material must know that it depicts minors in order to convict
under 18 U.S.C. § 2252. The Court again expressed its preference for a
scienter requirement for statutes which criminalize otherwise innocent
or constitutionally protected conduct.

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

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

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

Where the offense requires that 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.

[^1]: ^?^ [Congress amended 31 U.S.C. Section 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 *Ratzlaf*.]{.mark}