THE WILLIAM J. BAUER
PATTERN CRIMINAL
JURY INSTRUCTIONS
OF THE SEVENTH
CIRCUIT
(2023 Ed.)
Prepared by
The Committee on Federal Criminal Jury Instructions
of the Seventh Circuit
For Customer Assistance Call 1-800-328-4880
Mat #43239089
TABLE OF CONTENTS
PRELIMINARY INSTRUCTIONS—FOR USE AT THE
BEGINNING OF TRIAL
Instruction Page
Functions of Court and Jury ........................................6
The Charge............................................................8
Presumption of Innocence/Burden of Proof........................9
The Evidence ........................................................10
Testimony Presented Through Interpreter.......................11
Direct and Circumstantial Evidence..............................12
Considering the Evidence ..........................................13
Credibility of Witnesses ............................................14
Number of Witnesses ...............................................15
Juror Note-Taking ..................................................16
Juror Conduct .......................................................17
Conduct of the Trial ................................................19
GENERAL INSTRUCTIONS
1.01 Functions of Court and Jury..................................20
1.02 The Charge .....................................................22
1.03 Presumption of Innocence/Burden of Proof..................24
1.04 Definition of Reasonable Doubt ..............................26
1.05 Definition of Crime Charged..................................27
1.06 Definition of Felony/Misdemeanor ...........................28
1.07 Bill of Particulars ..............................................29
2.01 The Evidence ...................................................30
2.02 Considering the Evidence .....................................32
2.03 Direct and Circumstantial Evidence .........................33
2.04 Number of Witnesses ..........................................34
2.05 Defendant’s Decision Not to Testify or Present Evidence .35
3.01 Credibility of Witnesses .......................................36
3.02 Attorney Interviewing Witness ...............................38
3.03 Prior Inconsistent Statements ................................39
3.04 Prior Inconsistent Statement by Defendant ................40
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3.05 Witnesses Requiring Special Caution........................41
3.06 Impeachment by Prior Conviction ............................43
3.07 Character Evidence Regarding Witness .....................44
3.08 Character Evidence Regarding Defendant ..................45
3.09 Statement by Defendant ......................................46
3.10 Defendant’s Silence in the Face of Accusation ..............48
3.11 Evidence of Other Acts by Defendant........................49
3.12 Identification Testimony.......................................52
3.13 Opinion Testimony .............................................54
3.13(a) Dual-Capacity Witness Testimony ........................55
3.14 Recorded Conversations/Transcripts .........................57
3.15 Foreign Language Recordings/English Transcripts ........59
3.16 Summaries Received in Evidence ............................60
3.17 Demonstrative Summaries/Charts Not Received in
Evidence ...................................................61
3.18 Juror Note-Taking .............................................62
3.19 Government Investigative Techniques .......................63
4.01 Burden of Proof—Elements ...................................65
4.02 Burden of Proof in Case Involving Insanity
Defense—Elements ........................................66
4.03 Burden of Proof in Case Involving Coercion
Defense—Elements ........................................68
4.04 Unanimity on Specific Acts ...................................70
4.05 Date of Crime Charged ........................................73
4.06 Separate Consideration—One Defendant Charged with
Multiple Crimes............................................74
4.07 Separate Consideration—Multiple Defendants Charged
with Same or Multiple Crimes ...........................75
4.08 Punishment .....................................................76
4.09 Attempt .........................................................77
4.10 Definition of Knowingly .......................................80
4.11 Definition of Willfully..........................................82
4.12 Specific Intent/General Intent ................................83
4.13 Definition of Possession .......................................84
4.14 Possession of Recently Stolen Property......................85
5.01 Responsibility ...................................................86
5.02 Personal Responsibility of Corporate Agent.................87
5.03 Entity Responsibility—Entity Defendant—Agency.........88
5.04 Entity Responsibility—Entity Defendant—Agency
Ratification .................................................92
5.05 Joint Venture ...................................................93
5.06 Aiding and Abetting/Acting Through Another ..............94
5.06(A) Aiding and Abetting ........................................95
5.06(B) Acting Through Another ...................................96
5.07 Presence/Activity/Association .................................99
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5.08(A) Conspiracy—Overt Act Required ........................102
5.08(B) Conspiracy—No Overt Act Required ....................105
5.09 Conspiracy—Definition of Conspiracy ......................107
5.10 Conspiracy—Membership in Conspiracy...................109
5.10(A) Buyer/Seller Relationship ................................111
5.10(B) Single Conspiracy vs. Multiple Conspiracies...........113
5.11 Conspirator’s Liability for Substantive Crimes Committed
by Co-Conspirators Where Conspiracy
Charged—Elements......................................115
5.12 Conspirator’s Liability for Substantive Crimes Committed
by Co-Conspirators; Conspiracy Not Charged in the
Indictment—Elements...................................117
5.13 Conspiracy—Withdrawal ....................................119
5.14(A) Conspiracy—Withdrawal—Statute of
Limitations—Elements...............................122
5.14(B) Conspiracy—Withdrawal—Statute of Limitations.....124
6.01 Self Defense/Defense of Others .............................126
6.02 Insanity ........................................................128
6.03 Defendant’s Presence.........................................130
6.04 Entrapment—Elements ......................................131
6.05 Entrapment—Definitions of Terms .........................132
6.06 Reliance on Public Authority ................................136
6.07 Entrapment by Estoppel .....................................138
6.08 Coercion/Duress...............................................140
6.09(A) Voluntary Intoxication ....................................141
6.09(B) Diminished Capacity......................................142
6.10 Good Faith—Fraud/False
Statements/Misrepresentations.........................143
6.11 Good Faith—Tax and Other Technical Statute Cases . . ..145
6.12 Reliance on Advice of Counsel...............................146
7.01 Jury Deliberations............................................147
7.02 Verdict Form ..................................................149
7.03 Unanimity/Disagreement Among Jurors ...................150
STATUTORY INSTRUCTIONS
7 U.S.C. § 2024(b) Unauthorized Acquisition of Food
Stamps—Elements .............................................152
7 U.S.C. § 2024(b) Definition of “Contrary to Law”............154
8 U.S.C. § 1324a(a)(1)(A) Unlawful Employment—Elements.155
8 U.S.C. § 1324(a)(1)(A)(i) Bringing Alien to the United States
Other than at Designated Place—Elements .................157
8 U.S.C. § 1324(a)(1)(A)(ii) Alien Transportation—Elements.160
8 U.S.C. § 1324(a)(1)(A)(iii) Concealing or Harboring
Aliens—Elements ...............................................163
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8 U.S.C. § 1324(a)(1)(A)(iv) Encouraging Illegal
Entry—Elements ...............................................166
8 U.S.C. § 1324(a)(2)(B)(ii) Bringing Alien into United States
for Commercial Advantage or Private Financial
Gain—Elements.................................................168
8 U.S.C. § 1324(a)(2)(B)(iii) Bringing Alien into United States
Without Immediate Presentation at Designated Port of
Entry—Elements ...............................................171
8 U.S.C. § 1325(a)(1) Illegal Entry—Elements .................174
8 U.S.C. § 1325(a)(2) Eluding Examination or
Inspection—Elements ..........................................176
8 U.S.C. § 1325(a)(3) Entry by False or Misleading
Representation—Elements ....................................178
8 U.S.C. § 1325(c) Marriage Fraud—Elements ................180
8 U.S.C. § 1326(a) Deported Alien Found in United
States—Elements ...............................................182
8 U.S.C. § 1546(a) Use, Possession of Immigration Document
Procured by Fraud—Elements ................................184
18 U.S.C. § 3 Accessory After the Fact..........................186
18 U.S.C. § 111(a) Assaulting a Federal Officer—Elements . .188
18 U.S.C. §§ 111(a) & 111(b) Definition of “Assault”...........190
18 U.S.C. §§ 111(a) & 111(b) Definition of “Forcibly” ..........191
18 U.S.C. § 111(b) Assaulting a Federal Officer Using a Deadly
or Dangerous Weapon or Inflicting Bodily
Injury—Elements ...............................................192
18 U.S.C. § 111(b) Definition of “Bodily Injury” ................194
18 U.S.C. § 111(b) Definition of “Deadly or Dangerous
Weapon”..........................................................195
18 U.S.C. § 115(a)(1)(B) Definition of “Threaten” ..............196
18 U.S.C. § 115(a)(1)(B) Threatening A United States Official,
United States Judge, or Federal Law Enforcement
Officer—Elements ..............................................197
18 U.S.C. § 115(c)(1) Definition of “Federal Law Enforcement
Officer” ...........................................................199
18 U.S.C. § 115(c)(3) Definition of “United States Judge”.....200
18 U.S.C. § 115(c)(4) Definition of “United States Official” ...201
18 U.S.C. § 152(1) Concealment of Property—Elements ......202
18 U.S.C. § 152(1) Definition of “Concealment” ................204
18 U.S.C. § 152(2) & (3) False Oath, False Declaration under
Penalty of Perjury—Elements.................................205
18 U.S.C. § 152(2) & (3) False Declaration under Penalty of
Perjury—Definition of Materiality ............................207
18 U.S.C. § 152(4) Presenting or Using a False
Claim—Elements ...............................................208
18 U.S.C. § 152(6) Bribery—Elements ..........................209
18 U.S.C. § 152(7) Concealment or Transfer of Assets in
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Contemplation of Bankruptcy or with Intent to Defeat the
Provisions of the Bankruptcy Law—Elements ..............235
18 U.S.C. § 152(7) Definition of “In Contemplation of a
Bankruptcy Proceeding” .......................................212
18 U.S.C. § 152(7) Definition of “Transfer” .....................213
18 U.S.C. § 152(8) Destruction of Records; False
Entries—Elements..............................................214
18 U.S.C. § 152(9) Withholding Records—Elements...........215
18 U.S.C. § 201 Intent to Influence..............................216
18 U.S.C. § 201 Definition of “Official Act” .....................217
18 U.S.C. § 201(b)(1)(A) Giving a Bribe—Elements ...........220
18 U.S.C. § 201(b)(2)(A) Accepting a Bribe—Elements........222
18 U.S.C. § 241 Conspiracy Against Civil Rights—Elements.225
18 U.S.C. § 241 Definition of Constitutional Rights ...........227
18 U.S.C. § 241 Death ............................................228
18 U.S.C. § 242 Deprivation of Rights under Color of
Law—Elements .................................................232
18 U.S.C. § 242 Deprivation of Rights under Color of Law—
Definition of Intentionally .....................................234
18 U.S.C. § 242 Deprivation of Rights under Color of Law—
Definition of Intentionally—For Use in Excessive Force
Cases .............................................................235
18 U.S.C. § 242 Definition of Constitutional Rights ...........236
18 U.S.C. § 242 Definition of “Color of Law” ...................237
18 U.S.C. § 242 Death ............................................238
18 U.S.C. § 242 Definition of “Bodily Injury”...................239
18 U.S.C. § 286 Conspiracy to Defraud the Government with
Respect to Claims—Elements .................................241
18 U.S.C. § 287 False, Fictitious, or Fraudulent
Claims—Elements ..............................................243
18 U.S.C. § 401 Criminal Contempt.............................246
18 U.S.C. § 402 Criminal Contempt.............................247
18 U.S.C. § 471 Falsely Making, Forging, Counterfeiting, or
Altering a Security or Obligation—Elements................248
18 U.S.C. § 472 Uttering Counterfeit Obligations or
Securities—Elements...........................................250
18 U.S.C. § 473 Dealing in Counterfeit Obligations or
Securities—Elements...........................................252
18 U.S.C. § 495 Falsely Making, Forging, Counterfeiting, or
Altering a Document—Elements..............................253
18 U.S.C. § 495 Uttering or Publishing a False
Document—Elements ..........................................255
18 U.S.C. § 495 Presenting a False Document—Elements . . .257
18 U.S.C. § 500 Falsely Making, Forging, Counterfeiting,
Engraving, or Printing a Money Order—Elements .........259
18 U.S.C. § 500 Forging or Counterfeiting a Signature or
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Initials of Any Person Authorized to Issue a Money Order,
Postal Note, or Blank—Elements .............................277
18 U.S.C. § 500 Forging or Counterfeiting a Signature or
Endorsement on a Money Order, Postal Note, or
Blank—Elements ...............................................264
18 U.S.C. § 500 Forging or Counterfeiting a Signature on a
Receipt or Certificate of Identification—Elements ..........266
18 U.S.C. § 500 Falsely Altering a Money Order or Postal
Note—Elements.................................................268
18 U.S.C. § 500 Passing, Uttering, or Publishing Forged or
Altered Money Orders or Postal Notes—Elements .........269
18 U.S.C. § 500 Fraudulently Issuing a Money Order or Postal
Note—Elements.................................................271
18 U.S.C. § 500 Theft of a Money Order—Elements ..........273
18 U.S.C. § 500 Receipt or Possession of a Stolen Money
Order—Elements ...............................................274
18 U.S.C. § 500 False Presentment of a Money Order or Postal
Note—Elements.................................................275
18 U.S.C. § 500 Theft or Receipt of a Money Order Machine or
Instrument—Elements .........................................277
18 U.S.C. § 500 Definition of “Material” ........................279
18 U.S.C. § 500 Definition of “Material Alteration”............280
18 U.S.C. § 511 Altering or Removing Vehicle Identification
Numbers .........................................................281
18 U.S.C. § 542 Entry of Goods by Means of False
Statements—Elements .........................................282
18 U.S.C. § 542 Entry of Goods by Means of False
Statements—Definition of “Fraudulent” .....................284
18 U.S.C. § 542 Definition of “Material” ........................285
18 U.S.C. § 542 Entry of Goods by Means of False
Statements—Definition of Entry..............................286
18 U.S.C. § 542 Entry of Goods by Means of False
Statements—Definition of Imported Merchandise ..........287
18 U.S.C. § 542 Entry of Goods by Means of False
Statements—United States Has Been or May Have Been
Deprived of Any Lawful Duties—Elements ..................288
18 U.S.C. § 641 Theft of Government Property—Elements. . .289
18 U.S.C. § 641 Definition of “Value”............................291
18 U.S.C. § 659 Embezzlement or Theft of Goods from
Interstate Shipment—Elements ..............................292
18 U.S.C. § 659 Possession of Goods Stolen from Interstate
Shipment—Elements ...........................................294
18 U.S.C. § 666(a)(1)(A) Theft Concerning Federally Funded
Program—Elements ............................................296
DELETED ..........................................................298
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18 U.S.C. § 666(a)(1)(B) Accepting a Bribe—Elements........300
18 U.S.C. § 666(a)(2) Paying a Bribe—Elements ..............304
18 U.S.C. § 666(c) Bona Fide Compensation ...................308
18 U.S.C. § 666 Definition of “Agent” ...........................309
18 U.S.C. § 669(a) Health Care Theft or
Embezzlement—Elements .....................................310
18 U.S.C. § 669(a) Definition of “Health Care Benefit
Program”.........................................................312
18 U.S.C. § 751 Escape—Elements ..............................313
18 U.S.C. § 842(a)(1) Importing, Manufacturing, or Dealing in
Explosive Materials Without a License—Elements .........314
18 U.S.C. § 842(a)(2) Withholding Information, Making a False
Statement, or Furnishing False Identification to Obtain
Explosive Materials—Elements ...............................316
18 U.S.C. § 875(a) Transmission of a Ransom or
Reward—Elements .............................................318
18 U.S.C. § 875(b) Transmission of an Extortionate Threat to
Kidnap or Injure a Person—Elements .......................320
18 U.S.C. § 875(c) Transmission of a Threat to Kidnap or
Injure—Elements ...............................................322
18 U.S.C. § 875(d) Transmission of an Extortionate Threat to
Property or Reputation—Elements ...........................324
18 U.S.C. § 876(a) Mailing a Demand for Ransom or
Reward—Elements .............................................326
18 U.S.C. § 876(b) Mailing an Extortionate Threat to Kidnap or
Injure—Elements ...............................................327
18 U.S.C. § 876(c) Mailing a Threat to Kidnap or
Injure—Elements ...............................................329
18 U.S.C. § 876(d) Mailing an Extortionate Threat to
Reputation—Elements .........................................331
Definition of “True Threat” .......................................333
Definition of “Intent to Extort”...................................335
18 U.S.C. § 892 Extortionate Extension of
Credit—Elements...............................................336
18 U.S.C. § 892 Definition of “Debtor” ..........................338
18 U.S.C. § 892 Definition of Understanding...................339
18 U.S.C. § 894 Extortionate Collection of Debt—Elements..340
18 U.S.C. § 894 Definition of “Extortionate Means” ...........342
Forfeiture—Third Party Interests ...............................343
18 U.S.C. § 911 Representation of Citizenship of United
States—Elements ...............................................344
18 U.S.C. § 912 Impersonation of an Officer or Employee of the
United States ...................................................347
18 U.S.C. § 922 Definition of “Ammunition”....................350
18 U.S.C. § 922(a)(6) Making a False Statement or Furnishing
False Identification to a Licensed Firearms Importer,
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Manufacturer, Dealer, or Collector in Connection with the
Acquisition of a Firearm or Ammunition—Elements .......366
18 U.S.C. § 922(d) Sale or Transfer of a Firearm or
Ammunition to a Prohibited Person—Elements ............353
18 U.S.C. § 922(d) Definition of “Reasonable Cause to
Believe” ..........................................................355
18 U.S.C. § 922(g) Definitions of “In or Affecting Commerce”
and “In Interstate or Foreign Commerce”....................356
18 U.S.C. § 922(g) Definition of “Possession”...................358
18 U.S.C. § 922(g)(1) Unlawful Shipment or Transportation of a
Firearm or Ammunition by a Convicted Felon—Elements.359
18 U.S.C. § 922(g)(1) Unlawful Possession or Receipt of a
Firearm or Ammunition by a Prohibited
Person—Elements ..............................................361
18 U.S.C. § 922(g)(3) Definition of “Unlawful User” ...........363
18 U.S.C. § 922(g)(3) Unlawful Shipment or Transportation of a
Firearm or Ammunition by an Unlawful User or Addict of a
Controlled Substance—Elements .............................364
18 U.S.C. § 922(g)(3) Unlawful Possession or Receipt of a
Firearm or Ammunition by an Unlawful User or Addict of a
Controlled Substance—Elements .............................366
18 U.S.C. § 922(g)(5) Definition of “Alien Illegally or
Unlawfully in the United States” .............................368
18 U.S.C. § 922(g)(5) Unlawful Possession or Receipt of a
Firearm or Ammunition by an Alien Illegally or Unlawfully
in the United States—Elements ..............................369
18 U.S.C. § 922(g)(5) Unlawful Shipment or Transportation of a
Firearm or Ammunition by an Alien Illegally or Unlawfully
in the United States—Elements ..............................371
Definition of “True Threat” .......................................373
Definition of “Intent to Extort”...................................375
18 U.S.C. §§ 922 & 924 Definition of “Firearm” ...............376
18 U.S.C. §§ 922 & 924 Definition of “Antique Firearm” .....377
18 U.S.C. §§ 922 & 924 Brandish/Discharge Special Verdict
Instructions—Definition of “Brandish” .......................378
18 U.S.C. § 924(c) Definition of “Use” ...........................380
18 U.S.C. § 924(c) Definition of “Carry”.........................381
18 U.S.C. § 924(c) Definition of “During” .......................382
18 U.S.C. § 924(c) Definition of “In Relation To”...............383
18 U.S.C. § 924(c) Definition of “In Furtherance Of” ..........384
18 U.S.C. § 924(c)(1)(A) Using or Carrying a Firearm During
and in Relation to a Crime of Violence or Drug Trafficking
Crime—Elements ...............................................386
18 U.S.C. § 924(c)(1)(A) Using or Carrying a Firearm During
and in Relation to a Crime of Violence or Drug Trafficking
Crime—Accountability Theory Elements ....................388
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18 U.S.C. § 924(c)(1)(A) Possession of a Firearm in Furtherance
of a Crime of Violence or Drug Trafficking
Crime—Elements ...............................................390
18 U.S.C. § 924(c)(1)(A) Possession of a Firearm in Furtherance
of a Crime of Violence or Drug Trafficking Crime—
Accountability Theory Elements ..............................392
18 U.S.C. § 924(c)(1)(A) Definition of “Advance Knowledge” .393
18 U.S.C. § 981(a)(1)(A) Forfeiture Instruction ................395
18 U.S.C. § 981(a)(1)(C) Forfeiture Instruction—Elements . ..398
18 U.S.C. § 981(a)(1)(G)(i–iii) Forfeiture
Instruction—Elements .........................................402
18 U.S.C. § 981(a)(1)(G)(iv) Forfeiture
Instruction—Elements .........................................405
18 U.S.C. § 981(a)(1)(H) Forfeiture Instruction—Elements.. .407
18 U.S.C. § 981(a)(2) Definition of “Proceeds” ..................409
18 U.S.C. § 981(a)(2) Definition of ‘‘Traceable To’’ .............411
18 U.S.C. § 982(a)(1) Forfeiture Instruction....................412
18 U.S.C. § 982(a)(2) Forfeiture Instruction....................414
18 U.S.C. § 982(a)(3) Forfeiture Instruction....................417
18 U.S.C. § 982(a)(4) Forfeiture Instruction....................420
18 U.S.C. § 982(a)(5) Forfeiture Instruction....................423
18 U.S.C. § 982(a)(6) Forfeiture Instruction....................425
18 U.S.C. § 982(a)(7) Forfeiture Instruction....................428
18 U.S.C. § 982(a)(8) Forfeiture Instruction....................430
18 U.S.C. § 982(a)(8) Definition of “Nexus” Instruction .......432
18 U.S.C. § 982(a)(8) Definition of Federal “Health Care Fraud
Offense” ..........................................................433
18 U.S.C. § 982(a)(8) Definition of “Conveyance” ..............435
18 U.S.C. § 982(a)(8) Property Subject to Forfeiture ..........436
18 U.S.C. § 1001 Definition of False or Fictitious .............437
18 U.S.C. § 1001 Definition of Fraudulent......................438
18 U.S.C. § 1001 Definition of “Material”.......................439
18 U.S.C. § 1001 Definition of “Willfully”.......................440
18 U.S.C. § 1001 Department or Agency........................441
18 U.S.C. § 1001(a)(1) Concealing a Material
Fact—Elements .................................................442
18 U.S.C. § 1001(a)(1) Definition of “Trick, Scheme, or
Device” ...........................................................444
18 U.S.C. § 1001(a)(2) Making a False Statement or
Representation—Elements ....................................445
18 U.S.C. § 1001(a)(3) Making or Using a False Writing or
Document—Elements ..........................................447
18 U.S.C. § 1005 Fraudulently Benefitting from a Loan by a
Federally Insured Institution—Elements ....................449
18 U.S.C. § 1006 Insider Fraud on a Federally Insured
Financial Institution—Elements
..............................450
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18 U.S.C. § 1007 False Statements to Influence the
FDIC—Elements................................................452
18 U.S.C. § 1014 False Statement to Financial
Institution—Elements..........................................453
18 U.S.C. § 1015(a) Making a False Statement in an
Immigration Document—Elements ...........................455
18 U.S.C. § 1015(b) False Denial of Naturalization or
Citizenship—Elements .........................................456
18 U.S.C. § 1015(c) Use of Fraudulent Immigration
Document—Elements ..........................................457
18 U.S.C. § 1015(d) Making False Certificate of
Appearance—Elements ........................................458
18 U.S.C. § 1015(e) False Claim of Citizenship—Elements. . .460
18 U.S.C. § 1015(f) False Claim of Citizenship in Order to
Vote—Elements .................................................461
18 U.S.C. § 1028 Penalty-Enhancing Instructions and Special
Verdict Forms ...................................................462
18 U.S.C. § 1028 Penalty-Enhancing Provisions under
§ 1028(b) .........................................................464
18 U.S.C. § 1028 Special Verdict Form..........................467
18 U.S.C. § 1028 Definitions .....................................469
18 U.S.C. § 1028 Definition of “Lawful Authority”.............470
18 U.S.C. § 1028 Definition of “Interstate or Foreign
Commerce” ......................................................472
18 U.S.C. § 1028(a) Offenses and § 1028(b) Penalties .........473
18 U.S.C. § 1028(a)(1) Fraudulent Production of an
Identification Document, Authentication Feature, or False
Identification Document—Elements ..........................475
18 U.S.C. § 1028(a)(2) Fraudulent Transfer of an Identification
Document, Authentication Feature, or False Identification
Document—Elements ..........................................478
18 U.S.C. § 1028(a)(3) Fraudulent Possession of Five or more
Identification Documents, Authentication Features, or False
Identification Documents—Elements .........................481
18 U.S.C. § 1028(a)(4) Possession of an Identification
Document, Authentication Feature, or False Identification
Document with Intent to Defraud the United
States—Elements ...............................................484
18 U.S.C. § 1028(a)(5) Fraudulent Production, Transfer, or
Possession of a Document—Making Implement or
Authentication Feature—Elements...........................486
18 U.S.C. § 1028(a)(6) Possession of a Stolen Identification
Document or Authentication Feature—Elements ...........489
18 U.S.C. § 1028(a)(7) Fraudulent Transfer, Possession, or Use
of a Means of Identification—Elements ......................491
18 U.S.C. § 1028(a)(8) Trafficking in False or Actual
Authentication Features—Elements..........................494
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18 U.S.C. § 1028(d)(1) Definition of “Authentication
Feature”..........................................................497
18 U.S.C. § 1028(d)(2) Definition of “Document-Making
Implement” ......................................................498
18 U.S.C. § 1028(d)(3) Definition of “Identification
Document” .......................................................499
18 U.S.C. § 1028(d)(4) Definition of “False Identification
Document” .......................................................500
18 U.S.C. § 1028(d)(5) Definition of “False Authentication
Feature”..........................................................501
18 U.S.C. § 1028(d)(6) Definition of “Issuing Authority” ......502
18 U.S.C. § 1028(d)(7) Definition of “Means of
Identification” ...................................................503
18 U.S.C. § 1028(d)(8) Definition of “Personal Identification
Card” .............................................................505
18 U.S.C. § 1028(d)(9) Definition of “Produce” .................506
18 U.S.C. § 1028(d)(10) Definition of “Transfer” ...............507
18 U.S.C. § 1028(d)(11) Definition of “State” ...................508
18 U.S.C. § 1028(d)(12) Definition of “Traffic”..................509
18 U.S.C. § 1028A Definition of “In Relation to”...............510
18 U.S.C. § 1028A(a)(1) Aggravated Identity
Theft—Elements ................................................511
18 U.S.C. § 1029 Access Device Fraud—Definitions...........513
18 U.S.C. § 1029 Definition of “Telecommunications
Instrument” .....................................................514
18 U.S.C. § 1029 Definition of “Hardware” .....................515
18 U.S.C. § 1029 Definition of “Software” ......................516
18 U.S.C. § 1029 Definition of “Interstate or Foreign
Commerce” ......................................................517
18 U.S.C. § 1029(a)(1) Production, Use or Trafficking in
Counterfeit Access Devices—Elements .......................518
18 U.S.C. § 1029(a)(2) Trafficking or Use of Unauthorized
Access Devices—Elements .....................................520
18 U.S.C. § 1029(a)(3) Possession of Multiple Unauthorized or
Counterfeit Access Devices—Elements .......................522
18 U.S.C. § 1029(a)(4) Production, Trafficking and Possession of
Device-Making Equipment—Elements .......................524
18 U.S.C. § 1029(a)(5) Fraudulent Transactions with Another’s
Access Device—Elements ......................................526
18 U.S.C. § 1029(a)(6) Solicitation to Sell Access Device or
Information Regarding an Access Device—Elements .......528
18 U.S.C. § 1029(a)(7) Use, Production, Trafficking or
Possession of Modified Telecommunication
Instrument—Elements .........................................530
18 U.S.C. § 1029(a)(8) Use, Production, Trafficking or
Possession of a Scanning Receiver—Elements ..............532
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18 U.S.C. § 1029(a)(9) Use, Production, Trafficking or
Possession of Hardware or Software Configured to Obtain
Telecommunication Services—Elements .....................534
18 U.S.C. § 1029(a)(10) Fraudulent Presentation of Evidence of
Credit Card Transaction to Claim Unauthorized
Payment—Elements............................................536
18 U.S.C. §§ 1029(b)(1) & (b)(2) Attempt and
Conspiracy—Elements .........................................538
18 U.S.C. § 1029(e)(1) Definition of “Access Device”...........539
18 U.S.C. § 1029(e)(2) Definition of “Counterfeit Access
Device” ...........................................................540
18 U.S.C. § 1029(e)(3) Definition of “Unauthorized Access
Device” ...........................................................541
18 U.S.C. § 1029(e)(4) Definition of “Produce” .................542
18 U.S.C. § 1029(e)(5) Definition of “Traffic” or “Trafficking”.543
18 U.S.C. § 1029(e)(6) Definition of “Device-Making
Equipment”......................................................544
18 U.S.C. § 1029(e)(7) Definition of “Credit Card System
Member” .........................................................545
18 U.S.C. § 1029(e)(8) Definition of “Scanning Receiver” .....546
18 U.S.C. § 1029(e)(9) Definition of “Telecommunications
Service” ..........................................................547
18 U.S.C. § 1029(e)(11) Definition of “Telecommunication
Identifying Information” .......................................548
18 U.S.C. § 1030 Computer Fraud and Related
Activity—Definitions ...........................................549
18 U.S.C. § 1030 Definition of “Government Entity” ..........550
18 U.S.C. § 1030 Definition of “Password”......................551
18 U.S.C. § 1030(a)(1) Obtaining Information from Computer
Injurious to the United States—Elements ...................552
18 U.S.C. § 1030(a)(2)(A), (B) & (C) Obtaining Financial
Information by Unauthorized Access of a
Computer—Elements...........................................554
18 U.S.C. § 1030(a)(3) Accessing a Non-Public Government
Computer—Elements...........................................557
18 U.S.C. § 1030(a)(4) Computer Fraud Use by or for Financial
Institution or Government—Elements .......................558
18 U.S.C. § 1030(a)(5)(A) Transmission of Program to
Intentionally Cause Damage to a Computer—Elements . . .560
18 U.S.C. § 1030(a)(5)(B) Recklessly Causing Damage by
Accessing a Protected Computer—Elements ................564
18 U.S.C. § 1030(a)(5)(C) Causing Damage and Loss by
Accessing a Protected Computer—Elements ................567
18 U.S.C. § 1030(a)(6) Trafficking in Passwords—Elements. .568
18 U.S.C. § 1030(a)(7)(A) Extortion by Threatening to Damage
a Protected Computer—Elements.............................570
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18 U.S.C. § 1030(a)(7)(B) Extortion by Threatening to Obtain
Information from a Protected Computer—Elements........571
18 U.S.C. § 1030(a)(7)(C) Extortion by Demanding Money in
Relation to a Protected Computer—Elements ...............573
18 U.S.C. § 1030(a)(7)(C) Definition of “In Relation To”.......575
18 U.S.C. § 1030(b) Attempt and Conspiracy—Elements .....576
18 U.S.C. § 1030(e)(1) Definition of “Computer” ...............577
18 U.S.C. § 1030(e)(2) Definition of “Protected Computer” ...578
18 U.S.C. § 1030(e)(3) Definition of “State”.....................579
18 U.S.C. § 1030(e)(4) Definition of “Financial Institution” . .580
18 U.S.C. § 1030(e)(5) Definition of “Financial Record” .......581
18 U.S.C. § 1030(e)(6) Definition of “Exceeds Authorized
Access” ...........................................................582
18 U.S.C. § 1030(e)(7) Definition of “Department of the United
States” ...........................................................583
18 U.S.C. § 1030(e)(8) Definition of “Damage” .................584
18 U.S.C. § 1030(e)(10) Definition of “Conviction” .............585
18 U.S.C. § 1030(e)(11) Definition of “Loss” ....................586
18 U.S.C. § 1030(e)(12) Definition of “Person” .................587
18 U.S.C. § 1030(e)(13) Definition of “Federal Election” ......588
18 U.S.C. § 1030(e)(14) Definition of “Voting System”.........589
18 U.S.C. § 1035 False Statements Related to Health Care
Matters: Falsification and Concealment—Elements ........591
18 U.S.C. § 1035 False Statements Related to Health Care
Matters: False Statement—Elements ........................593
18 U.S.C. § 1035(a)(1) & (2) Definition of “Health Care Benefit
Program”.........................................................595
18 U.S.C. § 1035(a)(1) & (2) Definition of “Material” ..........596
18 U.S.C. § 1035(a)(1) & (2) Definition of “Willfully” ..........597
18 U.S.C. § 1111 First Degree Murder—Elements.............598
18 U.S.C. § 1111 Definition of “Malice Aforethought” .........601
18 U.S.C. § 1111 Definition of “Premeditation”.................602
18 U.S.C. § 1111 Second Degree Murder—Elements ..........603
18 U.S.C. §§ 1111 & 1112 Jurisdiction ..........................605
18 U.S.C. §§ 1111 & 1112 Conduct Caused Death .............606
18 U.S.C. § 1112 Definitions......................................607
18 U.S.C. § 1112 Definitions of Manslaughter .................609
18 U.S.C. § 1112 Voluntary Manslaughter—Elements ........610
18 U.S.C. § 1112 Definition of “Heat of Passion”...............611
18 U.S.C. § 1112 Involuntary Manslaughter—Elements ......612
18 U.S.C. § 1201(a)(1) Kidnapping ..............................614
18 U.S.C. § 1201(a)(1) Kidnapping—Definition of Interstate or
Foreign Commerce..............................................616
18 U.S.C. § 1201(a)(1) Kidnapping—Definition of Inveigle or
Decoy.............................................................617
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18 U.S.C. §§ 1341 & 1343 Mail/Wire/Carrier
Fraud—Elements ...............................................618
18 U.S.C. §§ 1341 & 1343 Use of Mails/Interstate Carrier/
Interstate Communication Facility ...........................621
18 U.S.C. §§ 1341 & 1343 Success Not Required ..............623
18 U.S.C. §§ 1341 & 1343 Definition of “Scheme to
Defraud” .........................................................624
18 U.S.C. §§ 1341 & 1343 Proof of Scheme.....................627
18 U.S.C. §§ 1341 & 1343 Definition of “Material” ............629
18 U.S.C. §§ 1341 & 1343 Definition of “Intent to Defraud”..631
18 U.S.C. §§ 1341, 1343 & 1346 Types of Mail/Wire/Carrier
Fraud.............................................................632
18 U.S.C. §§ 1341, 1343 & 1346 Definition of “Honest
Services” .........................................................633
18 U.S.C. §§ 1341, 1343 & 1346 Receiving a Bribe or
Kickback .........................................................635
18 U.S.C. §§ 1341, 1343 & 1346 Offering a Bribe or
Kickback .........................................................639
18 U.S.C. §§ 1341, 1343 & 1346 Intent to Influence...........640
18 U.S.C. § 1343 Wire Communication .........................641
18 U.S.C. § 1344(1) Scheme to Defraud a Financial
Institution—Elements..........................................642
18 U.S.C. § 1344(1) Definition of “Scheme”.....................644
18 U.S.C. § 1344(2) Obtaining Bank Property by False or
Fraudulent Pretenses—Elements.............................646
18 U.S.C. § 1344(2) Definition of Scheme.......................648
18 U.S.C. § 1347(a) Definition of “Health Care Benefit
Program”.........................................................651
18 U.S.C. § 1347(a)(1) Health Care Fraud—Elements ........652
18 U.S.C. § 1347(a)(1) Definition of “Scheme”..................656
18 U.S.C. § 1347(a)(2) Obtaining Property From a Health Care
Benefit Program by False or Fraudulent Pretenses—
Elements.........................................................658
18 U.S.C. § 1347(a)(2) Definition of Scheme....................662
18 U.S.C. § 1461 Mailing Obscene Material—Elements ......664
18 U.S.C. § 1462 Bringing Obscene Material into the United
States—Elements ...............................................666
18 U.S.C. § 1462 Taking or Receiving Obscene
Material—Elements ............................................667
18 U.S.C. § 1462 Importing or Transporting Obscene
Material—Elements ............................................669
18 U.S.C. § 1465 Production with Intent to Transport/
Distribute/Transmit Obscene Material for Sale or
Distribution—Elements ........................................671
18 U.S.C. § 1465 Transportation of Obscene Material for Sale
or Distribution—Elements.....................................673
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Definition of Interstate or Foreign Commerce .................675
18 U.S.C. § 1466 Engaging in Business of Producing/Selling
Obscene Matter—Elements....................................676
18 U.S.C. § 1466 Engaging in Business of Selling/Transferring
Obscene Matter—Elements....................................678
18 U.S.C. § 1466 Engaging in Business of Receiving/Possessing
Obscene Matter—Elements....................................680
18 U.S.C. § 1466(b) Definition of “Engaged in the Business”.682
18 U.S.C. § 1466A(a)(1) Producing/Distributing/Receiving/
Possessing with Intent to Distribute Obscene Visual
Representations of Sexual Abuse of Children—Elements . .683
18 U.S.C. § 1466A(a)(2) Producing/Distributing/Receiving/
Possessing with Intent to Distribute Obscene Visual
Representations of Sexual Abuse of Children—Elements . .685
18 U.S.C. § 1466A(b)(1) Possession of Obscene Visual
Representations of Sexual Abuse of Children—Elements . .687
18 U.S.C. § 1466A(b)(2) Possession of Obscene Visual
Representations of Sexual Abuse of Children—Elements . .689
18 U.S.C. § 1466A(f)(1) Definition of “Visual Depiction” ......691
18 U.S.C. § 1466A(f)(3) Definition of “Graphic” ................692
18 U.S.C. § 1470 Transfer of Obscene Material to a
Minor—Elements ...............................................693
18 U.S.C. § 1470 Definition of “Obscene” .......................695
18 U.S.C. § 1503 Obstruction of Justice
Generally—Elements...........................................698
18 U.S.C. § 1503 Obstruction of Justice—Clause 2—Injuring
Jurors or Their Property—Elements .........................700
18 U.S.C. § 1503 Obstruction of Justice—Clause 3—Injuring
Court Officials—Elements .....................................701
18 U.S.C. § 1503 Definition of “Endeavor”......................702
18 U.S.C. § 1503 Influencing Court Officer—Elements .......704
18 U.S.C. § 1503 Influencing Juror—Elements ................706
18 U.S.C. § 1503 Influencing Witness—Elements .............708
Special Verdict Instructions on § 1503 Offenses Alleged to Have
Involved Physical Force or the Threat of Physical Force .710
18 U.S.C. § 1512 Definition of “Corruptly” .....................712
18 U.S.C. §§ 1512 & 1515(a)(1) Definition of Official
Proceeding .......................................................713
18 U.S.C. §§ 1512 & 1515(a)(3) Definition of “Misleading
Conduct” .........................................................715
18 U.S.C. § 1512(b)(1) Witness Tampering—Influencing or
Preventing Testimony—Elements.............................716
18 U.S.C. § 1512(b)(2)(A) Witness Tampering—Withholding
Evidence—Elements............................................717
18 U.S.C. § 1512(b)(2)(B) Witness Tampering—Altering or
Destroying Evidence—Elements ..............................718
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18 U.S.C. § 1512(b)(2)(C) Witness Tampering—Evading Legal
Process—Elements .............................................719
18 U.S.C. § 1512(b)(2)(D) Witness Tampering—Absence from
Legal Proceeding—Elements ..................................721
18 U.S.C. § 1512(b)(3) Witness Tampering—Hinder, Delay or
Prevent Communication Relating to Commission of
Offense—Elements .............................................722
18 U.S.C. § 1512(c)(1) Destroy, Alter or Conceal Document or
Object—Elements...............................................724
18 U.S.C. § 1512(c)(2) Otherwise Obstruct Official
Proceeding—Elements .........................................726
18 U.S.C. § 1512(e) Affirmative Defense ........................727
18 U.S.C. §§ 1512 & 1515(a)(4) Definition of “Law Enforcement
Officer” ...........................................................728
18 U.S.C. § 1519 Obstruction of Justice—Destruction,
Alteration, or Falsification of Records in Federal
Investigations and Bankruptcy—Elements ..................729
18 U.S.C. § 1543 Forgery of Passport—Elements..............731
18 U.S.C. § 1543 False Use of Passport—Elements ...........732
18 U.S.C. § 1544 Misuse of a Passport—Elements ............734
18 U.S.C. § 1544 Furnishing a False Passport—Elements . . .736
18 U.S.C. § 1546(a) Fraudulent Immigration
Document—Elements ..........................................738
18 U.S.C. § 1546(a) Making a False Statement on Immigration
Document—Elements ..........................................740
18 U.S.C. § 1546(a) Presentation of False Statement on
Immigration Document—Elements ...........................742
18 U.S.C. § 1546(a) Definition of Material......................743
18 U.S.C. § 1591 Sex Trafficking of a Minor—Elements ......744
18 U.S.C. § 1591 Benefitting from Sex Trafficking of a
Minor—Elements ...............................................746
18 U.S.C. § 1591(a)(1) Sex Trafficking of a Minor or by Force,
Fraud, or Coercion—Elements ................................748
18 U.S.C. § 1591(e)(1) Definition of “Abuse or Threatened
Abuse of Law or Legal Process”...............................752
18 U.S.C. § 1591(e)(2) Definition of “Coercion”.................753
18 U.S.C. § 1591(e)(3) Definition of “Commercial Sex Act” .. .754
18 U.S.C. § 1591(e)(4) Definition of “Serious Harm”...........755
18 U.S.C. § 1591(e)(5) Definition of “Venture”..................756
18 U.S.C. § 1623 False Declarations Before Grand Jury or
Court—Elements................................................757
18 U.S.C. § 1623 Definition of “Materiality”....................759
18 U.S.C. § 1623 Records or Documents ........................760
18 U.S.C. § 1623 Sequence of Questions ........................761
18 U.S.C. § 1623 Inconsistent Statements......................762
18 U.S.C. § 1623 Recantation ....................................763
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18 U.S.C. § 1701 Obstruction of Mails ..........................765
18 U.S.C. § 1708 Theft of Mail from Authorized
Depository—Elements..........................................766
18 U.S.C. § 1708 Mail Theft on or Next to a
Depository—Elements..........................................769
18 U.S.C. § 1708 Buying, Receiving, Concealing, or Unlawfully
Possessing Stolen Mail—Elements ...........................771
18 U.S.C. § 1708 Removing Contents of/Secreting/ Embezzling/
Destroying Mail.................................................773
18 U.S.C. § 1709 Theft of Mail by Officer or
Employee—Elements ...........................................774
18 U.S.C. § 1831 Economic Espionage (Including Federal
Nexus and Knowledge).........................................777
18 U.S.C. § 1832 Theft of Trade Secrets (Including Federal
Nexus and Knowledge).........................................779
18 U.S.C. § 1951 Extortion—Non-Robbery—Elements ........782
18 U.S.C. § 1951 Attempted Extortion—Elements ............784
18 U.S.C. § 1951 Extortion—Robbery—Elements..............785
18 U.S.C. § 1951 Definition of “Robbery” .......................787
18 U.S.C. § 1951 Definition of “Color of Official Right” .......788
18 U.S.C. § 1951 Definition of “Extortion”......................790
18 U.S.C. § 1951 Definition of “Property”.......................791
18 U.S.C. § 1951 Definition of “Interstate Commerce” ........792
18 U.S.C. § 1952 Interstate and Foreign Travel or
Transportation in Aid of Racketeering
Enterprises—Elements.........................................794
18 U.S.C. § 1952 Definition of “Interstate Commerce” ........797
18 U.S.C. § 1952 Definition of “Unlawful Activity”—Business
Enterprise .......................................................798
18 U.S.C. § 1952 Definition of Unlawful Business Activity—
Controlled Substances..........................................799
18 U.S.C. § 1956 Definition of “Proceeds”.......................800
18 U.S.C. § 1956 Definition of Knowledge Requirement ......802
18 U.S.C. § 1956 Definition of “Transaction” ...................803
18 U.S.C. § 1956 Definitions .....................................804
18 U.S.C. § 1956 Definition of “Conceal or Disguise”..........806
18 U.S.C. § 1956(a)(1)(A)(i) Money Laundering—Promoting
Unlawful Activity—Elements..................................807
18 U.S.C. § 1956(a)(1)(A)(ii) Money Laundering—Tax
Violations—Elements...........................................809
18 U.S.C. § 1956(a)(1)(B)(i) Money Laundering—Concealing or
Disguising—Elements..........................................811
18 U.S.C. § 1956(a)(1)(B)(ii) Money Laundering—Avoiding
Reporting—Elements...........................................813
18 U.S.C. § 1956(a)(2)(A) Money Laundering—International
Promotion—Elements ..........................................815
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18 U.S.C. § 1956(a)(2)(B)(i) Money Laundering—International
Concealing or Disguising—Elements .........................817
18 U.S.C. § 1957 Unlawful Monetary Transactions in
Criminally Derived Property—Elements.....................819
18 U.S.C. § 1957 Definitions .....................................821
18 U.S.C. § 1959(a) Violent Crimes in Aid of Racketeering
Activity...........................................................823
18 U.S.C. § 1961(4) Enterprise—Legal Entity .................826
18 U.S.C. § 1961(4) Enterprise—Association in Fact..........827
18 U.S.C. § 1962 Definition of “Interstate Commerce” ........828
18 U.S.C. § 1962(c) Substantive Racketeering—Elements. . . .829
18 U.S.C. § 1962(c) Pattern Requirement—Substantive
Racketeering ....................................................830
18 U.S.C. § 1962(c) Subparts of Racketeering Acts ............831
18 U.S.C. § 1962(d) Racketeering Conspiracy—Elements . ...832
18 U.S.C. § 1962(d) Pattern Requirement—Racketeering
Conspiracy.......................................................834
18 U.S.C. § 1962(c) & (d) Definition of “Conduct or participate
in the conduct of” ...............................................836
18 U.S.C. § 1962(c) & (d) Definition of “Associate” ............837
18 U.S.C. § 1963(a)(1) Forfeiture—Elements...................838
18 U.S.C. § 1963(a)(1) Definition of “Interest” .................840
18 U.S.C. § 1963(a)(2) Forfeiture—Elements...................841
18 U.S.C. § 1963(a)(3) Forfeiture—Elements...................843
18 U.S.C. § 1963(a)(3) Definition of “Proceeds” ................845
18 U.S.C. § 1963(b) Definition of “Property”....................846
Forfeiture Verdict Form...........................................847
18 U.S.C. § 2113(a) Bank Robbery—Elements .................848
18 U.S.C. § 2113(a) Definition of “Intimidation” ...............850
18 U.S.C. § 2113(a) Entering to Commit Bank Robbery or
Another Felony—Elements ....................................851
18 U.S.C. § 2113(b) Bank Theft—Elements ....................853
18 U.S.C. § 2113(b) Definition of “Steal” ........................855
18 U.S.C. § 2113(c) Possession of Stolen Bank Money or
Property—Elements ............................................856
18 U.S.C. § 2113(d) Armed Bank Robbery—Elements ........859
18 U.S.C. § 2113(d) Definition of “Assault” .....................861
18 U.S.C. § 2113(d) Definition of “Put in Jeopardy the Life of” a
Person............................................................862
18 U.S.C. § 2113(d) Definition of “Dangerous Weapon or
Device” ...........................................................863
18 U.S.C. § 2113(e) Kidnapping or Murder During a Bank
Robbery—Elements.............................................864
18 U.S.C. § 2114(a) Assault with Intent to Rob Mail Matter,
Money, or Other Property of the United
States—Elements ...............................................866
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18 U.S.C. § 2114(a) Robbery or Attempted Robbery of Mail
Matter, Money, or Other Property of the United
States—Elements ...............................................868
18 U.S.C. § 2114(a) Wounding or Putting a Life in Jeopardy
During a Robbery or Attempted Robbery of Mail Matter,
Money, or Other Property of the United
States—Elements ...............................................870
18 U.S.C. § 2114(b) Receipt, Possession, Concealment, or
Disposal of Stolen Mail Matter, Money, or Other Property of
the United States—Elements .................................872
18 U.S.C. § 2241(a) Aggravated Sexual Abuse—Elements....873
18 U.S.C. § 2241(b)(1) Aggravated Sexual Abuse—Rendering
Victim Unconscious—Elements ...............................875
18 U.S.C. § 2241(b)(2) Aggravated Sexual Abuse—
Administration of Drug, Intoxicant or Other
Substance—Elements ..........................................876
18 U.S.C. § 2241(c) Aggravated Sexual Abuse of
Child—Elements ................................................878
18 U.S.C. § 2241(c) Aggravated Sexual Abuse of a Minor
Twelve to Sixteen—Elements..................................880
18 U.S.C. § 2241(c) Aggravated Sexual Abuse—Rendering
Victim Unconscious, Minor Twelve to Sixteen—Elements .882
18 U.S.C. § 2241(c) Aggravated Sexual Abuse—Administration
of Drug, Intoxicant or Other Substance, Minor Twelve to
Sixteen—Elements .............................................884
18 U.S.C. § 2243(a) Sexual Abuse of Minor—Elements .......886
18 U.S.C. §§ 2243(a), 2423(b) & 2241(c) Crossing State Line
with Intent to Engage in Sexual Act with
Minor—Elements ...............................................887
18 U.S.C. § 2243(b) Sexual Abuse of Person in Official
Detention—Elements...........................................889
18 U.S.C. § 2243(b) Definition of “Official Detention” .........890
18 U.S.C. § 2243(c)(1) Defense of Reasonable Belief of Minor’s
Age ...............................................................891
18 U.S.C. §§ 2242 & 2244(a) Abusive Sexual
Contact—Elements .............................................892
18 U.S.C. §§ 2244(a)(2) Abusive Sexual Contact—Incapacitated
Victim—Elements...............................................893
18 U.S.C. § 2244(b) Abusive Sexual Contact Without
Permission—Elements .........................................894
18 U.S.C. § 2246(2) Definition of “Sexual Act” .................895
18 U.S.C. § 2246(3) Definition of “Sexual Contact” ............896
18 U.S.C. § 2250(a) Failure to Register/Update as Sex
Offender—Elements ............................................897
18 U.S.C. § 2251(a) Sexual Exploitation of
Child—Elements ................................................899
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18 U.S.C. § 2251(b) Sexual Exploitation of Child—Permitting
or Assisting by Parent or Guardian—Elements .............902
18 U.S.C. § 2251(c) Sexual Exploitation of Child—Conduct
Outside of the United States—Elements.....................904
18 U.S.C. § 2251(d) Publishing of Child
Pornography—Elements .......................................906
18 U.S.C. § 2251A(a) Selling of Children—Elements..........908
18 U.S.C. § 2251A(b) Purchasing or Obtaining Children .....911
18 U.S.C. § 2252A(a)(1) Mailing, Transporting or Shipping
Material Containing Child Pornography—Elements .......914
18 U.S.C. § 2252A(a)(2)(A) Receipt or Distribution of Child
Pornography—Elements .......................................916
18 U.S.C. § 2252A(a)(2)(B) Receipt or Distribution of Material
Containing Child Pornography—Elements ..................918
18 U.S.C. § 2252A(a)(3)(A) Reproduction of Child Pornography
for Distribution—Elements ....................................920
18 U.S.C. § 2252A(a)(4)(A) Sale or Possession with Intent to
Sell of Child Pornography in U.S. Territory—Elements. . . .922
18 U.S.C. § 2252A(a)(4)(B) Sale or Possession with Intent to
Sell of Child Pornography in Interstate or Foreign
Commerce—Elements ..........................................924
18 U.S.C. § 2252A(a)(5)(A) Possession of or Access with Intent
to View Child Pornography in U.S. Territory—Elements ..926
18 U.S.C. § 2252A(a)(5)(B) Possession of or Access with Intent
to View Child Pornography in Interstate
Commerce—Elements ..........................................928
18 U.S.C. §§ 2252A(a)(6)(A), (B) & (C) Providing Child
Pornography to a Minor—Elements ..........................930
18 U.S.C. § 2252A(a)(7) Production with Intent to Distribute
and Distribution of Adapted Child
Pornography—Elements .......................................932
18 U.S.C. § 2252A(c) Affirmative Defense to Charges under 18
U.S.C. §§ 2252A(a)(1), (a)(2), (a)(3)(A), (a)(4) or (a)(5) ......934
18 U.S.C. § 2252A(d) Affirmative Defense to Charge under 18
U.S.C. § 2252A(a)(5) ............................................936
18 U.S.C. § 2256(1) Definition of “Minor”.......................937
18 U.S.C. § 2256(2)(A) Definition of “Sexually Explicit
Conduct” .........................................................938
18 U.S.C. § 2256(3) Definition of “Producing” ..................939
18 U.S.C. § 2256(6) Definition of “Computer” ..................940
18 U.S.C. § 2256(7) Definition of “Custody or Control” .......941
18 U.S.C. § 2256(8) Definition of “Child Pornography”........942
18 U.S.C. § 2256(9) Definition of “Identifiable Minor”.........943
18 U.S.C. § 2256(11) Definition of “Indistinguishable” ........944
18 U.S.C. § 2260(a) Production of Sexually Explicit Depictions
of a Minor—Importation—Elements..........................945
xxvi
Instruction Page
18 U.S.C. § 2260(b) Use of a Visual
Depiction—Importation—Elements...........................947
18 U.S.C. § 2312 Transportation of Stolen
Vehicle—Elements ..............................................949
18 U.S.C. § 2312 Definition of “Stolen” .........................951
18 U.S.C. § 2313 Sale or Receipt of Stolen
Vehicles—Elements.............................................953
18 U.S.C. § 2314 Transportation of Stolen or Converted Goods
or Goods Taken by Fraud—Elements ........................955
18 U.S.C. § 2314 Interstate Travel to Execute or Conceal
Fraud—Elements ...............................................957
18 U.S.C. § 2314 Interstate Transportation of Falsely Made,
Forged, Altered or Counterfeited Securities or Tax
Stamps—Elements .............................................959
18 U.S.C. § 2314 Interstate Transportation of a Traveler’s
Check Bearing a Forged Countersignature—Elements.....961
18 U.S.C. § 2314 Interstate Transportation of Tools Used in
Making, Forging, Altering, or Counterfeiting Any Security or
Tax Stamps—Elements ........................................963
18 U.S.C. § 2315 Receipt of Stolen Property—Elements ......965
18 U.S.C. § 2315 Receipt of Counterfeit Securities or Tax
Stamps—Elements .............................................967
18 U.S.C. § 2315 Definition of Interstate or Foreign
Commerce .......................................................969
18 U.S.C. § 2325 Definition of “Telemarketing” Applicable to
Enhanced Penalties under 18 U.S.C. § 2326 ................970
18 U.S.C. § 2339A Definition of “Material Support or
Resources” .......................................................971
18 U.S.C. § 2339A Providing Material Support to
Terrorists—Elements ...........................................972
18 U.S.C. § 2339B Providing Material Support or Resources to
Designated Foreign Terrorist Organizations—Elements . ..975
18 U.S.C. § 2421 Transportation for Prostitution/Sexual
Activity—Elements .............................................981
18 U.S.C. § 2422(a) Enticement—Elements ....................983
18 U.S.C. § 2422(b) Enticement of a Minor—Elements .......985
18 U.S.C. § 2423(a) Transportation of Minors with Intent to
Engage in Criminal Sexual Activity—Elements.............987
18 U.S.C. § 2423(b) Interstate Travel with Intent to Engage in
a Sexual Act with a Minor—Elements .......................989
18 U.S.C. § 2423(c) Foreign Travel with Intent to Engage in a
Sexual Act with a Minor—Elements..........................990
18 U.S.C. § 2423(f) Definition of “Illicit Sexual Conduct” .....991
18 U.S.C. § 2423(g) Defense ......................................992
18 U.S.C. § 2425 Use of Interstate Facilities to Transmit
Information About a Minor—Elements.......................993
TABLE OF CONTENTS
xxvii
Instruction Page
21 U.S.C. § 841(a)(1) Distribution of a Controlled
Substance—Elements ..........................................995
21 U.S.C. § 841(a)(1) Definition of “Distribution” ..............997
21 U.S.C. § 841(a)(1) Possession with Intent to
Distribute—Elements ..........................................998
21 U.S.C. § 841(a)(1) Definition of “Controlled Substance”..1000
21 U.S.C. §§ 841(b)(1)(A), (B) or (C) Definition of “Serious
Bodily Injury”..................................................1001
21 U.S.C. §§ 841(b)(1)(A), (B) or (C) Where Death or Serious
Bodily Injury Results—Special Verdict Form ..............1002
21 U.S.C. § 841(c)(1) Possession of Listed Chemical with Intent
to Manufacture—Elements...................................1005
21 U.S.C. § 841(c)(2) Possession/Distribution of Listed
Chemical for Use in Manufacture—Elements..............1007
21 U.S.C. § 841(a)(1) & (c) Definition of “Possession” ........1009
Introductory Forfeiture Instruction ............................1010
Forfeiture Allegations Instruction..............................1012
Forfeiture Burden of Proof Instruction ........................1013
Forfeiture—Third Party Interests..............................1014
Separate Consideration—Forfeiture Allegations..............1015
Separate Consideration—Multiple Defendants ...............1016
21 U.S.C. § 843(b) Use of Communication Facility in Aid of
Narcotics Offense—Elements ................................1017
21 U.S.C. § 843(b) Definition of “Facilitate”...................1019
21 U.S.C. § 844 Simple Possession—Elements ...............1020
21 U.S.C. § 846 Attempted Distribution of Controlled
Substance—Elements .........................................1021
21 U.S.C. § 846 Attempted Possession with Intent to
Distribute—Elements .........................................1023
Drug Quantity/Special Verdict Instructions...................1025
21 U.S.C. § 848 Continuing Criminal
Enterprise—Elements ........................................1028
21 U.S.C. § 848 Continuing Criminal Enterprise—Continuing
Series of Offenses .............................................1030
21 U.S.C. § 848 Continuing Criminal Enterprise—Five or More
Persons .........................................................1031
21 U.S.C. § 848 Continuing Criminal Enterprise—Organizing,
Managing, Supervising .......................................1032
21 U.S.C. § 848 Continuing Criminal Enterprise—Substantial
Income or Resources ..........................................1033
21 U.S.C. § 853 Drug Forfeiture—Elements ..................1034
21 U.S.C. § 853(b) Definition of “Property”....................1036
21 U.S.C. § 853(d) Rebuttable Presumption ..................1037
21 U.S.C. § 856(a)(1) Maintaining Drug-Involved
Premises—Elements .........................................
.1038
xxviii
Instruction Page
21 U.S.C. § 856(a)(1) Maintaining Drug-Involved Premises—
Limiting Instruction ..........................................1040
21 U.S.C. § 856(a)(2) Maintaining Drug-Involved
Premises—Elements ..........................................1041
21 U.S.C. § 859 Distribution of Controlled Substance to Person
under 21—Elements ..........................................1043
21 U.S.C. § 951(a)(2) Definition of Customs Territory of the
United States ..................................................1045
21 U.S.C. § 952(a) Definition of “Controlled Substance” .....1046
21 U.S.C. §§ 952(a) & (b); 960(a) Importation of Controlled
Substances—Elements........................................1047
22 U.S.C. § 2778 Importing/Exporting Weapons Without a
License..........................................................1049
22 U.S.C. § 2778(c) Willfully—Definition......................1051
26 U.S.C. § 5845 Definitions of Firearm-Related Terms .....1052
26 U.S.C. § 5861(a) Failure to Pay Tax or
Register—Elements ...........................................1053
26 U.S.C. § 5861(d) Receiving or Possessing an Unregistered
Firearm—Elements ...........................................1054
26 U.S.C. § 5861(h) Receipt or Possession of a Firearm with an
Obliterated, Removed, Changed, or Altered Serial
Number—Elements ...........................................1056
26 U.S.C. § 5861(j) Transporting, Delivering or Receiving an
Unregistered Firearm—Elements ...........................1058
26 U.S.C. § 7201 Attempt to Evade or Defeat
Tax—Elements.................................................1060
26 U.S.C. § 7201 Unanimity as to Acts of Evasion ...........1062
26 U.S.C. § 7201 No Need for Tax Assessment ...............1063
26 U.S.C. §§ 7201, 7203 & 7206 Knowledge of Contents of
Return ..........................................................1064
26 U.S.C. §§ 7201, 7203 & 7206 Funds or Property from
Unlawful Sources..............................................1065
26 U.S.C. § 7203 Failure to File Tax Return—Elements . . . .1066
26 U.S.C. § 7203 When Person Is Obligated to File Return.1068
26 U.S.C. § 7203 Tax Return Must Contain Sufficient
Information ....................................................1070
26 U.S.C. § 7206 Definition of “Material” .....................1071
26 U.S.C. § 7206(1) Fraud and False
Statements—Elements .......................................1072
26 U.S.C. § 7206(2) Aiding and Abetting in Submitting False
and Fraudulent Return—Elements .........................1074
26 U.S.C. § 7206(2) Knowledge of Taxpayer Irrelevant......1076
26 U.S.C. § 7212 Corruptly Endeavoring to Obstruct or Impede
Due Administration of Internal Revenue
Laws—Elements...............................................1077
26 U.S.C. § 7212 Good Faith....................................1079
TABLE OF CONTENTS
xxix
Instruction Page
31 U.S.C. § 5324(a)(3) Structuring Financial
Transactions—Elements ......................................1080
31 U.S.C. § 5324(a)(3) Definition of Structuring Financial
Transactions ...................................................1082
42 U.S.C. § 408(a)(3) Making or Causing to Be Made a False
Statement or Representation of Material Fact for Use in
Determining a Federal Benefit—Elements .................1083
42 U.S.C. § 408(a)(7)(A) Use of a Falsely Obtained Social
Security Number—Elements.................................1085
42 U.S.C. § 408(a)(7)(A) & (B) Definition of “Intent to
Deceive” ........................................................1087
42 U.S.C. § 408(a)(7)(B) Use of a False Social Security
Number—Elements ...........................................1088
42 U.S.C. § 408(a)(7)(C) Social Security Card
Violations—Elements .........................................1090
42 U.S.C. § 408(a)(7)(C) Definition of “Counterfeit” ..........1092
42 U.S.C. § 1320a-7b(b) Criminal Penalties for Acts Involving
Federal Health Care Programs—Illegal Remunerations. .1093
xxx
CRIMINAL INSTRUCTIONS
INTRODUCTION
To: Judges and Criminal Law Practitioners of the U.S. District
Courts of the Seventh Circuit
From: The Committee on Federal Criminal Jury Instructions of
the Seventh Circuit
The Committee on Federal Criminal Jury Instructions of the
Seventh Circuit presents the 2023 edition of the William J. Bauer
Pattern Criminal Jury Instructions of the Seventh Circuit. These
instructions are intended to be used in connection with criminal
jury trials in the District Courts of the Seventh Circuit. This edi-
tion represents a substantial review and updating of the 2020
bound volume, as well as the 2022 digital update. The changes in
and additions to this edition reflect comments from the bench and
bar, as well as a thorough review of developments in case law –
particularly, though not exclusively, coming from the Supreme
Court and the Seventh Circuit. It includes both revisions of prior
instructions and several new instructions covering issues and of-
fenses for which judges and lawyers practicing criminal law in our
Circuit have expressed a need, as well as substantial updates to
the research reflected in the Committee Comments.
These instructions and their accompanying commentary have
been approved in principle by the Judicial Council of the Seventh
Circuit. This means that, although they have not been approved
for use in any specific case, the Council has authorized their publi-
cation as an aid to judges and lawyers practicing criminal law in
the District Courts of this Circuit. See United States v. Edwards,
869 F.3d 490, 496-97 (7th Cir. 2017).
As in prior editions, the instructions are presented in three
sections. The first section is a set of pattern preliminary instruc-
tions to be used at the outset of a criminal trial. The second sec-
tion, entitled “General Instructions,” incudes instructions gener-
ally applicable to the trial process, as well as instructions
addressing common legal theories of liability (such as conspiracy
and aid and abetting) and certain defense theories (including affir-
1
mative defenses). The final (and much larger) section, entitled
“Statutory Instructions,” contains instructions related to specific
statutory provisions located in Title 18 and in other parts of the
United States Code where criminal statutes are found. This sec-
tion is organized in order of statutory cite.
In producing this edition, whether drafting new instructions
or revising existing ones, the Committee has continued to try to
use plain language intelligible to lay jurors and to reduce the use
of legalisms. This effort reflects the experience conveyed by com-
ments we received from Committee members and other criminal
practitioners and judges, as well as some academic study of the ef-
fectiveness of specific language with lay people. We have also
continued to try to use only as many words as necessary in order
to keep instructions as simple and cleanly worded as possible, al-
though there are still a few instances in which adding a clarifying
word or a defining or explanatory phrase makes an instruction
clearer. In some cases the Committee has therefore continued to
follow the advice offered in United States v. Hill, 252 F.3d 919, 923
(7th Cir. 2001), that some instructions work better when they give
the jury the reasons underlying their admonition.
It is the Committee’s intent that juries be instructed as much
as is necessary, but not more so. In producing the 2023 edition the
Committee has remained mindful of the need to avoid giving juries
instructions about issues that are unnecessary to their delibera-
tions, as well as the need to avoid making simple concepts unnec-
essarily complex. Some instructions, such as those explaining
important preliminary or structural issues or setting forth the ele-
ments of an offense, will always be necessary, and some complex
terms or concepts will require the giving of definitional instruc-
tions we have included. But we continue to note the Court’s advice
in Hill that “[u]nless it is necessary to give an instruction, it is
necessary not to give it, so that the important instructions stand
out and are remembered.” 252 F.3d at 923; see also United States
v. Blitch, 773 F.3d 837, 847 (7th Cir. 2014) (same); United States v.
McKnight, 665 F.3d 786, 794 (7th Cir. 2011) (same); cf. United
States v. McKnight, 671 F.3d 664, 665 (7th Cir. 2012) (Posner, J.,
joined by Kanne and Williams, J.J., dissenting from denial of
rehearing en banc; “[G]ratuitous instructions confuse, and should
not be given.”).
While judges should not hesitate to instruct a jury on any is-
sue it should know about to decide the case, we thus recommend
against giving instructions that are not needed for that purpose.
In particular, we advise against giving an instruction just because
INTRODUCTION
2
a judge sees no reason not to give it (or just because it is included
in this book), in order to avoid diluting the impact of necessary
instructions and potentially injecting superfluous issues into the
jury’s deliberations. As Hill pointed out, a set of pattern instruc-
tions “offers model instructions for occasions when they are ap-
propriate but does not identify those occasions.” 252 F.3d at 923;
see also Edwards, 869 F.3d at 497. Trial judges should always
have an affirmative and case-specific reason for giving any jury
instruction, whether it is a pattern instruction or otherwise.
We continue to commend the Committee Comments to the us-
ers of these instructions. They reflect a great deal of research and
drafting effort on the part of the Committee’s members, and they
continue to be a valuable source of authority and general advice
regarding when an instruction might or might not be given, as
well as on the broad state of the law on the issue the instruction
addresses. That said, the Comments are not intended to be author-
itative in and of themselves, especially as to whether an instruc-
tion should be given in any particular case. Whether an instruc-
tion is appropriate for a given case is always a case-specific
decision, and the Committee did not have any specific case solely
in mind when drafting or commenting on a pattern instruction.
Rather, the principal value of the Comments, aside from explain-
ing the views of the Committee in offering an instruction or word-
ing it in a particular way, is their citations of cases, which we hope
will serve as useful and time-saving starting points, but not
substitutes, for judges’ and lawyers’ own research and analysis on
whether the relevant instruction is right for the case they are
trying.
We also address several technical points. Regarding the gender
of personal pronouns, the Committee has followed the form of the
last several editions and avoided as cumbersome supposedly
gender-neutral forms such as “he/she” or “him/her.” With no
chauvinism intended, the Committee generally uses masculine
pronouns, but judges using these instructions should of course feel
free to use any pronoun forms appropriate for the particular case
before them. Each pattern instruction has a title included for the
convenience of the judges and lawyers who will use them, but
these titles were not drafted for jurors, and we recommend against
including them in the instructions actually given to juries. As the
Committee has for some time, we continue to recommend against
reading the texts of statutes to juries. In several places we also
continue to advise against instructing the jury on certain issues,
including defining reasonable doubt. In addition, the Committee
CRIMINAL INSTRUCTIONS
3
continues to recommend that juries receive a copy or copies of the
instructions for use during their deliberations.
The instructions we offer are pattern instructions, but judges
are free to adapt or revise them as they think necessary in each
case. In particular, the Committee continues to suggest, in a
number of places, that judges adapt pattern instructions very
specifically to the cases before them. See Edwards, 869 F.3d at 497
(“Pattern instructions are not intended to be used mechanically
and uncritically. Trial judges routinely decide to use different
language tailored more closely to the particular cases before
them.”). This advice takes several forms. For example, we suggest
in connection with several instructions that the judge describe for
jurors the particular “limited purpose” for admitting certain evi-
dence addressed in the instruction. Another example of the need to
specifically customize instructions might involve defining the state
of mind in a case that requires the Government to prove that a
defendant acted “willfully,” which will often require consideration
and incorporation of the required state of mind as set forth in the
particular statute at issue. See United States v. Dobek, 789 F.3d
698, 702 (7th Cir. 2015) (Bauer, J., concurring).
The Committee is pleased to present the 2023 edition of the
William J. Bauer Pattern Criminal Jury Instructions of the Seventh
Circuit. We hope that they will be of material assistance to the
judges and lawyers who practice criminal law in our Circuit.
INTRODUCTION
4
The Committee on Federal Criminal
Jury Instructions of the
Seventh Circuit
Judge William J. Bauer
Chair Emeritus
Judge Amy J. St. Eve
Chair
Judge Matthew F. Kennelly
Vice Chair
Judge Michael Y. Scudder
Judge Edmond E. Chang Judge Jane E. Magnus-Stinson
Magistrate Judge Stephen L.
Crocker
Magistrate Judge Beth W.
Jantz
Craig W. Albee Joel D. Bertocchi
Bethany K. Biesenthal Kerry C. Connor
Christina M. Egan Cynthia Giacchetti
Michelle L. Jacobs Kristina M. Korobov
Dean Lanter Professor Novella Nedeft
Professor Chad Oldfather Thomas Peabody
Amanda Penabad Professor Shari Seidman Dia-
mond
Gil Soffer Sarah E. Streicker
Alison Summers Sara J. Varner
Kelly K. Watzka
Christina M. Egan, Joel D. Bertocchi
Reporters
Amy S. Gilbert, Katie Franc
Deputy Reporters
CRIMINAL INSTRUCTIONS
5
PRELIMINARY INSTRUCTIONS—FOR
USE AT THE BEGINNING OF TRIAL
FUNCTIONS OF COURT AND JURY
Ladies and gentlemen: You are now the jury in this
case. I would like to take a few minutes to describe
your duties as jurors and to give you instructions
concerning the case.
As the judge in this case, one of my duties is to
decide all questions of law and procedure. In these pre-
liminary instructions, during the trial, and at the end
of the trial, I will instruct you on the rules of law that
you must follow in making your decision. The instruc-
tions that I give you at the end of the trial will be more
detailed than the instructions I am giving you now.
[Each of you will have a copy of the instructions that I
give you at the end of the case.]
You have two duties as jurors. Your first duty is to
decide the facts from the evidence that you see and
hear in court. Your second duty is to take the law as I
give it to you, apply it to the facts, and decide if the
government has proved the defendant[s] guilty beyond
a reasonable doubt [and whether the defendant has
proved [insert defense] by a preponderance of the evi-
dence; by clear and convincing evidence].
You must perform these duties fairly and
impartially. Do not let sympathy, prejudice, fear, or
public opinion influence you. [In addition, do not let
any person’s race, color, religion, national ancestry, or
gender influence you.]
6
[You must give [name of corporate entity defendant]
the same fair consideration that you would give to an
individual.]
You should not take anything I say or do during
the trial as indicating what I think of the evidence or
what I think your verdict should be.
CRIMINAL INSTRUCTIONS
7
THE CHARGE
The charge[s] against the defendant[s] [is; are] in a
document called an [indictment; information]. [You will
have a copy of the [indictment; information] during your
deliberations.]
The [indictment; information] in this case charges
that the defendant[s] committed the crime[s] of [fill in
short description of charged offenses]. The defendant[s]
[has; have] pleaded not guilty to the charge[s].
The [indictment; information] is simply the formal
way of telling the defendant[s] what crime[s] [he is;
they are] accused of committing. It is not evidence that
the defendant[s] [is; are] guilty. It does not even raise a
suspicion of guilt.
PRELIMINARY INSTRUCTIONS
8
PRESUMPTION OF INNOCENCE/BURDEN OF
PROOF
[The; Each] defendant is presumed innocent of
[each and every one of] the charge[s]. This presumption
continues throughout the case. It is not overcome un-
less, from all the evidence in the case, you are convinced
beyond a reasonable doubt that the [defendant; particu-
lar defendant you are considering] is guilty as charged.
The government has the burden of proving [the;
each] defendant’s guilt beyond a reasonable doubt. This
burden of proof stays with the government throughout
the case.
[The; A] defendant is never required to prove his
innocence. He is not required to produce any evidence
at all.
Alternative to paragraphs 2–3, to be used when af-
firmative defense is raised on which defendant has
burden of proof:
The government has the burden of proving every
element of the crime[s] charged beyond a reasonable
doubt. This burden of proof stays with the government
throughout the case. [The; A] defendant is never
required to prove his innocence. He is not required to
produce any evidence at all.
However, the defendant has the burden of proving
the defense of [identify defense, e.g. duress, insanity] by
[a preponderance of the evidence; clear and convincing
evidence].
CRIMINAL INSTRUCTIONS
9
THE EVIDENCE
You may consider only the evidence that you see
and hear in court. You may not consider anything you
may see or hear outside of court, including anything
from the newspaper, television, radio, the Internet, or
any other source.
The evidence includes only what the witnesses say
when they are testifying under oath[,] [and] the exhibits
that I allow into evidence[,] [and] any facts to which the
parties [agree; stipulate]. [A stipulation is an agree-
ment that [certain facts are true [or] that a witness
would have given certain testimony].]
Nothing else is evidence. Any statements and argu-
ments that the lawyers make are not evidence. If what
a lawyer says is different from the evidence as you hear
or see it, the evidence is what counts. The lawyers’ ques-
tions and objections likewise are not evidence.
A lawyer has a duty to object if he thinks a ques-
tion or evidence is improper. When an objection is made,
I will be required to rule on the objection. If I sustain
an objection to a question a lawyer asks, you must not
speculate on what the answer might have been. If I
strike testimony or an exhibit from the record, or tell
you to disregard something, you must not consider it.
Pay close attention to the evidence as it is being
presented. During your deliberations, you will have any
exhibits that I allow into evidence, but you will not
have a transcript of the testimony. You will have to
make your decision based on what you recall of the
evidence.
PRELIMINARY INSTRUCTIONS
10
TESTIMONY PRESENTED THROUGH
INTERPRETER
[Language(s) other than English] may be used dur-
ing the trial. When that happens, you should consider
only the evidence provided through the official
interpreter. Although some of you may know [lan-
guage(s) used], it is important for all jurors to consider
the same evidence. For this reason, you must base your
decision on the evidence presented in the English
translation.
CRIMINAL INSTRUCTIONS
11
DIRECT AND CIRCUMSTANTIAL EVIDENCE
You may have heard the terms “direct evidence”
and “circumstantial evidence.” Direct evidence is evi-
dence that directly proves a fact. Circumstantial evi-
dence is evidence that indirectly proves a fact.
[For example, direct evidence that it was raining
outside is testimony by a witness that it was raining.
Indirect evidence that it was raining outside is the
observation of someone entering a room carrying a wet
umbrella.]
You are to consider both direct and circumstantial
evidence. The law does not say that one is better than
the other. It is up to you to decide how much weight to
give to any evidence, whether direct or circumstantial.
PRELIMINARY INSTRUCTIONS
12
CONSIDERING THE EVIDENCE
Give the evidence whatever weight you believe it
deserves. Use your common sense in weighing the evi-
dence, and consider the evidence in light of your own
everyday experience.
People sometimes look at one fact and conclude
from it that another fact exists. This is called an
inference. You are allowed to make reasonable infer-
ences, so long as they are based on the evidence.
CRIMINAL INSTRUCTIONS
13
CREDIBILITY OF WITNESSES
Part of your job as jurors will be to decide how
believable each witness was, and how much weight to
give each witness’s testimony. I will give you additional
instructions about this at the end of the trial.
PRELIMINARY INSTRUCTIONS
14
NUMBER OF WITNESSES
Do not make any decisions by simply counting the
number of witnesses who testified about a certain point.
What is important is how believable the witnesses
are and how much weight you think their testimony
deserves.
CRIMINAL INSTRUCTIONS
15
JUROR NOTE-TAKING
You will be permitted to take notes during the trial.
If you take notes, you may use them during delibera-
tions to help you remember what happened during the
trial. You should use your notes only as aids to your
memory. The notes are not evidence. All of you should
rely on your independent recollection of the evidence,
and you should not be unduly influenced by the notes of
other jurors. Notes are not entitled to any more weight
than the memory or impressions of each juror.
PRELIMINARY INSTRUCTIONS
16
JUROR CONDUCT
Before we begin the trial, I want to discuss several
rules of conduct that you must follow as jurors.
First, you should keep an open mind throughout
the trial. Do not make up your mind about what your
verdict should be until after the trial is over, you have
received my final instructions on the law, and you and
your fellow jurors have discussed the evidence.
Second, your verdict in this case must be based
exclusively on the law as I give it to you and the evi-
dence that is presented in court during the trial. For
this reason, and to ensure fairness to both sides in this
case, you must obey the following rules. These rules ap-
ply both when you are here in court and when you are
not in court. They apply until after you have returned
your verdict in the case.
1. You must not discuss the case, the issues in
the case, or anyone who is involved in the case, among
yourselves until you go to the jury room to deliberate
after the trial is completed.
2. You must not communicate with anyone else
about this case, the issues in the case, or anyone who is
involved in the case, until after you have returned your
verdict.
3. When you are not in the courtroom, you must
not allow anyone to communicate with you or give you
any information about the case, the issues in the case,
or about anyone who is involved in the case. If someone
tries to communicate with you about the case, the is-
sues in the case, or someone who is involved in the case,
or if you overhear or learn any information about the
case, the issues in the case, or someone involved in the
case when you are not in the courtroom, you must
report this to me promptly.
CRIMINAL INSTRUCTIONS
17
4. You may tell your family and your employer
that you are serving on a jury, so that you can explain
that you have to be in court. However, you must not
communicate with them about the case, the issues in
the case, or anyone who is involved in the case until af-
ter you have returned your verdict.
5. All of the information that you will need to
decide the case will be presented here in court. You
may not look up, obtain, or consider information from
any outside source.
There are two reasons for these rules. First, it
would not be fair to the parties in the case for you to
consider outside information or communicate informa-
tion about the case to others. Second, outside informa-
tion may be incorrect or misleading.
When I say that you may not obtain or consider
any information from outside sources, and may not com-
municate with anyone about the case, the issues in the
case, or those involved in the case, I am referring to
any and all means by which people communicate or
obtain information. This includes, for example, face to
face conversations; looking things up; doing research;
reading, watching, or listening to reports in the news
media; and any communication using any electronic de-
vice or media, such as a telephone, cell phone, smart
phone, iPhone, Android, Blackberry or similar device,
computer, the Internet, text messaging, chat rooms,
blogs, social networking websites like Facebook, You-
Tube, Twitter, Instagram, SnapChat[, or] LinkedIn [or]
[list additional sites or technologies as appropriate], or
any other form of communication at all. If you hear,
see, or receive any information about the case by these
or any other means, you must report that to me
immediately.
PRELIMINARY INSTRUCTIONS
18
CONDUCT OF THE TRIAL
We are now ready to begin the trial. The trial will
proceed in the following manner:
First, each side’s attorney[s] may make an opening
statement. An opening statement is not evidence.
Rather, it is a summary of what each side’s attorney[s]
expect the evidence will show.
After the opening statements, you will hear the
evidence.
After the evidence has been presented, the at-
torneys will make closing arguments, and I will instruct
you on the law that applies to the case.
After that, you will go to the jury room to deliber-
ate on your verdict.
CRIMINAL INSTRUCTIONS
19
GENERAL INSTRUCTIONS
1.01 FUNCTIONS OF COURT AND JURY
Members of the jury, I will now instruct you on the
law that you must follow in deciding this case. [I will
also give [each of] you a copy of these instructions to
use in the jury room.] [Each of you has a copy of these
instructions to use in the jury room.] You must follow
all of my instructions about the law, even if you dis-
agree with them. This includes the instructions I gave
you before the trial, any instructions I gave you during
the trial, and the instructions I am giving you now.
As jurors, you have two duties. Your first duty is to
decide the facts from the evidence that you saw and
heard here in court. This is your job, not my job or
anyone else’s job.
Your second duty is to take the law as I give it to
you, apply it to the facts, and decide if the government
has proved the defendant[s] guilty beyond a reasonable
doubt [and whether the defendant has proved [insert
defense] by a preponderance of the evidence; by clear
and convincing evidence].
You must perform these duties fairly and
impartially. Do not let sympathy, prejudice, fear, or
public opinion influence you. [In addition, do not let
any person’s race, color, religion, national ancestry, or
gender influence you.]
[You must give [name of corporate/entity defendant]
the same fair consideration that you would give to an
individual.]
You must not take anything I said or did during
20
the trial as indicating that I have an opinion about the
evidence or about what I think your verdict should be.
1.01
CRIMINAL INSTRUCTIONS
21
1.02 THE CHARGE
The charge[s] against the defendant[s] [is; are] in a
document called an indictment [information]. [You will
have a copy of the indictment during your
deliberations.]
The indictment [information] in this case charges
that the defendant[s] committed the crime[s] of [name
charged offenses]. The defendant[s] [has; have] pled not
guilty to the charge[s].
The indictment [information] is simply the formal
way of telling the defendant[s] what crime[s] [he is;
they are] accused of committing. It is not evidence that
the defendant[s] [is; are] guilty. It does not even raise a
suspicion of guilt.
Committee Comment
This instruction is necessary because, as stated in United
States v. Garcia, 562 F.2d 411, 417 (7th Cir. 1977), “[i]n almost
any criminal case . . . the fact of the indictment has some
emphasis. To the degree an uninstructed jury considers the mat-
ter, there is a real possibility that a charge leveled by a grand jury
composed of its peers will weigh in the petit jury’s balance on the
side of guilt.” Instruction on this subject is particularly important
when the court permits the jury to take the indictment with it dur-
ing deliberations. 2A C. Wright, N. King, S. Klein & P. Henning,
Federal Practice and Procedure, Criminal § 486 (2009). When the
jury is given the indictment—as is common practice—the “[f]ailure
to instruct the jury to the effect that the indictment is not to be
considered evidence of the guilt of the accused constitutes error.”
United States v. Smith, 419 F.3d 521, 530–31 (6th Cir. 2005)
(internal quotation marks omitted).
If the court provides the jury with the indictment, references
to the grand jury and its determination should be redacted from
the copy tendered to the jury. In appropriate circumstances, refer-
ences to defendants not on trial should be removed. References in
indictments to uncharged individuals, e.g., Individual A, who are
identified in the public record by the evidence at trial, may be
replaced by their proper names. Where a defendant on trial is
charged only in some counts of a multi-count indictment, the court
may consider renumbering the counts in which that defendant is
1.02
GENERAL INSTRUCTIONS
22
charged for ease of reference by the jury. Any final judgment
should, of course, relate to the counts as numbered in the actual
charging instrument.
1.02
CRIMINAL INSTRUCTIONS
23
1.03 PRESUMPTION OF INNOCENCE/BURDEN
OF PROOF
[The; Each] defendant is presumed innocent of
[each and every one of] the charge[s]. This presumption
continues throughout the case, including during your
deliberations. It is not overcome unless, from all the ev-
idence in the case, you are convinced beyond a reason-
able doubt that the [defendant; particular defendant
you are considering] is guilty as charged.
The government has the burden of proving [the;
each] defendant’s guilt beyond a reasonable doubt. This
burden of proof stays with the government throughout
the case.
[The; A] defendant is never required to prove his
innocence. He is not required to produce any evidence
at all.
Alternative to paragraphs 2 and 3 to be used
when an affirmative defense is raised on
which the defendant has the burden of proof:
The government has the burden of proving every
element of the crime[s] charged beyond a reasonable
doubt. This burden of proof stays with the government
throughout the case. [The; A] defendant is never
required to prove his innocence. He is not required to
produce any evidence at all.
However, the defendant has the burden of proving
the defense of [identify defense, e.g., duress, insanity]
by [a preponderance of the evidence; clear and convinc-
ing evidence].
Committee Comment
Whether or not it is constitutionally required, compare Taylor
v. Kentucky, 436 U.S. 478 (1978) (failure to give instruction on the
presumption of innocence is reversible error) with Kentucky v.
1.03
GENERAL INSTRUCTIONS
24
Wharton, 441 U.S. 786 (1979) (instruction is not constitutionally
required in every case), it is well established that juries in federal
criminal trials should be instructed on both the presumption of in-
nocence, see, e.g, United States v. Covarrubias, 65 F.3d 1362, 1369
(7th Cir. 1995) (“Juries in federal criminal trials are instructed
that the defendant is presumed innocent.”); United States v. DeJohn,
638 F.2d 1048, 1057–59 (7th Cir. 1981) (instruction recommended,
but a long and confusing instruction may do more harm than good),
and the government’s burden to prove guilt beyond a reasonable
doubt. Coffin v. United States, 156 U.S. 432, 452–61 (1895); United
States v. Nelson, 498 F.2d 1247 (5th Cir. 1974); McDonald v. United
States, 284 F.2d 232 (D.C. Cir. 1960). The cases are legion in which
the Seventh Circuit has considered an instruction along these
lines as curing potential error resulting from, for example, alleg-
edly improper argument. See, e.g., United States v. Clark, 535 F.3d
571, 581 (7th Cir. 2008).
The alternative paragraphs are to be used when the defendant
is asserting an affirmative defense on which he bears the burden
of proof.
1.03
CRIMINAL INSTRUCTIONS
25
1.04 DEFINITION OF REASONABLE DOUBT
[No instruction.]
Committee Comment
The Seventh Circuit has repeatedly held that it is inappropri-
ate for the trial judge to attempt to define “reasonable doubt” for
the jury. See, e.g., United States v. Hatfield, 591 F.3d 945, 949 (7th
Cir. 2010); United States v. Bruce, 109 F.3d 323, 329 (7th Cir.
1997); United States v. Glass, 846 F.2d 386, 387 (7th Cir. 1988). As
the court said in Glass,
This case illustrates all too well that “[a]ttempts to explain the
term ‘reasonable doubt’ do not usually result in making it any
clearer to the minds of the jury.” Holland v. United States, 348
U.S. 121, 140 (1954). And that is precisely why this circuit’s
criminal jury instructions forbid them. See Federal Criminal
Instructions of the Seventh Circuit 2.07 (1980). “Reasonable
doubt” must speak for itself. Jurors know what is “reasonable”
and are quite familiar with the meaning of “doubt.” Judges’
and lawyers’ attempts to inject other amorphous catch-phrases
into the “reasonable doubt” standard, such as “matter of the
highest importance,” only muddy the water. This jury attested
to that. It is, therefore, inappropriate for judges to give an
instruction defining “reasonable doubt,” and it is equally inap-
propriate for trial counsel to provide their own definition. See,
e.g., United States v. Dominguez, 835 F.2d 694, 701 (7th Cir.
1987). Trial counsel may argue that the government has the
burden of proving the defendant’s guilt “beyond a reasonable
doubt,” but they may not attempt to define “reasonable doubt.”
846 F.2d at 386 (emphasis in original).
1.04
GENERAL INSTRUCTIONS
26
1.05 DEFINITION OF CRIME CHARGED
[No instruction.]
Committee Comment
It was once common practice to quote the language of the
pertinent statute in the instructions to the jury. The Committee
recommends against this practice and has drafted no instruction
on this point. The purpose of the “elements” instructions is to
provide the jury with the requirements for proving the defendant’s
guilt, in direct language comprehensible to lay jurors. Quoting
from the statute would, in most situations, undercut the pattern
instructions’ goal of simplicity and comprehensibility.
1.05
CRIMINAL INSTRUCTIONS
27
1.06 DEFINITION OF FELONY/MISDEMEANOR
Committee Comment
The Committee does not consider it necessary to have a gen-
eral instruction defining the terms “felony” or “misdemeanor”
because those terms are not used elsewhere in the instructions,
and the determination of whether a crime is a felony or misde-
meanor is a question of law.
1.06
GENERAL INSTRUCTIONS
28
1.07 BILL OF PARTICULARS
[No instruction.]
Committee Comment
The Committee does not consider it necessary to give an
instruction concerning the content or effect of a bill of particulars.
The admissibility of evidence in light of a bill of particulars is a
question of law for the court.
1.07
CRIMINAL INSTRUCTIONS
29
2.01 THE EVIDENCE
You must make your decision based only on the ev-
idence that you saw and heard here in court. Do not
consider anything you may have seen or heard outside
of court, including anything from the newspaper, televi-
sion, radio, the Internet, social media, text messages,
e-mails, or any other source.
The evidence includes only what the witnesses said
when they were testifying under oath[,] [and] the
exhibits that I allowed into evidence[,] [and] the stipu-
lations that the lawyers agreed to. A [stipulation] is an
agreement that [certain facts are true] [or] [that a wit-
ness would have given certain testimony].
[In addition, you may recall that I took [judicial]
notice of certain facts that may be considered as mat-
ters of common knowledge. You may accept those facts
as proved, but you are not required to do so.]
Nothing else is evidence. The lawyers’ statements
and arguments are not evidence. If what a lawyer said
is different from the evidence as you remember it, the
evidence is what counts. The lawyers’ questions and
objections likewise are not evidence.
A lawyer has a duty to object if he thinks a ques-
tion is improper. If I sustained objections to questions
the lawyers asked, you must not speculate on what the
answers might have been.
If, during the trial, I struck testimony or exhibits
from the record, or told you to disregard something, you
must not consider it.
Committee Comment
Extraneous influence. This instruction is consistent with the
one approved by the Seventh Circuit in United States v. Xiong, 262
F.3d 672, 676 (7th Cir. 2001). The Seventh Circuit has also defined
2.01
GENERAL INSTRUCTIONS
30
the minimum measures a trial judge must take when confronted
with evidence of prejudicial publicity prior to or during trial. When
apprised in a general fashion of the existence of damaging public-
ity, the trial judge should “strongly and repeatedly [admonish] the
jury throughout the trial not to read or listen to any news coverage
of the case.” Margoles v. United States, 407 F.2d 727, 733 (7th Cir.
1969). When the publishing or broadcast of specific items of
inadmissible evidence is brought to the trial court’s attention, the
court must investigate further to determine juror exposure:
Thus, the procedure required by this circuit where prejudicial
publicity is brought to the court’s attention during a trial is
that the court must ascertain if any jurors who had been ex-
posed to such publicity had read or heard the same. Such
jurors who respond affirmatively must then be examined,
individually and outside the presence of the other jurors, to
determine the effect of the publicity.
Id. at 735. A court faced with a post-verdict question of extraneous
prejudicial information is obligated to follow this same procedure.
United States v. Bashawi, 272 F.3d 458, 463 (7th Cir. 2001).
Judicial notice. Fed. R. Evid. 201(g) requires the court in a
criminal case to “instruct the jury that it may, but is not required
to, accept as conclusive any fact judicially noticed.”
2.01
CRIMINAL INSTRUCTIONS
31
2.02 CONSIDERING THE EVIDENCE
Give the evidence whatever weight you decide it
deserves. Use your common sense in weighing the evi-
dence, and consider the evidence in light of your own
everyday experience.
People sometimes look at one fact and conclude
from it that another fact exists. This is called an
inference. You are allowed to make reasonable infer-
ences, so long as they are based on the evidence.
Committee Comment
The Seventh Circuit has held that an instruction to the jury to
use their common sense and reflect on their everyday experience
“does not . . . invite a jury member to consider the evidence in
light of personally-held . . . stereotypes or prejudices.” United
States v. Jones, 808 F.2d 561, 568 (7th Cir. 1986).
2.02
GENERAL INSTRUCTIONS
32
2.03 DIRECT AND CIRCUMSTANTIAL
EVIDENCE
You may have heard the terms “direct evidence”
and “circumstantial evidence.” Direct evidence is evi-
dence that directly proves a fact. Circumstantial evi-
dence is evidence that indirectly proves a fact.
You are to consider both direct and circumstantial
evidence. The law does not say that one is better than
the other. It is up to you to decide how much weight to
give to any evidence, whether direct or circumstantial.
Committee Comment
The phrase “circumstantial evidence” is addressed here
because of its use in common parlance and the likelihood that
jurors may have heard the term outside the courtroom.
The committee did not include examples in the standard
instruction, though it does not rule out their use in a given case
(and it has included one as an option in the preliminary
instructions). If used, however, caution is required. One often-used
illustration is the following: “An example of direct evidence that it
was raining would be testimony from a witness who said she was
outside and saw it raining. An example of circumstantial evidence
that it was raining would be testimony that a witness observed
someone carrying a wet umbrella.” Examples of this sort may be
too simplistic to illustrate the definitions in a given case, and they
omit the fact that more than one conclusion may be drawn from
circumstantial evidence (in the example, the wet umbrella might
mean that the person walked under a lawn sprinkler).
If asked to give examples, the court should consider these
points and should also consider whether it is more appropriate to
leave the matter for attorney argument.
2.03
CRIMINAL INSTRUCTIONS
33
2.04 NUMBER OF WITNESSES
Do not make any decisions simply by counting the
number of witnesses who testified about a certain point.
[You may find the testimony of one witness or a
few witnesses more persuasive than the testimony of a
larger number. You need not accept the testimony of
the larger number of witnesses.]
What is important is how truthful and accurate the
witnesses were and how much weight you think their
testimony deserves.
Committee Comment
The bracketed paragraph should not be given when the
defendant does not call any witnesses or when the defendant
objects.
2.04
GENERAL INSTRUCTIONS
34
2.05 DEFENDANT’S DECISION NOT TO TESTIFY
OR PRESENT EVIDENCE
A defendant has an absolute right not to testify [or
present evidence]. You may not consider in any way the
fact that [the; a] defendant did not testify [or present
evidence]. You should not even discuss it in your
deliberations.
Committee Comment
No judge can prevent jurors from speculating about why a
defendant stands mute in the face of a criminal accusation, but a
judge can, and must, if requested to do so, use the unique power of
the jury instruction to reduce that speculation to a minimum.
Carter v. Kentucky, 450 U.S. 288, 303 (1981).
In a multi-defendant trial, this instruction must be given at
the request of a non-testifying defendant over the objection of a
defendant who testifies. Bruno v. United States, 308 U.S. 287
(1939); United States v. Schroeder, 433 F.2d 846, 851 (8th Cir.
1970); United States v. Kelly, 349 F.2d 720, 768–69 (2d Cir. 1965).
2.05
CRIMINAL INSTRUCTIONS
35
3.01 CREDIBILITY OF WITNESSES
Part of your job as jurors is to decide how believ-
able each witness was, and how much weight to give
each witness’ testimony [, including that of the
defendant]. You may accept all of what a witness says,
or part of it, or none of it.
Some factors you may consider include:
- [the age of the witness;]
- the intelligence of the witness;
- the witness’ ability and opportunity to see,
hear, or know the things the witness testified
about;
- the witness’ memory;
- the witness’ demeanor;
- whether the witness had any bias, preju-
dice, or other reason to lie or slant the testimony;
- the truthfulness and accuracy of the wit-
ness’ testimony in light of the other evidence pre-
sented; and
- inconsistent [or consistent] statements or
conduct by the witness.
Committee Comment
The bracketed portion of the instruction relating to testimony
by the defendant should be given only if the defendant has
testified.
The portion of the instruction relating to age should be given
only when a very elderly or very young witness has testified.
The bracketed language “or consistent” should not be used un-
3.01
GENERAL INSTRUCTIONS
36
less a consistent statement is admitted.
3.01
CRIMINAL INSTRUCTIONS
37
3.02 ATTORNEY INTERVIEWING WITNESS
It is proper for an attorney to interview any wit-
ness in preparation for trial.
Committee Comment
The court should give this instruction only if there has been
testimony regarding interviews of witnesses.
“As the trial judge explained to the jury, ‘it is perfectly proper
for a lawyer to interview a witness in preparation for trial,’ and an
attorney who does not question, rehearse and prepare his wit-
nesses before trial is not properly prepared for trial.” United States
v. Torres, 809 F.2d 429, 439–40 (7th Cir. 1987).
3.02
GENERAL INSTRUCTIONS
38
3.03 PRIOR INCONSISTENT STATEMENTS
You have heard evidence that before the trial, [a]
witness[es] made [a] statement[s] that may be inconsis-
tent with [his; their] testimony here in court. You may
consider an inconsistent statement made before the
trial [only] to help you decide how believable a witness’
testimony was here in court. [If an earlier statement
was made under oath, then you can also consider the
earlier statement as evidence of the truth of whatever
the witness said in the earlier statement.]
Committee Comment
See, e.g., United States v. Severson, 49 F.3d 268, 272 (7th Cir.
1995) (prior inconsistent statement not given under oath is admis-
sible only for purposes of impeachment); United States v. Dietrich,
854 F.2d 1056, 1061 (7th Cir. 1988) (same); Fed. R. Evid.
801(d)(1)(A) (inconsistent statement given under oath at trial,
hearing or other proceeding, or deposition is not hearsay).
The bracketed word “only” in the second sentence should be
included if the prior inconsistent statement is admitted only for
purposes of impeachment. See Fed. R. Evid. 801(d)(1).
3.03
CRIMINAL INSTRUCTIONS
39
3.04 PRIOR INCONSISTENT STATEMENT BY
DEFENDANT
You have heard evidence that before the trial, [the;
a] defendant made [a] statement[s] that may be incon-
sistent with his testimony here in court. You may
consider an inconsistent statement by [the; a] defendant
made before the trial to help you decide how believable
the defendant’s testimony was here in court, and also
as evidence of the truth of whatever the defendant said
in the earlier statement.
Committee Comment
The court should give this instruction only if a defendant testi-
fies and inconsistent statements by that defendant are admitted
that qualify for substantive use under Fed. R. Evid. 801(d)(2)(A).
The court may, if appropriate, craft instructions applicable to state-
ments of others attributable to and admitted substantively against
a defendant under one of the other subsections of Rule 801(d)(2).
3.04
GENERAL INSTRUCTIONS
40
3.05 WITNESSES REQUIRING SPECIAL
CAUTION
You have heard testimony from [a witness; wit-
nesses; name(s) of witness(es)] who:
[- [was; were] [promised; received; expected] [a]
benefit[s] in return for his [testimony; cooperation
with the government];]
[- has [admitted; been convicted of] lying under
oath;]
[- has [pled guilty to being; stated that he was]
involved in [one; some] of the crime[s] the defendant
is charged with committing. [You may not consider
his guilty plea as evidence against the defendant.]]
You may give [this witness’; these witnesses’]
testimony whatever weight you believe is appropriate,
keeping in mind that you must consider that testimony
with caution and great care.
Committee Comment
Witness given or promised a benefit: The Supreme Court
observed, in On Lee v. United States, 343 U.S. 747, 757 (1952),
that the use of informers “may raise serious questions of credibility.
To the extent that they do, a defendant is entitled to . . . have the
issues submitted to the jury with careful instructions.” The Court
has never specifically articulated what is to be included in these
“careful instructions,” but in Hoffa v. United States, 385 U.S. 293,
311–12 & n.14 (1966), it approved an instruction in which the trial
judge told the jury to “[c]onsider . . . any relation each witness
may bear to either side of the case . . . All evidence of a witness
whose self-interest is shown from either benefits received, detri-
ments suffered, threats or promises made, or any attitude of the
witness which might tend to prompt testimony either favorable or
unfavorable to the accused should be considered with caution and
weighed with care.”
Former Seventh Circuit Pattern Criminal Jury Instruction No.
3.13 (1999) included a specific reference to immunity. The Commit-
tee has concluded that immunity is a form of benefit that is covered
by the more general “benefit” referenced in this instruction.
3.05
CRIMINAL INSTRUCTIONS
41
Witness who has pled guilty: This instruction is recommended
for use in trials in which a witness testifies after pleading guilty to
an offense arising from the same occurrence for which the
defendant is on trial, and the jury learns of the plea. Such evi-
dence may only be used for the purpose of impeachment or to
reflect on the credibility of the witness. The instruction is neces-
sary due to the possibility that an uninstructed jury may infer that
the witness’ guilty plea is indicative of the defendant’s guilt. See
United States v. Johnson, 26 F.3d 669, 677–80 (7th Cir. 1994). At
the defendant’s request, this instruction should be given im-
mediately after the plea is admitted and repeated at the end of the
trial. Id.; see also United States v. Carraway, 108 F.3d 745, 756
(7th Cir. 1997).
3.05
GENERAL INSTRUCTIONS
42
3.06 IMPEACHMENT BY PRIOR CONVICTION
(a)
You may consider evidence that the defendant was
convicted of a crime only in deciding the believability of
his testimony. [You may not consider it for any other
purpose.] [The other conviction[s] [is; are] not evidence
of whether the defendant is guilty of [the; any] crime he
is charged with in this case.]
(b)
You may consider evidence that a witness was
convicted of a crime only in deciding the believability of
his testimony. You may not consider it for any other
purpose.
Committee Comment
The final sentences of instruction (a) are bracketed to account
for cases in which the prior conviction is an element of the offense
for which the defendant is on trial.
Some offenses require proof of a prior conviction as an element.
E.g., 18 U.S.C. 922(g) and (h). The defendant’s commission of an-
other crime may also be admissible to prove motive, opportunity,
intent and the like. See Fed. R. Evid. 404(b). In such cases this
instruction should not be given. Instead, the jury should be specifi-
cally instructed on the purpose for which the evidence may be
considered. See Pattern Instruction 3.11.
3.06
CRIMINAL INSTRUCTIONS
43
3.07 CHARACTER EVIDENCE REGARDING
WITNESS
You have heard testimony about [name]’s character
for [truthfulness; untruthfulness]. You may consider
this evidence only in deciding the believability of
[name]’s testimony and how much weight to give to it.
Committee Comment
See Fed. R. Evid. 404(a)(2), 404(a)(3), and 608.
3.07
GENERAL INSTRUCTIONS
44
3.08 CHARACTER EVIDENCE REGARDING
DEFENDANT
You have heard testimony about [the defendant’s;
defendant [name]’s] [good character; character for [list
characteristic, trait or attribute]]. You should consider
this testimony together with and in the same way you
consider the other evidence.
Committee Comment
See Fed. R. Evid. 404(a)(1). Until 1985, the Seventh Circuit
adhered to the idea that when evidence of the defendant’s good
character was introduced, an instruction was required stating that
such evidence “standing alone” could provide a reasonable doubt
regarding the defendant’s guilt. See United States v. Donnelly, 179
F.2d 227, 233 (7th Cir. 1950). This requirement rested on a read-
ing of Edgington v. United States, 164 U.S. 361 (1896), and Michel-
son v. United States, 335 U.S. 469 (1948). However, in United
States v. Burke, 781 F.2d 1234, 1238–42 (7th Cir. 1985), the court
abandoned the “standing alone” instruction:
The “standing alone” instruction conveys to the jury the sense
that even if it thinks the prosecution’s case compelling, even if
it thinks the defendant a liar, if it also concludes that he has a
good reputation this may be the “reasonable doubt” of which
other instructions speak. A “standing alone” instruction invites
attention to a single bit of evidence and suggests to jurors that
they analyze this evidence all by itself. No instruction flags
any other evidence for this analysis—not eyewitness evidence,
not physical evidence, not even confessions. There is no good
reason to consider any evidence “standing alone.”
Id. at 1239 (emphasis in original).
While Burke makes clear that a “standing alone” instruction is
never required, the court has said that it may sometimes be
permissible, though it has not identified circumstances in which
that might be the case. See United States v. Ross, 77 F.3d 1525,
1538 (7th Cir. 1996) (“This Court has repeatedly held that such an
instruction, while sometimes allowable, is never necessary.”);
Burke, 781 F.2d at 1242 n.5. Several other Circuits also recognize
that there may be situations in which the instruction can be used.
See United States v. Pujana-Mena, 949 F.2d 24, 27–32 (2d Cir.
1991); United States v. Winter, 663 F.2d 1120, 1147–49 (1st Cir.
1981); United States v. Spangler, 838 F.2d 85, 87–88 (3d Cir. 1988);
United States v. Foley, 598 F.2d 1323, 1336–37 (4th Cir. 1979).
3.08
CRIMINAL INSTRUCTIONS
45
3.09 STATEMENT BY DEFENDANT
You have [heard testimony; received evidence] that
[the defendant; defendant [name]] made a statement to
[name of person or agency]. You must decide whether
[the defendant; defendant [name]] actually made the
statement and, if so, how much weight to give to the
statement. In making these decisions, you should
consider all of the evidence, including the defendant’s
personal characteristics and circumstances under which
the statement may have been made.
[You may not consider the statement of defendant
[name] as evidence against [the; any] other defendant.]
Committee Comment
This instruction is intended to apply only to statements made
by a defendant to law enforcement. See United States v. Broeske,
178 F.3d 887, 889–90 (7th Cir. 1999).
The second paragraph is in brackets because it should not be
given in a single-defendant case.
This instruction utilizes the word “statement” in place of words
such as “admission” and “confession.” In United States v. Gardner,
516 F.2d 334, 346 (7th Cir. 1975), the court said that “the word
‘statements’ is a more neutral description than ‘confession’, and
should be used in its place in future instructions unless the state-
ments can be considered a ‘complete and conscious admission of
guilt—a strict confession.’ ’’ The use of the term “statement” in all
such instructions eliminates the need for additional debate or liti-
gation regarding whether a particular statement fits the definition
of a “strict confession” under Gardner.
The instruction assumes that the trial court has rejected any
challenge to the voluntariness of the defendant’s statement, follow-
ing a hearing comporting with the requirements of Jackson v.
Denno, 378 U.S. 368 (1964), and 18 U.S.C. § 3501. Consequently,
reconsideration of the voluntariness issue by the jury is not
required. Lego v. Twomey, 404 U.S. 477 (1972).
As required by 18 U.S.C. § 3501, the instruction directs the
jurors to make a determination as to the weight, if any, to be given
to a statement after considering factors having to do with the
3.09
GENERAL INSTRUCTIONS
46
defendant’s personal characteristics and the conditions under
which the statement was made. “Evidence about the manner in
which a confession was secured will often be germane to its proba-
tive weight, a matter that is exclusively for the jury to assess.”
Crane v. Kentucky, 476 U.S. 683, 688 (1986). It is the Committee’s
view that the specific factors set forth in 18 U.S.C. § 3501 should
not be set forth in the instruction, but, rather, should be left to
argument by counsel. Inclusion of all possible subjects of consider-
ation in a general instruction might result in the inclusion of irrel-
evant factors in many cases, while recitation of only few common
factors might cause undue emphasis on those particular factors.
This instruction does not cover vicarious or adoptive admis-
sions or statements made in furtherance of a conspiracy or joint
venture.
3.09
CRIMINAL INSTRUCTIONS
47
3.10 DEFENDANT’S SILENCE IN THE FACE OF
ACCUSATION
You have heard evidence that [name of person] ac-
cused the defendant of [the; a] crime charged in the
indictment and that the defendant did not [deny; object
to; contradict] the accusation. If you find that the
defendant was present and heard and understood the
accusation, and that the accusation was made under
such circumstances that the defendant would [deny;
object to; contradict] it if it were not true, then you may
consider whether the defendant’s silence was an admis-
sion of the truth of the accusation.
Committee Comment
If a defendant is in custody, his silence in the face of an ac-
cusatory statement made by a law enforcement official cannot be
considered an admission of the truth of the statements. Such evi-
dence should not be received, and as a result, no instruction is nec-
essary to cover the point. See Doyle v. Ohio, 426 U.S. 610 (1976).
More difficult issues arise, however, when the accusatory state-
ment is not made by a law enforcement official or when the
defendant is not in custody. See generally Charles W. Gamble, The
Tacit Admission Rule: Unreliable and Unconstitutional—A
Doctrine Ripe For Abandonment, 14 Ga. L. Rev. 27 (1979) (criticiz-
ing admission of such evidence under any circumstances). A
defendant’s silence in the face of an accusation while not in custody
is not subject to the rule of Doyle. See Brecht v. Abrahamson, 507
U.S. 619 (1993); United States v. Jumper, 497 F.3d 699, 704 (7th
Cir. 2007); Greer v. Miller, 483 U.S. 756, 763–65 (1987).
Under Fed. R. Evid. 801(d)(2)(B), before silence can be
considered to be an admission, the court must consider whether
the defendant was present and heard and understood the state-
ment and had an opportunity to deny it but did not do so. See, e.g.,
United States v. Ward, 377 F.3d 671, 675 (7th Cir. 2004).
3.10
GENERAL INSTRUCTIONS
48
3.11 EVIDENCE OF OTHER ACTS BY
DEFENDANT
You have heard [testimony; evidence] that the
defendant committed acts other than the ones charged
in the indictment. Before using this evidence, you must
decide whether it is more likely than not that the
defendant took the actions that are not charged in the
indictment. If you decide that he did, then you may
consider that evidence to help you decide [describe with
particularity the purpose for which other act evidence
was admitted, e.g. the defendant’s intent to distribute
narcotics, absence of mistake in dealing with the al-
leged victim, etc.]. You may not consider this evidence
for any other purpose. To be more specific, you may not
use the evidence to conclude that, because the defendant
committed an act in the past, he is more likely to have
committed the crime[s] charged in the indictment. The
reason is that the defendant is not on trial for these
other acts. Rather, he is only on trial for [list charges
alleged in the indictment]. The government has the
burden to prove beyond a reasonable doubt the elements
of the crime[s] charged in the indictment. This burden
cannot be met with an inference that the defendant is a
person whose past acts suggest bad character or a
willingness or tendency to commit crimes.
Committee Comment
See Fed. R. Evid. 404(b) (admissibility of other act evidence
for limited purposes); see, e.g., United States v. Perkins, 548 F.3d
510, 514 (7th Cir. 2008) (jury must find that the defendant com-
mitted the act in question). Other act evidence may be admitted to
show, among other things, predisposition, motive, opportunity,
intent, preparation, plan, knowledge, identity, presence, or absence
of mistake or accident.
This instruction may also be given during the trial at the time
the evidence is introduced provided that the court has first
consulted with defense counsel about whether the defense wants a
limiting instruction. United States v. Gomez, 763 F.3d 845, 860
(7th Cir. 2014) (en banc).
3.11
CRIMINAL INSTRUCTIONS
49
“When given, the limiting instruction should be customized to
the case rather than boilerplate.” Id. In other words, the judge
should, to the extent feasible, identify the other-act evidence in
question and describe with particularity the issue(s) on which it
has been admitted, as more fully discussed in the remainder of
this Comment. The judge should take care to describe the evidence
in a neutral fashion and to avoid giving it additional weight. In ad-
dition, the judge should consult counsel about whether and when
to give a limiting instruction; the Seventh Circuit has “caution[ed]
against judicial freelancing in this area.” Id. In some situations,
the defense may prefer “to let the evidence come in without the
added emphasis of a limiting instruction,” and if so the judge
should not preempt this. Id.; see also United States v. Lawson, 776
F.3d 519, 522 (7th Cir. 2015) (“[T]he choice whether to give a limit-
ing instruction rests with the defense, which may decide that the
less said about the evidence the better.”).
In United States v. Miller, 673 F.3d 688 (7th Cir. 2012), the
court counseled against “leaving juries to decode for themselves
how they may properly consider admissible bad acts evidence” and
encouraged trial judges to include “a case-specific explanation of
the permissible inference—with the requisite care not to af-
firmatively credit that inference.” 673 F.3d at 702 n.1. This instruc-
tion contemplates that the trial judge will do exactly that, insert-
ing into the bracket in the third sentence a description of the
issue(s) on which the other-act evidence has been admitted. This
will help focus the jury on the fact that the identified purpose for
consideration of the evidence is the sole purpose for which it may
consider the evidence. As counseled in Miller, the description of
the basis for which the other-act evidence is offered should be as
focused as reasonably possible under the circumstances, and where
possible, courts should avoid using overly general language. Miller
indicates that a general instruction along the lines that other-act
evidence may be considered “on the questions of knowledge and
intent” may be unduly vague and may invite the jury to consider
the evidence for impermissible purposes. See id. The cautionary
language at the end of the instruction is included for the same
reasons and to avoid misuse of “other act” evidence. See, e.g., Sixth
Circuit Criminal Instruction 7.13; Eighth Circuit Criminal Instruc-
tions 2.08 & 2.09.
In United States v. Gomez, 763 F.3d 845 (7th Cir. 2014) (en
banc), the court abandoned the four-part test for admissibility
under Rule 404(b), originally set forth in United States v. Zapata,
871 F.2d 616, 620 (7th Cir. 1989). Gomez adopted “a more
straightforward rules-based approach,” which is summarized as
follows:
[T]o overcome an opponent’s objection to the introduction
3.11
GENERAL INSTRUCTIONS
50
of other-act evidence, the proponent of the evidence must first
establish that the other act is relevant to a specific purpose
other than the person’s character or propensity to behave in a
certain way. See Fed. R. Evid. 401, 402, 404(b). Other-act evi-
dence need not be excluded whenever a propensity inference
can be drawn. But its relevance to “another purpose” must be
established through a chain of reasoning that does not rely on
the forbidden inference that the person has a certain character
and acted in accordance with that character on the occasion
charged in the case. If the proponent can make this initial
showing, the district court must in every case assess whether
the probative value of the other-act evidence is substantially
outweighed by the risk of unfair prejudice and may exclude
the evidence under Rule 403 if the risk is too great. The court’s
Rule 403 balancing should take account of the extent to which
the non-propensity fact for which the evidence is offered actu-
ally is at issue in the case.
Id. at 853, 860.
Gomez also counseled against keeping the jury in the dark
about the rationale for the rule against propensity inferences and
suggested that jurors should be explicitly told why they must not
use the other-act evidence to infer that the defendant has a certain
“character” and acted “in character” in the present case. Id. at 861.
This instruction does just that, while also reminding the jury that
the government bears the burden of proving every element of the
specific crime charged beyond a reasonable doubt.
In United States v. Morgan, 929 F.3d 411 (7th Cir. 2019), the
jury instructions did not include the specific directives from the
pattern jury instructions that were designed to inform the jury to
avoid using the evidence as propensity or character evidence. The
court found that omission to be an error, albeit one that the defense
waived. The court counseled that jurors should be told directly
that they must not use the other-act evidence to infer that the
defendant has a certain character and acted in character in the
present case because it does not follow from the defendant’s past
acts that he committed the particular crime charged in the case.
This instruction does not apply to evidence admitted pursuant
to Fed. R. Evid. 413 or 414, under which a prior act of sexual as-
sault or child molestation by the defendant may be considered for
“its bearing on any matter to which it is relevant.” If evidence was
admitted pursuant to Rules 413 or 414, this instruction should be
modified to exempt that evidence from its limitations, and a sepa-
rate instruction should be given to address the Rule 413 or 414
evidence.
3.11
CRIMINAL INSTRUCTIONS
51
3.12 IDENTIFICATION TESTIMONY
You have heard testimony of an identification of a
person. Identification testimony is an expression of the
witness’s belief or impression. In evaluating this
testimony, you should consider the opportunity the wit-
ness had to observe the person at the time [of the of-
fense] and to make a reliable identification later. You
should also consider the circumstances under which the
witness later made the identification.
The government must prove beyond a reasonable
doubt that the defendant is the person who committed
the crime that is charged.
Committee Comment
In Perry v. New Hampshire, 565 U.S. 228 (2012), the Supreme
Court acknowledged the possibility of eyewitness misidentification
but held that trial courts are not required to make a preliminary
determination of the admissibility of an identification unless sug-
gestive circumstances exist that are the result of law enforcement
conduct. In doing so, the Court observed that “the jury, not the
judge, traditionally determines the reliability of evidence.” id. at
245. The Court also relied on the protections provided by
“[e]yewitness-specific jury instructions, which many federal and
state courts have adopted, [which] likewise warn the jury to take
care in appraising identification evidence,” id. at 246, n. 7 (collect-
ing pattern instruction cites, including Seventh Circuit Pattern
Criminal Jury Instruction 3.08 (1999)), as well as the requirement
that the Government prove the defendant’s guilt beyond a reason-
able doubt, id. at 247.
A specific instruction on witness identification must be given
when identification is at issue. United States v. Hall, 165 F.3d
1095, 1007 (7th Cir. 1999) (citing United States v. Anderson, 739
F.2d 1254, 1257–58 (7th Cir. 1984)). This instruction, derived from
the instruction recommended in United States v. Telfaire, 469 F.2d
552 (D.C. Cir. 1972), cautions the jury to weigh carefully the cir-
cumstances surrounding the identification before reaching a
conclusion. See United States v. Crotteau, 218 F.3d 826, 833 (7th
Cir. 2000) (approving earlier version of this instruction).
It has long been the practice in this Circuit to leave to argu-
ment the factors that may bear on the accuracy of an eyewitness
identification. The Committee notes, however, that there has been
3.12
GENERAL INSTRUCTIONS
52
some support expressed for judicial instruction on such points. See
Hall, 165 F.3d at 1120 (Easterbrook, J., concurring). A judge may
consider whether it is appropriate in a given case to supplement
this instruction by identifying a specific factor or factors for the
jury’s consideration.
The phrase “of the offense” in the first paragraph is bracketed
because identification testimony does not always involve an eye-
witness to the offense itself.
A court may, but is not required to, admit expert testimony
regarding the reliability of eyewitness testimony. See United States
v. Carter, 410 F.3d 942, 950 (7th Cir. 2005).
3.12
CRIMINAL INSTRUCTIONS
53
3.13 OPINION TESTIMONY
You have heard a witness, namely, [name of wit-
ness], who gave opinions and testimony about [certain
subject(s); specify the subject(s), if possible]. You do not
have to accept this witness’s [opinions; testimony]. You
should judge this witness’s opinions and testimony the
same way you judge the testimony of any other witness.
In deciding how much weight to give to these opinions
and testimony, you should consider the witness’s
qualifications, how he reached his [opinions; conclu-
sions], and the factors I have described for determining
the believability of testimony.
Committee Comment
Plural forms should be used if more than one opinion witness
testifies.
The term “expert” and the prior pattern instruction’s reference
to witnesses with “special knowledge or skill” have been omitted to
avoid the perception that the court credits the testimony of such a
witness or the witness’s qualifications.
Some jurisdictions do not offer a standard instruction on
expert testimony. The Illinois Pattern Jury Instructions recom-
mend that no instruction be given on this subject, beyond the
instruction regarding believability of witnesses generally. See IPI
Criminal 3.18 (2020). Similarly, the Indiana Pattern Jury Instruc-
tions do not include a specific instruction on the subject. The gen-
eral instruction relating to the jury’s role in determining the weight
and credibility of witnesses is thought to be sufficient in the courts
of those States. Nevertheless, the danger that an expert’s
testimony will be given undue weight by the jury does exist. See
United States v. Brawner, 471 F.2d 969 (D.C. Cir. 1972) (noting
the influence of expert testimony in prosecutions in which the
defendant’s sanity is an issue); United States v. Gold, 661 F. Supp.
1127, 1129–30 (D.D.C. 1987) (same). The Committee believes that
it is appropriate to give the jury a specific instruction that an
expert’s opinion should be evaluated along with all other evidence.
If the court wishes to give an instruction concerning the jury’s
consideration of lay opinion testimony, this instruction may be
adapted for that purpose by eliminating the reference to “the
witness’s qualifications” as a factor to be considered.
3.13
GENERAL INSTRUCTIONS
54
3.13(a) DUAL-CAPACITY WITNESS TESTIMONY
You have heard a witness, namely, [name of wit-
ness], who gave two kinds of testimony. First, the wit-
ness gave testimony regarding matters that he testified
he saw or heard, specifically [add description]. Second,
the witness gave opinion[s] and testimony based on his
training and experience [add description]. The witness’s
training and experience does not make his testimony
regarding what he saw or heard any more reliable than
that of any other witness.
Part of your job as jurors is to decide how believ-
able this witness was, and how much weight to give his
testimony. You may accept all of what the witness said,
or part of it, or none of it. You should judge this
witness’s testimony the same way you judge the
testimony of any other witness, with one addition. In
judging this witness’s testimony and opinions about
[expert subject], in deciding how much weight to give to
these opinions and testimony, you should also consider
the witness’s qualifications, and how he reached his
[opinions; conclusions].
Committee Comment
In United States v. Jett, 908 F.3d 252 (7th Cir. 2018), the
court counseled that a pattern instruction was needed to deal with
dual-capacity witness testimony that “better informs the jury of its
task—to weigh expert testimony and lay testimony separately
under their respective standards.” Id. at 269. The court suggested
that the way to avoid juror confusion was to have the dual-capacity
witness give his lay testimony and his expert testimony separately.
In addition, in describing how to handle the expert testimony of a
dual-capacity case agent, Jett counseled:
When the expert portion of the case agent’s testimony begins,
the district judge should allow the government to lay its
foundation and establish the agent’s qualifications. After it
does, the district judge should instruct the jury that the
testimony it is about to hear is the witness’s opinion based on
training and experience, not firsthand knowledge, and that it
is for the jury to determine how much weight, if any, to give
that opinion.
3.13(a)
CRIMINAL INSTRUCTIONS
55
Id. at 269–270.
United States v. Thomas, No. 19-2129, slip op. at 7 (7th Cir.
2020), indicates that the logic in Jett applies to all dual-capacity
witnesses (e.g., an engineer who testifies about his firsthand
involvement in designing a product as well as his expert opinion
about a competitor’s design). Thus, the party presenting a dual-
capacity witness should be required to divide the witness’s
testimony into two sections (firsthand as opposed to knowledge
based on training or experience) and explain the difference. The
two kinds of testimony may be offered at different points in the
trial, or consecutively. If offered consecutively, the court should al-
low cross-examination at the conclusion of each segment.
The Committee recommends that this instruction also be given
at the time of the witness’s testimony, as a cautionary instruction.
3.13(a)
GENERAL INSTRUCTIONS
56
3.14 RECORDED CONVERSATIONS/
TRANSCRIPTS
You have [heard [a] recorded conversation[s]; seen
[a] video recording[s]]. This is proper evidence that you
should consider together with and in the same way you
consider the other evidence.
[You were also given transcripts of the conversa-
tion[s] [on the video recording[s]] to help you follow the
recording[s] as you listened to [it; them]. The record-
ing[s] are the evidence of what was said and who said
it. The transcripts are not evidence. If you noticed any
differences between what you heard in a conversation
and what you read in the transcripts, your understand-
ing of the recording is what matters. In other words,
you must rely on what you heard, not what you read.
And if you could not hear or understand certain parts
of a recording, you must ignore the transcripts as far as
those parts are concerned. [You may consider a person’s
actions, facial expressions, and lip movements that you
are able to observe on a video recording to help you
determine what was said and who said it.]]
[I am providing you with the recording[s] and a de-
vice with instructions on its use. It is up to you to decide
whether to listen to [the; a] recording during your
deliberations. You may, if you wish, rely on your recol-
lections of what you heard during the trial.]
[If, during your deliberations, you wish to have an-
other opportunity to view [a; any] transcript[s][as you
listen to a recording], send a written message to the
[marshal; court security officer], and I will provide you
with the transcript[s].]
Committee Comment
The word “proper” is used in the first paragraph to avoid jury
speculation regarding the propriety of recording conversations or
3.14
CRIMINAL INSTRUCTIONS
57
introducing them into evidence. See United States v. McGee, 612
F.3d 627, 630 (7th Cir. 2010). It should be noted, however, that in
United States v. Cunningham, 462 F.3d 708, 712–15 (7th Cir. 2006),
the court concluded that it was error to admit evidence regarding
the process of court approval for interception of wire
communications.
The second paragraph of the instruction, concerning the use of
transcripts, is in brackets because in some cases it is stipulated or
undisputed that the transcripts are accurate. In such cases, there
is no need to instruct the jury that the transcripts may be used
only for limited purposes.
The fourth paragraph of the instruction is bracketed because
some judges may prefer to allow the jury to take all of the
transcripts along with the exhibits admitted in evidence. No par-
ticular practice is recommended in this regard.
3.14
GENERAL INSTRUCTIONS
58
3.15 FOREIGN LANGUAGE RECORDINGS/
ENGLISH TRANSCRIPTS
During the trial, [list name of language] language
recordings were admitted in evidence. You were also
given English transcripts of those recordings so you
could consider the contents of the recordings. It is up to
you to decide whether a transcript is accurate, in whole
or in part. You may consider the translator’s knowl-
edge, training, and experience, the nature of the
conversation, and the reasonableness of the translation
in light of all the evidence in the case. You may not rely
on any knowledge you may have of the [name] language.
Rather, your consideration of the transcripts should be
based on the evidence introduced in the trial.
[You may consider a person’s actions, facial expres-
sions, and lip movements that you are able to observe
on a video recording to help you determine what was
said and who said it.]
Committee Comment
This instruction is not required if the parties stipulate to the
accuracy of the translation of a non-English-language recording.
3.15
CRIMINAL INSTRUCTIONS
59
3.16 SUMMARIES RECEIVED IN EVIDENCE
Certain [summaries; charts] were admitted in
evidence. [You may use those [summaries; charts] as
evidence [even though the underlying [documents; evi-
dence] are not here].]
[The accuracy of the [summaries; charts] has been
challenged. [The underlying [documents; evidence] [has;
have] also been admitted so that you may determine
whether the [summaries; charts] are accurate.]]
[It is up to you to decide how much weight to give
to the [summaries; charts].
Committee Comment
See Fed. R. Evid. 1006. For an undisputed summary, only the
first two sentences should be given. For a disputed summary, the
entire instruction should be given, except for the second sentence
of the first paragraph.
In United States v. White, 737 F.3d 1121 (7th Cir. 2013), the
court provided an overview of summary exhibits offered and admit-
ted pursuant to Rule 1006, and distinguished such exhibits from
demonstrative summaries offered pursuant to Fed. R. Evid. 611(a),
which are addressed in pattern instruction 3.17, infra. A party
may introduce information by means of a summary exhibit under
Rule 1006 to prove the content of voluminous documents that can-
not be conveniently examined by the court. If admitted this way,
then the summary itself is admissible evidence, in part because
the party is not obligated to introduce the underlying documents
themselves. Because a Rule 1006 summary is intended to substi-
tute for the voluminous documents, the exhibit must accurately
summarize those documents. It must not misrepresent their
contents or make arguments about the inferences the jury should
draw from them. White, 737 F.3d at 1135.
3.16
GENERAL INSTRUCTIONS
60
3.17 DEMONSTRATIVE SUMMARIES/CHARTS
NOT RECEIVED IN EVIDENCE
Certain [summaries; charts] were shown to you to
help explain other evidence that was admitted. [Specifi-
cally identify the demonstrative exhibit, if appropriate].
These [summaries; charts] are not themselves evidence
or proof of any facts [, so you will not have these partic-
ular [summaries; charts] during your deliberations]. [If
they do not correctly reflect the facts shown by the evi-
dence, you should disregard the [summaries; charts]
and determine the facts from the underlying evidence.]
Committee Comment
The last sentence should only be given if there is a dispute
about whether a particular demonstrative exhibit is accurate.
The Committee suggests that this instruction as given should
identify the demonstrative exhibit(s) by name, and not just by
number. In addition, the court may wish to give this instruction
during trial when the demonstrative exhibit is used, so that the
jurors are made aware that they will not have the exhibit avail-
able during deliberations.
In United States v. White, 737 F.3d 1121 (7th Cir. 2013), the
court provided an overview of demonstrative exhibits offered as
“pedagogical summaries” that may be allowed under Fed. R. Evid.
611(a), which gives the court “control over the mode . . . [of] pre-
senting evidence.” The court distinguished such exhibits from sum-
maries admitted into evidence under Fed. R. Evid. 1006. Pedagogi-
cal summaries are meant to facilitate the presentation of evidence
already in the record and thus are not themselves admissible
evidence. Instead, such summaries are meant to aid the jury in its
understanding of evidence that has been admitted and thus may
be more slanted in presenting information than a summary admit-
ted under Rule 1006. Allowing such an exhibit is within the district
court’s discretion, but when the court allows an exhibit of this sort,
it should instruct the jury that the exhibit is not evidence and is
meant only aid the jury in its evaluation of other evidence. White,
737 F.3d at 1135.
3.17
CRIMINAL INSTRUCTIONS
61
3.18 JUROR NOTE-TAKING
If you have taken notes during the trial, you may
use them during deliberations to help you remember
what happened during the trial. You should use your
notes only as aids to your memory. The notes are not
evidence. All of you should rely on your independent
recollection of the evidence, and you should not be un-
duly influenced by the notes of other jurors. Notes are
not entitled to any more weight than the memory or
impressions of each juror.
Committee Comment
This instruction is adapted from Seventh Circuit Pattern Civil
Jury Instruction 1.07.
3.18
GENERAL INSTRUCTIONS
62
3.19 GOVERNMENT INVESTIGATIVE
TECHNIQUES
You have heard evidence obtained from the govern-
ment’s use of [undercover agents; informants; deceptive
investigative techniques]. The government is permitted
to use these techniques. You should consider evidence
obtained this way together with and in the same way
you consider the other evidence.
Committee Comment
In United States v. McKnight, 665 F.3d 786, 790–95 (7th Cir.
2011), the court did not find the giving of an instruction that ad-
dressed similar issues to be prejudicial or an abuse of discretion in
that case. However, the court expressed concern about the dangers
of giving such an instruction in a case in which the defense raises
no issues at the trial regarding the propriety of deceptive investiga-
tive techniques. See also United States v. McKnight, 671 F.3d 664
(7th Cir. 2012) (Posner, J., joined by Kanne, J. and Williams, J.,
dissenting from denial of rehearing en banc). Although the McK-
night panel did not expressly approve the language of the instruc-
tion given in that case, the Committee has drafted one.
The instruction is worded so that it minimizes the appearance
of a judicial imprimatur on particular techniques. Nevertheless,
this possibility will exist if the trial judge gives any instruction on
this issue. See McKnight, 665 F.3d at 794 (“There is . . . a pos-
sibility that singling out this aspect of the case might be interpreted
by the jurors as at least indirect approval of the effectiveness of
the Government’s management of the investigation.”). For this
reason, this instruction need not and should not be given as a mat-
ter of course in every case involving undercover or deceptive
investigative techniques. Rather, it is intended for use only in the
rare case in which questioning or argument, or a statement during
jury selection, or some other circumstance arising or existing dur-
ing trial suggests the impropriety of such techniques.
When nothing like that occurs, raising the issue in an instruc-
tion is likely to distract the jury from other instructions that ad-
dress matters that actually are at issue. See, e.g., United States v.
Hill, 252 F.3d 919, 923 (7th Cir. 2001) (“Unless it is necessary to
give an instruction, it is necessary not to give it, so that the
important instructions stand out and are remembered.”), cited in
McKnight, 665 F.3d at 794. If such an instruction is given, it is
important for the trial judge to explain the reasons for doing so in
3.19
CRIMINAL INSTRUCTIONS
63
the record. Id. at 794. See also McKnight, 671 F.3d at 668–669
(7th Cir. 2012).
Additional reasons to exercise caution in giving this instruc-
tion are to avoid undercutting appropriate argument that a
witness’s deceptive act may be considered in assessing the
witness’s credibility, see, e.g., Fed. R. Evid. 608(b), and to avoid
conflict with other instructions, such as those that advise the jury
to consider all of the surrounding circumstances (which may
include deception) in assessing a defendant’s confession or
identification testimony. See Instructions 3.09 & 3.12.
In addition, in a case in which an entrapment instruction is
given and this instruction (3.19) is requested, consideration should
be given to rewording this instruction so that it does not implicitly
modify or undercut the entrapment instruction. See Instructions
6.04 & 6.05.
3.19
GENERAL INSTRUCTIONS
64
4.01 BURDEN OF PROOF—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [name of offense]. In order for you to find [the; a]
defendant guilty of this charge, the government must
prove each of the [fill in number of elements] following
elements beyond a reasonable doubt:
1.
and
2.
and
3.
4. [Addressing any issues raised by an affirmative
defense on which the government bears the burden of
proof, e.g., entrapment.]
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove one or more of these elements beyond a rea-
sonable doubt [as to the charge you are considering],
then you should find the defendant not guilty [of that
charge].
4.01
CRIMINAL INSTRUCTIONS
65
4.02 BURDEN OF PROOF IN CASE INVOLVING
INSANITY DEFENSE—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [name of offense]. In order for you to find [the; a]
defendant guilty of this charge, the government must
prove each of the [fill in number of elements] following
elements beyond a reasonable doubt:
1.
and
2.
and
3.
If you find from your consideration of all the evi-
dence that the government has failed to prove one or
more of these elements beyond a reasonable doubt [as
to the charge you are considering], then you should find
the defendant not guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has proved
each of these elements beyond a reasonable doubt [as to
the charge you are considering], then you should find
the defendant guilty [of that charge], unless you decide
that the defendant is not guilty by reason of insanity.
If the defendant has proved the defense of insanity
by clear and convincing evidence [as to the charge you
are considering], then you should find the defendant
not guilty [of that charge] by reason of insanity. Clear
and convincing evidence is not as high a burden as proof
beyond a reasonable doubt.
4.02
GENERAL INSTRUCTIONS
66
[Insert definition of insanity from Pattern Instruc-
tion 6.02.]
Committee Comment
This instruction is parallel to the general elements instruction.
The Seventh Circuit has not had occasion to define “clear and
convincing” evidence as that term is used in the insanity statute.
The court has stated in another context, however, that ‘‘ ‘highly
probable’ . . . is the Supreme Court’s definition of . . . ‘clear and
convincing evidence.’ ’’ United States v. Boos, 329 F.3d 907, 911
(7th Cir. 2003) (citing Colorado v. New Mexico, 467 U.S. 310 (1984)).
The contrast with the requirement of proof beyond a reasonable
doubt is taken from Sixth Circuit Instruction 6.04 and is used so
that the jury is aware of the different level of proof required.
4.02
CRIMINAL INSTRUCTIONS
67
4.03 BURDEN OF PROOF IN CASE INVOLVING
COERCION DEFENSE—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [name of offense]. In order for you to find [the; a]
defendant guilty of this charge, the government must
prove each of the [fill in number of elements] following
elements beyond a reasonable doubt:
1.
and
2.
and
3.
If you find from your consideration of all the evi-
dence that the government has failed to prove one or
more of these elements beyond a reasonable doubt [as
to the charge you are considering], then you should find
the defendant not guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has proved
each of these elements beyond a reasonable doubt [as to
the charge you are considering], then you should find
the defendant guilty [of that charge], unless the
defendant has proven the defense of coercion. If the
defendant has proven that it is more likely than not
that he was coerced, then you should find the defendant
not guilty [of that charge].
[Insert definition of coercion from Pattern Instruc-
tion 6.08]
4.03
GENERAL INSTRUCTIONS
68
Committee Comment
The defendant bears the burden of proving a coercion defense.
Dixon v. United States, 548 U.S. 1 (2006).
The “preponderance of the evidence” definition is adapted from
that offered in the Seventh Circuit Pattern Civil Jury Instructions.
4.03
CRIMINAL INSTRUCTIONS
69
4.04 UNANIMITY ON SPECIFIC ACTS
Count[s]
—
charge[s] the defendant with [fill in de-
scription of multiple acts, e.g., making more than one
false statement]. The government is not required to
prove that the defendant made every one of the [fill in
shorthand description, e.g., false statements] alleged in
[Count
—
; the particular Count you are considering].
However, the government is required to prove that the
defendant made at least one of the [fill in shorthand de-
scription, e.g., false statements] that is alleged in
[Count
—
; the particular Count]. To find that the
government has proven this, you must agree unani-
mously on which particular [shorthand description, e.g.,
false statements] the defendant made, as well as all of
the other elements of the crime charged.
[For example[, on Count
—
], if some of you were to
find that the government has proved beyond a reason-
able doubt that the defendant [fill in description of one
of the particular acts charged, e.g., made a false state-
ment regarding his taxable income], and the rest of you
were to find that the government has proved beyond a
reasonable doubt that the defendant [fill in description
of a different particular act charged, e.g., made a false
statement about the number of exemptions to which he
was entitled], then there would be no unanimous agree-
ment on which [shorthand description, e.g., false state-
ment] the government has proved. On the other hand,
if all of you were to find that the government has proved
beyond a reasonable doubt that the defendant [fill in
description of one of the particular acts charged, e.g.,
made a false statement regarding his taxable income],
then there would be a unanimous agreement on which
[shorthand description, e.g., false statement] the
government proved.]
Committee Comment
This instruction may apply when the government alleges in a
4.04
GENERAL INSTRUCTIONS
70
single count that the defendant violated the law in more than one
way. The law in this regard has developed significantly in recent
years. When Richardson v. United States, 526 U.S. 813 (1999), and
Schad v. Arizona, 501 U.S. 624, 631–32 (1991) (plurality opinion),
are read together, it appears that unanimity is required when the
government alleges more than one possibility for an element of the
crime (e.g., a false statement charge in which the government
charges that the defendant made one or more of three alleged false
statements), but not when the government contends that the
defendant committed an element of the crime using one or more of
several possible means (e.g., an armed robbery charge in which the
government charges that the defendant committed a robbery using
a knife, or a gun, or both). Richardson, 513 U.S. at 817.
The element/means distinction is not always clear. Some guid-
ance has been provided by the Seventh Circuit’s post-Richardson
cases. See, e.g., United States v. Griggs, 569 F.3d 341, 344 (7th Cir.
2009), which gives as examples of when a jury must be unanimous
on particular acts in situations in which a single count charges
multiple perjurious statements, multiple objects of a single con-
spiracy, and multiple predicate acts of an alleged continuing crim-
inal enterprise. By analogy, false statement-type charges (includ-
ing false tax return charges) that allege multiple false statements
in a single count and RICO charges listing a series of predicate
acts likely require a unanimity instruction, though there is no de-
finitive post-Richardson guidance from the Seventh Circuit on
charges of that sort. See also United States v. Mannava, 565 F.3d
412, 415–16 (7th Cir. 2009) (conviction under 18 U.S.C. § 2422(b),
which makes it a crime to induce a minor to engage in sexual
activity for which a person can be charged with a criminal offense,
requires unanimity regarding underlying state criminal offense
involved); United States v. Davis, 471 F.3d 783, 791 (7th Cir. 2006)
(if fraud charge alleges multiple schemes, unanimity regarding the
particular scheme is required). On the other hand, a jury need not
be unanimous on which overt act the defendants committed in
furtherance of a charged conspiracy. Griggs, 569 F.3d at 343–44.
In addition, the Seventh Circuit has held that specific unanimity is
not required when multiple false statements are alleged as part of
a scheme to defraud. See United States v. Daniel, 749 F.3d 608,
613–14 (7th Cir. 2014) (“the fraudulent representations or omis-
sions committed by [defendant] . . . were merely the means he
used to commit an element of the crime.”). In certain cases, where
the evidence (and the strength of the evidence) on false statements
or omissions is different enough that the jury might well split, it
might be appropriate to instruct the jury that there need not be
unanimity on the particular representation or omission.
If used, this instruction should be given in sequence to ac-
company the “elements” and definitional instructions for the par-
4.04
CRIMINAL INSTRUCTIONS
71
ticular count(s) to which it applies. If the instruction applies to
some counts but not others, the trial judge should include language
in the instruction identifying the counts to which the instruction
applies. The example provided in the second paragraph is optional
and, if given, should be adapted to the particular case.
4.04
GENERAL INSTRUCTIONS
72
4.05 DATE OF CRIME CHARGED
The indictment charges that [the crime[s]; insert
other description] happened “on or about” [date]. The
government must prove that the crime[s] happened rea-
sonably close to the date[s]. The government is not
required to prove that the crime[s] happened on [the;
those] exact date[s].
Committee Comment
This instruction is unnecessary in the average case in which
no discrepancy exists between the date charged in the indictment
and the date suggested by the evidence at trial.
If there is such a discrepancy, this instruction may be given if
the date suggested by the evidence falls within the applicable stat-
ute of limitations. See Ledbetter v. United States, 170 U.S. 606,
612 (1898); United States v. Leibowitz, 857 F.2d 373, 378 (7th Cir.
1988). Use of the phrase “on or about” in the indictment makes a
date reasonably near the date in the indictment sufficient, and
only a material variance will cause the government’s case to fail.
Leibowitz, 857 F.2d at 378.
There are two possible exceptions to this rule: (a) when the
date charged is an essential element of the offense and the
defendant was misled by such date in preparing a defense, see,
e.g., United States v. Bourque, 541 F.2d 290, 293–96 (1st Cir. 1976);
United States v. Cina, 699 F.2d 853, 859 (7th Cir. 1983); or (b)
when the defendant asserts an alibi defense for the specific date(s)
charged, see Leibowitz, 857 F.2d at 378–79.
4.05
CRIMINAL INSTRUCTIONS
73
4.06 SEPARATE CONSIDERATION—ONE
DEFENDANT CHARGED WITH MULTIPLE
CRIMES
[The; Certain] defendant[s] [has; have] been ac-
cused of more than one crime. The number of charges is
not evidence of guilt and should not influence your
decision.
You must consider each charge [and the evidence
concerning each charge] separately. Your decision on
one charge, whether it is guilty or not guilty, should not
influence your decision on any other charge.
Committee Comment
The bracketed language addressing “evidence concerning each
charge” should be given only when there is evidence that was
admitted only with respect to a particular charge or charges.
4.06
GENERAL INSTRUCTIONS
74
4.07 SEPARATE CONSIDERATION—MULTIPLE
DEFENDANTS CHARGED WITH SAME OR
MULTIPLE CRIMES
Even though the defendants are being tried to-
gether, you must consider each defendant [and the evi-
dence concerning that defendant] separately. Your deci-
sion concerning one defendant, whether it is guilty or
not guilty, should not influence your decision concern-
ing any other defendant.
Committee Comment
The bracketed language addressing “evidence concerning that
defendant” should be given only when there is evidence that was
admitted only with respect to less than all of the defendants.
4.07
CRIMINAL INSTRUCTIONS
75
4.08 PUNISHMENT
In deciding your verdict, you should not consider
the possible punishment for the defendant[s] [who [is;
are] on trial]. If you decide that the government has
proved [the; a] defendant guilty beyond a reasonable
doubt, then it will be my job to decide on the appropri-
ate punishment.
Committee Comment
This instruction is optional. It is commonly requested by the
government in certain districts within the Circuit and is given by
some, but not all, judges. The Committee has included it so that
there is some standardization. The most common argument against
giving an instruction in the way it is now commonly given, i.e.,
“you should not consider the issue of punishment,” is that it tends
to denigrate the burden of proof and to undermine the seriousness
of the jury’s task. The rewording of the commonly-given instruc-
tion that is proposed here will go at least part of the way toward
eliminating the risk that this will occur. The wording is adapted
from Sixth Circuit Instruction 8.05.
In a case in which the jury has heard evidence suggesting the
range of sentences the defendant may face—for example, when a
cooperating witness charged with the same offenses testifies and is
cross examined on the sentence he faced absent a cooperation
agreement—the trial judge may wish to consider modifying this
instruction so that it does not suggest that it is inappropriate for
the jury to consider the possible punishment the witness faced.
4.08
GENERAL INSTRUCTIONS
76
4.09 ATTEMPT
A person attempts to commit [identify offense, e.g.,
bank robbery] if he (1) knowingly takes a substantial
step toward committing [describe the offense], (2) with
the intent to commit [describe the offense]. The substan-
tial step must be an act that strongly corroborates that
the defendant intended to carry out the [the crime; de-
scribe the offense].
Committee Comment
See generally United States v. Sanchez, 615 F.3d 836, 844–45
(7th Cir. 2010); United States v. Barnes, 230 F.3d 311, 315 (7th
Cir. 2000); United States v. Rovetuso, 768 F.2d 809, 822 (7th Cir.
1985). The definition of “substantial step” is included because the
term is difficult to understand without explanation.
In United States v. Gladish, 536 F.3d 646 (7th Cir. 2008), the
court concluded that explicitly sexual Internet chatter combined
with the defendant sending the purported minor a video of himself
masturbating did not amount to a “substantial step” as required to
convict the defendant of attempting to induce the minor to engage
in sexual activity. The court stated that “[t]he requirement of prov-
ing a substantial step serves to distinguish people who pose real
threats from those who are all hot air.” Id. at 650; see also United
States v. Zawada, 552 F.3d 531 (7th Cir. 2008) (planning for meet-
ing with minor and discussion about setting up a meeting suf-
ficient to constitute substantial step under plain error review);
United States v. Davey, 550 F.3d 653 (7th Cir. 2008) (affirming
denial of motion to withdraw guilty plea; substantial step toward
completion of substantive offense demonstrated by planning a
meeting with purported minor, travel across state lines to achieve
meeting, and telephone contact with purported minor upon arrival
for further planning); Doe v. City of Lafayette, 377 F.3d 757, 783
(7th Cir. 2004) (merely thinking sexual thoughts about children
does not constitute substantial step towards sexual abuse).
As the Seventh Circuit noted in Sanchez, the line between
mere preparation and a substantial step is “inherently fact
specific.” Sanchez, 615 F.3d at 844. The Committee has not
proposed a bright-line rule because none exists. The trial judge
must, of course, assess whether there is evidence that, consistent
with the law, would permit a finding of guilt.
Many Seventh Circuit cases say that a “substantial step” is
“something more than mere preparation, but less than the last act
4.09
CRIMINAL INSTRUCTIONS
77
necessary before the actual commission of the substantive crime.”
See, e.g., Sanchez, 615 F.3d at 844 (internal quotation marks omit-
ted); United States v. Barnes, 230 F.3d 311, 315 (7th Cir. 2000).
The Committee did not include this language in the pattern jury
instruction because it did not appear to provide clear guidance to
jurors. As the Seventh Circuit observed in Sanchez, “there is no
easy way to separate mere preparation from a substantial step.”
615 F.3d at 844.
Some pattern instructions include an “attempt” alternative.
See, e.g., Instruction for 18 U.S.C. § 2113(a) (bank robbery, infra p.
522, 525). When a court instructs on an attempt offense where the
pattern instruction does not include an attempt alternative, the
court should modify the pattern instruction for the offense to
incorporate the element of attempt and then should give the defi-
nition of attempt in Instruction 4.09 either separately or in the
body of the elements instruction. For example, for a charge of at-
tempted possession with intent to distribute cocaine under 21
U.S.C. § 841(a)(1), the court should instruct as follows (eliminating
the bold type, of course):
The indictment charges defendant with attempting to
possess cocaine with intent to distribute. In order for you to
find the defendant guilty of this charge, the government must
prove each of the three following elements beyond a reason-
able doubt:
1. The defendant knowingly attempted to possess
cocaine; and
2. The defendant intended to distribute the substance to
another person; and
3. The defendant knew the substance was some kind of a
controlled substance. The government is not required to prove
that the defendant knew the substance was cocaine.
If you find from your consideration of all the evidence that
the government has proved each of these elements beyond a
reasonable doubt, then you should find the defendant guilty.
If, on the other hand, you find from your consideration of
all the evidence that the government has failed to prove any
one of these elements beyond a reasonable doubt, then you
should find the defendant not guilty.
(separate instruction)
A person attempts to possess a controlled substance if he
(1) knowingly takes a substantial step toward possessing the
4.09
GENERAL INSTRUCTIONS
78
controlled substance, (2) with the intent to possess the con-
trolled substance. The substantial step must be an act that
strongly corroborates that the defendant intended to carry out
the crime.
4.09
CRIMINAL INSTRUCTIONS
79
4.10 DEFINITION OF KNOWINGLY
A person acts “knowingly” if he realizes what he is
doing and is aware of the nature of his conduct, and
does not act through ignorance, mistake, or accident.
[In deciding whether the defendant acted knowingly,
you may consider all of the evidence, including what
the defendant did or said.]
[You may find that the defendant acted knowingly
if you find beyond a reasonable doubt that he believed
it was highly probable that [state fact as to which
knowledge is in question, e.g., “drugs were in the
suitcase,” or “the financial statement was false,”] and
that he took deliberate action to avoid learning that
fact. You may not find that the defendant acted know-
ingly if he was merely mistaken or careless in not
discovering the truth, or if he failed to make an effort
to discover the truth.]
Committee Comment
The Seventh Circuit has approved the definition of “knowl-
edge” given in the first paragraph of this instruction. United States
v. Graham, 431 F.3d 585, 590 (7th Cir. 2005).
The second paragraph, commonly referred to as an “ostrich”
instruction, will not be appropriate in every case in which knowl-
edge is an issue. Such an instruction is appropriate “where (1) the
defendant claims a lack of guilty knowledge, and (2) the govern-
ment has presented evidence sufficient for a jury to conclude that
the defendant deliberately avoided learning the truth.” United
States v. Carani, 492 F.3d 867, 873 (7th Cir. 2007) (citing United
States v. Carrillo, 435 F.3d 767, 780 (7th Cir. 2006)). Deliberate
avoidance is more than mere negligence and more than
recklessness. United States v. Tantchev, 916 F.3d 645, 653 (7th
Cir. 2019) (citing Global-Tech Appliances, Inc. v. SEB S.A., 563
U.S. 754, 769 (2011)). “The purpose of the ostrich instruction is to
inform the jury that a person may not escape criminal liability by
pleading ignorance if he knows or strongly suspects he is involved
in criminal dealings but deliberately avoids learning more exact
information about the nature or extent of those dealings.” Carrillo,
435 F.3d at 780 (internal quotation marks and citation omitted).
“[E]vidence merely supporting a finding of negligence[,] that a rea-
4.10
GENERAL INSTRUCTIONS
80
sonable person would have been strongly suspicious, or that a
defendant should have been aware of criminal knowledge, does not
support an inference that a particular defendant was deliberately
ignorant.” Carrillo, 435 F.3d at 781; United States v. Stone, 987
F.2d 469, 472 (7th Cir. 1993) (explaining that it is improper to use
an ostrich instruction “to convict [a defendant] on the basis of
what [he] should have known”).
Accordingly, an ostrich instruction is inappropriate when the
government’s evidence leaves the jury with a “binary choice”—the
defendant had actual knowledge, or he lacked knowledge. See United
States v. Craig, 178 F.3d 891, 898 (7th Cir. 1999); United States v.
Giovanetti, 919 F.2d 1223, 1228 (7th Cir. 1990). “If the evidence
against the defendant points solely to direct knowledge of the
criminal venture, it would be error to give the [ostrich] instruction.”
United States v. Caliendo, 910 F.2d 429, 435 (7th Cir. 1990)
(internal quotation marks and citation omitted). As the Seventh
Circuit stated in United States v. Macias, 786 F.3d 1060 (7th Cir.
2015):
An ostrich instruction should not be given unless there is
evidence that the defendant engaged in behavior that could
reasonably be interpreted as having been intended to shield
him from confirmation of his suspicion that he was involved in
criminal activity. As the Supreme Court put it in Global– Tech
Appliances, Inc. v. SEB S.A., 563 U.S. 754, 769 (2011), the
defendant must not only “believe that there is a high prob-
ability that a fact exists” but also “must take deliberate ac-
tions to avoid learning of that fact” (emphasis added). In United
States v. Salinas, 763 F.3d 869, 880–81 (7th Cir. 2014), we
noted that although Global–Tech was a civil case, several
courts of appeal have deemed its definition of willful blindness
applicable to criminal cases. It is quite similar to our analysis
of ostrich instructions in United States v. Giovannetti, 919
F.2d 1223, 1228 (7th Cir. 1990)[.]
4.10
CRIMINAL INSTRUCTIONS
81
4.11 DEFINITION OF WILLFULLY
(No Instruction)
Committee Comment
The Committee has not proposed a general definition of willful-
ness because the definition of the term is statute-specific. The pat-
tern elements instructions for offenses requiring proof of willful-
ness include the necessary definitional instructions.
4.11
GENERAL INSTRUCTIONS
82
4.12 SPECIFIC INTENT/GENERAL INTENT
(No Instruction)
Committee Comment
The Committee recommends avoiding instructions that
distinguish between “specific intent” and “general intent.” Instead,
the trial judge should give instructions that define the precise
mental state required by the particular offense charged. Distinc-
tions between “specific intent” and “general intent” more than
likely confuse rather than enlighten juries. See United States v.
Bailey, 444 U.S. 394, 398–413 (1980); see also Liparota v. United
States, 471 U.S. 419, 433 n.16 (1985) (suggesting that jury instruc-
tions should “eschew use of difficult legal concepts like ‘specific
intent’ and ‘general intent.’ ’’).
4.12
CRIMINAL INSTRUCTIONS
83
4.13 DEFINITION OF POSSESSION
A person possesses an object if he knowingly has
the ability and intention to exercise control over the
object, either directly or through others. [A person may
possess an object even if he is not in physical contact
with it [and even if he does not own it].]
[More than one person may possess an object. If
two or more persons share possession, that is called
“joint” possession. If only one person possesses the
object, that is called “sole” possession. The term “pos-
sess” in these instructions includes both joint and sole
possession.]
Committee Comment
The instruction provides a definition of “constructive”
possession. See, e.g., United States v. Harris, 325 F.3d 865, 870
(7th Cir. 2003); United States v. Folks, 236 F.3d 384, 389 (7th Cir.
2001). There is no need to use the term “constructive” in the jury
instructions, as it would introduce an element of confusion. It is
better simply to provide the definition without using the legal
term.
Constructive possession represents a distinct theory of liability
from that of possession based on co-conspirator liability, and the
two theories have different elements. See United States v. Mokol,
646 F.3d 479, 486–87 (7th Cir. 2011).
The second (bracketed) paragraph should be used only in a
case in which there is evidence of possession by more than one
person. See generally United States v. Rainone, 816 F.3d 490, 494
(7th Cir. 2016).
4.13
GENERAL INSTRUCTIONS
84
4.14 POSSESSION OF RECENTLY STOLEN
PROPERTY
If you find that the defendant was in possession of
property that recently had been stolen, you may infer
that he knew it was stolen. You are not required to
make this inference.
The term “recently” has no fixed meaning. The
more time that has passed since the property was
stolen, the more doubtful an inference of the defendant’s
knowledge becomes.
Committee Comment
See Barnes v. United States, 412 U.S. 837, 843 (1973); United
States v. Tantchev, 916 F.3d 645, 655 (7th Cir. 2019); United States
v. Woody, 55 F.3d 1257, 1265 (7th Cir. 1995). These cases hold
that an inference of knowledge from possession of recently stolen
property is legally appropriate. The current version of the instruc-
tion modifies the previous version to alter language that arguably
suggested that the defendant is under an obligation to explain his
possession of recently stolen property.
4.14
CRIMINAL INSTRUCTIONS
85
5.01 RESPONSIBILITY
A person who [orders; authorizes; [or] in some other
way is responsible for] the criminal acts of another
person may be found guilty whether or not the other
person [is; has been] found guilty.
Committee Comment
This instruction has a relatively narrow application. When
Congress enacted the Sherman Act, it was concerned that juries
would hesitate to convict lower level employees who actually had
violated the law but had done so at the direction of their superiors,
so it added the verbs “authorized” and “ordered” into the Act to
clarify its intent that the superiors also were personally liable. See
United States v. Wise, 370 U.S. 405, 413 (1962). This instruction
reassures jurors that if they acquit a lower level employee, they
are not obliged to acquit his superior who ordered the conduct.
5.01
GENERAL INSTRUCTIONS
86
5.02 PERSONAL RESPONSIBILITY OF
CORPORATE AGENT
A person who acts on behalf of a [corporation;
partnership; other entity] also is personally responsible
for what he does or causes someone else to do. However,
a person is not responsible for the conduct of others
performed on behalf of a corporation merely because
that person is an officer, employee, or other agent of a
corporation.
Committee Comment
A corporate agent through whose act, default or omission the
corporation committed a crime is himself guilty of that crime. This
principle applies regardless of whether the crime requires
consciousness of wrongdoing and it applies not only to those
corporate agents who themselves committed the criminal act, but
also to those who by virtue of their managerial positions or their
similar relation to the actor could be deemed responsible for its
commission. See, e.g., United States v. Park, 421 U.S. 658, 670
(1975) (clean warehouse case). “Two fundamental principles are
thoroughly settled. One is that neither in the civil nor the criminal
law can an officer protect himself behind a corporation where he is
the actual, present, and efficient actor; and the second is that all
parties active in promoting a misdemeanor, whether agents or not,
are principals.” United States v. Wise, 370 U.S. 405, 410 (1962).
Implicit in these principles is the notion that criminal culpability
attaches because of the agent’s act, default or omission, not simply
and solely because of the officer’s position in the corporation.
5.02
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87
5.03 ENTITY RESPONSIBILITY—ENTITY
DEFENDANT—AGENCY
[Name of entity] is a [corporation; other type of
entity]. A [corporation; other type of entity] may be
found guilty of an offense. A [corporation; other type of
entity] acts only through its agents and employees, that
is, people authorized or employed to act for the [corpora-
tion; other type of entity].
[The indictment charges [name of entity] with;
Count
—
of the indictment is a charge of] [name of
offense]. In order for you to find [name of entity] guilty
of this charge, the government must prove each of the
following elements beyond a reasonable doubt:
First, the offense charged was committed by an
agent or employee of [name of entity]; and
Second, in committing the offense, the agent[s] or
employee[s] intended, at least in part, to benefit [name
of entity]; and
Third, the agent[s] or employee[s] acted within [his/
their] authority.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt, then you should
find the defendant guilty.
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any of these elements beyond a reasonable
doubt, then you should find the defendant not guilty.
An act is within the authority of an agent or em-
ployee if it concerns a matter that [name of entity] gen-
erally entrusted to that agent or employee. [Name of
5.03
GENERAL INSTRUCTIONS
88
entity] need not have actually authorized or directed
the particular act.
If an agent or employee was acting within his
authority, then [name of entity] is not relieved of its
responsibility just because the act was illegal, or was
contrary to [name of entity]’s instructions, or was
against [name of entity]’s general policies. However,
you may consider the fact that [name of entity] had
policies and instructions and how carefully it tried to
enforce them when you determine whether [name of
entity]’s agent[s] or employee[s] was acting with the
intent to benefit [name of entity] or was acting within
his authority.
Committee Comment
This instruction adopts the position of the majority of the
Courts of Appeals that have considered the question of the
responsibility of a corporation for the criminal conduct of its agents.
The majority view is that unless the criminal statute explicitly
provides otherwise, a corporation is vicariously criminally liable
for the crimes committed by its agents acting within the scope of
their employment—that is, within their actual or apparent author-
ity and on behalf of the corporation.
In non-regulatory cases, however, intent to benefit the corpora-
tion is treated as a separate element. See, e.g., United States v.
One Parcel of Land Located at 7326 Highway 45 N., Three Lakes,
965 F.2d 311, 316 (7th Cir. 1992), in which the court held that
agents are outside the scope of their employment when not acting
at least in part for the benefit of the corporation, implying that the
intent to benefit is an element of corporate responsibility. See also
United States v. Barrett, 51 F.3d 86, 89 (7th Cir. 1995) (“common
sense dictates that when an employee acts to the detriment of his
employer and in violation of the law, his actions normally will be
deemed to fall outside the scope of his employment and thus will
not be imputed to his employer.”); cf. Doe v. R.R.Donnelley & Sons
Co., 42 F.3d 439, 446 (7th Cir. 1994) (sexual harassment case in
which the Seventh Circuit noted that “[k]nowledge of the agent is
imputed to the corporate principal only if the agent receives the
knowledge while acting within the scope of the agent’s authority
and when the knowledge concerns a matter within the scope of
that authority”); Juarez v. Ameritech Mobile Communications,
Inc., 957 F.2d 317, 321 (7th Cir. 1992) (same).
5.03
CRIMINAL INSTRUCTIONS
89
In United States v. LaGrou Distribution Sys., Inc., 466 F.3d
585 (7th Cir. 2006), the corporate defendant was convicted of
felonies related to the knowing and intentional unsanitary storage
of meat and poultry. The trial court used Pattern Instructions
5.02–5.03 and added this to its definition of “knowingly”:
A corporation acts through its agents . . . and “knows”
through its agents . . . To distinguish knowledge belonging
exclusively to an agent from knowledge belonging to the
corporate principal, courts rely on certain presumptions.
Where a corporate agent obtains knowledge while acting in
the scope of agency, he presumably reports that knowledge to
this corporate principal so the court imputes such knowledge
to a corporation.
The Seventh Circuit deemed this an accurate summary of the
law in cases where “knowingly” was the required level of mens rea,
as distinguished from Arthur Andersen LLP v. United States, 544
U.S. 696 (2005), in which “corruptly” was the corporate mens rea
required to convict. LaGrou Distribution Sys., 466 F.3d at 592. (In
Arthur Andersen, the Supreme Court observed that the charging
statute, 18 U.S.C. § 1512(b)(2)(A), required proof that the
defendant “knowingly . . . corruptly persuaded” another person
“with intent to cause” that person to withhold documents from an
official proceeding. Arthur Andersen, 544 U.S. at 704–05. To act
with this intent, defendants must be “persuaders conscious of their
wrongdoing.” Id. at 706.)
In Pugh v. Tribune Co., 521 F.3d 686 (7th Cir. 2008), a civil
securities fraud case involving inflation of circulation figures, the
court reaffirmed the principle underlying the pattern instruction:
A corporation may be held liable for statements by em-
ployees who have apparent authority to make them. Accord-
ingly, the corporate scienter inquiry must focus on the state of
mind of the individual corporate official or officials who make
or issue the statement (or order or approve it or its making or
issuance, or who furnish information or language for the inclu-
sion therein, or the like) rather than generally to the collective
knowledge of all the corporation’s officers and employees
acquired in the course of their employment.
521 F.3d at 697 (citations and internal quotation marks omitted).
In United States v. Ladish Malting Co., 135 F.3d 484 (7th Cir.
1998), the court held that corporations are deemed to have knowl-
edge if the knowledge is possessed by persons with authority to do
something about what they know, regardless of their title within
the company (i.e., it is not necessary for a “supervisor” to know
5.03
GENERAL INSTRUCTIONS
90
about a safety hazard if a member of the company’s safety commit-
tee knew about it). Id. at 492–93. The court also held that corpora-
tions are not entitled to a “forgetfulness” instruction because
corporations qua corporations don’t forget things. Id. at 492. The
court reaffirmed these principles in United States v. L.E. Myers
Co., 562 F.3d 845, 853–55 (7th Cir. 2009).
In United States v. One Parcel of Land, a drug forfeiture case,
the court in dicta summarized these agency principles: a corpora-
tion knows what its agents know when they are acting for the ben-
efit of the corporation; but a corporation is not imputed to know
what its employees are doing when they act outside of the scope of
their agency and are not acting for or in behalf of the corporation.
965 F.2d at 316–17; see also id. at 322 (Posner, J., dissenting).
5.03
CRIMINAL INSTRUCTIONS
91
5.04 ENTITY RESPONSIBILITY—ENTITY
DEFENDANT—AGENCY RATIFICATION
If you find that an agent’s act was outside his
authority, then you must consider whether the corpora-
tion later approved the act. An act is approved if, after
it is performed, another agent of the corporation, with
the authority to perform or authorize the act and with
the intent to benefit the corporation, either expressly
approves the act or engages in conduct that is consis-
tent with approving the act. A corporation is legally
responsible for any act or omission approved by its
agents.
Committee Comment
This instruction is patterned on ordinary agency principles of
post hoc ratification. Note, however, that the Supreme Court
declined to require corporate ratification for liability to attach in a
civil antitrust case, finding that “a ratification rule would have
anticompetitive effects, directly contrary to the purposes of the
antitrust laws.” American Society of Mechanical Engineers, Inc. v.
Hydrolevel, 456 U.S. 556, 573 (1982).
5.04
GENERAL INSTRUCTIONS
92
5.05 JOINT VENTURE
An offense may be committed by more than one
person. A defendant’s guilt may be established without
proof that the defendant personally performed every
act constituting the crime charged.
5.05
CRIMINAL INSTRUCTIONS
93
5.06 AIDING AND ABETTING/ACTING
THROUGH ANOTHER
(a)
Any person who knowingly [aids; counsels; com-
mands; induces; or procures] the commission of an of-
fense may be found guilty of that offense if he know-
ingly participated in the criminal activity and tried to
make it succeed.
(b)
If a defendant knowingly causes the acts of another,
then the defendant is responsible for those acts as
though he personally committed them.
Committee Comment
See Rosemond v. United States, 572 U.S. 65 (2014); United
States v. Irwin, 149 F.3d 565, 571–73 (7th Cir. 1998). In prosecu-
tions under 18 U.S.C. § 924(c), the Supreme Court held in Rose-
mond that the affirmative act requirement is satisfied if the act is
one in furtherance of either the underlying violent crime of drug
trafficking offense or the firearms offense. However, with respect
to intent, the defendant must be shown to have intended to facili-
tate an armed commission of the underlying offense.
5.06
GENERAL INSTRUCTIONS
94
5.06(A) AIDING AND ABETTING
A person may be found guilty of an offense by know-
ingly [aiding; counseling; commanding; inducing; or
procuring] the commission of the offense if he know-
ingly participated in the criminal activity and tried to
make it succeed.
In order for you to find [the; a] defendant guilty [of
Count
———
] on this basis, the government must prove
each of the following elements beyond a reasonable
doubt:
1. The crime of
—————
was committed, as set
forth on page
———
of these instructions.
2. The defendant participated in the criminal
activity and tried to make it succeed.
3. The defendant did so knowingly.
Committee Comment
See Rosemond v. United States, 572 U.S. 65 (2014); United
States v. Anderson, 988 F.3d 420, 424-25 (7th Cir. 2021); United
States v. Irwin, 149 F.3d 565, 571–73 (7th Cir. 1998). In prosecu-
tions under 18 U.S.C. § 924(c), the Supreme Court held in Rose-
mond that the affirmative act requirement is satisfied if the act is
one in furtherance of either the underlying violent crime of drug
trafficking offense or the firearms offense. However, with respect
to intent, the defendant must be shown to have intended to facili-
tate an armed commission of the underlying offense.
If the underlying offense is not charged elsewhere in the
instructions, its elements should be incorporated into this
instruction. In United States v. Freed, 921 F.3d 716 (7th Cir. 2019),
the Seventh Circuit was indirectly critical of the previous version
of this instruction when it noted that it “did not explicitly explain
an underlying crime was required to support an aiding and abet-
ting conviction” but rather only “implied” as much. See id. at 721.
By adding this to the previous version of this instruction, we are
adopting the approach taken by most other circuits. See, e.g., Third
Circuit Criminal Jury Instruction 7.02; Sixth Circuit Criminal
Jury Instruction 4.0; Eighth Circuit Criminal Jury Instruction
5.01.
5.06(A)
CRIMINAL INSTRUCTIONS
95
5.06(B) ACTING THROUGH ANOTHER
If a defendant willfully causes another person to
commit an act, which if committed by the defendant
would be a crime, then the defendant is responsible
under the law even though he did not personally com-
mit the act.
[The court should now give a modified version of
the elements instruction for the offense to indicate that
the defendant “willfully caused” any acts he is not al-
leged to have personally committed, and requiring that
defendant has the requisite mental state for the crime
charged. See the Committee Comment for an example.]
[The government need not prove that the person
who committed [the charged offense/act(s)] did so
intending to commit a crime. That person may be [a
law enforcement agent; an innocent intermediary]. But
the government must prove beyond a reasonable doubt
that the defendant intended to commit the charged
crime.]
[A defendant who causes the commission of a crime
may be convicted of committing the crime even though
the person who he caused to commit the criminal act(s)
did not himself violate the law because he did not
intend to commit a crime.]
Committee Comment
This instruction is based on 18 U.S.C. § 2(b), which provides
that “Whoever willfully causes an act to be done which if directly
performed by him or another would be an offense against the
United States is punishable as a principal.” It has been modified
from the previous version, for reasons discussed in this Comment.
First, in United States v. Freed, 921 F.3d 716 (7th Cir. 2019),
the court concluded that the previous version of the instruction,
which imposed responsibility if the defendant “knowingly” caused
the acts of another, was “obviously problematic” because § 2(b)
uses the term “willfully,” not knowingly. In addressing this issue,
5.06(B)
GENERAL INSTRUCTIONS
96
the Committee has elected to use the statutory term “willfully” in
the first sentence of the instruction. This is how the Third and
Sixth Circuits handle it. See Third Circuit Criminal Jury Instruc-
tion 7.05; Sixth Circuit Criminal Jury Instruction 4.01(A).
A problem with this approach is that “willfully” is a term that
has variable meanings, and the Seventh Circuit has not defined
“willfully” under § 2(b). Jurors may also have different understand-
ings of this term, and trial judges may get questions from deliberat-
ing juries asking for a definition. In the absence of guidance from
the Seventh Circuit, the Committee takes no position at this point
regarding the correct definition.
The Committee notes that the Eighth Circuit adopts the
phrase “voluntarily and intentionally” as the definition of willfully.
See Eighth Circuit Criminal Jury Instruction 5.02, “Notes on Use.”
See also United States v. Gabriel, 125 F.3d 89, 101 (2d Cir. 1997)
(“The most natural interpretation of section 2(b) is that a defendant
with the mental state necessary to violate the underlying section
is guilty of violating that section if he intentionally causes another
to commit the requisite act.” (emphasis omitted)).
Second, the previous version of the instruction did not address
the interplay between § 2(b) and the mens rea requirement for the
underlying offense, another point the Seventh Circuit has yet to
address. However, in Freed, the court noted its concern with
preventing a situation where “the jury believed they could convict
[the defendant] for a mens rea other than the one described by the
district court in detailing the requirements of each substantive
offense.” Freed, 921 F.3d at 722. This is consistent with the law in
other circuits, in which it is clear that § 2(b) requires proof that
the defendant had the mens rea required for the underlying offense.
See, e.g., United States v. Gumbs, 283 F.3d 128, 135 (3d Cir. 2002).
The Committee has addressed the second issue by setting up
this instruction as an add-on to the elements instruction for the
underlying offense. This is the approach taken by the Eighth
Circuit, see Eighth Circuit Criminal Jury Instruction 5.02, the key
difference being that unlike that circuit, we are proposing prefa-
tory language (the first sentence of the proposed pattern instruc-
tion) that would precede the listing of the elements of the crime.
By way of example, in a prosecution for transferring a firearm
to a convicted felon under 18 U.S.C. § 922(d) and § 2(b), the ele-
ments instruction would be modified as follows:
1. The defendant willfully caused [actor] to transfer a
firearm;
5.06(B)
CRIMINAL INSTRUCTIONS
97
2. The individual to whom the firearm was transferred
was a felon;
3. The defendant knew or had reasonable cause to believe
that the individual was a felon.
As a second example, in a prosecution for passing counterfeit
money, 18 U.S.C. § 472, the elements would be modified as follows:
1. The defendant willfully caused [actor] to pass counter-
feited United States currency;
2. The defendant knew at the time that the United States
Currency was counterfeited; and
3. The defendant did so with the intent to defraud.
Lastly, the final bracketed paragraph of the proposed instruc-
tion is included to address cases in which, for example, the “actor”
was a law enforcement officer or agent and thus not capable of
committing the offense. See, e.g., United States v. Ubaldo, 859
F.3d 690 (9th Cir. 2017).
On a more general note, though not addressed in Freed,the
Committee has separated this instruction from the “aiding and
abetting” instruction, Instruction 5.06(A), which comes from 18
U.S.C. § 2(a). Over the years, the previous version of the § 2(b)
instruction has tended to become a ubiquitous “agency”-type
instruction given in many cases in which § 2(b) does not ap-
propriately come into play. It should be remembered that § 2(b) is
not a general agency statute but rather is focused on causing an-
other to commit a criminal act.
5.06(B)
GENERAL INSTRUCTIONS
98
5.07 PRESENCE/ACTIVITY/ASSOCIATION
(a)
A defendant’s presence at the scene of a crime and
knowledge that a crime is being committed is not suf-
ficient by itself to establish the defendant’s guilt.
(b)
If a defendant performed acts that advanced the
crime but had no knowledge that the crime was being
committed or was about to be committed, those acts are
not sufficient by themselves to establish the defendant’s
guilt.
(c)
A defendant’s association with persons involved in
a [crime; criminal scheme] is not sufficient by itself to
prove his [participation in the crime] [or] [membership
in the criminal scheme].
Committee Comment
Only the particular subpart(s) that apply in the particular
case should be given.
“Mere presence” instruction (subpart (a)). It is the Committee’s
position that the presence instruction should be used in a limited
fashion. If there is no evidence other than a defendant’s mere pres-
ence at the scene of the crime, then presumably that defendant’s
motion for a directed verdict or judgment of acquittal would be
granted by the trial judge. However, there may be some cases
where a defendant is present and takes some action which is the
subject of conflicting testimony. In those situations, the Committee
believes that a presence instruction may be appropriate.
Instruction (a) restates traditional law. See United States v.
Jones, 950 F.2d 1309, 1313 (7th Cir. 1991); United States v.
Moya-Gomez, 860 F.2d 706, 759 (7th Cir. 1988); see also, United
States v. Valenzuela, 596 F.2d 824, 830–31 (9th Cir. 1979); United
States v. Garguilo, 310 F.2d 249, 253 (2d Cir. 1962). It omits the
5.07
CRIMINAL INSTRUCTIONS
99
word “mere,” commonly used to modify “presence.” The omission is
due to the Committee’s belief that “mere” is unnecessary and, in
some situations, misleading or argumentative.
Instruction (a) is most typically given in conspiracy cases,
such as United States v. Williams, 798 F.2d 1024, 1028–29 (7th
Cir. 1996); United States v. Boykins, 9 F.3d 1278, 1287–88 (7th
Cir. 1993); United States v. Townsend, 924 F.2d 1385, 1393–94
(7th Cir. 1991); United States v. Atterson, 926 F.2d 649, 655–56
(7th Cir. 1991); United States v. Quintana, 508 F.2d 867, 880 (7th
Cir. 1975); and in aiding and abetting cases, such as Nye & Nissen
v. United States, 336 U.S. 613, 619 (1949).
Instruction (a) may be given where a defendant charged with
a substantive crime such as assault alleges that although he was
present at the scene of the crime, he did not do it.
Acts that advance criminal activity (subpart (b)). Instruction
(b) has been given by judges in this Circuit for many years. It
stems from cases such as United States v. Ramirez, 574 F.3d 869,
883 (7th Cir. 2009); see also, United States v. Carrillo, 269 F.3d
761, 770 (7th Cir. 2001); United States v. Windom, 19 F.3d 1190
(7th Cir. 1994); United States v. Benz, 740 F.2d 903, 910–11 (11th
Cir. 1984); Dennis v. United States, 302 F.2d 5, 12–13 (10th Cir.
1962).
Like Instruction (a), Instruction (b) may be given where a
defendant charged with a substantive crime, such as assault or
possession of narcotics, alleges that although he was present at
the scene of the crime, he was not a participant in the criminal
activity.
If a defendant is charged with conspiracy on the basis of
furnishing supplies or services to someone engaged in a criminal
conspiracy, an additional instruction may be necessary. The
Seventh Circuit has determined that a defendant who furnishes
supplies or services to someone engaged in a conspiracy is not
guilty of conspiracy even though the supply of goods or services
may have furthered the object of a conspiracy if the defendant had
no knowledge of the conspiracy. See United States v. Manjarrez,
258 F.3d 618, 626–27 (7th Cir. 2001).
“Mere association” instruction (subpart (c)). Subpart (c) mir-
rors an instruction that is included as part of Instruction 5.10
concerning membership in a conspiracy. Because the concept that
association with someone involved in a crime is not enough by
itself to establish criminal responsibility is not confined to conspir-
acy cases, however, a more generalized version of the instruction is
5.07
GENERAL INSTRUCTIONS
100
included here.
5.07
CRIMINAL INSTRUCTIONS
101
5.08(A) CONSPIRACY—OVERT ACT REQUIRED
[The indictment charges defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] conspiracy. In order for you to find [the; a]
defendant guilty of this charge, the government must
prove each of the [three] following elements beyond a
reasonable doubt:
1. The conspiracy as charged in Count [
—
] existed;
2. The defendant knowingly became a member of
the conspiracy with an intent to advance the conspir-
acy; and
3. One of the conspirators committed an overt act
in an effort to advance [the; a] goal[s] of the conspiracy
[on or before
—————
].
An overt act is any act done to carry out [the; a]
goal[s] of the conspiracy. The government is not
required to prove all of the overt acts charged in the
indictment. [The overt act may itself be a lawful act.]
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt, then you should
find the defendant guilty.
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt, then you should find the defendant not guilty.
Committee Comment
(a)
Usage of 5.08(A) vs. 5.08(B). Instructions 5.08(A) and 5.08(B)
are alternative instructions. Instruction 5.08(A) should be used if
the particular conspiracy charge requires proof of an overt act.
5.08(A)
GENERAL INSTRUCTIONS
102
Instruction 5.08(B) should be used if the conspiracy charge does
not require proof of an overt act.
The definition of “overt act” in the last paragraph of Instruc-
tion 5.08(A) is taken from the general conspiracy statute, 18 U.S.C.
§ 371 (“any act to effect the object of the conspiracy”). See also
United States v. Hickok, 77 F.3d 992, 1005–06 (7th Cir. 1996) (af-
firming the action of the trial court in defining “overt act” pursu-
ant to 18 U.S.C. § 371 in response to a question from the jury).
(b)
Additional explanatory instructions to be given with this
instruction and with Instruction 5.08(B). The Seventh Circuit has
cautioned trial judges to provide juries adequate guidance on the
nuances of conspiracy law. See United States v. Tolliver, 454 F.3d
660, 668 n.5 (7th Cir. 2006); United States v. Stotts, 323 F.3d 520,
522 (7th Cir. 2003). These points are covered by Instructions 5.09,
5.10, and, in appropriate circumstances, 5.10(A) and 5.10(B). The
Committee recommends that the trial judge give those instructions
in addition to 5.08(A) or (B), making deletions only when it is clear
that the jury has heard no evidence on the point covered by the
material to be deleted.
(c)
Supplemental instruction regarding proof of existence of
conspiracy. In some cases, it may be appropriate to provide the
jury with a further definition of how existence of a conspiracy is
proved. In such cases, the Committee recommends that the follow-
ing additional instruction be provided:
To prove that a conspiracy existed, the government must
prove beyond a reasonable doubt that the defendant had an
agreement or mutual understanding with at least one other
person to [fill in description of the substantive offense, e.g.,
distribute heroin].
(d)
Unanimity regarding overt act. Recent Seventh Circuit author-
ity indicates that there is no requirement that the jury agree
unanimously on which particular overt act was committed in
furtherance of the conspiracy. United States v. Griggs, 569 F.3d
341, 344 (7th Cir. 2009). There may, however, be some conflicting
authority on this point. See United States v. Matthews, 505 F.3d
698, 709–10 (7th Cir. 2007) (“[I]f either party had requested a una-
nimity instruction or special verdict form on the overt acts, una-
5.08(A)
CRIMINAL INSTRUCTIONS
103
nimity would not have been an issue in this case. Counsel should
seriously consider making such requests in the future.”).
(e)
Unanimity regarding object of multiple-object conspiracy.
When the indictment charges a multiple-object conspiracy, an
instruction may be required regarding the need for jury unanimity
regarding the particular object(s) proven. See Instruction 4.04 and
its commentary, as well as Griggs, 569 F.3d at 344, which uses a
multiple-object conspiracy as an example of a situation in which
the jury must be unanimous as to particulars of an indictment.
See also United States v. Hughes, 310 F.3d 557, 560–61 (7th Cir.
2002). In such a case, this instruction should be supplemented
accordingly.
(f)
Interaction with statute of limitations. Proof that a conspiracy
continued into the period of limitations and that an overt act in
furtherance of the conspiracy was performed within that period is
an element of the offense of conspiracy under 18 U.S.C. § 371. See,
e.g., Grunewald v. United States, 353 U.S. 391, 396–97 (1957)
(“where substantiation of a conspiracy charge requires proof of an
overt act, it must be shown both that the conspiracy still subsisted
[within the limitations period] . . . and that at least one overt act
in furtherance of the conspiratorial agreement was performed
within the period”); United States v. Curley, 55 F.3d 254, 257 (7th
Cir. 1995); United States v. Read, 658 F.2d 1225, 1232–33 (7th Cir.
1981); United States v. Greichunos, 572 F. Supp. 220, 226 (N.D. Ill.
1983) (defendant was entitled to new trial because jury instruction
on conspiracy failed to inform the jury that the government had to
show an overt act committed in furtherance of the conspiracy
within the five years preceding the indictment).
5.08(A)
GENERAL INSTRUCTIONS
104
5.08(B) CONSPIRACY—NO OVERT ACT
REQUIRED
[The indictment charges defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] conspiracy. In order for you to find [the; a]
defendant guilty of this charge, the government must
prove both of the following elements beyond a reason-
able doubt:
1. The conspiracy as charged in [Count
—
] existed;
and
2. The defendant knowingly became a member of
the conspiracy with an intent to advance the conspiracy.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt, then you should
find the defendant guilty.
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt, then you should find the defendant not guilty.
Committee Comment
(a)
Usage of 5.08(B) vs. 5.08(A). Instruction 5.08(B) should be
used if the particular conspiracy charge does not require proof of
an overt act. Instruction 5.08(B) will most often be used in drug
conspiracy cases under 21 U.S.C. § 846, see United States v. Corson,
579 F.3d 804, 810 (7th Cir. 2009); United States v. Shabani, 513
U.S. 10, 11 (1994), although there are other statutes that do not
require proof of an overt act, see, e.g., Whitfield v. United States,
543 U.S. 209 (2005) (money laundering conspiracy); United States
v. Salinas, 522 U.S. 52 (1997) (RICO); Singer v. United States, 323
U.S. 338, 340 (1945) (Selective Service Act); Nash v. United States,
229 U.S. 373 (1913) (antitrust conspiracy). See also United States
v. Resendiz-Ponce, 549 U.S. 102 (2007) (government conceded that
the overt act requirement applied to an attempt to reenter the
5.08(B)
CRIMINAL INSTRUCTIONS
105
United States illegally, but successfully defended the indictment’s
failure to allege a specific overt act on grounds that the attempt
described in the indictment implicitly described an overt act).
Incorporation of comments to Instruction 5.08(A). When Instruc-
tion 5.08(B) is used, counsel and the court should consult the Com-
mittee Comment to Instruction 5.08(A), which includes a number
of points that also apply to conspiracy charges in which no overt
act is required.
5.08(B)
GENERAL INSTRUCTIONS
106
5.09 CONSPIRACY—DEFINITION OF
CONSPIRACY
A “conspiracy” is an express or implied agreement
between two or more persons to commit a crime. A con-
spiracy may be proven even if its goal[s] [was; were] not
accomplished.
In deciding whether the charged conspiracy existed,
you may consider all of the circumstances, including
the words and acts of each of the alleged participants.
Committee Comment
(a)
Usage. This definitional instruction should be given in conjunc-
tion with Instruction 5.08(A) or (B).
(b)
Consideration of co-conspirator declarations. Under United
States v. Santiago, 582 F.2d 1128 (7th Cir. 1978), the trial judge
must determine preliminarily whether statements by a co-
conspirator of the defendant will be admissible at trial under
Federal Rule of Evidence 801(d)(2)(e). In making this determina-
tion the judge must decide “if it is more likely than not that the
declarant and the defendant were members of a conspiracy when
the hearsay statement was made, and that the statement was in
furtherance of the conspiracy . . .” Id. at 1143 (quoting United
States v. Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977)); see also
United States v. Hoover, 246 F.3d 1054, 1060 (7th Cir. 2001). If the
trial judge determines the statements are admissible, the jury may
consider them as it considers all other evidence. See United States
v. Wesson, 33 F.3d 788, 796 (7th Cir. 1994); United States v. Cox,
923 F.2d 519, 526 (7th Cir. 1991).
Under Santiago, the government must make a preliminary of-
fer of evidence to show that: 1) a conspiracy existed; 2) the
defendant and declarant were members of the conspiracy; and 3)
the statements sought to be admitted were made during and in
furtherance of the conspiracy. Santiago, 582 F.2d at 1134–35; see
also, e.g., United States v. Alviar, 573 F.3d 526, 540 (7th Cir. 2009).
According to Bourjaily v. United States, 483 U.S. 171, 176–81
(1987), the court can consider the statements in question (the
statements seeking to be admitted) to determine whether the three
5.09
CRIMINAL INSTRUCTIONS
107
Santiago criteria have been met. Seventh Circuit cases construing
Bourjaily have held that properly admitted hearsay, including
statements admitted under the co-conspirator exception to the
hearsay rule (Fed. R. Evid. 801(d)(2)(E)), may be used to prove
what another person did or said that may demonstrate their
membership in the conspiracy. United States v. Loscalzo, 18 F.3d
374, 383 (7th Cir. 1994) (“[W]hile only the defendant’s acts or
statements could be used to prove that defendant’s membership in
a conspiracy, evidence of the defendant’s acts or statements may
be provided by the statements of co-conspirators.”); United States
v. Martinez de Ortiz, 907 F.2d 629, 633 (7th Cir. 1990) (en banc).
Based on these cases, the Committee recommends that this
instruction be given in conjunction with the conspiracy “elements”
instruction in appropriate cases. The Seventh Circuit has strongly
recommended that “trial judges give the instruction in appropriate
cases, such as where the evidence that the defendant committed
the crime of conspiracy is based largely on the declarations of
coconspirators.” United States v. Stotts, 323 F.3d 520, 522 (7th Cir.
2003) (citing Martinez de Ortiz, 907 F.2d at 635). In this context,
the Seventh Circuit has further noted that it has repeatedly
“cautioned trial judges to provide sufficient guidance to juries on
the nuanced principles of conspiracy.” Stotts, 323 F.3d at 522 (list-
ing cases).
5.09
GENERAL INSTRUCTIONS
108
5.10 CONSPIRACY—MEMBERSHIP IN
CONSPIRACY
To be a member of a conspiracy, [the; a] defendant
does not need to join it at the beginning, and he does
not need to know all of the other members or all of the
means by which the illegal goal[s] of the conspiracy
[was; were] to be accomplished. The government must
prove beyond a reasonable doubt that the defendant
[you are considering] was aware of the illegal goal[s] of
the conspiracy and knowingly joined the conspiracy.
[A defendant is not a member of a conspiracy just
because he knew and/or associated with people who
were involved in a conspiracy, knew there was a con-
spiracy, and/or was present during conspiratorial
discussions.]
[The conspiracy must include at least one member
other than the defendant who, at the time, was not [a
government agent; a law enforcement officer; an
informant].]
In deciding whether [the; a] defendant joined the
charged conspiracy, you must base your decision only
on what [that; the] defendant did or said. To determine
what [that; the] defendant did or said, you may consider
[that; the] defendant’s own words or acts. You may also
use the words or acts of other persons to help you decide
what the defendant did or said.
Committee Comment
(a)
Consideration of co-conspirator declarations. See Committee
Comment (b) to Instruction 5.09 for a discussion of the consider-
ation of co-conspirator statements, United States v. Santiago, 582
F.2d 1128 (7th Cir. 1978), and Bourjaily v. United States, 483 U.S.
171, 176–81 (1987).
5.10
CRIMINAL INSTRUCTIONS
109
(b)
Authority. A defendant does not need to join a conspiracy at
its beginning, know all of its members, or know all of the means by
which the goal of the conspiracy was to be accomplished in order to
be a member of the conspiracy. United States v. James, 540 F.3d
702, 708 (7th Cir. 2008); United States v. Bolivar, 532 F.3d 599,
603–04 (7th Cir. 2008). The Seventh Circuit has made clear,
however, that the defendant’s mere knowledge of or association
with other members of the conspiracy is insufficient to prove
membership in the conspiracy. United States v. Useni, 516 F.3d
634, 646 (7th Cir. 2008). See also Pattern Instruction 5.07 and its
commentary.
“The government must prove that the defendant conspired
with at least one true co-conspirator. In other words, a conspiracy
cannot be established between one criminally-minded individual
and a government agent or informer.” United States v. Spagnola,
632 F.3d 981, 986 (7th Cir. 2011) (internal quotation marks and
citation omitted). The bracketed paragraph concerning this point
should not be given, of course, if a government agent was an actual
co-conspirator.
The Seventh Circuit has held that this instruction “[a]c-
curately state[s] the government’s burden of proof on [a] conspir-
acy charge.” United States v. Brown, 865 F.3d 566, 572 (7th Cir.
2017).
5.10
GENERAL INSTRUCTIONS
110
5.10(A) BUYER/SELLER RELATIONSHIP
A conspiracy requires more than just a buyer-seller
relationship between the defendant and another person.
In addition, a buyer and seller of [name of drug] do not
enter into a conspiracy to [distribute [name of drug];
possess [name of drug] with intent to distribute] simply
because the buyer resells the [name of drug] to others,
even if the seller knows that the buyer intends to resell
the [name of drug]. The government must prove that
the buyer and seller had the joint criminal objective of
further distributing [name of drug] to others.
Committee Comment
This instruction should be used only in cases in “where the
jury could rationally find, from the evidence presented, that the
defendant merely bought or sold drugs but did not engage in a
conspiracy.” United States v. Cruse, 805 F.3d 795, 814 (7th Cir.
2015) (internal quotation marks omitted).
A routine buyer-seller relationship, without more, does not
equate to conspiracy. United States v. Johnson, 592 F.3d 749 (7th
Cir. 2010); United States v. Colon, 549 F.3d 565, 567 (7th Cir.
2008). This issue may arise in drug conspiracy cases. In Colon, the
Seventh Circuit reversed the conspiracy conviction of a purchaser
of cocaine because there was no evidence that the buyer and seller
had engaged in a joint criminal objective to distribute drugs. Id. at
569–70 (citing Direct Sales Co. v. United States, 319 U.S. 703, 713
(1943) (distinguishing between conspiracy and a mere buyer-seller
relationship)); see also United States v. Kincannon, 567 F.3d 893,
897 (7th Cir. 2009) (regular and repeated purchases of narcotics on
standardized terms, even in distribution quantities, does not make
a buyer and seller into conspirators); United States v. Lechuga,
994 F.2d 346, 47 (7th Cir. 1993) (en banc) (drug conspiracy convic-
tion cannot be sustained by evidence of only large quantities of
controlled substances being bought or sold).
In Colon, the Seventh Circuit was critical of the previously-
adopted pattern instruction on this point, which included a list of
factors to be considered. The Committee has elected to simplify the
instruction so that it provides a definition, leaving to argument of
counsel the weight to be given to factors shown or not shown by
the evidence.
Some cases have suggested that particular combinations of
5.10(A)
CRIMINAL INSTRUCTIONS
111
factors permit an inference of conspiracy. See, e.g., United States v.
Vallar, 635 F.3d. 271 (7th Cir. 2011) (repeated purchases on credit,
combined with standardized way of doing business and evidence
that purchaser paid seller only after reselling the drugs); United
States v. Kincannon, 567 F.3d 893 (7th Cir. 2009). But the cases
appear to reflect that particular factors do not always point in the
same direction. See United States v. Nunez, 673 F.3d 661, 665 and
666 (7th Cir. 2012) (“Sales on credit and returns for refunds are
normal incidents of buyer-seller relationships,” but they can in
some situations be ‘‘ ‘plus’ factors” indicative of conspiracy). The
Committee considered and rejected the possibility of drafting an
instruction that would zero in on particular factors, out of concern
that this would run afoul of Colon and due to the risk that the
instruction might be viewed by jurors as effectively directing a
verdict.
In United States v. Brown, 726 F.3d 993 (7th Cir. 2013), the
court generally endorsed the approach taken by this pattern
instruction, see id. at 1001, but held that the district court did not
abuse its discretion in providing further guidance regarding the
types of evidence that might tend to establish a conspiracy. Id.at
1003–04. Following the decision in Brown, the Committee
considered making further changes to the pattern instruction but
decided not to do so, largely due to the “infinite varieties” of
conspiratorial agreements that may exist. Id. at 1001. In addition,
the court in Brown reaffirmed its rejection of the “list of factors”
approach disapproved in Colon. Id. at 999.
For the reasons cited in this Comment, and due to “the im-
mense challenge of trying to craft a jury instruction that captures
[the Seventh Circuit’s] case law on buyer-seller relationships,”
Brown, 726 F.3d at 1002, judges should proceed with caution before
adopting jury instructions that identify particular factors as point-
ing in one direction or another.
The Seventh Circuit has rejected the view that this instruc-
tion is never appropriate when the defendant denies selling drugs,
as inconsistent defenses are permissible. See Cruse, 805 F.3d at
815 (citing Mathews v. United States, 485 U.S. 58, 63–64 (1988)).
5.10(A)
GENERAL INSTRUCTIONS
112
5.10(B) SINGLE CONSPIRACY VS. MULTIPLE
CONSPIRACIES
Count
—
charges that there was a single
conspiracy. The defendant contends that [there was
more than one conspiracy; other defense contention].
If you find that there was more than one conspir-
acy and that the defendant was a member of one or
more of those conspiracies, then you may find the
defendant guilty on Count
—
only if the [conspiracy;
conspiracies] of which the defendant was a member
was a part of the conspiracy charged in Count
—
.
The government is not required to prove the exact
conspiracy charged in the indictment, so long as it
proves that the defendant was a member of a smaller
conspiracy contained within the charged conspiracy.
Committee Comment
The previous pattern instructions did not include a standard
“multiple conspiracy” instruction. Because such an instruction is
often requested, the Committee believed it would be beneficial to
provide a standardized version.
This instruction is appropriate only “when the evidence pre-
sented at trial could tend to prove the existence of several distinct
conspiracies.” United States v. Mims, 92 F.3d 461, 467 (7th Cir.
1996). A defendant is not entitled to this instruction if the evi-
dence at trial shows only one, uninterrupted conspiracy. United
States v. Ogle, 425 F.3d 471, 472 (7th Cir. 2005). One example of a
case in which a multiple conspiracy instruction may be necessary
is a case in which “a defendant is a low-level player in a major
drug-selling enterprise and evidence has been presented at trial
concerning a wide range of the enterprise’s activities.” Mims,92
F.3d at 467; see also United States v. Westmoreland, 122 F.3d 431,
434 (7th Cir. 1997). Another example is a case involving a “hub-
and-spokes” conspiracy in which a defendant serves as a hub con-
nected to each of his co-conspirators by a spoke. To prove the exis-
tence of a single conspiracy, a rim must connect the spokes
together; otherwise the conspiracy is not one, but many. United
States v. Avila, 557 F.3d 809, 814 (7th Cir. 2009).
Regarding the third paragraph, see United States v. Campos,
5.10(B)
CRIMINAL INSTRUCTIONS
113
541 F.3d 735, 743–45 (7th Cir. 2008).
5.10(B)
GENERAL INSTRUCTIONS
114
5.11 CONSPIRATOR’S LIABILITY FOR
SUBSTANTIVE CRIMES COMMITTED BY CO-
CONSPIRATORS WHERE CONSPIRACY
CHARGED—ELEMENTS
Count[s]
—
of the indictment charge[s] defendant[s]
[name[s] of defendant[s]] with [a] crime[s] that the
indictment alleges [was; were] committed by [another;
other] member[s] of the conspiracy. In order for you to
find [the; a] defendant[s] guilty of [this; these] charge[s],
the government must prove each of the following [four]
elements beyond a reasonable doubt:
1. The defendant [is guilty of the charge of con-
spiracy as alleged in Count
—
; was a member of the
conspiracy [alleged in Count
—
] when the crime was
committed];
2. [Another member; Other members] of the same
conspiracy committed the crime charged in Count
—
]
during the time that the defendant was also a member
of the conspiracy;
3. The other conspirator[s] committed the crime
charged in Count
—
to advance the goals of the conspir-
acy; and
4. It was reasonably foreseeable to the defendant
that other conspirators would commit the crime charged
in Count
—
in order to advance the goals of the
conspiracy. The government is not required to prove
that the defendant actually knew about the crime
charged in Count
—
or that the defendant actually re-
alized that this type of crime would be committed as
part of the conspiracy.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
5.11
CRIMINAL INSTRUCTIONS
115
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [as to that charge].
Committee Comment
See United States v. Wantuch, 525 F.3d 505, 518–20 (7th Cir.
2008); see also United States v. Villagrana, 5 F.3d 1048, 1052 (7th
Cir. 1993); United States v. Kimmons, 917 F.2d 1011, 1017 (7th
Cir. 1990); see also United States v. Chairez, 33 F.3d 823 (7th Cir.
1994); United States v. Redwine, 715 F.2d 315, 322 (7th Cir. 1983);
Pinkerton v. United States, 328 U.S. 640, 647–48 (1946) (co-
conspirator vicariously liable under Pinkerton despite claim that
he did not know or suspect the presence of a gun in the vehicle).
The Seventh Circuit has emphasized that, for a Pinkerton
instruction to be adequate, it must “advise the jury that the govern-
ment bears the burden of proving all elements of the [Pinkerton]
doctrine beyond a reasonable doubt.” United States v. Stott, 245
F.3d 890, 908 (7th Cir. 2001), citing United States v. Sandoval-
Curiel, 50 F.3d 1389, 1394–95 (7th Cir. 1995); see also United
States v. Elizondo, 920 F.2d 1308, 1317 (7th Cir. 1990). One of the
elements that must be proved beyond a reasonable doubt in order
to hold a defendant liable for his co-conspirator’s crimes is that the
crimes must have been committed in furtherance of the conspiracy.
Stott, 245 F.3d at 908–09.
If the government pursues alternative theories of direct
responsibility and Pinkerton responsibility, the trial judge should
explain in this instruction that it is offered as an alternate basis
for liability on the particular charge(s).
5.11
GENERAL INSTRUCTIONS
116
5.12 CONSPIRATOR’S LIABILITY FOR
SUBSTANTIVE CRIMES COMMITTED BY CO-
CONSPIRATORS; CONSPIRACY NOT CHARGED
IN THE INDICTMENT—ELEMENTS
Count[s]
—
of the indictment charge[s] defendant[s]
[name[s] of defendant[s]] with [a] crime[s] that the
indictment alleges [was; were] committed by [another;
other] member[s] of the conspiracy. In order for you to
find [the; a] defendant[s] guilty of [this; these] charge[s],
the government must prove each of the following [four]
elements beyond a reasonable doubt:
1. The defendant knowingly joined a conspiracy.
A conspiracy is an agreement between two or more
persons to commit a crime;
2. [Another member; Other members] of the same
conspiracy committed the crime charged in Count
—
during the time that the defendant was also a member
of the conspiracy;
3. The other conspirator[s] committed the crime
charged in Count
—
to advance the goals of the conspir-
acy; and
4. It was reasonably foreseeable to the defendant
that the other conspirator[s] would commit the crime
charged in Count
—
in order to advance the goals of the
conspiracy. The government is not required to prove
that the defendant actually knew about the crime
charged in Count
—
or that the defendant actually re-
alized that this type of crime would be committed as
part of the conspiracy.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
5.12
CRIMINAL INSTRUCTIONS
117
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [as to that charge].
Committee Comment
The Committee regards this instruction as one rarely given.
When it is given the court should also give Instructions 5.09 and
5.10.
See United States v. Haynes, 582 F.3d 686, 707 (7th Cir. 2009);
United States v. Rawlings, 341 F.3d 657, 660 (7th Cir. 2003); see
also United States v. Chairez, 33 F.3d 823 (7th Cir. 1994) (co-
conspirator vicariously liable under Pinkerton despite his claim
that he did not know or suspect the presence of a gun in the vehi-
cle); United States v. Villagrana, 5 F.3d 1048, 1052 (7th Cir. 1993);
United States v. Redwine, 715 F.2d 315, 322 (7th Cir. 1983); United
States v. Kimmons, 917 F.2d 1011, 1017 (7th Cir. 1990); Pinkerton
v. United States, 328 U.S. 640, 647–48 (1946).
If the government pursues alternative theories of direct
responsibility and Pinkerton responsibility, the trial judge should
explain in this instruction that it is offered as an alternate basis
for liability on the particular charge(s).
5.12
GENERAL INSTRUCTIONS
118
5.13 CONSPIRACY—WITHDRAWAL
If you find that the government has proved all of
the elements in Count[s]
—
of the indictment as to [the;
a] defendant[s] [name] even though the crime[s]
charged in [that; those] Count[s] were committed by
others, you should then consider whether [he; they]
withdrew from the conspiracy prior to the time [that;
those] crime[s] [was; were] committed.
[The; A] defendant is not responsible for the
crime[s] charged in Count
—
, if, before the commission
of [that; those] crime[s], he took some affirmative act in
an attempt to defeat or disavow the goal[s] of the con-
spiracy, such as:
(a) [completely undermining his earlier acts in
support of the commission of the crime[s] so that these
acts no longer could support or assist the commission of
the crime[s]], or
(b) [alerting the proper law enforcement authori-
ties in time to give them the opportunity to stop the
crime[s]], or
(c) [performing an affirmative act that is inconsis-
tent with the goal[s] of the conspiracy in a way that the
co-conspirators are reasonably likely to know about it
before they carry through with additional acts of the
conspiracy], or
(d) [making a genuine effort to prevent the com-
mission of the crime[s]], or
(e) [communicating to each of his co-conspirators
that he has abandoned the conspiracy and its goal[s]].
Merely ceasing active participation in the conspir-
acy is not sufficient to show withdrawal.
5.13
CRIMINAL INSTRUCTIONS
119
[The; A] defendant has the burden of proving that
it is more likely than not that he withdrew from the
conspiracy.
Committee Comment
The present instruction should be given, when applicable, only
when the court has given Instruction 5.11 or Instruction 5.12, the
instructions that embody Pinkerton-based criminal responsibility.
The present instruction applies only in the Pinkerton context, in
other words, when the government seeks to impose criminal li-
ability upon a defendant for a substantive offense committed by
other members of the conspiracy of which the defendant is claimed
to have been a member. See United States v. U.S. Gypsum Co., 438
U.S. 422, 463–65 (1978). The question of withdrawal as a defense
to a charge of conspiracy is covered by Instructions 5.14(A) and
5.14(B).
In U.S. Gypsum, the Supreme Court held that an unnecessar-
ily confining instruction on the issue of withdrawal from a conspir-
acy constituted reversible error. 438 U.S. at 463–65. Thus, when a
defendant requests that specific actions introduced at trial which
are inconsistent with the object of the conspiracy be included in
the withdrawal instruction, the court should instruct the jury
accordingly.
The Supreme Court held in Smith v. United States, 133 S. Ct.
714 (2013), that a defendant bears the burden of proving with-
drawal from a conspiracy. This decision abrogated a line of Seventh
Circuit cases, including United States v. Morales, 655 F.3d 608,
640 (7th Cir. 2011), United States v. Starnes, 14 F.3d 1207,
1210–11 (7th Cir. 1994), and United States v. Read, 658 F.2d 1225,
1236 (7th Cir. 1981).
“[S]imply ending one’s involvement in [a] conspiracy, even vol-
untarily, is not enough to constitute withdrawal.” Rather, “ad-
ditional action aimed at defeating or disavowing the objectives of
the conspiracy” is required. United States v. Nagelvoort, 856 F.3d
1117, 1129 (7th Cir. 2017).
Regarding subsection (e) of the instruction (“communicating to
each of his co-conspirators that he has abandoned the conspiracy
and its goals”), the Seventh Circuit has repeatedly announced in
dicta this manner of demonstrating withdrawal from a conspiracy.
See, e.g., United States v. Vaughn, 433 F.3d 917, 922 (7th Cir.
2006) (“Withdrawal requires an affirmative act to either defeat or
disavow the purposes of the conspiracy, such as making a full
5.13
GENERAL INSTRUCTIONS
120
confession to the authorities or communicating to co-conspirators
that one has abandoned the enterprise.”) (internal citation omit-
ted); United States v. Sax, 39 F.3d 1380, 1386 (7th Cir. 1994)
(“Withdrawal requires an affirmative act on the part of the con-
spirator; he must either make a full confession to the authorities,
or communicate to each of his coconspirators that he abandoned
the conspiracy and its goals.”), citing United States v. DePriest,6
F.3d 1201, 1206 (7th Cir. 1993). The Committee, however, has
found no case defining or applying this section of the instruction.
5.13
CRIMINAL INSTRUCTIONS
121
5.14(A) CONSPIRACY—WITHDRAWAL—
STATUTE OF LIMITATIONS—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] conspiracy. In order for you to find [the; a]
defendant guilty of this charge, the government must
prove each of the [fill in number of elements] following
elements beyond a reasonable doubt:
1.
and
2.
and
3.
If you find from your consideration of all the evi-
dence that the government has failed to prove any one
of these elements beyond a reasonable doubt [as to the
charge you are considering], then you should find the
defendant not guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has proved
each of these elements beyond a reasonable doubt, then
you should find the defendant guilty [of that charge],
unless you also find that the defendant has proved that
it is more likely than not that he withdrew from the
conspiracy more than five years before the return of the
indictment in this case. A defendant who has so proved
should be found not guilty.
Committee Comment
This instruction should be followed immediately by Instruc-
tion 5.14(B).
The Supreme Court held in Smith v. United States, 568 U.S.
5.14(A)
GENERAL INSTRUCTIONS
122
106 (2013), that a defendant bears the burden of proving with-
drawal from a conspiracy. This decision abrogated a line of Seventh
Circuit cases, including United States v. Morales, 655 F.3d 608,
640 (7th Cir. 2011), United States v. Starnes, 14 F.3d 1207,
1210–11 (7th Cir. 1994), and United States v. Read, 658 F.2d 1225,
1236 (7th Cir. 1981).
5.14(A)
CRIMINAL INSTRUCTIONS
123
5.14(B) CONSPIRACY—WITHDRAWAL—
STATUTE OF LIMITATIONS
[The defendant[s]; defendant[s] name[s]] cannot be
found guilty of the conspiracy charge if [he; they]
withdrew from the conspiracy more than five years
before the indictment was returned. The indictment in
this case was returned on [date of indictment]. Thus,
[the defendant[s]; defendant[s] name[s]] must prove
that it is more likely than not that [he; they] withdrew
from the conspiracy prior to [date five years prior to
date of indictment].
In order to withdraw, [the; a] defendant must have
taken some affirmative act in an attempt to defeat or
disavow the goal[s] of the conspiracy, such as:
(a) [completely undermining his earlier acts in
support of the commission of the crime so that these
acts no longer could support or assist the commission of
the crime], or
(b) [alerting the proper law enforcement authori-
ties in time to give them the opportunity to stop the
crime or crimes], or
(c) [performing an affirmative act that is inconsis-
tent with the goal[s] of the conspiracy in a way that the
co-conspirators are reasonably likely to know about it
before they carry through with additional acts of the
conspiracy], or
(d) [making a genuine effort to prevent the com-
mission of the crime], or
(e) [communicating to each of his co-conspirators
that he has abandoned the conspiracy and its goals].
Merely ceasing active participation in the conspir-
acy is not sufficient to show withdrawal.
5.14(B)
GENERAL INSTRUCTIONS
124
Committee Comment
This instruction should be used in conjunction with Instruc-
tion 5.14(A).
Withdrawal as a defense to conspiracy. Withdrawal from a
conspiracy is only effective prospectively; it is not a defense to a
conspiracy count directed at the period prior to withdrawal. United
States v. Dallas, 229 F.3d 105, 110–11 (7th Cir. 2000). On the
other hand, withdrawal from a conspiracy outside the statute of
limitations is a defense because it negates an element of the of-
fense; namely, membership in the conspiracy within the statute of
limitations. United States v. Read, 658 F.2d 1225 (7th Cir. 1981).
What constitutes withdrawal from a conspiracy. “[S]imply end-
ing one’s involvement in [a] conspiracy, even voluntarily, is not
enough to constitute withdrawal.” Rather, “additional action aimed
at defeating or disavowing the objectives of the conspiracy” is
required. United States v. Nagelvoort, 856 F.3d 1117, 1129 (7th
Cir. 2017); see also United States v. Julian, 427 F.3d 471 (7th Cir.
2005).
Factors to be considered.InUnited States v. U.S. Gypsum Co.,
438 U.S. 422, 463–65 (1978), the Supreme Court held that an
instruction unnecessarily limiting the type of actions that may
constitute withdrawal from a conspiracy is reversible error. Thus,
this instruction should be tailored to the specific actions introduced
by the defendant at trial that are inconsistent with the object of
the conspiracy. With regard to subsection (e) of the instruction
(“communicating to each of his co-conspirators that he has
abandoned the conspiracy and its goals”), the Seventh Circuit has
repeatedly endorsed in dicta this manner of demonstrating with-
drawal from a conspiracy. See, e.g., United States v. Vaughn, 433
F.3d 917, 922 (7th Cir. 2006) (“Withdrawal requires an affirmative
act to either defeat or disavow the purposes of the conspiracy, such
as making a full confession to the authorities or communicating to
co-conspirators that one has abandoned the enterprise.”) (internal
citation omitted); United States v. Sax, 39 F.3d 1380, 1386 (7th
Cir. 1994) (“Withdrawal requires an affirmative act on the part of
the conspirator; he must either make a full confession to the
authorities, or communicate to each of his coconspirators that he
abandoned the conspiracy and its goals.”), citing United States v.
DePriest, 6 F.3d 1201, 1206 (7th Cir. 1993). The Committee,
however, has found no case defining or applying this section of the
instruction.
5.14(B)
CRIMINAL INSTRUCTIONS
125
6.01 SELF DEFENSE/DEFENSE OF OTHERS
A person may use force when he reasonably believes
that force is necessary to defend [himself; another
person] against the imminent use of unlawful force. [A
person may use force that is intended or likely to cause
death or great bodily harm only if he reasonably
believes that force is necessary to prevent death or great
bodily harm to [himself; someone else].]
Committee Comment
As with any affirmative defense, a defendant is entitled to a
self-defense instruction only if he presents sufficient evidence to
require its submission to the jury. United States v. Sahakian, 453
F.3d 905, 909 (7th Cir. 2006); United States v. Ebert, 294 F.3d 896,
899 (7th Cir. 2002). This includes evidence that there were no rea-
sonable legal alternatives to the use of force, such as retreat or
similar steps to avoid injury. Sahakian, 453 F.3d at 909; United
States v. Tokash, 282 F.3d 962, 969 (7th Cir. 2002). These notions
are captured in the imminence and necessity requirements of the
self-defense instruction. The Seventh Circuit has stated, however,
that “the defense is reserved for extraordinary circumstances which
require nothing less than immediate emergency.” Sahakian, 452
F.3d at 910 (citation omitted).
In United States v. Talbott, 78 F.3d 1183, 1185–86 (7th Cir.
1996) (per curiam), the Seventh Circuit concluded that the trial
judge had erred in instructing the jury that the defendant charged
with being a felon in possession of a firearm had the burden of
proving self-defense.
It is unclear whether Talbott remains good law. In Dixon v.
United States, 548 U.S. 1 (2006), the Supreme Court held that
there is no constitutional requirement that the government
disprove beyond a reasonable doubt an affirmative defense that
controverts an element of an offense. Rather, the allocation of the
burden of proof on defenses is a matter of statute, or in the absence
of a statute, common law. When a federal crime is at issue, courts
are to presume that Congress intended to follow established com-
mon law rules regarding the allocation of the burden of proof on
defenses. When a state crime is at issue (as it is, for example,
under the Assimilated Crimes Act, 18 U.S.C. § 13), the allocation
of the burden of proof is a matter of state law. At least one Circuit
has held, since Dixon, that when self-defense is asserted in a
federal felon-in-possession case, the defendant has the burden of
proving self-defense by a preponderance of the evidence. United
6.01
GENERAL INSTRUCTIONS
126
States v. Leahy, 473 F.3d 401, 405–08 (1st Cir. 2007). In addition,
the Seventh Circuit has recognized that the Supreme Court’s deci-
sion in Dixon applies beyond the duress defense at issue in that
case. United States v. Jumah, 493 F.3d 868, 873 n.2 (7th Cir. 2007)
(“Although the facts of Dixon . . ., related to the affirmative
defense of duress, it is clear that the Court’s holding was not
limited to this defense. The Court cited our decision in Talbott as
an exemplar of cases in conflict with the decision of the Fifth
Circuit . . . Talbott itself did not involve the affirmative defense of
duress. Rather, the defense raised in Talbott was self-defense.”)
(citation omitted). Because the Seventh Circuit has not yet
determined which side bears the burden of proving self defense
under any particular federal statutes, the Committee takes no po-
sition on the current state of the law in that regard. See United
States v. Waldman, 835 F.3d 751, 756 n.2 (7th Cir. 2016) (acknowl-
edging the issue but declining to decide it).
This instruction will require modification in cases involving
assault by a prisoner against a prison employee under 18 U.S.C.
§ 111, which prohibits assaults or resistance against federal of-
ficers engaged in official duties. The Seventh Circuit concluded in
Waldman, 835 F.3d at 755, that an inmate may act in self-defense
only “if he reasonably fears imminent use of sadistic and malicious
force by a prison official for the very purpose of causing him harm.”
In such a case, the Committee suggests the following revision of
the first sentence of the instruction:
A prison inmate may use force against a prison employee when
he reasonably fears the imminent use of sadistic and mali-
cious force by the prison employee for the purpose of causing
him harm.
6.01
CRIMINAL INSTRUCTIONS
127
6.02 INSANITY
You must find the defendant not guilty by reason
of insanity if you find that he has proven by clear and
convincing evidence that at the time he committed the
offense, he had a severe mental disease or defect that
rendered him unable to appreciate the nature and qual-
ity of what he was doing, or that rendered him unable
to appreciate that what he was doing was wrong [that
is, contrary to public morality and contrary to law].
[If you find the defendant not guilty by reason of
insanity, then the court will commit the defendant to a
suitable facility until the court finds that he is eligible
to be released.]
Committee Comment
18 U.S.C. § 17 establishes the parameters of the defense of
insanity, as well as the burden of proof. The issue of legal insanity
is to be decided by the trier of fact. Fed. R. Evid. 704(b). Under 18
U.S.C. § 4242(b), the court must provide the jury with a special
verdict form that allows a verdict of “not guilty only by reason of
insanity.”
Section 17 does not define what it means for a defendant to
“understand that what he was doing was wrong.” In United States
v. Ewing, 494 F.3d 607, 618 (7th Cir. 2007), the court held that the
term still carries the same meaning as that set forth in M’Naghten’s
Case, 8 Eng. Rep. 718 (1843), that is, one that is based upon objec-
tive societal standards of morality. Defining “wrongfulness” as
“contrary to law” is too narrow, while defining it as “subjective
personal morality” is too broad. Ewing, 494 F.3d at 618. The court
cautioned, however, that not every case involving an insanity
defense requires the court to instruct the jury on the distinction
between moral and legal wrongfulness. Id. at 621–22. Therefore,
the court should use the bracketed language in the first paragraph
of the instruction only when the evidence warrants it. Id. at 622.
If a defendant is found not guilty only by reason of insanity,
the district court must commit him to a suitable facility until he is
found eligible for release under the statutory scheme. 18 U.S.C.
§ 4243(a). The court may instruct the jury on this automatic com-
mitment requirement, but should only do so to counteract inac-
curate or misleading information presented to the jury during
6.02
GENERAL INSTRUCTIONS
128
trial. Shannon v. United States, 512 U.S. 579 (1994); United States
v. Diekhoff, 535 F.3d 611, 620–21 (7th Cir. 2008); United States v.
Waagner, 319 F.3d 962, 966 (7th Cir. 2003).
6.02
CRIMINAL INSTRUCTIONS
129
6.03 DEFENDANT’S PRESENCE
You have heard evidence that the defendant was
not present at the time and place where the govern-
ment alleges he committed the offense charged in Count
—
. The government must prove beyond a reasonable
doubt that the defendant was present at the time and
place of the offense.
Committee Comment
The “alibi” instruction has been re-titled because of widespread
negative connotations associated with the word “alibi.” The Com-
mittee recommends that courts that do provide juries with instruc-
tion headings use the new title rather than the former title.
This defense is based on the physical impossibility of a
defendant’s guilt by placing the defendant in a location other than
the scene of the crime charged. United States v. White, 443 F.3d
582, 587 (7th Cir. 2006). The court should provide this instruction
only when it presents an actual defense to the crime charged. For
example, a defendant does not necessarily have to be present at
the scene to aid and abet a crime. See Gonzales v. Duenas-Alvarez,
549 U.S. 183, 190–92 (2007).
Although this instruction might seem unnecessary in light of
the government’s obligation in every case to prove that the
defendant actually is the person who committed the charged crime,
it still is considered a theory of defense, and the court should
provide a presence instruction if it has some support in the
evidence. White, 443 F.3d at 587.
6.03
GENERAL INSTRUCTIONS
130
6.04 ENTRAPMENT—ELEMENTS
The government has the burden of proving that the
defendant was not entrapped by [identify the actor[s]:
e.g., government agent, informant, law enforcement
officer]. The government must prove beyond a reason-
able doubt either:
1. [A] [government agent[s]; informant[s]; [or] law
enforcement officer[s]] did not induce the defendant to
commit the offense; or
2. The defendant was predisposed to commit the
offense before he had contact with [government agent[s];
informant[s]; law enforcement officer[s]].
I will define what I mean by the terms “induce”
and “predisposed.”
Committee Comment
See United States v. Mayfield, 771 F.3d 417, 439–40 (7th Cir.
2014) (en banc).
6.04
CRIMINAL INSTRUCTIONS
131
6.05 ENTRAPMENT—DEFINITIONS OF TERMS
Definition of “induce”:
[A] [government agent[s]; informant[s]; law enforce-
ment officer[s]] “induce[s]” a defendant to commit a
crime: (1) if [the] [agent[s]; informant[s]; [and/or] of-
ficer[s]] solicit[s] the defendant to commit the crime,
and (2) does something in addition that could influence
a person to commit a crime that the person would not
commit if left to his own devices. This other conduct
may consist of [repeated attempts at persuasion; fraud-
ulent representations; threats; coercive tactics; harass-
ment; promises of reward beyond what is inherent in
the usual commission of the crime; pleas based on need,
sympathy, or friendship; [insert specific other conduct
at issue;] [or] [any [other] conduct that creates a risk
that a person who would not commit the crime if left to
his own devices will do so in response to the efforts of
the [agent[s]; informant[s]; officer[s]].
[If the [agent[s]; informant[s]; officer[s]] merely ini-
tiated contact with the defendant; merely solicited the
crime; or merely furnished an opportunity to commit
the crime on customary terms, then the [agent[s];
informant[s]; officer[s]] did not induce the defendant to
commit the crime.]
Definition of “predisposed”:
A defendant is “predisposed” to commit the charged
crime if, before he was approached by [a] [government
agent[s]; informant[s]; law enforcement officer[s]], he
was ready and willing to commit the crime and likely
would have committed it without the intervention of
the [agent[s]; informant[s]; officer[s]], or he wanted to
commit the crime but had not yet found the means.
Predisposition requires more than a mere desire,
urge, or inclination to engage in the charged crime.
6.05
GENERAL INSTRUCTIONS
132
Rather, it concerns the likelihood that the defendant
would have committed the crime if [the] [agent[s];
informant[s]; officer[s]] had not approached him.
In deciding whether the government has met its
burden of proving that the defendant was predisposed
to commit the crime, you may consider the defendant’s
character [, or] reputation [, or] criminal history];
whether the government initially suggested the crimi-
nal activity; whether the defendant engaged in the
criminal activity for profit; whether the defendant
showed a reluctance to commit the crime that was
overcome by persuasion by the [agent[s]; informant[s];
officer[s]]; and the nature of the inducement or persua-
sion that was used.
Committee Comment
See United States v. Mayfield, 771 F.3d 417, 434–36 (7th Cir.
2014) (en banc); United States v. McGill, 754 F.3d 452 (7th Cir.
2014) (reversing conviction for failure to give entrapment
instruction). See also Jacobson v. United States, 503 U.S. 540 (1992)
(predisposition must exist prior to the government’s attempts to
persuade the defendant to commit the crime). Regarding predispo-
sition, the en banc court emphasized in Mayfield that the relevant
inquiry is the defendant’s predisposition to commit the charged
crime, not just any crime. Mayfield, 771 F.3d at 438. In addition,
“although the defendant’s criminal history is relevant to the ques-
tion of his predisposition, it’s not dispositive.” Id. (emphasis in
original).
Entrapment is, generally speaking, a question for the jury, not
the court. Id. at 439. “[T]he defendant is entitled to a jury instruc-
tion on the defense ‘whenever there is sufficient evidence from
which a reasonable jury could find entrapment.’ ’’ Id. at 440. “[T]o
obtain a jury instruction and shift the burden of disproving entrap-
ment to the government, the defendant must proffer evidence on
both elements of the defense. But this initial burden of production
is not great. An entrapment instruction is warranted if the
defendant proffers some evidence that the government induced
him to commit the crime and he was not predisposed to commit it.
Id. (internal quotation marks and citations omitted).
Mayfield also addressed the question of whether the trial court
6.05
CRIMINAL INSTRUCTIONS
133
may, before trial, preclude the defendant from asserting an entrap-
ment defense. The court stated:
Though this practice is permissible, it carries an increased
risk that the court will be tempted to balance the defendant’s
evidence against the government’s, invading the province of
the jury. In ruling on a pretrial motion to preclude the entrap-
ment defense, the court must accept the defendant’s proffered
evidence as true and not weigh the government’s evidence
against it. This important point is sometimes obscured, subtly
raising the bar for presenting entrapment evidence at trial.
. . . The two elements of the entrapment inquiry are not
equally amenable to resolution before trial. Predisposition
rarely will be susceptible to resolution as a matter of law.
Predisposition, as we’ve defined it, refers to the likelihood that
the defendant would have committed the crime without the
government’s intervention, or actively wanted to but hadn’t
yet found the means. This probabilistic question is quintes-
sentially factual; it’s hard to imagine how a particular person
could be deemed “likely” to do something as a matter of law.
The inducement inquiry, on the other hand, may be more ap-
propriate for pretrial resolution; if the evidence shows that the
government did nothing more than solicit the crime on stan-
dard terms, then the entrapment defense will be unavailable
as a matter of law.
Id. at 440–41.
The instruction’s list of the types of actions that may consti-
tute inducement includes “fraudulent representations,” as the
Seventh Circuit ruled in Mayfield. The court has not yet, however,
definitively defined what types of fraudulent representations may
qualify as the type of inducement giving rise to entrapment, as op-
posed to legitimate undercover investigation tactics. For this prop-
osition, the court cited United States v. Burkley, 591 F.2d 903, 913
(D.C. Cir. 1978), which in turn notes that “not all fraudulent
representations constitute inducement” and provides examples of
some types that the D.C. Circuit believed would not qualify. Id.at
n.18 (internal quotation marks omitted). The court may, of course,
consider whether the evidence warrants making specific reference
to “fraudulent representations” or whether some other factor listed
in the instruction covers the type of inducement at issue (e.g.,a
fake stash of drugs might be better characterized as a “promise of
reward,” a false suggestion of a gang reprisal might be better
characterized as a “coercive tactic,” etc.).
In addition, in a case in which an entrapment instruction is
6.05
GENERAL INSTRUCTIONS
134
given and Instruction 3.19 (Government Investigative Techniques)
is requested, consideration should be given to whether Instruction
3.19 should be reworded so that it does not implicitly modify or
undercut the entrapment instruction.
Regarding predisposition, if evidence of the defendant’s
character or criminal history is introduced, the court should
consider giving a limiting instruction confining the use of the evi-
dence to determination of predisposition and precluding its use for
other purposes.
6.05
CRIMINAL INSTRUCTIONS
135
6.06 RELIANCE ON PUBLIC AUTHORITY
[The defendant[s]; defendant[s] name[s]] contend[s]
that [he; they] acted in reliance on public authority. A
defendant who commits an offense in reliance on public
authority does not act [knowingly; insert other level of
intent required for conviction] and should be found not
guilty.
To be found not guilty based on reliance on public
authority, [the; a] defendant must prove that each of
the following [three] things are more likely true than
not true:
1. An [agent; representative; official; name] of the
[United States] government [requested; directed; autho-
rized] the defendant to engage in the conduct charged
against the defendant in Count[s]
—
; and
2. This [agent; representative; official; name] had
the actual authority to grant authorization for the
defendant to engage in this conduct; and
3. In engaging in this conduct, the defendant rea-
sonably relied on the [agent’s; representative’s; official’s;
name] authorization. In deciding this, you should
consider all of the relevant circumstances, including the
identity of the government official, what that official
said to the defendant, and how closely the defendant
followed any instructions the official gave.
Committee Comment
The defendant bears the burden of proving the defense of reli-
ance on public authority by a preponderance of the evidence. United
States v. Jumah, 493 F.3d 868, 875 (7th Cir. 2007). This defense is
closely related to the defense of entrapment by estoppel. Although
the court in Jumah questions the meaningfulness of the difference
between the two, it offers this distinction: in the case of a public
authority defense, the defendant, acting at the request of a govern-
ment official, engages in conduct that the defendant knows to be
otherwise illegal, while in the case of a defense of entrapment by
6.06
GENERAL INSTRUCTIONS
136
estoppel, the defendant does not believe that his conduct consti-
tutes a crime, based on the statements of a government official. Id.
at 874 n.4; see also United States v. Strahan, 565 F.3d 1047, 1051
(7th Cir. 2009) (“the public-authority defense requires reasonable
reliance by a defendant on a public official’s directive to engage in
behavior that the defendant knows to be illegal”); United States v.
Baker, 438 F.3d 749, 753 (7th Cir. 2006). The instruction is worded
to require that the official had the actual authority to authorize
the conduct. The Seventh Circuit has not definitively decided,
however, whether the actual authority is required or whether, as
with the defense of entrapment by estoppel, apparent authority
suffices. See Baker, 438 F.3d at 754. The Committee takes no posi-
tion on whether actual authority is required. See also Fed. R. Crim.
P. 12.3(a)(1).
6.06
CRIMINAL INSTRUCTIONS
137
6.07 ENTRAPMENT BY ESTOPPEL
[The defendant[s]; defendant[s] name[s]] contend[s]
that [he; they] engaged in the conduct charged against
[him; them] in Count[s]
—
in reasonable reliance on
[name the government agent]’s assurance that this
conduct was lawful. A defendant who commits an of-
fense in reasonable reliance on such an official assur-
ance does not act [knowingly; insert other level of intent
required for conviction] and should be found not guilty.
In order to be found not guilty for this reason, [the;
a] defendant must prove the following [three] things
are more likely true than not true:
1. An official of the United States government,
with actual or apparent authority over the matter, told
the defendant that his conduct would be lawful; and
2. The defendant actually relied on what this of-
ficial told him in taking this action; and
3. The defendant’s reliance on what the official
told him was reasonable. In deciding this, you should
consider all of the relevant circumstances, including the
identity of the government official, what that official
said to the defendant, and how closely the defendant
followed any instructions the official gave.
Committee Comment
The defense of entrapment by estoppel is closely related to the
defense of reliance on public authority. See Committee Comment
to Instruction 6.06. The defendant has the burden to prove estop-
pel by a preponderance of the evidence. A federal official’s appar-
ent authority to authorize the defendant’s conduct can support this
defense; actual authority is not required. United States v. Baker,
438 F.3d 749, 754 (7th Cir. 2006).
The defense does not apply when the defendant claims to have
been misled by a state or local official into committing a federal
crime. Id. at 755. Entrapment by estoppel is a narrow defense
6.07
GENERAL INSTRUCTIONS
138
requiring that the government actively misled the defendant and
that the defendant actually and reasonably relied on the represen-
tations by the government official or agent. Id. at 755–56.
6.07
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139
6.08 COERCION/DURESS
[The defendant[s]; defendant[s] name[s]] contend[s]
that even if the government has proved that [he; they]
committed the offense [in Count(s) [in count(s)
—
], [he;
they] did so because [he; they] [was; were] coerced. A
person who is coerced into committing an offense should
be found not guilty of that offense.
To establish that he was coerced, [the; a] defendant
must prove that both of the following things are more
likely true than not true:
1. He reasonably feared that [identify person or
group] would immediately kill or seriously injure [him;
specified third person] if he did not commit the offense;
and
2. He had no reasonable opportunity to refuse to
commit the offense and avoid the threatened harm.
Committee Comment
The defendant bears the burden of proving the defense of coer-
cion by a preponderance of the evidence. United States v. Dixon,
548 U.S. 1, 15 (2006). To be entitled to a coercion instruction, the
defendant must make a sufficient evidentiary showing. If the
defendant had a reasonable alternative to violating the law, then
the defense does not apply. A defendant’s fear of death or serious
injury is generally insufficient without more; there must be evi-
dence that the threatened harm was present, immediate, or
impending. If the defendant committed a continuing crime (such
as conspiracy), he must have ceased committing the crime as soon
as the claimed duress lost its coercive force. United States v. Sawyer,
558 F.3d 705, 710–11 (7th Cir. 2009).
6.08
GENERAL INSTRUCTIONS
140
6.09(A) VOLUNTARY INTOXICATION
You have heard evidence that the defendant was
voluntarily intoxicated by [name intoxicant(s)] at the
time of the commission of the offense[s] charged in
[Count[s]
—
of] the indictment. You may consider this
evidence in determining whether the defendant was
capable of [insert intent element of crime at issue, e.g.,
acting with intent to commit murder, acting with intent
to defraud, corruptly influencing the due administra-
tion of justice].
Committee Comment
Voluntary intoxication is not generally a defense to a general
intent crime, that is, one that is done “knowingly.” United States v.
Smith, 606 F.3d 1270, 1281–82 (10th Cir. 2010). But it can negate
the intent required to prove crimes with a specific intent element.
To warrant a voluntary intoxication instruction, the defendant
must produce some evidence that he was intoxicated enough “to
completely lack the capacity to form the requisite [specific] intent.”
United States v. Nacotee, 159 F.3d 1073, 1076 (7th Cir. 1998). “A
high degree of intoxication can conceivably, under limited circum-
stances, render the defendant incapable of attaining the required
state of mind to commit the crime.” United States v. Boyles,57
F.3d 535, 541 (7th Cir. 1995). (Note that Federal Rule of Evidence
704(b) limits a defendant’s ability to prove this point at trial by
means of expert testimony. Id. at 543.)
Where the defense only applies to certain counts in a multi-
count indictment, the court should specifically reference those
counts to which it does apply. United States v. Kenyon, 481 F.3d
1054, 1070–71 (8th Cir. 2007).
6.09(A)
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141
6.09(B) DIMINISHED CAPACITY
You have heard evidence that the defendant may
have had [name mental disorder] at the time of the
commission of the offense[s] charged in [Count[s]
—
of]
the indictment. You may consider this evidence in
determining whether the defendant was capable of
[insert intent element of crime at issue, e.g., acting with
intent to commit murder, acting with intent to defraud,
corruptly influencing the due administration of justice].
Committee Comment
Diminished capacity is not a defense to a general intent crime,
that is, one that must be committed “knowingly,” but it may ne-
gate the intent required to prove a crime with a specific intent
element. See United States v. Navarrete, 125 F.3d 559, 563 n.1
(7th Cir. 1997) (noting that conspiracy to distribute narcotics is a
specific intent crime); United States v. Reed, 991 F.2d 399, 400–01
(7th Cir. 1993) (noting that firearm-possession offenses are general
intent crimes). See also, e.g., United States v. Moore, 425 F.3d
1061, 1065 n.3 (7th Cir. 2005) (diminished capacity defense was
not available for crime of distribution of narcotics because it is a
general intent crime); United States v. Fazzini, 871 F.2d 635, 641
(7th Cir. 1989) (diminished capacity is not a defense to bank rob-
bery because it is a general intent crime).
Where the defense only applies to certain counts in a multi-
count indictment, the court should specifically reference those
counts to which it does apply. United States v. Kenyon, 481 F.3d
1054, 1070–71 (8th Cir. 2007).
6.09(B)
GENERAL INSTRUCTIONS
142
6.10 GOOD FAITH—FRAUD/FALSE
STATEMENTS/MISREPRESENTATIONS
If [the; a] defendant acted in good faith, then he
lacked the [insert element of crime at issue, e.g., intent
to defraud; willfulness] required to prove the offense[s]
of [identify the offenses] charged in Count[s]
—
.A
defendant acted in good faith if, at the time, he honestly
believed the [truthfulness; validity; insert other specific
term] that the government has charged as being [false;
fraudulent; insert term used in charge].
A defendant does not have to prove his good faith.
Rather, the government must prove beyond a reason-
able doubt that the defendant acted [insert element of
crime at issue, e.g., intent to defraud; willfully] as
charged in Count[s]
—
.
[A defendant’s honest and genuine belief that he
will be able to perform what he promised is not a
defense to fraud if the defendant also knowingly made
false and fraudulent representations.]
Committee Comment
The Seventh Circuit has questioned whether a good faith
instruction provides any useful information beyond that contained
in the pattern instruction defining “knowledge.” See United States
v. Prude, 489 F.3d 873, 882 (7th Cir. 2007); United States v. Mutuc,
349 F.3d 930, 935–36 (7th Cir. 2003). For this reason, as a general
rule, this instruction should not be used in cases in which the
government is required only to prove that the defendant acted
“knowingly.” Rather, it should be used in cases in which the
government must prove some form of “specific intent,” such as
intent to defraud or willfulness.
The third paragraph of the instruction should be given only
when warranted by the evidence. As the court observed in United
States v. Caputo, 517 F.3d 935, 942 (7th Cir. 2008), “[a] person
who tells a material lie to a federal agency can’t say ‘yes, but I
thought it would all work out to the good’ or some such thing.
Intentional deceit on a material issue is a crime, whether or not
the defendant thought that he had a good excuse for trying to
6.10
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deceive the federal agency or the potential customers.” See also
United States v. Radziszewski, 474 F.3d 480, 485–86 (7th Cir.
2007). Indeed, in this situation, it is arguable that no good faith
instruction should be given at all. Caputo, 517 F.3d at 942.
6.10
GENERAL INSTRUCTIONS
144
6.11 GOOD FAITH—TAX AND OTHER
TECHNICAL STATUTE CASES
A person does not act willfully if he believes in good
faith that he is acting within the law, or that his ac-
tions comply with the law. Therefore, if the defendant
actually believed that what he was doing was in accord
with the [tax; currency structuring; other technical stat-
ute] laws, then he did not willfully [evade taxes; fail to
file tax returns; make a false statement on a tax return;
other charged offense]. This is so even if the defendant’s
belief was not objectively reasonable, as long as he held
the belief in good faith. However, you may consider the
reasonableness of the defendant’s belief, together with
all the other evidence in the case, in determining
whether the defendant held that belief in good faith.
Committee Comment
When a defendant is accused of violating a complex and techni-
cal statute, such as a criminal tax statute, the term “willfully” has
been construed to require proof that the defendant acted with
knowledge that his conduct violated a legal duty. Ratzlaf v. United
States, 510 U.S. 135, 144–46 (1994); Cheek v. United States, 498
U.S. 192, 201 (1991); United States v. Wheeler, 540 F.3d 683, 689
(7th Cir. 2008); United States v. Murphy, 469 F.3d 1130, 1138 (7th
Cir. 2006).
6.11
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145
6.12 RELIANCE ON ADVICE OF COUNSEL
If [the; a] defendant relied in good faith on the
advice of an attorney that his conduct was lawful, then
he lacked the [insert element of crime at issue, e.g.,
intent to defraud; willfulness] required to prove the of-
fense[s] of [identify the offenses] charged in Count[s]
—
.
The defendant relied in good faith on the advice of
counsel if:
1. Before taking action, he in good faith sought
the advice of an attorney whom he considered competent
to advise him on the matter; and
2. He consulted this attorney for the purpose of
securing advice on the lawfulness of his possible future
conduct; and
3. He made a full and accurate report to his at-
torney of all material facts that he knew; and
4. He then acted strictly in accordance with the
advice of this attorney.
[You may consider the reasonableness of the advice
provided by the attorney when determining whether
the defendant acted in good faith.]
The defendant does not have to prove his good faith.
Rather, the government must prove beyond a reason-
able doubt that the defendant acted [insert intent ele-
ment of crime at issue, e.g., intent to defraud; willfully]
as charged in Count[s]
—
.
Committee Comment
See United States v. Van Allen, 524 F.3d 814, 823 (7th Cir.
2008); United States v. Al-Shahin, 474 F.3d 941, 947 (7th Cir.
2007); United States v. Urfer, 287 F.3d 663, 664–65 (7th Cir. 2002).
6.12
GENERAL INSTRUCTIONS
146
7.01 JURY DELIBERATIONS
Once you are all in the jury room, the first thing
you should do is choose a [foreperson; presiding juror].
The [foreperson; presiding juror] should see to it that
your discussions are carried on in an organized way
and that everyone has a fair chance to be heard. You
may discuss the case only when all jurors are present.
Once you start deliberating, do not communicate
about the case or your deliberations with anyone except
other members of your jury. You may not communicate
with others about the case or your deliberations by any
means. This includes oral or written communication, as
well as any electronic method of communication, such
as [list current technology or services likely to be used,
e.g., telephone, cell phone, smart phone, iPhone,
Blackberry, computer, text messaging, instant messag-
ing, the Internet, chat rooms, blogs, websites, or ser-
vices like Facebook, LinkedIn, YouTube, Instagram,
Snapchat, Twitter], or any other method of
communication.
If you need to communicate with me while you are
deliberating, send a note through the [Marshal; court
security officer]. The note should be signed by the
[foreperson; presiding juror], or by one or more members
of the jury. To have a complete record of this trial, it is
important that you do not communicate with me except
by a written note. I may have to talk to the lawyers
about your message, so it may take me some time to
get back to you. You may continue your deliberations
while you wait for my answer. [Please be advised that
transcripts of trial testimony are not available to you.
You must rely on your collective memory of the
testimony.]
If you send me a message, do not include the
breakdown of any votes you may have conducted. In
7.01
CRIMINAL INSTRUCTIONS
147
other words, do not tell me that you are split 6–6, or
8–4, or whatever your vote happens to be.
Committee Comment
See American Bar Ass’n Standards for Criminal Justice, Trial
By Jury, Standard 15-4.1(b) (“The court should require a record to
be kept of all communications received from a juror or the jury af-
ter the jury has been sworn, and he or she should not communicate
with a juror or the jury on any aspect of the case itself (as
distinguished from matters relating to physical comforts and the
like), except after notice to all parties and reasonable opportunity
for them to be present.”); id. Standard 15-4.3(a) (“All communica-
tions between the judge and members of the jury panel, from the
time of reporting to the courtroom for voir dire until dismissal,
should be in writing or on the record in open court. Counsel for
each party should be informed of such communication and given
the opportunity to be heard.”).
“[B]ecause the defendant has a right to be present ‘at every
trial stage,’ Fed. R. Crim. P. 43(a)(2), he must be present during
the discussion of jury notes as well.” United States v. Willis, 523
F.3d 762, 775 (7th Cir. 2008). Thus, when the jury sends the court
a note, “the jury’s message should [be] answered in open court and
. . . [the defendant’s] counsel should have . . . an opportunity to
be heard before the trial judge respond[s].” Rogers v. United States,
422 U.S. 35, 39 (1975), quoted in Willis, 523 F.3d at 775.
This rule does not necessarily apply to notes regarding house-
keeping matters such as lunch arrangements and the like. See,
e.g., Love v. City of Chicago Bd. of Educ., 241 F.3d 564, 572 (7th
Cir. 2001), abrogated in part on other grounds, Spiegla v. Hull,
371 F.3d 928, 941–42 (7th Cir. 2004). But if a communication
regarding scheduling arguably impacts the length of the jury’s
deliberations, it is error not to disclose the communication to the
defendant and counsel. See United States v. Blackmon, 839 F.2d
900, 915 (2d Cir. 1988) (error, but found harmless). The safer and
better practice is for the trial judge to disclose and seek comments
on all communications to or from the jury. See DeGrave v. United
States, 820 F.2d 870, 872 (7th Cir. 1987) (“We note that the court’s
practice of permitting ex parte communications with the jury pre-
sents problems.”); see also United States v. Widgery, 778 F.2d 325,
327 (7th Cir. 1985) (“To answer a note without consulting counsel
may spoil a perfectly good trial for several reasons—not only
because it denies the defendant a procedural right but also because
consultation may help the court to cure a general problem in the
deliberations before it is too late.”).
7.01
GENERAL INSTRUCTIONS
148
7.02 VERDICT FORM
[A verdict form has been; Verdict forms have been]
prepared for you. You will take [this form; these forms]
with you to the jury room.
[Read the verdict form[s].]
When you have reached unanimous agreement,
your [foreperson; presiding juror] will fill in, date, and
sign the [appropriate] verdict form[s]. [The foreperson;
The presiding juror; Each of you] will sign it.
Advise the [Marshal; court security officer] once
you have reached a verdict. When you come back to the
courtroom, [I; the clerk] will read the verdict[s] aloud.
Committee Comment
The last sentence of the instruction advises jurors that they
will not have to read the verdict, a common assumption, to prevent
any concern or fear on the part of the presiding juror/foreperson.
7.02
CRIMINAL INSTRUCTIONS
149
7.03 UNANIMITY/DISAGREEMENT AMONG
JURORS
The verdict must represent the considered judg-
ment of each juror. Your verdict, whether it is guilty or
not guilty, must be unanimous.
You should make every reasonable effort to reach a
verdict. In doing so, you should consult with each other,
express your own views, and listen to your fellow jurors’
opinions. Discuss your differences with an open mind.
Do not hesitate to re-examine your own view and
change your opinion if you come to believe it is wrong.
But you should not surrender your honest beliefs about
the weight or effect of evidence just because of the
opinions of your fellow jurors or just so that there can
be a unanimous verdict.
The twelve of you should give fair and equal
consideration to all the evidence. You should deliberate
with the goal of reaching an agreement that is consis-
tent with the individual judgment of each juror.
You are impartial judges of the facts. Your sole
interest is to determine whether the government has
proved its case beyond a reasonable doubt [and whether
the defendant has proved [insert defense] by [a prepon-
derance of the evidence; clear and convincing evidence]].
Committee Comment
This instruction is derived from United States v. Silvern, 484
F.2d 879 (7th Cir. 1973), with changes only to improve syntax. The
final, bracketed sentence is included to cover situations in which
the trial court has instructed the jury on an affirmative defense on
which the defendant bears the burden of proof, such as coercion or
insanity.
There are two situations in which a Silvern instruction may
be appropriate: (1) the initial charge to the jury and (2) a
deadlocked jury. The trial court may give the instruction to a
deadlocked jury only if it has given the instruction in the initial
7.03
GENERAL INSTRUCTIONS
150
charge. United States v. Brown, 634 F.2d 1069, 1070 (7th Cir.
1980) (“A deadlock instruction given along with other instructions
before there is a minority of jurors to feel pressured, has less
danger of being coercive than a deadlock instruction first given
when deadlock occurs.”). If, however, the defendant definitively
expresses his consent to the Silvern instruction, despite its absence
from the initial charge, the district court may find waiver and is-
sue the instruction. United States v. Collins, 223 F.3d 502, 509
(7th Cir. 2000).
The Seventh Circuit has held that repeating the Silvern
instruction twice after the initial charge was not an abuse of
discretion. United States v. Sanders, 962 F.2d 660, 677 (7th Cir.
1992). Before repeating the instruction, however, the judge must
first conclude that the jury is deadlocked. United States v. Willis,
523 F.3d 762, 775 (7th Cir. 2008). In determining whether the jury
is deadlocked, the judge may consider factors such as the length of
deliberations compared with the length of the trial and the com-
munication by the jury to the judge. United States v. Taylor, 569
F.3d 742, 746 (7th Cir. 2009); Sanders, 962 F.2d at 676. There is
no requirement, however, that the trial judge repeat the instruc-
tion automatically whenever it appears that a jury is deadlocked.
The trial judge has the discretion to determine whether repetition
of the instruction would help the jury reach a verdict. See United
States v. Medansky, 486 F.2d 807, 813 n.6 (7th Cir. 1973).
The Seventh Circuit concluded that the previously-approved
Silvern instruction, which this instruction does not modify
substantively, has “no plausible potential for coercing a jury.”
United States v. Beverly, 913 F.2d 337, 352 (7th Cir. 1990). If a
variation on the approved instruction is given, “[t]he relevant in-
quiry, under Silvern, . . . is whether the court’s communications
pressured the jury to surrender their honest opinions for the mere
purpose of returning a verdict.” Sanders, 962 F.2d at 676 (citations
omitted). Use of the approved instruction as the exclusive instruc-
tion of this type is highly recommended to avoid inadvertently
coercive substitutes and to head off argument about reversible
error.
7.03
CRIMINAL INSTRUCTIONS
151
STATUTORY INSTRUCTIONS
7 U.S.C. § 2024(b) UNAUTHORIZED
ACQUISITION OF FOOD STAMPS—ELEMENTS
[The indictment charges defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] unauthorized acquisition of [food stamps; LINK
card benefits; insert terminology used in particular
State]. In order for you to find [the; a] defendant guilty
of this charge, the government must prove both of the
following elements beyond a reasonable doubt:
1. The defendant acquired more than $100 worth
of [food stamps; LINK card benefits; other appropriate
terminology] in a way that was contrary to law; and
2. The defendant knew that his acquisition of the
[food stamps; LINK card benefits; other terminology]
was contrary to law.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comments
This statute covers offenses other than unauthorized acquisi-
tion, but that is its most common application. The statutory
requirement of “knowledge” requires proof that the defendant knew
152
he was acquiring the benefits in a way that was unauthorized by
statute or regulation. United States v. Liparota, 471 U.S. 419, 433
(1985).
2024(b)
CRIMINAL INSTRUCTIONS
153
7 U.S.C. § 2024(b) DEFINITION OF “CONTRARY
TO LAW”
The law allows [food stamps; LINK card benefits;
other appropriate terminology] to be exchanged only for
eligible food, and not for cash.
Committee Comments
See 7 C.F.R. § 278.2(a). The applicable regulations identify a
number of ways in which a person might acquire food stamp
benefits in a manner that is “contrary to law.” Exchange of the
benefits for cash is the most common application of the criminal
statute.
2024(b)
STATUTORY INSTRUCTIONS
154
8 U.S.C. § 1324a(a)(1)(A) UNLAWFUL
EMPLOYMENT—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] unlawful employment of aliens. In order for you
to find [the; a] defendant guilty of this charge, the
government must prove each of the [three] following
elements beyond a reasonable doubt:
1. The defendant [hired; recruited; referred for a
fee] [person named in the indictment] for employment
in the United States;
2. [person named in the indictment] was an alien;
and
3. The defendant knew [person named in the
indictment] was not authorized to undertake the
employment.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
An alien is authorized to work in the United States if the alien
is a lawfully admitted permanent resident or if documentation or
endorsement of authorization to work has been issued to the alien
by the Attorney General. 8 U.S.C. § 1324a(h)(1) and (3). The
documentation or endorsement of authorization must conspicu-
ously state any limitations as to time period or type of employment.
8 U.S.C. § 1324a(h)(1).
1324a(a)(1)(A)
CRIMINAL INSTRUCTIONS
155
An “alien” is a person who is not a citizen or national of the
United States. See 8 U.S.C. § 1101(a)(3). A “national of the United
States” is a citizen of the United States or a non-citizen of the
United States who owes permanent allegiance to the United States.
See 8 U.S.C. § 1101(a)(22)(B). “Permanent allegiance” is the obliga-
tion of fidelity and obedience an individual owes to the government
under which he lives, or to his sovereign in return for the protec-
tion he receives until, by some open and distinct act, he renounces
his government and becomes a citizen of another government or
sovereign. Carlisle v. United States, 83 U.S. 147, 154–55 (1872).
Prosecution is not barred by prior or future official action
which may have authorized the alien to be in the United States.
Thus, it is the alien status at the time of the alleged offense that is
at issue.
Section 1324 of Title 8 of the United States Code provides for
a defense against violation of 8 U.S.C. § 1324a(a)(1)(A) where the
defendant establishes good faith compliance with the requirements
of the provisions of 8 U.S.C. § 1324a(b) “in respect to the hiring,
recruiting or referral for employment of an alien.” When such a
defense is raised, additional instruction will be required.
1324a(a)(1)(A)
STATUTORY INSTRUCTIONS
156
8 U.S.C. § 1324(a)(1)(A)(i) BRINGING ALIEN TO
THE UNITED STATES OTHER THAN AT
DESIGNATED PLACE—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] bringing an alien into the United States other
than the place designated for entry. In order for you to
find [the; a] defendant guilty of this charge, the govern-
ment must prove each of the [four] following elements
beyond a reasonable doubt:
1. The defendant [brought; attempted to bring]
[person named in the indictment] into the United
States; and
2. [person named in the indictment] was an alien;
and
3. The defendant knew [person named in the
indictment] was an alien; and
4. The [entry; attempted entry] into the United
States was [made; attempted] at a place other than a
designated port of entry:
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
An “alien” is a person who is not a citizen or national of the
1324(a)(1)(A)(i)
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157
United States. 8 U.S.C. § 1101(a)(3). A “national of the United
States” is a citizen of the United States or a non-citizen of the
United States who owes permanent allegiance to the United States.
8 U.S.C. § 1101(a)(22)(B). “Permanent allegiance” is the obligation
of fidelity and obedience an individual owes to the government
under which he lives, or to his sovereign in return for the protec-
tion he receives until, by some open and distinct act, he renounces
his government and becomes a citizen of another government or
sovereign. Carlisle v. United States, 83 U.S. 147, 154–55 (1872).
Prosecution is not barred by prior or future official action
which may have authorized the alien to be in the United States.
Thus, it is the alien status at the time of the alleged offense that is
at issue.
Section 1182 of Title 8 of the United States Code lists aliens
who are excluded from the United States. An alien who falls within
one of the excluded categories is not lawfully entitled to enter or
reside in the United States. See United States v. Bunker, 532 F.2d
1262 (9th Cir. 1976).
A “designated port of entry” as defined by 8 C.F.R. § 100.4 is a
place chosen by the Department of Homeland Security whereby an
alien arriving by vessel, by land, or by any means of travel other
than aircraft may enter the United States. The designation of such
a port of entry may be withdrawn whenever, in the judgment of
the Commissioner of the Bureau of Customs and Border Protec-
tion, such action is warranted. See 8 C.F.R. § 100.4. The ports are
listed according to location by districts and are designated either
Class A, B, or C. Class A means that the port is a designated port
of entry for all aliens. Id. Class B means that the port is a
designated port of entry for aliens who at the time of applying for
admission are lawfully in possession of valid Permanent Resident
Cards or valid non-resident aliens’ border-crossing identification
cards or are admissible without documents under the documentary
waivers. Id. Class C means that the port is a designated port of
entry only for aliens who are arriving in the United States as
crewmen as that term is defined in 8 C.F.R. § 101(a)(10) of the Im-
migration and Nationality Act with respect to vessels. 8 C.F.R.
§ 100.4.
The Ninth, Tenth and Eleventh Circuits require proof of intent
to break the law as a fifth element of violation of 8 U.S.C.
§ 1324(a)(1)(A). See United States v. Nguyen, 73 F.3d 887, 894 (9th
Cir. 1995); United States v. Zayas-Morales, 685 F.2d 1272, 1275
(11th Cir. 1982); see also United States v. Blair, 54 F.3d 639,
642–43 (10th Cir. 1995) (required intent is to commit a crime, but
not necessarily the specific crime charged). The Fifth Circuit has
declined to require proof of intent to violate immigration law in
1324(a)(1)(A)(i)
STATUTORY INSTRUCTIONS
158
similar context. United States v. Teresa De Jesus-Batres, 410 F.3d
154, 162 (5th Cir. 2005). There are no reported cases in the Seventh
Circuit addressing this issue, and the Committee expresses no
opinion on it.
1324(a)(1)(A)(i)
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159
8 U.S.C. § 1324(a)(1)(A)(ii) ALIEN
TRANSPORTATION—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] illegal transportation of an alien. In order for you
to find [the; a] defendant guilty of this charge, the
government must prove each of the [five] following ele-
ments beyond a reasonable doubt:
1. [person named in the indictment] was an alien;
and
2. [person named in the indictment] [came to;
entered; remained in] the United States in violation of
the law; and
3. The defendant knew [person named in the
indictment] was not lawfully in the United States; and
4. The defendant knowingly [transported; moved;
attempted to transport; attempted to move] within the
United States; and
5. The defendant’s [transportation; movement; at-
tempted transportation; attempted movement] of
[person named in the indictment] was in furtherance of
[person named in the indictment’s] violation of the law.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
1324(a)(1)(A)(ii)
STATUTORY INSTRUCTIONS
160
Committee Comment
An “alien” is a person who is not a citizen or national of the
United States. 8 U.S.C. § 1101(a)(3). A “national of the United
States” is a citizen of the United States or a non-citizen of the
United States who owes permanent allegiance to the United States.
8 U.S.C. § 1101(a)(22)(B). “Permanent allegiance” is the obligation
of fidelity and obedience an individual owes to the government
under which he lives, or to his sovereign in return for the protec-
tion he receives until, by some open and distinct act, he renounces
his government and becomes a citizen of another government or
sovereign. Carlisle v. United States, 83 U.S. 147, 154–55 (1872).
Prosecution is not barred by prior or future official action
which may have authorized the alien to be in the United States.
Thus, it is the alien status at the time of the alleged offense that is
at issue.
Section 1182 of Title 8 of the United States Code lists aliens
who are excluded from the United States. An alien who falls within
one of the excluded categories is not lawfully entitled to enter or
reside in the United States. See United States v. Bunker, 532 F.2d
1262 (9th Cir. 1976).
The Ninth, Tenth and Eleventh Circuits require proof of intent
to break the law as a fifth element of violation of 8 U.S.C.
§ 1324(a)(1)(A). See United States v. Nguyen, 73 F.3d 887, 894 (9th
Cir. 1995); United States v. Zayas-Morales, 685 F.2d 1272, 1275
(11th Cir. 1982); see also United States v. Blair, 54 F.3d 639,
642–43 (10th Cir. 1995) (intent to commit a crime required not
necessarily the specific crime charged). The Fifth Circuit has
declined to interject an element of intent to violate immigration
law to justify conviction in similar context. United States v. Teresa
De Jesus-Batres, 410 F.3d 154, 162 (5th Cir. 2005). There are no
reported cases in the Seventh Circuit addressing this issue, and
the Committee expresses no opinion on it.
The government may proceed on a theory that the defendant
acted with “reckless disregarded” rather than actual knowledge.
“Reckless disregard” is not defined in Title, 8 United States Code.
The Seventh Circuit has not defined the term. Nor is there a
consensus in definition among the other circuits.
Ninth Circuit Instruction 9.2, entitled Alien—Illegal Transpor-
tation, instructs in its comments: “Pending further statutory or
case law guidance, the trial judge must decide whether to define
‘reckless disregard’ as deliberate ignorance, as traditional reckless-
ness, or not at all. The legislative history of 8 U.S.C. § 1324 refers
1324(a)(1)(A)(ii)
CRIMINAL INSTRUCTIONS
161
to ‘willful blindness,’ which raises the question of whether the
‘reckless disregard” in the statute is intended to mean deliberate
ignorance. 1986 U.S. Code Cong. and Admin. News, p. 5649, 5669–
70, House Report No. 99-682(i). . . .”
The Tenth and Eleventh Circuits have adopted a “deliberate
indifference” standard requiring the jury to look to whether there
was “deliberate indifference to facts which, if considered and
weighed in a reasonable manner, indicate the highest probability
that the alleged aliens were in fact aliens and were in the United
States unlawfully.” United States v. Zlatogur, 271 F.3d 1025, 1029
(11th Cir. 2001); United States v. Uresti-Hernandez, 968 F.2d 1042,
1046 (10th Cir. 1992).
In United States v. Guerra-Garcia, 336 F.3d 19, 25–26 (1st
Cir. 2003), the First Circuit applied the willful blindness standard:
“A Defendant may be found to have recklessly disregarded a fact if
the Defendant had actual knowledge of a fact or if you find that
the Defendant deliberately closed his eyes to a fact that otherwise
would have been obvious to him.”
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8 U.S.C. § 1324(a)(1)(A)(iii) CONCEALING OR
HARBORING ALIENS—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] concealment of an alien. In order for you to find
[the; a] defendant guilty of this charge, the government
must prove each of the [four] following elements beyond
a reasonable doubt:
1. The defendant [concealed; harbored; shielded
from detection; attempted to conceal; attempted to
harbor; attempted to shield from detection] [person
named in the indictment]; and
2. [person named in the indictment] was an alien;
and
3. [person named in the indictment] [came to;
entered; remained in] the United States in violation of
the law; and
4. The defendant [knew] [person named in the
indictment] was not lawfully in the United States.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
In United States v. Ye, 588 F.3d 411 (7th Cir. 2009), the
Seventh Circuit defined “shield from detection” as “to protect from
1324(a)(1)(A)(iii)
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163
or to ward off discovery.” (citations omitted). Id. at 415. The Court
further found no error in the lower court’s broad definition of
“shielding” as “the use of any means to prevent the detection of il-
legal aliens in the United States by the Government.” (citations
omitted). Ibid. Noting that the statute does “not limit the types of
conduct that can constitute shielding from detection,” the Seventh
Circuit rejected the Second, Third, Fifth and Eighth Circuit posi-
tion that violation of 8 U.S.C. § 1324(a)(1)(A) requires “conduct
that ‘tends substantially to facilitate’ an alien’s evasion of
discovery.” Ye, 588 F.3d at 415–16, citing United States v. Ozcelik,
527 F.3d 88, 100 (3d Cir. 2008); United States v. Tipton, 518 F.3d
591, 595 (8th Cir. 2008); United States v. Teresa De Jesus-Batres,
410 F.3d 154, 160 (5th Cir. 2005); United States v. Kim, 193 F.3d
567, 574 (2d Cir. 1999). The Seventh Circuit concluded: “Whether
that conduct ‘tends substantially’ to assist an alien is irrelevant,
for [8 U.S.C. § 1324(a)(1)(A)(iii)] requires no quantum or degree of
assistance.” Ye, 588 F.3d at 416.
An “alien” is a person who is not a citizen or national of the
United States. See 8 U.S.C. § 1101(a)(3). A “national of the United
States” is a citizen of the United States or a non-citizen of the
United States who owes permanent allegiance to the United States.
See 8 U.S.C. § 1101(a)(22)(B). “Permanent allegiance” is the obliga-
tion of fidelity and obedience an individual owes to the government
under which he lives, or to his sovereign in return for the protec-
tion he receives until, by some open and distinct act, he renounces
his government and becomes a citizen of another government or
sovereign. Carlisle v. United States, 83 U.S. 147, 154–55 (1872).
Prosecution is not barred by prior or future official action
which may have authorized the alien to be in the United States.
Thus, it is the alien status at the time of the alleged offense that is
at issue.
Section 1182 of Title 8 of the United States Code lists aliens
who are excluded from the United States. An alien who falls within
one of the excluded categories is not lawfully entitled to enter or
reside in the United States. See United States v. Bunker, 532 F.2d
1262 (9th Cir. 1976).
The Ninth, Tenth and Eleventh Circuits require proof of intent
to break the law as a fifth element of violation of 8 U.S.C.
§ 1324(a)(1)(A). See United States v. Nguyen, 73 F.3d 887, 894 (9th
Cir. 1995); United States v. Zayas-Morales, 685 F.2d 1272, 1275
(11th Cir. 1982); see also United States v. Blair, 54 F.3d 639,
642–43 (10th Cir. 1995) (intent to commit a crime required not
necessarily the specific crime charged). The Fifth Circuit has
declined to interject an element of intent to violate immigration
law to justify conviction in similar context. United States v. Teresa
1324(a)(1)(A)(iii)
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164
De Jesus-Batres, 410 F.3d 154, 162 (5th Cir. 2005). There are no
reported cases in the Seventh Circuit addressing this issue, and
the Committee expresses no opinion on it.
The government may proceed on a theory that the defendant
acted with “reckless disregarded” rather than actual knowledge.
“Reckless disregard” is not defined in Title, 8 United States Code.
The Seventh Circuit has not defined the term. Nor is there a
consensus in definition among the other circuits.
Ninth Circuit Instruction 9.2, entitled Alien—Illegal Transpor-
tation, instructs in its comments: “Pending further statutory or
case law guidance, the trial judge must decide whether to define
‘reckless disregard’ as deliberate ignorance, as traditional reckless-
ness, or not at all. The legislative history of 8 U.S.C. § 1324 refers
to ‘willful blindness,’ which raises the question of whether the
‘reckless disregard’ in the statute is intended to mean deliberate
ignorance. 1986 U.S. Code Cong. and Admin. News, p. 5649, 5669–
70, House Report No. 99-682(i) . . ..”
The Tenth and Eleventh Circuits have adopted a “deliberate
indifference” standard requiring the jury to look to whether there
was “deliberate indifference to facts which, if considered and
weighed in a reasonable manner, indicate the highest probability
that the alleged aliens were in fact aliens and were in the United
States unlawfully.” United States v. Zlatogur, 271 F.3d 1025, 1029
(11th Cir. 2001); United States v. Uresti-Hernandez, 968 F.2d 1042,
1046 (10th Cir. 1992).
In United States v. Guerra-Garcia, 336 F.3d 19, 25–26 (1st
Cir. 2003), the First Circuit applied the willful blindness standard:
“A Defendant may be found to have recklessly disregarded a fact if
the Defendant had actual knowledge of a fact or if you find that
the Defendant deliberately closed his eyes to a fact that otherwise
would have been obvious to him.”
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8 U.S.C. § 1324(a)(1)(A)(iv) ENCOURAGING
ILLEGAL ENTRY—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] encouraging illegal entry by an alien. In order for
you to find [the; a] defendant guilty of this charge, the
government must prove each of the [three] following
elements beyond a reasonable doubt:
1. The defendant [encouraged; induced] [person
named in the indictment] to [come to; enter; reside in]
the United States; and
2. [person named in the indictment] was an alien;
and
3. The defendant [knew] [person named in the
indictment’s] [coming to; entry into; residence in] the
United States would be in violation of the law.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
United States v. Fuji, 301 F.3d 535, 540 (7th Cir. 2002) (proof
that defendant knowingly helped or advised is sufficient to estab-
lish the defendant “encouraged or induced.”); United States v. He,
245 F.3d 954, 959 (7th Cir. 2001) (approving jury instruction equat-
ing knowingly helped or advised with “encouraged”).
An “alien” is a person who is not a citizen or national of the
1324(a)(1)(A)(iv)
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166
United States. See 8 U.S.C. § 1101(a)(3). A “national of the United
States” is a citizen of the United States or a non-citizen of the
United States who owes permanent allegiance to the United States.
See 8 U.S.C. § 1101(a)(22)(B). “Permanent allegiance” is the obliga-
tion of fidelity and obedience an individual owes to the government
under which he lives, or to his sovereign in return for the protec-
tion he receives until, by some open and distinct act, he renounces
his government and becomes a citizen of another government or
sovereign. Carlisle v. United States, 83 U.S. 147, 154–55 (1872).
Prosecution is not barred by prior or future official action
which may have authorized the alien to be in the United States.
Thus, it is the alien status at the time of the alleged offense that is
at issue.
The government may proceed on a theory that the defendant
acted with “reckless disregard” rather than actual knowledge.
“Reckless disregard” is not defined in Title, 8 United States Code.
The Seventh Circuit has not defined the term. Nor is there a
consensus in definition among the other circuits.
Ninth Circuit Instruction 9.2, entitled Alien—Illegal Transpor-
tation, instructs in its comments: “Pending further statutory or
case law guidance, the trial judge must decide whether to define
‘reckless disregard’ as deliberate ignorance, as traditional reckless-
ness, or not at all. The legislative history of 8 U.S.C. § 1324 refers
to ‘willful blindness,’ which raises the question of whether the
‘reckless disregard” in the statute is intended to mean deliberate
ignorance. 1986 U.S. Code Cong. and Admin. News, p. 5649, 5669–
70, House Report No. 99-682(i) . . .
The Tenth and Eleventh Circuits have adopted a “deliberate
indifference” standard requiring the jury to look to whether there
was “deliberate indifference to facts which, if considered and
weighed in a reasonable manner, indicate the highest probability
that the alleged aliens were in fact aliens and were in the United
States unlawfully.” United States v. Zlatogur, 271 F.3d 1025, 1029
(11th Cir. 2001); United States v. Uresti-Hernandez, 968 F.2d 1042,
1046 (10th Cir. 1992).
In United States v. Guerra-Garcia, 336 F.3d 19, 25–26 (1st
Cir. 2003), the First Circuit applied the willful blindness standard:
“A Defendant may be found to have recklessly disregarded a fact if
the Defendant had actual knowledge of a fact or if you find that
the Defendant deliberately closed his eyes to a fact that otherwise
would have been obvious to him.”
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8 U.S.C. § 1324(a)(2)(B)(ii) BRINGING ALIEN
INTO UNITED STATES FOR COMMERCIAL
ADVANTAGE OR PRIVATE FINANCIAL GAIN—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] bringing an alien into the United States for the
purpose of [commercial advantage; private financial
gain]. In order for you to find [the; a] defendant guilty
of this charge, the government must prove each of the
[four] following elements beyond a reasonable doubt:
1. The defendant [brought; attempted to bring]
[person named in the indictment] into the United
States; and
2. [person named in the indictment] was an alien;
and
3. The defendant [knew] [person named in the
indictment] was an alien who had not received prior of-
ficial authorization [come to; enter; reside in] the United
States; and,
4. The defendant brought [person named in the
indictment] into the United States for the purpose of
[commercial advantage; private financial gain].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
1324(a)(2)(B)(ii)
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168
Committee Comment
An “alien” is a person who is not a citizen or national of the
United States. See 8 U.S.C. § 1101(a)(3). A “national of the United
States” is a citizen of the United States or a non-citizen of the
United States who owes permanent allegiance to the United States.
See 8 U.S.C. § 1101(a)(22)(B). “Permanent allegiance” is the obliga-
tion of fidelity and obedience an individual owes to the government
under which he lives, or to his sovereign in return for the protec-
tion he receives until, by some open and distinct act, he renounces
his government and becomes a citizen of another government or
sovereign. Carlisle v. United States, 83 U.S. 147, 154–55 (1872).
Prosecution is not barred by prior or future official action
which may have authorized the alien to be in the United States.
Thus, it is the alien status at the time of the alleged offense that is
at issue.
The government may proceed on a theory that the defendant
acted with “reckless disregard” rather than actual knowledge.
“Reckless disregard” is not defined in Title, 8 United States Code.
The Seventh Circuit has not defined the term. Nor is there a
consensus in definition among the other circuits.
Ninth Circuit Instruction 9.2 entitled Alien—Illegal Transpor-
tation, instructs in its comments: “Pending further statutory or
case law guidance, the trial judge must decide whether to define
‘reckless disregard’ as deliberate ignorance, as traditional reckless-
ness, or not at all. The legislative history of 8 U.S.C. § 1324 refers
to ‘willful blindness,’ which raises the question of whether the
‘reckless disregard” in the statute is intended to mean deliberate
ignorance. 1986 U.S. Code Cong. and Admin. News, p. 5649, 5669–
70, House Report No. 99-682(i) . . .
The Tenth and Eleventh Circuits have adopted a “deliberate
indifference” standard requiring the jury to look to whether there
was “deliberate indifference to facts which, if considered and
weighed in a reasonable manner, indicate the highest probability
that the alleged aliens were in fact aliens and were in the United
States unlawfully.” United States v. Zlatogur, 271 F.3d 1025, 1029
(11th Cir. 2001); United States v. Uresti-Hernandez, 968 F.2d 1042,
1046 (10th Cir. 1992).
In United States v. Guerra-Garcia, 336 F.3d 19, 25–26 (1st
Cir. 2003), the First Circuit applied the willful blindness standard:
“A Defendant may be found to have recklessly disregarded a fact if
the Defendant had actual knowledge of a fact or if you find that
the Defendant deliberately closed his eyes to a fact that otherwise
would have been obvious to him.”
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169
The discrepancy in wages between a documented and undocu-
mented worker is sufficient to show “private financial gain” to an
employer. See United States v. Li, 615 F.3d 752, 756 (7th Cir.
2010) (that employer did not pay undocumented worker state
mandated minimum wage shows financial gain to the employer);
United States v. Calimlim, 538 F.3d 706, 715 (7th Cir. 2008)
(“significantly lower price” paid to an undocumented housekeeper
sufficient to show private financial gain).
1324(a)(2)(B)(ii)
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170
8 U.S.C. § 1324(a)(2)(B)(iii) BRINGING ALIEN
INTO UNITED STATES WITHOUT IMMEDIATE
PRESENTATION AT DESIGNATED PORT OF
ENTRY—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] bringing an alien into the United States without
immediate presentation of the alien to an appropriate
immigration official at a designated port of entry. In or-
der for you to find [the; a] defendant guilty of this
charge, the government must prove each of the [four]
following elements beyond a reasonable doubt:
1. The defendant [brought; attempted to bring]
[person named in the indictment] into the United
States; and
2. The defendant [person named in the indict-
ment] was an alien; and
3. The defendant [knew] [person named in the
indictment] had not received prior official authorization
[come to; enter; reside in] the United States; and
4. The defendant did not immediately bring and
present [person named in the indictment] to an ap-
propriate immigration official at a designated port of
entry.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
1324(a)(2)(B)(iii)
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171
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
An “alien” is a person who is not a citizen or national of the
United States. See 8 U.S.C. § 1101(a)(3). A “national of the United
States” is a citizen of the United States or a non-citizen of the
United States who owes permanent allegiance to the United States.
See 8 U.S.C. § 1101(a)(22)(B). “Permanent allegiance” is the obliga-
tion of fidelity and obedience an individual owes to the government
under which he lives, or to his sovereign in return for the protec-
tion he receives until, by some open and distinct act, he renounces
his government and becomes a citizen of another government or
sovereign. Carlisle v. United States, 83 U.S. 147, 154–55 (1872).
Prosecution is not barred by prior or future official action
which may have authorized the alien to be in the United States.
Thus, it is the alien status at the time of the alleged offense that is
at issue.
A “designated port of entry” as defined by 8 C.F.R. § 100.4 is a
place chosen by the Department of Homeland Security whereby an
alien arriving by vessel, by land, or by any means of travel other
than aircraft may enter the United States. The designation of such
a port of entry may be withdrawn whenever, in the judgment of
the Commissioner of the Bureau of Customs and Border Protec-
tion, such action is warranted. See 8 C.F.R. § 100.4. The ports are
listed according to location by districts and are designated either
Class A, B, or C. Class A means that the port is a designated port
of entry for all aliens. Id. Class B means that the port is a
designated port of entry for aliens who at the time of applying for
admission are lawfully in possession of valid Permanent Resident
Cards or valid non-resident aliens’ border-crossing identification
cards or are admissible without documents under the documentary
waivers. Id. Class C means that the port is a designated port of
entry only for aliens who are arriving in the United States as
crewmen as that term is defined in 8 C.F.R. § 101(a)(10) of the Im-
migration and Nationality Act with respect to vessels. 8 C.F.R.
§ 100.4.
The government may proceed on a theory that the defendant
acted with “reckless disregard” rather than actual knowledge.
“Reckless disregard” is not defined in Title, 8 United States Code.
The Seventh Circuit has not defined the term. Nor is there a
consensus in definition among the other circuits.
Ninth Circuit Instruction 9.2, entitled Alien—Illegal Transpor-
1324(a)(2)(B)(iii)
STATUTORY INSTRUCTIONS
172
tation, instructs in its comments: “Pending further statutory or
case law guidance, the trial judge must decide whether to define
‘reckless disregard’ as deliberate ignorance, as traditional reckless-
ness, or not at all. The legislative history of 8 U.S.C. § 1324 refers
to ‘willful blindness,’ which raises the question of whether the
‘reckless disregard” in the statute is intended to mean deliberate
ignorance. 1986 U.S. Code Cong. and Admin. News, p. 5649, 5669–
70, House Report No. 99-682(i) . . .”
The Tenth and Eleventh Circuits have adopted a “deliberate
indifference” standard requiring the jury to look to whether there
was “deliberate indifference to facts which, if considered and
weighed in a reasonable manner, indicate the highest probability
that the alleged aliens were in fact aliens and were in the United
States unlawfully.” United States v. Zlatogur, 271 F.3d 1025, 1029
(11th Cir. 2001); United States v. Uresti-Hernandez, 968 F.2d 1042,
1046 (10th Cir. 1992).
In United States v. Guerra-Garcia, 336 F.3d 19, 25–26 (1st
Cir. 2003), the First Circuit applied the willful blindness standard:
“A Defendant may be found to have recklessly disregarded a fact if
the Defendant had actual knowledge of a fact or if you find that
the Defendant deliberately closed his eyes to a fact that otherwise
would have been obvious to him.”
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8 U.S.C. § 1325(a)(1) ILLEGAL ENTRY—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] entering the United States at a time and place
other than as designated. In order for you to find [the;
a] defendant guilty of this charge, the government must
prove each of the [three] following elements beyond a
reasonable doubt:
1. The defendant was an alien; and
2. The defendant knowingly [entered; attempted
to enter] the United States; and
3. The defendant [entered; attempted to enter] at
a place other than a designated port of entry.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
An “alien” is a person who is not a citizen or national of the
United States. See 8 U.S.C. § 1101(a)(3). A “national of the United
States” is a citizen of the United States or a non-citizen of the
United States who owes permanent allegiance to the United States.
See 8 U.S.C. § 1101(a)(22)(B). “Permanent allegiance” is the obliga-
tion of fidelity and obedience an individual owes to the government
under which he lives, or to his sovereign in return for the protec-
tion he receives until, by some open and distinct act, he renounces
his government and becomes a citizen of another government or
sovereign. Carlisle v. United States, 83 U.S. 147, 154–55 (1872).
1325(a)(1)
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174
Prosecution is not barred by prior or future official action
which may have authorized the alien to be in the United States.
Thus, it is the alien status at the time of the alleged offense that is
at issue.
Section 1182 of Title 8 of the United States Code lists aliens
who are excluded from the United States. An alien who falls within
one of the excluded categories is not lawfully entitled to enter or
reside in the United States. See United States v. Bunker, 532 F.2d
1262 (9th Cir. 1976).
A “designated port of entry” as defined by 8 C.F.R. § 100.4 is a
place chosen by the Department of Homeland Security whereby an
alien arriving by vessel, by land, or by any means of travel other
than aircraft may enter the United States. The designation of such
a port of entry may be withdrawn whenever, in the judgment of
the Commissioner of the Bureau of Customs and Border Protec-
tion, such action is warranted. See 8 C.F.R. § 100.4. The ports are
listed according to location by districts and are designated either
Class A, B, or C. Class A means that the port is a designated port
of entry for all aliens. Id. Class B means that the port is a
designated port of entry for aliens who at the time of applying for
admission are lawfully in possession of valid Permanent Resident
Cards or valid non-resident aliens’ border-crossing identification
cards or are admissible without documents under the documentary
waivers. Id. Class C means that the port is a designated port of
entry only for aliens who are arriving in the United States as
crewmen as that term is defined in 8 C.F.R. § 101(a)(10) of the Im-
migration and Nationality Act with respect to vessels. 8 C.F.R.
§ 100.4.
1325(a)(1)
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175
8 U.S.C. § 1325(a)(2) ELUDING EXAMINATION
OR INSPECTION—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] eluding [examination; inspection] by immigration
officers. In order for you to find [the; a] defendant guilty
of this charge, the government must prove both of the
following elements beyond a reasonable doubt:
1. The defendant was an alien; and
2. The defendant knowingly eluded [examination;
inspection] by immigration officers.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
An “alien” is a person who is not a citizen or national of the
United States. See 8 U.S.C. § 1101(a)(3). A “national of the United
States” is a citizen of the United States or a non-citizen of the
United States who owes permanent allegiance to the United States.
See 8 U.S.C. § 1101(a)(22)(B). “Permanent allegiance” is the obliga-
tion of fidelity and obedience an individual owes to the government
under which he lives, or to his sovereign in return for the protec-
tion he receives until, by some open and distinct act, he renounces
his government and becomes a citizen of another government or
sovereign. Carlisle v. United States, 83 U.S. 147, 154–55 (1872).
Prosecution is not barred by prior or future official action
which may have authorized the alien to be in the United States.
Thus, it is the alien status at the time of the alleged offense that is
at issue.
1325(a)(2)
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176
Noting that it was unable to locate any legislative history
shedding light on the term “eluding” as used in 8 U.S.C.
§ 1325(a)(2), the Ninth Circuit in United States v. Oscar, 496 F.2d
492, 494 (9th Cir. 1974), drawing on a dictionary definition,
concluded that elude means to “avoid, escape detection by, or
evade.”
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8 U.S.C. § 1325(a)(3) ENTRY BY FALSE OR
MISLEADING REPRESENTATION—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] entry by [willfully false or misleading representa-
tion; willful concealment of a material fact]. In order for
you to find [the; a] defendant guilty of this charge, the
government must prove each of the [four] following ele-
ments beyond a reasonable doubt:
1. The defendant was an alien; and
2. The defendant [entered; attempted to enter]
the United States; and
3. The defendant [made a [false; misleading] rep-
resentation] [concealed a material fact] for the purpose
of gaining entry; and
4. The defendant [acted willfully, that is, he]
deliberately and voluntarily [made [the; a] representa-
tion; concealed a material fact].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
An “alien” is a person who is not a citizen or national of the
United States. See 8 U.S.C. § 1101(a)(3). A “national of the United
States” is a citizen of the United States or a non-citizen of the
1325(a)(3)
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178
United States who owes permanent allegiance to the United States.
See 8 U.S.C. § 1101(a)(22)(B). “Permanent allegiance” is the obliga-
tion of fidelity and obedience an individual owes to the government
under which he lives, or to his sovereign in return for the protec-
tion he receives until, by some open and distinct act, he renounces
his government and becomes a citizen of another government or
sovereign. Carlisle v. United States, 83 U.S. 147, 154–55 (1872).
Prosecution for illegal entry under the statute is not barred by
prior or future official action which may have authorized the alien
to be in the United States. Thus, it is the alien status at the time
of bringing that is at issue.
Willfulness is defined within the instruction. “Willfully” as
used in the statute means “that the misrepresentation was delib-
erate and voluntary.” See Chow Bing Kew v. United States, 248
F.2d 466, 469 (9th Cir. 1957); see also Hernandez-Robledo v. INS,
777 F.2d 536, 539 (9th Cir. 1985) (determining that willfully, as
used in 8 U.S.C. § 1182(a)(19), false representation of citizenship,
requires proof that the misrepresentation was deliberate and vol-
untary); Espinoza-Espinoza v. INS, 554 F.2d 921, 925 (9th Cir.
1977) (finding that willfully, as used in 8 U.S.C. § 1182(a)(19),
requires proof that “the misrepresentation was voluntarily and
deliberately made”) (quoting Chow Bing Kew, 248 F.2d at 469);
Anderson v. Cornejo, 284 F. Supp. 2d 1008, 1035 (N.D. Ill. 2003)
(willful and wanton conduct described as “a course of action which
shows an actual or deliberate intention to cause harm or which, if
not intentional, shows an utter indifference to or conscious disre-
gard for the safety of others or their property.”).
The statute does not define “material.” The Committee recom-
mends that “material” be defined consistently with Pattern Instruc-
tion 18 U.S.C. § 1546(a).
1325(a)(3)
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179
8 U.S.C. § 1325(c) MARRIAGE FRAUD—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] marriage fraud. In order for you to find [the; a]
defendant guilty of this charge, the government must
prove each of the [three] following elements beyond a
reasonable doubt:
1. The defendant knowingly entered into a mar-
riage with [the person named in the indictment]; and
2. The defendant entered the marriage for the
purpose of evading an immigration law; and
3. The defendant knew or had reason to know his
conduct was unlawful.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The validity of the marriage is immaterial. Lutwak v. United
States, 344 U.S. 604, 611 (1953).
In United States v. Darif, 446 F.3d 701 (7th Cir. 2006), the
Seventh Circuit rejected the defendant’s position that evidence of
intent to establish a life with his spouse could negate the offense of
marriage fraud. Id. at 709–10. The Court thereby suggested that
the element of evading immigration law need not be the sole basis
for the marriage to still be considered fraudulent under the statute.
1325(c)
STATUTORY INSTRUCTIONS
180
See also United States v. Ui Islam, 418 F.3d 1125, 1128, fn. 3 and
fn. 5 (10th Cir. 2005) (inquiry as to whether couple intended to
make a life together may be relevant to intent to evade immigra-
tion laws but not dispositive). But cf. United States v. Orellana-
Blanco, 294 F.3d 1143, 1151 (9th Cir. 2002) (defendant’s desire to
obtain a green card did not render marriage a sham where there
was an intent “to establish a life together.”).
1325(c)
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181
8 U.S.C. § 1326(a) DEPORTED ALIEN FOUND IN
UNITED STATES—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] being an alien found in the United States after
having been deported. In order for you to find [the; a]
defendant guilty of this charge, the government must
prove each of the [four] following elements beyond a
reasonable doubt:
1. The defendant was an alien; and
2. The defendant had previously [been denied
admission; been excluded; been deported; been removed;
departed the United States while an order of [exclu-
sion; deportation; removal] from the United States was
outstanding]; and
3. The defendant [knowingly reentered; attempted
to reenter; was found to be voluntarily in] the United
States; and
4. The defendant had not received the express
consent to apply for readmission to the United States.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
An “alien” is a person who is not a citizen or national of the
1326(a)
STATUTORY INSTRUCTIONS
182
United States. See 8 U.S.C. § 1101(a)(3). A “national of the United
States” is a citizen of the United States or a non-citizen of the
United States who owes permanent allegiance to the United States.
See 8 U.S.C. § 1101(a)(22)(B). “Permanent allegiance” is the obliga-
tion of fidelity and obedience an individual owes to the government
under which he lives, or to his sovereign in return for the protec-
tion he receives until, by some open and distinct act, he renounces
his government and becomes a citizen of another government or
sovereign. Carlisle v. United States, 83 U.S. 147, 154–55 (1872).
In Almendarez-Torres v. United States, 523 U.S. 224 (1998),
the Supreme Court held that in a prosecution for illegal reentry af-
ter deportation in violation of 8 U.S.C. § 1326(a), the existence of a
prior aggravated felony conviction need not be alleged or proven
because the prior conviction constitutes a sentencing enhancement
pursuant to 8 U.S.C. § 1326(b)(2).
1326(a)
CRIMINAL INSTRUCTIONS
183
8 U.S.C. § 1546(a) USE, POSSESSION OF
IMMIGRATION DOCUMENT PROCURED BY
FRAUD—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] fraudulent [use; possession] of an immigration
document. In order for you to find [the; a] defendant
guilty of this charge, the government must prove each
of the [three] following elements beyond a reasonable
doubt:
1. The defendant knowingly [used; attempted to
use; possessed; obtained; accepted; received] [document
described in the indictment]; and
2. [Document described in the indictment] is an
[immigrant; nonimmigrant] [visa; permit; border cross-
ing card; alien registration receipt card; other docu-
ment] prescribed by statute or regulation for entry into
or as evidence of authorized stay or employment in the
United States; and
3. The defendant knew the document [was forged;
was counterfeited; was altered; was falsely made; was
procured by means of any false claim or statement; had
been [procured by fraud; unlawfully obtained]].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
1546(a)
STATUTORY INSTRUCTIONS
184
Committee Comment
Use this instruction with respect to a crime charged under 18
U.S.C. § 1546(a), in the second part of the first paragraph.
Specifically:
Whoever knowingly. . .utters, uses, attempts to use, pos-
sesses, obtains, accepts, or receives any such visa, permit, bor-
der crossing card, alien registration receipt card, or other doc-
ument prescribed by statute or regulation for entry into or as
evidence of authorized stay or employment in the United
States, knowing it to be forged, counterfeited, altered, or
falsely made, or to have been procured by means of any false
claim or statement, or to have been otherwise procured by
fraud or unlawfully obtained.
If the charge in the indictment relies on a document that falls
into the category of “other document prescribed by statute or
regulation for entry into or as evidence of authorized stay or
employment in the United States,” noted as “other identified docu-
ment” in the second element, the document should be specifically
described to the jury in the instruction.
1546(a)
CRIMINAL INSTRUCTIONS
185
18 U.S.C. § 3 ACCESSORY AFTER THE FACT
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] being an accessory after the fact to [identify the
underlying federal offense]. In order for you to find [the;
a] defendant guilty of this charge, the government must
prove each of the [four] following elements beyond a
reasonable doubt:
1. [Name of offender] had committed the crime of
[identify underlying federal crime] as defined in the
next instruction; and
2. The defendant knew that [name of offender]
had committed the crime of [identify underlying crime];
and
3. The defendant assisted [name of offender] in
some way; and
4. The defendant did so with the intent to [ob-
struct; prevent] [name of offender] from being [arrested;
prosecuted; punished].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove one or more of these elements beyond a rea-
sonable doubt [as to the charge you are considering],
then you should find the defendant not guilty [of that
charge].
Committee Comment
See United States v. Dixon, 819 F.3d 310, 323 (7th Cir. 2016);
3
STATUTORY INSTRUCTIONS
186
United States v. Irwin, 149 F.3d 565, 571 (7th Cir. 1998); United
States v. Osborn, 120 F.3d 59, 63 (7th Cir. 1997).
3
CRIMINAL INSTRUCTIONS
187
18 U.S.C. § 111(a) ASSAULTING A FEDERAL
OFFICER—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
———
of the indictment charge[s] the defen-
dant[s] with] forcibly [assaulting; resisting; opposing;
impeding; intimidating; interfering with] a federal of-
ficer [while engaged in; on account of] the performance
of official duties. In order for you to find [the; a]
defendant guilty of this charge, the government must
prove the following elements beyond a reasonable
doubt:
1. The defendant forcibly [assaulted; resisted; op-
posed; impeded; intimidated; interfered with;] [name of
federal officer]; and
2. The defendant did so while [name of federal of-
ficer] [was engaged in; on account of] the federal of-
ficer’s official duties[.] [; and]
[3. The defendant’s acts involved [physical contact
with the federal officer; the intent to commit another
felony].]
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
Section 111 has been interpreted as creating three separate
111(a)
STATUTORY INSTRUCTIONS
188
offenses: 1) misdemeanor simple assault under § 111(a); 2) felony
assault under § 111(a) involving physical contact or intent to com-
mit another felony; and 3) felony assault using a deadly or danger-
ous weapon or inflicting bodily injury under § 111(b). United States
v. Vallery, 437 F.3d 626, 630 (7th Cir. 2006).
This instruction is for use when the defendant has been
charged with the offense set out in 18 U.S.C. § 111(a). The third el-
ement is to be used only when the charge is a felony, which
requires actual physical contact or the intent to commit another
felony.
When the crime is charged under the enhanced penalty provi-
sions of 18 U.S.C. § 111(b), use the instruction for Assaulting a
Federal Officer Employee With a Deadly or Dangerous Weapon or
Inflicting Bodily Injury.
The defendant does not need to know the victim is a federal
officer. United States v. Feola, 420 U.S. 671, 684-86 (1975); United
States v. Woody, 55 F.3d 1257, 1265-66 (7th Cir. 1995). At the
same time, if self-defense is raised, knowledge of the official capac-
ity of the victim may be an element necessary for conviction. Feola,
420 U.S. at 686 (“The statute does require a criminal intent, and
there may well be circumstances in which ignorance of the official
status of the person assaulted or resisted negates the very exis-
tence of mens rea.”).
18 U.S.C. § 111 is not a specific intent crime and only requires
that the defendant act with knowledge of his conduct. United
States v. Graham, 431 F.3d 585, 588-590 (7th Cir. 2005).
111(a)
CRIMINAL INSTRUCTIONS
189
18 U.S.C. §§ 111(a) & 111(b) DEFINITION OF
“ASSAULT”
“Assault” means to intentionally inflict, attempt to
inflict, or threaten to inflict bodily injury upon another
person with the apparent and present ability to cause
such injury that creates in the victim a reasonable fear
or apprehension of bodily harm. An assault may be com-
mitted without actually touching, striking, or injuring
the other person.
Committee Comment
Section 111 does not define “assault.” The definition provided
in the instruction is the same as the pattern instruction for “as-
sault” as used in the bank robbery statute, 18 U.S.C. § 2113(d).
See, e.g., United States v. Vallery, 437 F.3d 626, 631 (7th Cir.
2006); United States v. Smith, 103 F.3d 600, 605 (7th Cir. 1996);
United States v. Woody, 55 F.3d 1257, 1265–66 (7th Cir. 1995);
United States v. Rizzo, 409 F.2d 400, 402-03 (7th Cir. 1969).
111(a) & 111(b)
STATUTORY INSTRUCTIONS
190
18 U.S.C. §§ 111(a) & 111(b) DEFINITION OF
“FORCIBLY”
“Forcibly” means by use of force. Physical force is
sufficient but actual physical contact is not required. A
person [also] acts forcibly if he [threatens; attempts to
inflict] bodily harm upon another, with the present abil-
ity to inflict bodily harm.
Committee Comment
Section 111 does not define “forcibly.” The definition provided
in the instruction is similar to Eighth Circuit Model Criminal Jury
Instruction 6.18.111 (2017). The element of force may be satisfied
by proof of actual physical contact or by proof of “such a threat or
display of physical aggression toward the officer as to inspire fear
of pain, bodily harm, or death.” United States v. Street,66F.3d
969, 977 (8th Cir. 1995). Direct contact is not required so long as
the conduct places the officer in fear for his life or safety. Id.; see
also United States v. Bullock, 970 F.3d 210, 215 (3d Cir. 2020) (“A
defendant who acts ‘forcibly’ using a deadly or dangerous weapon
under § 111(b) must have used force by making physical contact
with the federal employee, or at least threatened the employee,
with an object that, as used, is capable of causing great bodily
harm.”) (quoting United States v. Taylor, 848 F.3d 476, 494 (1st
Cir. 2017)); Fifth Circuit Pattern Criminal Instruction 2.07 (2019)
(“The term ‘forcible assault’ means any intentional attempt or
threat to inflict injury upon someone else when a defendant has
the apparent present ability to do so. This includes any intentional
display of force that would cause a reasonable person to expect im-
mediate bodily harm, regardless of whether the victim was injured
or the threat or attempt was actually carried out.”).
111(a) & 111(b)
CRIMINAL INSTRUCTIONS
191
18 U.S.C. § 111(b) ASSAULTING A FEDERAL
OFFICER USING A DEADLY OR DANGEROUS
WEAPON OR INFLICTING BODILY INJURY—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
———
of the indictment charge[s] the defen-
dant[s] with] forcibly [assaulting] [resisting] [opposing]
[impeding] [intimidating] [interfering with] a federal of-
ficer [while engaged in] [on account of] the performance
of official duties. In order for you to find [the; a]
defendant guilty of this charge, the government must
prove the following elements beyond a reasonable
doubt:
1. The defendant forcibly [assaulted; resisted; op-
posed; impeded; intimidated; interfered with] [name of
federal officer]; and
2. The defendant did so while [name of federal of-
ficer] [was engaged in] [on account of] his official duties;
and
3. The defendant [used a deadly or dangerous
weapon] [inflicted bodily injury].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
Section 111 has been interpreted as creating three separate
111(b)
STATUTORY INSTRUCTIONS
192
offenses: 1) misdemeanor simple assault under § 111(a); 2) felony
assault under § 111(a) involving physical contact or intent to com-
mit another felony; and 3) felony assault using a deadly or danger-
ous weapon or inflicting bodily injury under § 111(b). United States
v. Vallery, 437 F.3d 626, 630 (7th Cir. 2006).
This instruction is for use when the defendant has been
charged with the offense set out in 18 U.S.C. § 111(b).
The defendant does not need to know the victim is a federal
officer. United States v. Feola, 420 U.S. 671, 684–86 (1975); United
States v. Woody, 55 F.3d 1257, 1265–66 (7th Cir. 1995). At the
same time, if self-defense is raised, knowledge of the official capac-
ity of the victim may be an element necessary for conviction. Feola,
420 U.S. at 686 (“The statute does require a criminal intent, and
there may well be circumstances in which ignorance of the official
status of the person assaulted or resisted negates the very exis-
tence of mens rea.”).
18 U.S.C. § 111 is not a specific intent crime and only requires
that the defendant act with knowledge of his conduct. United
States v. Graham, 431 F.3d 585, 588–590 (7th Cir. 2005).
111(b)
CRIMINAL INSTRUCTIONS
193
18 U.S.C. § 111(b) DEFINITION OF “BODILY
INJURY”
The term “bodily injury” includes any of the
following: a cut, abrasion, bruise, burn, or disfigure-
ment; physical pain; illness; impairment of [the; a] func-
tion of a bodily member, organ or mental faculty; or
any other injury to the body, no matter how temporary.
Committee Comment
Section 111 does not define the term “bodily injury.” The defi-
nition provided in the instruction is the same as the pattern
instruction regarding that term as used in the deprivation of rights
under color of law statute, 18 U.S.C. 242, which is taken from sev-
eral other statutes in Title 18 that use that term. See 18 U.S.C.
§§ 831(f)(5); 1365(h)(4); 1515(a)(5); and 1864(d)(2). See United
States v. Bailey, 405 F.3d 102, 111 (1st Cir. 2005); United States v.
Myers, 972 F.2d 1566, 1572 (11th Cir. 1992); see also United States
v. DiSantis, 565 F.3d 354, 362 (7th Cir. 2009) (citing Bailey and
Myers with approval); Fifth Circuit Pattern Criminal Instruction
2.07 (2019); Eleventh Circuit Pattern Criminal Instruction O1.2
(2020).
111(b)
STATUTORY INSTRUCTIONS
194
18 U.S.C. § 111(b) DEFINITION OF “DEADLY OR
DANGEROUS WEAPON”
A “deadly or dangerous weapon” means any object
that can be used to inflict severe bodily harm or injury.
The object need not actually be capable of inflicting
harm or injury. Rather, an object is a deadly or danger-
ous weapon if it, or the manner in which it is used,
would cause fear in the average person.
Committee Comment
Section 111 does not define “deadly or dangerous weapon.”
The definition provided in the instruction is the same as the pat-
tern instruction for “dangerous weapon or device” as used in the
bank robbery statute, 18 U.S.C. § 2113(d).
In United States v. Loman, 551 F.2d 164, 169 (7th Cir. 1977),
the Seventh Circuit, in finding a walking stick as used constituted
a dangerous weapon under 18 U.S.C. § 111, explained that “[n]ot
the object’s latent capability alone, but that, coupled with the man-
ner of its use, is determinative.” As the Fourth Circuit concluded
in United States v. Murphy, 35 F.3d 143, 147 (4th Cir. 1994), many
objects, “even those seemingly innocuous, may constitute danger-
ous weapons,” including a garden rake, shoes, and a wine bottle.
See also U.S. Sentencing Guidelines Manual § 1B1.1 cmt. n.1
(2018).
In United States v. Gometz, 879 F.2d 256, 259 (7th Cir. 1989),
the Seventh Circuit rejected the defendant’s argument that a defec-
tive zip gun was not a dangerous weapon within the meaning of 18
U.S.C. § 111. In so doing, the Court found that the Supreme Court’s
logic in McLaughlin v. United States, 476 U.S. 16 (1986), which
held an unloaded gun to be a dangerous weapon under 18 U.S.C.
§ 2113, applied to § 111 as well. “In particular we believe that
Congress, in enacting § 111, could reasonably presume that a zip
gun is an inherently dangerous object and meant to proscribe all
assaults with this object irrespective of the particular zip gun’s
capability to inflict injury. Moreover, a zip gun, like an ordinary
gun, instills fear in the average citizen and creates an immediate
danger that a violent reaction will ensue.” Gometz, 879 F.2d at
259; see also Eleventh Circuit Pattern Criminal Instruction O1.1
(2020).
111(b)
CRIMINAL INSTRUCTIONS
195
18 U.S.C. § 115(a)(1)(B) DEFINITION OF
“THREATEN”
To “threaten” means to [make a statement; take
action] that a reasonable person would foresee would be
interpreted by those to whom the maker directs the
[statement; action] as a serious expression of an inten-
tion to inflict bodily harm upon or take the life of
another.
Committee Comment
The Seventh Circuit focuses on the objective viewpoint of the
person making the threat. See United States v. Saunders, 166 F.3d
907, 912–13 (7th Cir. 1999); United States v. Pacione, 950 F.2d
1348, 1355 (7th Cir. 1991). However, the Seventh Circuit also
“treats as relevant evidence both the victim’s response to a state-
ment and the victim’s belief that it was a threat. . ..” Saunders,
166 F.3d at 913.
The government need not prove that the defendant actually
intended to carry out the threat or had the actual ability to carry
out the threat. Saunders, 166 F.3d at 914.
The defendant “must have intended to communicate a threat
to an official, but the communication can be through a third person
and the threat need not actually reach the victim.” United States
v. Rendelman, 495 Fed. Appx 727, 732 (7th Cir. 2012).
“True threat” is defined in the Pattern Instruction for “Defini-
tion of True Threat.”
115(a)(1)(B)
STATUTORY INSTRUCTIONS
196
18 U.S.C. § 115(a)(1)(B) THREATENING A
UNITED STATES OFFICIAL, UNITED STATES
JUDGE, OR FEDERAL LAW ENFORCEMENT
OFFICER—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
———
of the indictment charge[s] the defen-
dant[s] with] threatening to [assault; kidnap; murder]
a[n] [United States official; United States judge; Federal
law enforcement officer; [officer; employee] of [the
United States; any agency in any branch of the United
States Government]] while such [officer; employee] is
engaged in or on account of the performance of official
duties]; any person assisting an [officer; employee] in
the performance of official duties] [with intent to
[impede; intimidate; interfere with] such [official; judge;
law enforcement officer; officer; employee; person as-
sisting an [officer; employee]] [while engaged in the
performance of official duties;]] [with intent to retaliate
against such [official; judge; law enforcement officer] on
account of the performance of official duties]. In order
for you to find [the; a] defendant guilty of this charge,
the government must prove each of the [three] follow-
ing elements beyond a reasonable doubt:
1. The defendant threatened to [assault; kidnap;
murder] an individual; and
2. The individual was a[n] [United States official;
United States judge; Federal law enforcement officer;
officer; employee; person assisting an officer or em-
ployee] of [the United States; any agency in any branch
of the United States Government]]; and
3. The defendant intended to [[impede; intimi-
date; interfere with] such [official; judge; law enforce-
ment officer; officer; employee; person assisting an of-
ficer or employee]; while the [official; judge; law
enforcement officer; officer; employee] was engaged in
the performance of official duties]];
115(a)(1)(B)
CRIMINAL INSTRUCTIONS
197
OR
3. The defendant intended to [retaliate against
the [official; judge; law enforcement officer; officer; em-
ployee] on account of the performance of official duties].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
This instruction is for use when the defendant has been
charged with the offense set out in 18 U.S.C. § 115(a)(1)(B).
“United States official” is defined in Pattern Instruction 18
U.S.C. § 115(c)(4).
“United States judge” is defined in Pattern Instruction 18
U.S.C. § 115(c)(3).
“Federal law enforcement officer” is defined in Pattern Instruc-
tion 18 U.S.C. § 115(c)(1).
“Assault” is defined in Pattern Instruction 18 U.S.C. § 2113(d).
“Intimidation” is defined in Pattern Instruction 18 U.S.C.
§ 2113(a). The First Circuit affirmed the use of an instruction
defining “intimidate” in the context of 18 U.S.C. § 115 as “to make
timid or fearful, to inspire or affect with fear, to frighten, deter, or
overawe.” United States v. Stefanik, 674 F.3d 71, 76 (1st Cir. 2012).
115(a)(1)(B)
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198
18 U.S.C. § 115(c)(1) DEFINITION OF “FEDERAL
LAW ENFORCEMENT OFFICER”
Any officer, agent, or employee of the United States
authorized by law or by a Government agency to engage
in or supervise the prevention, detection, investigation,
or prosecution of any violation of Federal criminal law
is a “Federal law enforcement officer.”
115(c)(1)
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18 U.S.C. § 115(c)(3) DEFINITION OF “UNITED
STATES JUDGE”
Any judicial officer of the United States, including
a justice of the Supreme Court and a United States
magistrate judge, is a “United States judge.”
115(c)(3)
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18 U.S.C. § 115(c)(4) DEFINITION OF “UNITED
STATES OFFICIAL”
[The President; The President-elect; The Vice Pres-
ident; The Vice President-elect; A member of Congress;
A member-elect of Congress; A member of the executive
branch who is the head of [the Department of State; the
Department of the Treasury; the Department of De-
fense; the Department of Justice; the Department of
the Interior; the Department of Agriculture; the Depart-
ment of Commerce; the Department of Labor; the
Department of Health and Human Services; the Depart-
ment of Housing and Urban Development; the Depart-
ment of Transportation; the Department of Energy; the
Department of Education; the Department of Veterans
Affairs; the Department of Homeland Security]; The
Director of the Central Intelligence Agency] is a “United
States official.”
115(c)(4)
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18 U.S.C. § 152(1) CONCEALMENT OF
PROPERTY—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] concealment of property belonging to the estate of
a debtor in a bankruptcy proceeding. In order for you to
find [the; a] defendant guilty of this charge, the govern-
ment must prove each of the [four] following elements
beyond a reasonable doubt:
1. There was a bankruptcy proceeding; and
2. [Identify property or assets] belonged to the
bankrupt estate; and
3. The defendant knowingly concealed [identify
property or assets] from [creditors; custodian; trustee;
marshal; United States Trustee; other person charged
with control or custody of such property]; and
4. The defendant acted [fraudulently, that is,]
with the intent to deceive [any creditor; the trustee; the
bankruptcy judge].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
With regard to the fourth element, the statute uses the term
“fraudulently,” but the instruction substitutes the definition “with
152(1)
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202
intent to deceive” because it is simpler than using the statutory
term and then defining it. See United States v. Gellene, 182 F.3d
578, 586 (7th Cir. 1999) (concerning the term “fraudulently” as
used in section 152(3)); United States v. Lerch, 996 F.2d 158, 161
(7th Cir. 1993) (same); see also United States v. Sabbeth, 262 F.3d
207, 217 (2d Cir. 2001).
The defendant need not be the debtor in bankruptcy to be
convicted under section 152. United States v. Ross, 77 F.3d 1525,
1548 (7th Cir. 1996).
152(1)
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18 U.S.C. § 152(1) DEFINITION OF
“CONCEALMENT”
A person “conceals” [property; an asset] if he hides,
secretes, fraudulently transfers, or destroys the [prop-
erty; asset], or if he takes action to prevent discovery of
the [property; asset], or if he withholds information or
knowledge required by law to be made known. Since
the offense of concealment is a continuing one, the acts
of concealing may have begun before as well as after
the bankruptcy proceeding began.
The government is not required to prove that the
concealment was successful.
[The government is also not required to prove that
a demand was made to the defendant for the [property;
asset].]
Committee Comment
“Concealment” includes not only hiding an asset, but also with-
holding information and taking action to prevent the discovery of
an asset. See, e.g., United States v. Turner, 725 F.2d 1154, 1157
(8th Cir. 1984); Burchinal v. United States, 342 F.2d 982, 985
(10th Cir. 1965);
Concealment need not be successful. See United States v.
Cherek, 734 F.2d 1248, 1254 (7th Cir. 1984).
152(1)
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18 U.S.C. § 152(2) & (3) FALSE OATH, FALSE
DECLARATION UNDER PENALTY OF
PERJURY—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] making [a false oath; a false account; a false dec-
laration under penalty of perjury] in a bankruptcy
proceeding. In order for you to find [the; a] the govern-
ment must prove each of the [five] following elements
beyond a reasonable doubt:
1. There was a bankruptcy proceeding; and
2. The defendant made [an oath; account; declara-
tion; certification; verification; statement under penalty
of perjury] in relation to the bankruptcy proceeding;
and
3. The [oath; account; declaration; certification;
verification; statement under penalty of perjury] re-
lated to some material matter; and
4. The [oath; account; declaration; certification;
verification; statement under penalty of perjury] was
false; and
5. The defendant made the [oath; account; decla-
ration; certification; verification; statement under
penalty of perjury] knowingly and with the intent to
deceive [any creditor; the trustee; the bankruptcy
judge].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
152(2) & (3)
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205
ation of all the evidence that the government has failed
to prove any of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
A material omission of information the debtor has a duty to
disclose may qualify as a false declaration under section 152. See
United States v. Ellis, 50 F.3d 419, 423–25 (7th Cir. 1995). In a
case involving omissions, this instruction should be modified
appropriately.
152(2) & (3)
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18 U.S.C. § 152(2) & (3) FALSE DECLARATION
UNDER PENALTY OF PERJURY—DEFINITION
OF MATERIALITY
A material matter is one that is capable of influenc-
ing the court, the trustee, or any creditor.
[The government is not required to prove that the
statement actually influenced the court, the trustee, or
a creditor.]
[The government is [also] not required to prove that
creditors were harmed by the false statement.]
152(2) & (3)
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18 U.S.C. § 152(4) PRESENTING OR USING A
FALSE CLAIM—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [presenting; using] a false claim in a bankruptcy
proceeding. In order for you to find [the; a] defendant
guilty of this charge, the government must prove each
of the [five] following elements beyond a reasonable
doubt:
1. There was a bankruptcy proceeding; and
2. The defendant [personally; by agent; by proxy;
by attorney as agent, proxy or attorney] [presented;
used] a claim for proof against the estate of a debtor;
and
3. The claim was false; and
4. The defendant knew the claim was false; and
5. The defendant presented the claim [fraudu-
lently, that is] with the intent to deceive [any creditor;
the trustee; the bankruptcy judge].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
152(4)
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18 U.S.C. § 152(6) BRIBERY—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [bribery; attempted bribery] in a bankruptcy
proceeding. In order for you to find [the; a] defendant
guilty of this charge, the government must prove each
of the [three] following elements beyond a reasonable
doubt:
1. There was a bankruptcy proceeding; and
2. The defendant knowingly [gave; offered; re-
ceived; attempted to obtain] [money; property; remu-
neration; compensation; reward; advantage, or promise
thereof] for [acting; failing to act] in such bankruptcy
proceeding; and
3. Third, the defendant acted [fraudulently, that
is] with the intent to deceive [any creditor; the trustee;
the bankruptcy judge].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
152(6)
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18 U.S.C. § 152(7) CONCEALMENT OR
TRANSFER OF ASSETS IN CONTEMPLATION
OF BANKRUPTCY OR WITH INTENT TO
DEFEAT THE PROVISIONS OF THE
BANKRUPTCY LAW—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [concealment; transfer] of property belonging to
the estate of a debtor [in contemplation of bankruptcy;
with intent to defeat the provisions of the bankruptcy
law]. In order for you to find [the; a] defendant guilty of
this charge, the government must prove the [four] fol-
lowing elements beyond a reasonable doubt:
1. [There was a bankruptcy proceeding; [Defen-
dant; name of business; name of corporation] contem-
plated a bankruptcy proceeding]; and
2. [In contemplation of the bankruptcy proceed-
ing; With intent to defeat the provisions of the bank-
ruptcy law], the defendant transferred or concealed
[identify the property], which belonged or would belong
to the bankrupt estate; and
3. The defendant knowingly [concealed; trans-
ferred] the property; and
4. The defendant acted [fraudulently, that is,]
with the intent to deceive [any creditor; the trustee; the
bankruptcy judge].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
152(7)
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210
to prove any of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
With regard to the fourth element, the statute uses the term
“fraudulently,” but the instruction substitutes the definition “with
intent to deceive” because it is simpler than using the statutory
term and then defining it. See United States v. Gellene, 182 F.3d
578, 586 (7th Cir. 1999) (concerning the term “fraudulently” as
used in section 152(3)); United States v. Lerch, 996 F.2d 158, 161
(7th Cir. 1993) (same); see also United States v. Sabbeth, 262 F.3d
207, 217 (2d Cir. 2001).
The defendant need not be the debtor in bankruptcy to be
convicted under section 152. United States v. Ross, 77 F.3d 1525,
1548 (7th Cir. 1996).
152(7)
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18 U.S.C. § 152(7) DEFINITION OF “IN
CONTEMPLATION OF A BANKRUPTCY
PROCEEDING”
A person acts “in contemplation of a bankruptcy
proceeding” if he acts in expectation of, or planning for,
the future probability of a bankruptcy proceeding.
152(7)
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18 U.S.C. § 152(7) DEFINITION OF “TRANSFER”
“Transfer” of property includes every manner of
disposing of or parting with property or an interest in
property, whether directly or indirect, and whether
absolutely or conditionally.
152(7)
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18 U.S.C. § 152(8) DESTRUCTION OF RECORDS;
FALSE ENTRIES—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [concealment of records; destruction of records;
making a false entry in a document] relating to the
property or the affairs of a debtor [in contemplation of
bankruptcy; after filing a case in bankruptcy]. In order
for you to find [the; a] defendant guilty of this charge,
the government must prove each of the [four] following
elements beyond a reasonable doubt:
1. A bankruptcy proceeding [was contemplated;
existed]; and
2. The defendant knowingly [concealed; destroyed;
mutilated; falsified; made a false entry in] document[s];
and
3. The document[s] affected or related to the prop-
erty or affairs of the debtor; and
4. The defendant acted [fraudulently, that is] with
the intent to deceive [any creditor; the trustee; the
bankruptcy judge].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
152(8)
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18 U.S.C. § 152(9) WITHHOLDING RECORDS—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] withholding records after filing a case in
bankruptcy. In order for you to find [the; a] defendant
guilty of this charge, the government must prove each
of the [four] following elements beyond a reasonable
doubt:
1. There was a bankruptcy proceeding; and
2. The defendant knowingly withheld [recorded
information; books; documents; records; papers] from
[the custodian; the trustee; the marshal; an officer of
the court; a United States Trustee] entitled to its pos-
session; and
3. The [recorded information; books; documents;
records; papers] related to the property or financial af-
fairs of the debtor; and
4. The defendant acted [fraudulently, that is] with
the intent to deceive [any creditor; the trustee; the
bankruptcy judge].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
152(9)
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18 U.S.C. § 201 INTENT TO INFLUENCE
The government does not need to prove that the
[public official; defendant] had the power to or did
perform the act for which he [was promised; was given;
received; agreed to receive] something of value. It is
sufficient if the matter was one that was before him in
his official capacity.
[The government also does not need to prove that
the defendant in fact intended to be influenced. It is
sufficient if the defendant knew that the thing of value
was offered with the intent to influence official action.]
Committee Comment
See United States v. Peleti, 576 F.3d 377, 382 (7th Cir. 2009),
citing United v. Myers, 692 F.2d 823, 841–42 (2d Cir. 1982) (noting
that ‘‘ ‘being influenced’ does not describe the [recipient’s] true
intent, it describes the intention he conveys to the briber in
exchange for the bribe” and holding that an official commits brib-
ery if he gives “false promises of assistance to people he believed
were offering him money to influence his official actions.”).
201
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18 U.S.C. § 201 DEFINITION OF “OFFICIAL
ACT”
An “official act” is a decision or action on[, or an
agreement to make a decision or take action on,] a
specific [question; matter; cause; suit; proceeding;
controversy], which [is pending] [or] [at any time may
be pending] [or] [may by law be brought] before a pub-
lic official [in his official capacity[, or in his place of
trust or profit].
[A “question” or “matter” must involve a formal
exercise of governmental power and must be something
specific and focused.]
In this case, the [question(s); matter(s); cause(s);
suit(s); proceeding(s); controversy(ies)] at issue [is; are]
[describe in specific and focused terms].
[A public official makes a decision or takes action
on a [question; matter; cause; suit; proceeding; contro-
versy] when he uses his official position to exert pres-
sure on another official to perform an official act, or to
advise another official, knowing or intending that the
advice will form the basis for an official act by another
official.]
[A public official does not make a decision or take
action on a [question; matter; cause; suit; proceeding;
controversy] if he does no more than set up a meeting,
host an event, or call another public official.]
Committee Comment
In McDonnell v. United States, 136 S. Ct. 2355 (2016), the
Supreme Court interpreted the term “official act” in the context of
federal bribery laws. Specifically, McDonnell was charged with
honest services fraud, 18 U.S.C. § 1346, and Hobbs Act extortion,
18 U.S.C. § 1951. To define what qualifies as an “official act” for
purposes of bribery under those statutes, the Supreme Court used
and interpreted the definition of that term found in 18 U.S.C.
§ 201(a)(3). The Committee thus adopts McDonnell’s definition
201
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here, even though the McDonnell prosecution was brought under
different bribery laws.
The Supreme Court held that a “question” or “matter” must
involve, like a “cause, suit, proceeding, or controversy,” “a formal
exercise of governmental power that is similar in nature to a
lawsuit before a court, a determination before an agency, or a
hearing before a committee.” 136 S. Ct. at 2372. Like a lawsuit,
agency determination, or committee hearing, the question or mat-
ter must be “specific and focused.” Id. at 2372. That could include
questions or matters such as whether researchers at a state
university would initiate a study of a particular drug’s efficacy, or
whether a state agency would allocate grant money to the study of
the drug. Id. at 2374.
In addition to the requirement that the question or matter be
specific and focused, the “public official must make a decision or
take an action on that question or matter, or agree to do so.” Id. at
2370 (emphasis in original). Certain commonplace acts such as set-
ting up a meeting, contacting another official, or organizing an
event—without more—do not qualify as making a “decision” or
taking “action” on a question or matter. Id. at 2371. The Commit-
tee notes, however, that the Supreme Court has acknowledged
that these types of acts may be relevant to whether there was an
agreement to take an official act. Id. That is not to say that the
government must prove that the official directly made the ultimate
decision or directly took the ultimate action. Making a decision or
taking an action on a question or matter can include using the of-
ficial’s position “to exert pressure on another official to perform an
‘official act.’ ’’ Id. (emphasis in original). And it does include using
the official’s position “to provide advice to another official, knowing
or intending that such advice will form the basis for an ‘official act’
by another official.” Id.
The first paragraph of the instruction is a quote of the entirety
of Section 201(a)(3), so the parties should tailor it to the specific
type of official act at issue in their case and omit what could
otherwise be unnecessary and confusing terms. For example, most
bribery cases likely will involve a defendant’s “official capacity,”
rather than the defendant’s “place of trust or profit,” which is not a
well-defined term.
In cases where something less concrete than a cause, suit,
proceeding, or controversy is at issue—in other words, a “question”
or “matter” is at issue—the second paragraph may be necessary to
ensure that the jury does not interpret “question” or “matter” at
too high of a level of generality.
201
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The third paragraph (the description of the question or mat-
ter) must be tailored to the particular case. McDonnell requires
that the question or matter involve a formal exercise of governmen-
tal power and must be something specific and focused.
The fourth and fifth paragraphs, if given, should be tailored to
the particular case, depending on the government’s and defense’s
respective theories.
201
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18 U.S.C. § 201(b)(1)(A) GIVING A BRIBE—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—————
of the indictment charge[s] the
defendant[s] with] giving a bribe. In order for you to
find [a; the] defendant guilty of this charge, the govern-
ment must prove each of the [three] following elements
beyond a reasonable doubt:
1. The defendant directly or indirectly [promised,
gave, offered] something of value to a public official;
and
2. The defendant acted with intent to influence an
official act; and
3. The defendant acted corruptly.
A person acts corruptly when that person acts with
the intent that something of value is given, offered, or
promised to influence the public official in the perfor-
mance of any official act.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
An “offer” under § 201 need not constitute an “offer” in the
sense of what would otherwise be a binding contractual offer. United
States v. Synowiec, 333 F.3d 786, 789 (7th Cir. 2003) (“The require-
201(b)(1)(A)
STATUTORY INSTRUCTIONS
220
ment that a defendant expresses ‘an ability and desire to pay a
bribe’ in order to satisfy the bribery statute is a less demanding
requirement that what the civil law requires for an enforceable
offer.”).
As explained in the Committee Comment for § 201 Accepting a
Bribe— Elements, the Seventh Circuit has explicitly equated the
definition of “corruptly” under 18 U.S.C. § 666 with the same term
in 18 U.S.C. § 201. United States v. Hawkins, 777 F.3d 880, 882
(7th Cir. 2015) (“This court has used the same definition of ‘cor-
ruptly’ in a prosecution under 18 U.S.C. § 201.” (citing United
States v. Peleti, 576 F.3d 377, 382 (7th Cir.2009)). The Committee
thus proposes the same definition here as set forth for § 666(a)(1)(B)
Accepting a Bribe. For further discussion, see the Committee Com-
ment for that section.
In a case involving campaign contributions as the alleged thing
of value, the parties and the court should consider whether to give
an additional instruction explaining the lawfulness of contribu-
tions and distinguishing them from illegal bribes or illegal
gratuities. See the Instruction and Committee Comment for 18
U.S.C. § 1951 Definition of Color of Official Right.
201(b)(1)(A)
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221
18 U.S.C. § 201(b)(2)(A) ACCEPTING A BRIBE—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—————
of the indictment charge[s] the
defendant[s] with] [demanding; seeking; receiving; ac-
cepting; or agreeing to receive or accept] a bribe. In or-
der for you to find [a; the] defendant guilty of this
charge, the government must prove each of the follow-
ing elements beyond a reasonable doubt:
1. The defendant was a public official; and
2. The defendant directly or indirectly [demanded;
sought; received; accepted; or agreed to receive or ac-
cept] something of value in return for being influenced
in the performance of any official act; and
3. The defendant did so corruptly.
A person acts corruptly when that person acts with
the understanding that something of value is to be of-
fered or given to influence [him/her] in the performance
of any official act.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The definition of “corruptly” derives from two cases: a § 201
case, United States v. Peleti, 576 F.3d 377, 382 (7th Cir. 2009); and
201(b)(2)(A)
STATUTORY INSTRUCTIONS
222
a § 666 case, United States v. Hawkins, 777 F.3d 880, 882 (7th Cir.
2015), which approvingly discusses Peleti.InPeleti, the public of-
ficial argued that he did not actually intend t1o commit the official
act for which he had been paid. 576 F.3d at 382. In discussing the
definition of corruptly, the Seventh Circuit explained:
An officer can act corruptly without intending to be
influenced; the officer need only “solicit or receive the money
on the representation that the money is for the purpose of
influencing his performance of some official act.”
Id. (quoting United States v. Arroyo, 581 F.2d 649, 657 (7th Cir.
1978)). The public official “knew, when he accepted the money,
that [the bribe payer] gave Peleti the money for the purposes of
influencing Peleti’s official actions.” Id. That was enough to act
“corruptly.” See id.
Peleti was approvingly discussed in a § 666 case that discussed
the definition of “corruptly” interchangeably with § 201. Hawkins,
777 F.3d at 882. In Hawkins, the Seventh Circuit approved the
district court’s definition of corruptly: the official acts corruptly
when the official takes the payment “with the understanding that
something of value is to be offered or given to reward or influence
him in connection with his official duties.” Id. at 882. The opinion
explicitly equated the approved definition under § 666 with the
§ 201 definition from Peleti. Hawkins, 777 F.3d at 882 (“This court
has used the same definition of ‘corruptly’ in a prosecution under
18 U.S.C. § 201.”) (citing United States v. Peleti, 576 F.3d 377, 382
(7th Cir.2009)).
With regard to the definition of “corruptly,” in cases involving
an undercover agent or a cooperator, jurors might be confused if
they are asked to determine whether a defendant understood the
intent to influence or to reward when the undercover or cooperator
of course did not in fact have the intent to influence or to reward.
In those cases, some courts might prefer “with the belief” as a
more appropriate term than “with the understanding.” The term
“believes” is used in explaining attempt offenses for which “the
defendant’s conduct should be measured according to the circum-
stances as he believes them to be, rather than the circumstances as
they may have existed in fact.” See United States v. Williams, 553
U.S. 285, 300 (2008) (quoting ALI, Model Penal Code § 5.01, Com-
ment at 307, governing attempts) (emphasis added).
In a case involving campaign contributions as the alleged thing
of value, the parties and the court should consider whether to give
an additional instruction explaining the lawfulness of contribu-
201(b)(2)(A)
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tions and distinguishing them from illegal bribes or illegal
gratuities. See the instruction and Committee Comment for 18
U.S.C. § 1951 Definition of Color of Official Right.
201(b)(2)(A)
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224
18 U.S.C. § 241 CONSPIRACY AGAINST CIVIL
RIGHTS—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] conspiracy against civil rights. In order for you to
find [the; a] defendant guilty of this charge, the govern-
ment must prove each of the [four] following elements
beyond a reasonable doubt:
1. The conspiracy to [injure; oppress; threaten; in-
timidate] one or more persons as charged in Count
—
existed; and
2. The defendant knowingly became a member of
the conspiracy with an intent to further the conspiracy;
and
3. The defendant intended to deprive [name(s) of
alleged victim(s)] of the free exercise or enjoyment of
[his; their] right to [describe the right], which is secured
by the [[Constitution] [and] [laws]] of the United States.
The government is not required to prove that the
defendant knew this right was secured by the [[Consti-
tution] [and] [laws]] of the United States; and
4. One or more of the intended victims was pre-
sent in a [State; Territory; District] of the United
States.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any of these elements beyond a reasonable
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doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
See United States v. Guest, 383 U.S. 745, 760 (1966) (specific
intent to interfere with federal right is required); Screws v. United
States, 325 U.S. 91, 103, 106–07 (1945) (same, but defendant need
not be “thinking in constitutional terms”); United States v. Bradley,
196 F.3d 762, 769–70 (7th Cir. 1999) (approving an instruction
including the language, “The defendant need not have known that
these rights were secured by the Constitution or the laws of the
United States.”). A conspiracy under § 241 does not require proof
of an overt act. See United States v. Colvin, 353 F.3d 569, 576 (7th
Cir. 2003) (en banc).
See also Pattern Instructions 18 U.S.C. § 242 and accompany-
ing commentary.
Depending on the particular right at issue, the court may be
required to instruct the jury that at least one conspirator acted
“under color of law.” Guest, 383 U.S. at 755–56 (state action
required for violation of Equal Protection Clause but not for right
to travel); Fifth Circuit Pattern Instruction 2.17.
In a case in which the indictment charges that a victim died
as the result of the conspiracy, the government must prove that
fact beyond a reasonable doubt, because it increases the maximum
penalty for the charge. See 18 U.S.C. § 241 (increasing maximum
term to life imprisonment if death results); Apprendi v. New Jersey,
530 U.S. 466 (2000). If death is charged, the instruction regarding
“Death” and an accompanying special interrogatory should be used.
Section 241 likewise provides for enhanced penalties if “the
acts committed in violation of this section . . . include kidnapping
or an attempt to kidnap, aggravated sexual abuse or an attempt to
commit aggravated sexual abuse, or an attempt to kill.” If the
indictment includes such allegations, the instruction regarding
“Death” should be adapted accordingly.
241
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226
18 U.S.C. § 241 DEFINITION OF
CONSTITUTIONAL RIGHTS
The right[s] to [description of constitutional or
statutory right at issue, e.g., the right to be free from
the use of unreasonable force by a law enforcement of-
ficer][is; are] right[s] secured by the [Constitution; laws]
of the United States.
Committee Comment
Further definition of the right in question may be required. If,
for example, the right at issue is the right to be free from the use
of unreasonable force, an instruction defining reasonable/
unreasonable force may be required. The Seventh Circuit pattern
civil instructions include descriptions of many of the constitutional
rights most commonly at issue in prosecutions under § 241. See,
e.g., Seventh Circuit Pattern Civil Jury Instruction 7.06 (defining
reasonable force). See generally United States v. Brown, 250 F.3d
580, 586–87 (7th Cir. 2001) (approving, in a prosecution under 18
U.S.C. § 242, an instruction regarding unreasonable force that was
derived from civil cases).
241
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18 U.S.C. § 241 DEATH
If you find the defendant guilty as charged in
[Count[s]
—
of] the indictment, you must then deter-
mine whether the government has proven that [name
of victim] died as a result of the conspiracy charged [in
Count[s]
—
].
To prove that [name of victim] died as a result of
the defendants’ conspiracy, the government must prove
beyond a reasonable doubt that [name of victim] would
not have died if not for the conduct of one or more of
the [defendants; coconspirators] in furtherance of the
conspiracy. It is not enough to prove that the [defen-
dant’s; coconspirator’s] conduct merely contributed to
[name of victim’s] death.
[The government is not required to prove that the
[defendant; coconspirators] intended to cause [name of
victim]’s death.]
You will see on the verdict form a question concern-
ing this issue. You should consider that question only if
you have found that the government has proven the
defendant guilty as charged in [Count[s]
—
of] the
indictment.
If you find that the government has proven beyond
a reasonable doubt that [name of victim] died as a result
of the conspiracy charged in [Count[s]
—
of] the indict-
ment, then you should answer that question “Yes.”
If you find that the government has not proven be-
yond a reasonable doubt that [name of victim] died as a
result of the conspiracy charged in [Count[s]
—
of] the
indictment, then you should answer that question “No.”
Committee Comment
This instruction should be used in cases in which the indict-
241
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228
ment charges that a victim died as the result of the conspiracy. If
the victim dies as the result of the conspiracy, the maximum
penalty is increased. For this reason, the government is required
to prove the death beyond a reasonable doubt. See 18 U.S.C. § 241
(increasing maximum term to life imprisonment if death results);
Apprendi v. New Jersey, 530 U.S. 466 (2000). Because a person
who engages in a conspiracy to violate civil rights violates the law
even if no death results, however, the appropriate way to instruct
in a case in which the victim’s death is at issue is by way of a sep-
arate instruction concerning that issue, combined with a special
interrogatory on the verdict form, as is done in cases in which
narcotics quantity is at issue.
In United States v. Burrage, 571 U.S. 204 (2014), the Court
held that the “death results” enhancement in drug cases ordinarily
requires the government to prove that the victim would have lived
but for the unlawfully distributed drugs. In adopting the “but-for”
causation standard, the Court emphasized that the “language
Congress enacted requires death to ‘result from’ use of the unlaw-
fully distributed drug, not from a combination of factors to which
drug use merely contributed.” Id. at 216. Thus, “at least where use
of the drug distributed by the defendant is not an independently
sufficient cause of the victim’s death or serious bodily injury, a
defendant cannot be liable under the penalty enhancement provi-
sion of 21 U.S.C. s. 841(b)(1)(C) unless such use is a but-for cause
of the death or injury.” Id. at 218–19.
In Perrone v. United States, 889 F.3d 898 (7th Cir. 2018), the
Seventh Circuit elaborated on the meaning of “but for” causation
in the context of an overdose death:
This dispute is about causation, so we will begin by clearly
stating what “but for” causation requires. It does not require
proof that the distributed drug was present in an amount suf-
ficient to kill on its own. The Court explained in Burrage that
death can “result[ ] from” a particular drug when it is the
proverbial “straw that broke the camel’s back.” 134 S. Ct. at
888. As the Court put it: “if poison is administered to a man
debilitated by multiple diseases, it is a but-for cause of his
death even if those diseases played a part in his demise, so
long as, without the incremental effect of the poison, he would
have lived.” Id. Here, then, the fact that other substances in
[the victim’s] bloodstream played a part in her death does not
defeat the government’s claim that her death resulted from
the cocaine Perrone gave her. A jury could have found him
guilty of causing her death if it concluded beyond a reasonable
doubt that Perrone’s cocaine pushed her over the edge.
Id. at 906.
241
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229
Although the Seventh Circuit has not yet considered whether
“but-for” causation is required to prove the “death results”
enhancement under 18 U.S.C. § 241 or § 242, the “death results
from” language in those statutes mirrors the “death results from”
language in 21 U.S.C. 841(b) and warrants similar treatment.
It is an open question in this Circuit whether strict “but-for”
causation is required if the government proves that the defendant’s
conduct was an independently sufficient cause of the victim’s death.
See Perrone, 889 F.3d at 906. In Perrone, the Seventh Circuit
indicated that “strict ‘but-for’ causation might not be required
when ‘‘ ‘multiple sufficient causes independently, but concurrently,
produce a result,’ ’’ but declined to decide the issue. Id.
The Seventh Circuit has held that the government does not
have to prove proximate causation (that the death was a reason-
ably foreseeable result of the drug offense) to establish the “death
results” enhancement for drug distribution. United States v. Harden,
893 F.3d 434, 447–49 (7th Cir. 2018). The other eight circuits to
address this issue in the drug offense context are in agreement.
See, e.g., United States v. Jeffries, 958 F.3d 517, 520 (6th Cir.
2020) (citing cases). Burrage granted certiorari on whether the
jury must find that the victim’s death by drug overdose was a fore-
seeable result of the defendant’s drug-trafficking offense, but
declined to reach that issue. At least pre-Burrage, several circuits
had adopted proximate cause as the causation standard for “death
results” prosecutions under 18 U.S.C. §§ 241 and 242. See United
States v. Harris, 701 F.2d 1095, 1101 (4th Cir. 1983) (holding that
the “if death results” under § 241 requires proof that the death is
foreseeable and naturally results from violating the statute); see
also United States v. Martinez, 588 F.3d 301, 317–19 (6th Cir.
2009) (applying proximate cause in a “death results” health care
fraud prosecution).
In cases where the death may have resulted from the actions
of coconspirators rather than the defendant himself, the court may
need to tailor the instructions to ensure that the jury makes the
findings necessary to hold the defendant liable for the death. See
United States v. Walker, 721 F.3d 828, 833–36 (7th Cir. 2013),
vacated on other grounds, 572 U.S. 1111 (2014) (recognizing that
“the scope of a defendant’s relevant conduct for determining
sentencing liability may be narrower than the scope of criminal li-
ability”); United States v. Hamm, 952 F.3d 728 (6th Cir. 2020)
(holding that the death-or-injury enhancement “applies only to
defendants who were part of the distribution chain that placed the
drugs into the hands of the overdose victim” and that “Pinkerton
liability could only apply to the substantive offense, not the
sentencing enhancement”).
241
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230
Section 241 likewise provides for enhanced penalties if “the
acts committed in violation of this section . . . include kidnapping
or an attempt to kidnap, aggravated sexual abuse or an attempt to
commit aggravated sexual abuse, or an attempt to kill.” If the
indictment includes such allegations, this instruction should be
adapted accordingly.
241
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18 U.S.C. § 242 DEPRIVATION OF RIGHTS
UNDER COLOR OF LAW—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] deprivation of rights under color of law. In order
for you to find [the; a] defendant guilty of this charge,
the government must prove each of the [four] following
elements beyond a reasonable doubt:
1. The defendant was acting under color of law;
and
2. The defendant deprived [name of victim] of his
right to [name of right], which is secured or protected
by the [[Constitution] [and] [laws]] of the United States;
and
3. The defendant acted willfully, meaning he
intentionally deprived [name of victim] of this right.
The government is not required to prove that the
defendant knew this right was secured by the [[Consti-
tution] [and] [laws]] of the United States; and
4. [Name of victim] was present in [name of State,
Territory, or District of the United States].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
242
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232
Committee Comment
See also Pattern Instructions for 18 U.S.C. § 241 and ac-
companying commentary.
Prior to 1994, § 242 applied only to deprivations of the rights
of “inhabitants of” a state, territory, or district of the United States.
In United States v. Maravilla, 907 F.2d 216 (1st Cir. 1990), the
court overturned the convictions of two customs agents for killing
an alien who was briefly present in the United States. The ratio-
nale was that such a person did not qualify as an “inhabitant” for
purposes of 18 U.S.C. 242. In 1994, the statute was amended to
make it apply to deprivations of the rights of “persons in” a state,
territory, or district of the United States, rather than just “inhabit-
ants of” such places.
In a case in which the indictment charges that the victim died
as a result of the defendant’s conduct, the separate “Death” instruc-
tion provided for cases under 18 U.S.C. § 241 should be used and
adapted to the case, along with a special interrogatory as discussed
in the commentary to that instruction.
Section 242 also provides for an enhanced maximum penalty if
the defendant’s acts caused bodily injury to the victim. If that is
charged, the separate instruction regarding bodily injury should be
used, along with a special interrogatory on the verdict form.
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18 U.S.C. § 242 DEPRIVATION OF RIGHTS
UNDER COLOR OF LAW—DEFINITION OF
INTENTIONALLY
Committee Comment
In United States v. Proano, 912 F.3d 431, 442–43 (7th Cir.
2019), the Seventh Circuit approved the inclusion of a jury instruc-
tion defining “intentionally” for alleged violations of § 242, to help
guide juries on the required mens rea. The approved instruction in
that case, which involved an alleged unreasonable or excessive use
of force by a police officer, is recited in the next jury instruction,
for use in excessive force cases.
Accordingly, a jury instruction defining “intentionally” should
be included for all cases involving alleged violations of § 242, but
the Committee does not propose specific language for different
types of charged act(s), apart from excessive force claims, as recited
in the next jury instruction. Rather, this instruction will need to
be tailored to reflect the charged act(s) of each particular case. No-
tably, in Proano, 912 F.3d at 442-43, the Seventh Circuit pointed
out that, although there is no one definition of “willfulness” (corre-
sponding to the elements instruction for § 242 charges: “3. The
defendant acted willfully, meaning he intentionally deprived the
victim of this right. . ..”), the District Court’s instructions in
Proano tracked how most legal authorities define that term,
particularly given the District Court’s inclusion of the word
“knowing.” Therefore, the term “knowing” should be included in
any tailored instruction.
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18 U.S.C. § 242 DEPRIVATION OF RIGHTS
UNDER COLOR OF LAW—DEFINITION OF
INTENTIONALLY—FOR USE IN EXCESSIVE
FORCE CASES
The defendant acted intentionally if he knew the
force he used was more than what a reasonable [officer
or other type of person acting under color of law] would
have used under the circumstances.
Committee Comment
In United States v. Proano, 912 F.3d 431, 442–43 (7th Cir.
2019), which involved an alleged unreasonable or excessive use of
force by a police officer, the Seventh Circuit approved including
this definition of “intentionally” for alleged violations of § 242, to
help guide juries on the required mens rea.
In Proano, the Seventh Circuit recognized that an officer’s
training may be relevant to help prove or disprove that an officer
acted willfully. Id. at 438–41. If the court admits such evidence, a
limiting instruction is recommended before the parties offer a
department’s policy or an officer’s training into evidence, as well as
at the close of evidence. Id. at 440, n. 4. The Seventh Circuit ap-
proved of the following instruction in Proano:
You have heard evidence about training the defendant received
relating to the use of deadly force. You should not consider
this training when you decide whether the defendant’s use of
force was reasonable or unreasonable. But you may consider
the training when you decide what the defendant intended at
the time he acted.
Id. at 440.
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18 U.S.C. § 242 DEFINITION OF
CONSTITUTIONAL RIGHTS
The right[s] to [description of constitutional or
statutory right at issue, e.g., the right to be free from
the use of unreasonable force by a law enforcement of-
ficer] [is; are] [a] right[s] secured by the [Constitution;
laws] of the United States.
Committee Comment
Further definition of the right in question may be required. If,
for example, the right at issue is the right to be free from the use
of unreasonable force, an instruction defining reasonable/
unreasonable force may be required. The Seventh Circuit pattern
civil instructions include descriptions of many of the constitutional
rights most commonly at issue in prosecutions under § 242. See,
e.g., Seventh Circuit Pattern Civil Jury Instruction 7.06 (defining
reasonable force). See generally United States v. Brown, 250 F.3d
580, 586–87 (7th Cir. 2001) (approving an instruction regarding
unreasonable force that was derived from civil cases).
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236
18 U.S.C. § 242 DEFINITION OF “COLOR OF
LAW”
A person acts under “color of law” when he acts in
his official capacity or purports or claims to act in his
official capacity. Action under color of law includes the
abuse or misuse of the power possessed by the defendant
by virtue of his [office; official position].
[A defendant who is not [an officer; a government
employee/official] acts under color of law when he know-
ingly participates in joint activity with a [state; local]
[officer; official]].
Committee Comment
See, e.g., United States v. Hoffman, 498 F.2d 879, 881 (7th Cir.
1974); United States v. Price, 383 U.S. 787, 794 & n.7 (1966) (“Color
of law” under § 242 has same definition as under 42 U.S.C. § 1983;
“[p]rivate persons, jointly engaged with state officials in the
prohibited action, are acting ‘under color’ of law for purposes of the
statute.”); Monroe v. Pape, 365 U.S. 167, 184 (1961) (Under § 1983,
“[m]isuse of power, possessed by virtue of state law and made pos-
sible only because the wrongdoer is clothed with the authority of
state law, is action taken under color of state law.”).
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18 U.S.C. § 242 DEATH
Committee Comment
If the indictment charges that the victim died as a result of
unlawful conduct, the “Death” instruction for 18 U.S.C. § 241
should be adapted, and a special interrogatory should be used, as
described in the commentary to that instruction.
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STATUTORY INSTRUCTIONS
238
18 U.S.C. § 242 DEFINITION OF “BODILY
INJURY”
If you find the defendant guilty as charged in
[Count[s]
—
of] the indictment, you must then deter-
mine whether the government has proven that [name
of victim] suffered a bodily injury as a result of the
defendant’s acts charged [in Count[s]
—
].
The term “bodily injury” includes any of the
following: a cut, abrasion, bruise, burn, or disfigure-
ment; physical pain; illness; impairment of [the; a] func-
tion of a bodily member, organ, or mental faculty; or
any other injury to the body, no matter how temporary.
You will see on the verdict form a question concern-
ing this issue. You should consider that question only if
you have found that the government has proven the
defendant guilty as charged in [Count[s]
—
of] the
indictment.
If you find that the government has proven beyond
a reasonable doubt that [name of victim] suffered bodily
injury as a result of the defendant’s acts as charged in
[Count[s]
—
of] the indictment, then you should answer
that question “Yes.”
If you find that the government has not proven be-
yond a reasonable doubt that [name of victim] suffered
bodily injury as a result of the defendant’s acts as
charged in [Count(s) [Count[s]
—
of] of] the indictment,
then you should answer that question “No.”
Committee Comment
Section 242 provides for an enhanced statutory maximum if,
among other things, “bodily injury results from the acts commit-
ted” in violation of the statute. For this reason, the government is
required to prove the death beyond a reasonable doubt. See Apprendi
v. New Jersey, 530 U.S. 466 (2000). Because, however, a person
who deprives another of civil rights violates the law even if no
242
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239
bodily injury results, the appropriate way to instruct in a case in
which bodily injury is charged is by way of a separate instruction
concerning that issue, combined with a special interrogatory on
the verdict form, as is done in cases in which narcotics quantity is
at issue.
Section 242 does not define the term “bodily injury.” The defi-
nition provided in the instruction is taken from several other
statutes in Title 18 that use that term. See 18 U.S.C. §§ 831(f)(5);
1365(h)(4); 1515(a)(5); and 1864(d)(2). See United States v. Bailey,
405 F.3d 102, 111 (1st Cir. 2005); United States v. Myers, 972 F.2d
1566, 1572 (11th Cir. 1992); see also United States v. DiSantis, 565
F.3d 354, 362 (7th Cir. 2009) (citing Bailey and Myers with
approval).
Section 242 likewise provides for enhanced penalties “if the
acts committed in violation of this section . . . include kidnapping
or an attempt to kidnap, aggravated sexual abuse, or an attempt
to commit aggravated sexual abuse, or an attempt to kill.” If the
indictment includes such allegations, this instruction should be
adapted accordingly.
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18 U.S.C. § 286 CONSPIRACY TO DEFRAUD
THE GOVERNMENT WITH RESPECT TO
CLAIMS—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] conspiracy to defraud the government with re-
spect to claims. In order for you to find [the; a] defendant
guilty of this charge, the government must prove each
of the [four] following elements beyond a reasonable
doubt:
1. There was a conspiracy to obtain [payment; al-
lowance; aid in obtaining payment; aid in obtaining al-
lowance] of a [false; fictitious; fraudulent] claim against
[the United States; a department or agency of the
United States] as charged in Count[s]
—
; and
2. The defendant knowingly became a member of
the conspiracy with an intent to advance the conspir-
acy; and
3. The defendant knew that the claim was [false;
fictitious; fraudulent]; and
4. The defendant acted with the intent to defraud.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
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Committee Comment
There is a split of authority regarding whether § 286 requires
proof of an overt act. Compare United States v. Gupta, 463 F.3d
1182, 1194 (11th Cir. 2006) (overt act required), with United States
v. Saybolt, 577 F.3d 195, 202 (3d Cir. 2009) (overt act not required)
and United States v. Dedman, 527 F.3d 577, 594 n.7 (6th Cir. 2008)
(overt act not required). In Salinas v. United States, 522 U.S. 52,
63 (1997), the Supreme Court held that there is no overt act
requirement under the RICO conspiracy statute because “[t]here is
no requirement of some overt act or specific act in the statute
before us, unlike the general conspiracy provision”). The Commit-
tee has not included an overt act requirement in the Pattern
Instruction.
There is authority requiring proof of materiality under section
286. See United States v. Saybolt, 577 F.3d 195, 202–04 (3d Cir.
2009) (distinguishing section 286 from section 287 in this regard).
This derives from the fact that the statute requires a conspiracy
“to defraud,” which in turn implicitly requires materiality. See
Neder v. United States, 527 U.S. 1, 22 (1999) (“the common law
could not have conceived of ‘fraud’ without proof of materiality”).
The Seventh Circuit has not yet addressed this issue. If the court
determines that materiality is an element of the offense, the
instruction should be modified accordingly.
If a court gives this instruction, it should also give an instruc-
tion defining “intent to defraud,” which can be borrowed from the
instructions for mail and wire fraud, 18 U.S.C. §§ 1341 & 1343.
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242
18 U.S.C. § 287 FALSE, FICTITIOUS, OR
FRAUDULENT CLAIMS—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] making a false claim. In order for you to find [the;
a] defendant guilty of this charge, the government must
prove each of the [three; four] following elements be-
yond a reasonable doubt:
1. The defendant [made; presented] a claim
against [the United States; a department or agency of
the United States]; and
2. The claim was [false; fictitious; fraudulent]; and
3. The defendant knew the claim was [false; ficti-
tious; fraudulent] [.] [; and]
4. [The defendant acted with the intent to
defraud.]
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The government is required to prove that the defendant knew
the claim was false. United States v. Catton, 89 F.3d 387, 392 (7th
Cir. 1996).
The weight of appellate authority is that proof of materiality
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243
is not required under section 287, at least when the claim is al-
leged to be “false” or “fictitious” rather than “fraudulent.” See, e.g.,
United States v. Saybolt, 577 F.3d 195, 199–201 (3d Cir. 2009);
United States v. Logan, 250 F.3d 350, 358 (6th Cir. 2001); United
States v. Upton, 91 F.3d 677, 684–85 (5th Cir. 1996). If the claim is
alleged to be “fraudulent,” then materiality is required. Saybolt,
577 F.3d at 199–01 (citing Neder v. United States, 527 U.S. 1, 22
(1999) (“the common law could not have conceived of ‘fraud’ without
proof of materiality”)). The Seventh Circuit has not yet addressed
this issue.
The fourth element (intent to defraud) is bracketed because it
is unsettled in this Circuit whether proof of intent to defraud is
required under section 287. In United States v. Nazon , 940 F.2d
255 (7th Cir. 1991), the jury was instructed that it must find that
the defendant submitted his claim with an intent to defraud. On
appeal, the defendant objected to the district court’s failure to
define the phrase intent to defraud for the jury. Although the
Seventh Circuit held that the failure to define intent to defraud
was not plain error, it assumed that the jury was required to find
intent to defraud. Id. at 260. In United States v. Haddon, 927 F.2d
942 (7th Cir. 1991), the court said that a jury instruction that
required the government to prove intent to defraud on a section
287 charge “accurately presented the jury with the fundamental
questions bearing upon the defendant’s guilt or innocence” and
concluded that “the requisite intent to defraud was present.” Id.at
951.
In Catton, the court considered whether a trial judge had erred
in failing to instruct a jury that the government had to prove
willfulness to convict under section 287. The court equated willful-
ness with intent to defraud. Catton, 89 F.3d at 392. It noted that
Nazon and Haddon assumed that intent to defraud is required. Id.
The court concluded, however, that “It is implicit in the filing of a
knowingly false claim that the claimant intends to defraud the
government, and hence unnecessary to charge willfulness
separately.” Id. In an unpublished decision, United States v. Strong,
114 F.3d 1192, 1997 WL 269359, at *2 (7th Cir. May 20, 1997) (un-
published), the court concluded that intent to defraud is not
required under section 287 and read its decision in Catton as so
concluding.
A separate unresolved question exists as to whether the
government must prove that the defendant knew the false claim
would be presented to the United States or whether that point is a
jurisdictional fact which need not be presented to the jury. The
case law is silent. The issue turns on whether the requirement is
more like the requirement in United States v. X-Citement Video,
287
STATUTORY INSTRUCTIONS
244
Inc., 513 U.S. 64 (1994) (charge of knowingly transporting visual
depictions of minors engaging in sexually explicit conduct in viola-
tion of 18 U.S.C. § 2252 requires proof that defendant knew depic-
tion was of a minor) or more like United States v. Feola, 420 U.S.
671 (1975) (charge of conspiracy to assault a federal officer in
violation of 18 U.S.C. § 111 does not require proof that defendant
knew person was federal officer.).
287
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245
18 U.S.C. § 401 CRIMINAL CONTEMPT
Committee Comment
The Committee has not drafted an instruction for § 401
because so few jury trials occur in cases that charge it. This is
because judges may, and often do, decide in advance of trial
whether, upon conviction, they will impose a sentence of six months
or less; where the sentence to be imposed is less than six months,
a jury trial is not required. See generally Frank v. United States,
395 U.S. 147, 148–50 (1969) (“Congress, perhaps in recognition of
the scope of criminal contempt, has authorized courts to impose
penalties but has not placed any specific limits on their discretion;
it has not categorized contempts as ‘serious’ or ‘petty.’ 18 U.S.C.
§§ 401, 402. Accordingly, this Court has held that in prosecutions
for criminal contempt where no maximum penalty is authorized,
the severity of the penalty actually imposed is the best indication
of the seriousness of the particular offense.”) (footnotes omitted);
see also Bloom v. Illinois, 391 U.S. 194, 198 (1968) (“criminal
contempt is a petty offense unless the punishment makes it a seri-
ous one”); Cheff v. Schnackenberg, 384 U.S. 373, 380 (1966); United
States v. Seale, 461 F.2d 345, 352 (7th Cir. 1972) (“If the penalty
actually imposed [for criminal contempt] exceeds six months’
imprisonment, the maximum sentence for a ‘petty offense’ under
18 U.S.C. § 1, the contempt is serious, and a jury trial must be
afforded.”).
For information about the elements required for conviction
under 18 U.S.C. § 401(1), see United States v. Seale, 461 F.2d 345
(7th Cir. 1972); for 18 U.S.C. § 401(3), see In re Betts, 927 F.2d
983, 986 (7th Cir. 1991), rev’d on other grounds, Betts v. United
States, 10 F.3d 1278 (7th Cir. 1993). For a general discussion of 18
U.S.C. 401(2), see Cammer v. United States, 350 U.S. 399, 405–06
(1956).
401
STATUTORY INSTRUCTIONS
246
18 U.S.C. § 402 CRIMINAL CONTEMPT
Committee Comment
The Committee has not drafted an instruction for § 402
because so few jury trials occur in cases that charge it. Although a
jury trial is mandated for § 402 offenses (when the act or omission
giving rise to the contempt charge also is itself a criminal offense)
under 18 U.S.C. § 3691, the exceptions enumerated in § 3691 have
the practical effect of sharply limiting the number of jury trials
under § 402. The Committee therefore believes that a pattern
instruction for § 402 is unnecessary.
For judicial interpretations of 18 U.S.C. §§ 402 and 3691, see
United States v. Pyle, 518 F. Supp. 139, 145–56 (E.D. Pa. 1981),
aff’d, 722 F.2d 736 (3d Cir. 1983); United States v. Wright, 516 F.
Supp. 1113 (E.D. Pa. 1981).
402
CRIMINAL INSTRUCTIONS
247
18 U.S.C. § 471 FALSELY MAKING, FORGING,
COUNTERFEITING, OR ALTERING A SECURITY
OR OBLIGATION—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [falsely making; forging; counterfeiting; altering]
a [name specific security or obligation of the United
States involved]. In order for you to find [the; a]
defendant guilty of this charge, the government must
prove both of the following elements beyond a reason-
able doubt:
1. The defendant [falsely made; forged; counter-
feited; altered] a [name specific security or obligation of
the United States involved]; and
2. The defendant did so with the intent to defraud.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
Whether a specific security or obligation is an obligation or se-
curity of the United States is a question of law and is to be decided
by the trial court. See 18 U.S.C. § 8; United States v. Anzalone,
626 F.2d 239 (2d Cir. 1980). Thus, the jury need not make a find-
ing that the security or obligation at issue is that of the United
States. The Committee recommends that the court instruct the
jury as to the specific security or obligation involved, for example,
U.S. currency.
For a definition of “intent to defraud” see the pattern instruc-
471
STATUTORY INSTRUCTIONS
248
tion regarding that term as used in the mail and wire fraud
statutes, 18 U.S.C. §§ 1341 & 1343.
471
CRIMINAL INSTRUCTIONS
249
18 U.S.C. § 472 UTTERING COUNTERFEIT
OBLIGATIONS OR SECURITIES—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [passing; uttering; publishing; selling; bringing
into the United States; possessing; concealing] a [falsely
made; forged; counterfeited; altered] [name specific se-
curity or obligation of the United States involved]. In
order for you to find [the; a] defendant guilty of this
charge, the government must prove each of the [three]
following elements beyond a reasonable doubt:
1. The defendant [passed; uttered; published; sold;
brought into the United States; possessed; concealed] a
[falsely made; forged; counterfeited; altered] [name
specific security or obligation of the United States
involved]; and
2. The defendant knew at the time that the [name
specific security or obligation involved] was [falsely
made; forged; counterfeited; altered]; and
3. The defendant did so with the intent to defraud.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
Section 472 includes attempting to pass, utter, publish, or sell
472
STATUTORY INSTRUCTIONS
250
counterfeit obligations. When attempt is charged, Pattern Instruc-
tion 4.09, which defines attempt, should be given.
Whether a specific security or obligation is an obligation or se-
curity of the United States is a question of law and is to be decided
by the trial court. See 18 U.S.C. § 8; United States v. Anzalone,
626 F.2d 239 (2d Cir. 1980). Thus, the jury need not make a find-
ing that the security or obligation at issue is that of the United
States. The Committee recommends that the court instruct the
jury as to the specific security or obligation involved, for example,
U.S. currency.
For a definition of “intent to defraud” see the pattern instruc-
tion regarding that term as used in connection with the mail and
wire fraud statutes, 18 U.S.C. §§ 1341 & 1343.
472
CRIMINAL INSTRUCTIONS
251
18 U.S.C. § 473 DEALING IN COUNTERFEIT
OBLIGATIONS OR SECURITIES—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [buying; selling; exchanging; transferring; receiv-
ing; delivering] a [false; forged; counterfeited; altered]
[name specific security or obligation of the United
States involved]. In order for you to find [the; a]
defendant guilty of this charge, the government must
prove each of the [three] following elements beyond a
reasonable doubt:
1. The defendant [bought; sold; exchanged; trans-
ferred; received; delivered] a [false; forged; counter-
feited; altered] [name specific security or obligation of
the United States involved]; and
2. The defendant knew at the time that the [name
specific security or obligation] was [false; forged;
counterfeit; altered]; and
3. The defendant did so with the intent that the
[name specific security or obligation] be [passed;
published; used] as true and genuine.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
473
STATUTORY INSTRUCTIONS
252
18 U.S.C. § 495 FALSELY MAKING, FORGING,
COUNTERFEITING, OR ALTERING A
DOCUMENT—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [making; forging; counterfeiting; altering] a
document. In order for you to find [the; a] defendant
guilty of this charge, the government must prove each
of the [three] following elements beyond a reasonable
doubt:
1. The defendant [falsely made; forged; counter-
feited; altered] the [document described in the indict-
ment]; and
2. The defendant did so for the purpose of [obtain-
ing money; enabling [name] to obtain money] from the
United States; and
3. The defendant knew the claim was [false;
fraudulent].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
This instruction is for use when the defendant has been
charged with the offense set out in the first paragraph of 18 U.S.C.
§ 495.
It is recommended that the description of the document
495
CRIMINAL INSTRUCTIONS
253
contained in the indictment be included where indicated at the end
of the first element.
In United States v. Bates, 522 U.S. 23 (1997), the Supreme
Court declined to read a requirement of proof of an intent to
defraud into 20 U.S.C. § 1097(a), which statute prohibits the know-
ing and willful misapplication of student loan funds. In refusing to
read the intent element into the statute, the Court did not lay
down a blanket rule. Instead, it considered a number of factors,
including the plain language of the statute, the fact that other
subsections of the same statute included the intent to defraud
language, and the history of the statute.
The Seventh Circuit has not yet determined whether an intent
to defraud requirement should be read into § 495 in light of the
Supreme Court’s decision in Bates. The key to the analysis will be
whether there is an historical basis for requiring an intent to
defraud. This analysis is particularly suited to the adversary
process. See, for example, the Seventh Circuit’s decision in United
States v. Bates, 852 F.2d 212 (7th Cir. 1988), where the court held,
in a case unrelated to the more recent Supreme Court case of the
same name, that an intent to defraud requirement should be read
into 18 U.S.C. § 656, prohibiting the willful misapplication of bank
funds and its decision in United States v. Ranum, 96 F.3d 1020
(7th Cir. 1996) (predating the Supreme Court’s decision in Bates)
where the court held that an intent to defraud requirement should
not be read into 18 U.S.C. § 1097(a), prohibiting the making of
false statements to obtain student loan funds.
Because this question is an interpretive question of first
impression, the Committee believes it is more appropriate to leave
to the courts the initial determination of whether intent to defraud
is an element under § 495.
495
STATUTORY INSTRUCTIONS
254
18 U.S.C. § 495 UTTERING OR PUBLISHING A
FALSE DOCUMENT—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [uttering; publishing] a false document. In order
for you to find [the; a] defendant guilty of this charge,
the government must prove each of the [five] following
elements beyond a reasonable doubt:
1. The defendant offered a document; and
2. When the defendant did so, he falsely repre-
sented in some way or manner that the document was
genuine; and
3. When the defendant did so, the document was
[false; forged; counterfeited; altered] in that [describe
specific allegation]; and
4. When the defendant did so, he knew that the
document was [false; forged; counterfeited; altered];
and
5. The defendant did so with the intent to defraud
the United States.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
495
CRIMINAL INSTRUCTIONS
255
Committee Comment
This instruction is for use when the defendant has been
charged with the offense set out in the second paragraph of 18
U.S.C. § 495.
For a definition of “intent to defraud” see the pattern instruc-
tion regarding that term as used in the mail and wire fraud
statutes, 18 U.S.C. §§ 1341 & 1343.
495
STATUTORY INSTRUCTIONS
256
18 U.S.C. § 495 PRESENTING A FALSE
DOCUMENT—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] presenting a false document. In order for you to
find [the; a] defendant guilty of this charge, the govern-
ment must prove each of the [five] following elements
beyond a reasonable doubt:
1. The defendant [transmitted; presented] the
[document] to [name], who was an officer of the United
States, or at any office of the United States; and
2. The document was [transmitted; presented] in
support of or in relation to any account or claim; and
3. When the defendant [transmitted; presented]
the [document], it was [false; forged; counterfeited;
altered] in that [describe specific allegation]; and
4. When the defendant [transmitted; presented]
the [document], the defendant knew it was [false;
forged; counterfeited; altered]; and
5. When the defendant [transmitted; presented]
the [document], he did so with the intent to defraud the
United States.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
495
CRIMINAL INSTRUCTIONS
257
Committee Comment
This instruction is for use when the defendant has been
charged with the offense set out in the third paragraph of 18 U.S.C.
§ 495.
For a definition of “intent to defraud” see the pattern instruc-
tion regarding that term as used in the mail and wire fraud
statutes, 18 U.S.C. §§ 1341 & 1343.
495
STATUTORY INSTRUCTIONS
258
18 U.S.C. § 500 FALSELY MAKING, FORGING,
COUNTERFEITING, ENGRAVING, OR
PRINTING A MONEY ORDER—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [falsely making; forging; counterfeiting; engrav-
ing; printing] a money order. In order for you to find
the defendant guilty of this charge, the government
must prove each of the [three] following elements be-
yond a reasonable doubt:
1. The defendant [falsely made; forged; counter-
feited; engraved; printed] a document; and
2. The document was an imitation of, or purported
to be, a [blank money order; money order issued by or
under the direction of the United States Postal Ser-
vice]; and
3. The defendant made the document with the
intent to defraud.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
This instruction is for use when the defendant has been
charged with the offense set out in the first paragraph of 18 U.S.C.
§ 500.
For a definition of “intent to defraud” see the pattern instruc-
500
CRIMINAL INSTRUCTIONS
259
tion regarding that term as used in the mail and wire fraud
statutes, 18 U.S.C. §§ 1341 & 1343.
500
STATUTORY INSTRUCTIONS
260
18 U.S.C. § 500 FORGING OR
COUNTERFEITING A SIGNATURE OR INITIALS
OF ANY PERSON AUTHORIZED TO ISSUE A
MONEY ORDER, POSTAL NOTE, OR BLANK—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [forging; counterfeiting] the signature or initials
of any person authorized to issue money orders upon or
to any [money order; postal note; blank] provided or is-
sued by or under the direction of the [United States
Postal Service; post office department or corporation of
any foreign country], which was payable in the United
States. In order for you to find [the; a] defendant guilty
of this charge, the government must prove each of the
[three; four] following elements beyond a reasonable
doubt:
1. The defendant [forged; counterfeited] the
[signature; initials] of [name]; and
2. [Name] was authorized to issue money orders;
and
3. The defendant [forged; counterfeited] the
[signature; initials] on a [money order; postal note;
blank] provided or issued by or under the direction of
the [United States Postal Service; post office depart-
ment or corporation of any foreign country] which was
payable in the United States[.] [; and]
[4. The defendant acted with the intent to defraud.]
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
500
CRIMINAL INSTRUCTIONS
261
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
This instruction is for use when the defendant has been
charged with the offense set out in the first part of the second
paragraph of 18 U.S.C. § 500, regarding forgery and counterfeiting
of the signature or initials of any person authorized to issue money
orders.
In United States v. Bates, 522 U.S. 23 (1997), the Supreme
Court declined to read a requirement of proof of an intent to
defraud into 20 U.S.C. § 1097(a), which statute prohibits the know-
ing and willful misapplication of student loan funds. In refusing to
read the intent element into the statute, the Court did not lay
down a blanket rule. Instead, it considered a number of factors,
including the plain language of the statute, the fact that other
subsections of the same statute included the intent to defraud
language, and the history of the statute.
The Seventh Circuit has not yet determined whether an intent
to defraud requirement should be read into § 500 in light of the
Supreme Court’s decision in Bates. The key to the analysis will be
whether there is an historical basis for requiring an intent to
defraud. This analysis is particularly suited to the adversary
process. See, for example, the Seventh Circuit’s decision in United
States v. Bates, 852 F.2d 212 (7th Cir. 1988), where the court held,
in a case unrelated to the more recent Supreme Court case of the
same name, that an intent to defraud requirement should be read
into 18 U.S.C. § 656, prohibiting the willful misapplication of bank
funds and its decision in United States v. Ranum, 96 F.3d 1020
(7th Cir. 1996) (predating the Supreme Court’s decision in Bates),
where the court held that an intent to defraud requirement should
not be read into 18 U.S.C. § 1097(a), prohibiting the making of
false statements to obtain student loan funds.
Because this question is an interpretive question of first
impression, the Committee believes it is more appropriate to leave
to the courts the initial determination of whether intent to defraud
is an element in § 500.
If intent to defraud is an element, the court should add the
bracketed language. For a definition of “intent to defraud” see the
500
STATUTORY INSTRUCTIONS
262
pattern instruction regarding that term as used in the mail and
wire fraud statutes, 18 U.S.C. §§ 1341 & 1343.
500
CRIMINAL INSTRUCTIONS
263
18 U.S.C. § 500 FORGING OR
COUNTERFEITING A SIGNATURE OR
ENDORSEMENT ON A MONEY ORDER, POSTAL
NOTE, OR BLANK—ELEMENTS
[The indictment charges defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [forging; counterfeiting] any material [signature;
endorsement] on a [money order; postal note; blank]
provided or issued by or under the direction of the
[United States Postal Service; post office department or
corporation of any foreign country], which was payable
in the United States. In order for you to find [the; a]
defendant guilty of this charge, the government must
prove each of the [two; three] following elements:
1. The defendant [forged; counterfeited] any ma-
terial [signature; endorsement]; and
2. The defendant did so on a [money order; postal
note; blank] provided or issued by or under the direc-
tion of the [United States Postal Service; post office
department or corporation of any foreign country] which
was payable in the United States[.] [; and]
[3. The defendant acted with the intent to defraud.]
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
500
STATUTORY INSTRUCTIONS
264
Committee Comment
This instruction is for use when the defendant has been
charged with the offense set out in the second part of the second
paragraph of 18 U.S.C. § 500, regarding forgery and counterfeiting
of any material signature or endorsement on a money order, postal
note, or blank provided or issued by or under the direction of the
U.S. Postal Service or post office department or corporation of any
foreign country.
In United States v. Bates, 522 U.S. 23 (1997), the Supreme
Court declined to read a requirement of proof of an intent to
defraud into 20 U.S.C. § 1097(a), which statute prohibits the know-
ing and willful misapplication of student loan funds. In refusing to
read the intent element into the statute, the Court did not lay
down a blanket rule. Instead, it considered a number of factors,
including the plain language of the statute, the fact that other
subsections of the same statute included the intent to defraud
language, and the history of the statute.
The Seventh Circuit has not yet determined whether an intent
to defraud requirement should be read into § 500 in light of the
Supreme Court’s decision in Bates. The key to the analysis will be
whether there is an historical basis for requiring an intent to
defraud. This analysis is particularly suited to the adversary
process. See, for example, the Seventh Circuit’s decision in United
States v. Bates, 852 F.2d 212 (7th Cir. 1988), where the court held,
in a case unrelated to the more recent Supreme Court case of the
same name, that an intent to defraud requirement should be read
into 18 U.S.C. § 656, prohibiting the willful misapplication of bank
funds and its decision in United States v. Ranum, 96 F.3d 1020
(7th Cir. 1996) (predating the Supreme Court’s decision in Bates),
where the court held that an intent to defraud requirement should
not be read into 18 U.S.C. § 1097(a), prohibiting the making of
false statements to obtain student loan funds.
Because this question is an interpretive question of first
impression, the Committee believes it is more appropriate to leave
to the courts the initial determination of whether intent to defraud
is an element in § 500.
If intent to defraud is an element, the court should add the
bracketed language. For a definition of “intent to defraud” see the
pattern instruction regarding that term as used in the mail and
wire fraud statutes, 18 U.S.C. §§ 1341 & 1343.
500
CRIMINAL INSTRUCTIONS
265
18 U.S.C. § 500 FORGING OR
COUNTERFEITING A SIGNATURE ON A
RECEIPT OR CERTIFICATE OF
IDENTIFICATION—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [forging; counterfeiting] a signature to any receipt
or certificate of identification of a [money order; postal
note]. In order for you to find [the; a] defendant guilty
of this charge, the government must prove each of the
[two; three] following elements beyond a reasonable
doubt:
1. The defendant [forged; counterfeited] a mate-
rial signature; and
2. The signature was on a receipt or certificate of
identification of a [money order; postal note; blank]
provided or issued by or under the direction of the
[United States Postal Service; post office department or
corporation of any foreign country] which was payable
in the United States[.] [; and]
[3. The defendant acted with the intent to
defraud.]
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
500
STATUTORY INSTRUCTIONS
266
Committee Comment
This instruction is for use when the defendant has been
charged with the offense set out in the third part of the second
paragraph of 18 U.S.C. § 500, regarding forgery and counterfeiting
of any material signature to any receipt or certificate of identifica-
tion of a money order, postal note, or blank provided or issued by
or under the direction of the U.S. Postal Service or post office
department or corporation of any foreign country.
In United States v. Bates, 522 U.S. 23 (1997), the Supreme
Court declined to read a requirement of proof of an intent to
defraud into 20 U.S.C. § 1097(a), which statute prohibits the know-
ing and willful misapplication of student loan funds. In refusing to
read the intent element into the statute, the Court did not lay
down a blanket rule. Instead, it considered a number of factors,
including the plain language of the statute, the fact that other
subsections of the same statute included the intent to defraud
language, and the history of the statute.
The Seventh Circuit has not yet determined whether an intent
to defraud requirement should be read into § 500 in light of the
Supreme Court’s decision in Bates. The key to the analysis will be
whether there is an historical basis for requiring an intent to
defraud. This analysis is particularly suited to the adversary
process. See, for example, the Seventh Circuit’s decision in United
States v. Bates, 852 F.2d 212 (7th Cir. 1988), where the court held,
in a case unrelated to the more recent Supreme Court case of the
same name, that an intent to defraud requirement should be read
into 18 U.S.C. § 656, prohibiting the willful misapplication of bank
funds and its decision in United States v. Ranum, 96 F.3d 1020
(7th Cir. 1996) (predating the Supreme Court’s decision in Bates),
where the court held that an intent to defraud requirement should
not be read into 18 U.S.C. § 1097(a), prohibiting the making of
false statements to obtain student loan funds.
Because this question is an interpretive question of first
impression, the Committee believes it is more appropriate to leave
to the courts the initial determination of whether intent to defraud
is an element in § 500.
If intent to defraud is an element, the court should add the
bracketed language. For a definition for “intent to defraud” see the
pattern instruction regarding that term as used in the mail and
wire fraud statutes, 18 U.S.C. §§ 1341 & 1343.
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18 U.S.C. § 500 FALSELY ALTERING A MONEY
ORDER OR POSTAL NOTE—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] falsely altering a [money order; postal note]. In
order for you to find [the; a] defendant guilty of this
charge, the government must prove both of the follow-
ing elements beyond a reasonable doubt:
1. The defendant falsely altered a [money order;
postal note; blank] provided or issued by or under the
direction of the [United States Postal Service; post of-
fice department or corporation of any foreign country]
which was payable in the United States; and
2. The alteration was material.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
This instruction is for use when the defendant has been
charged with the offense set out in the third paragraph of 18 U.S.C.
§ 500.
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18 U.S.C. § 500 PASSING, UTTERING, OR
PUBLISHING FORGED OR ALTERED MONEY
ORDERS OR POSTAL NOTES—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [passing; uttering; publishing] [attempting to
pass; attempting to utter; attempting to publish] a
forged or altered [money order; postal note]. In order
for you to find [the; a] defendant guilty of this charge,
the government must prove each of the [five] following
elements beyond a reasonable doubt:
1. The defendant [passed; uttered; published] [at-
tempted to pass; attempted to utter; attempted to pub-
lish] a [money order; postal note]; and
2. He falsely represented in some way or manner
that the [money order; postal note] was genuine; and
3. The [money order; postal note] was forged or
materially altered; and
4. He knew that any material [initials; signature;
stamp impression; endorsement] thereon was [false;
forged; counterfeited] or a material alteration on the
[money order; postal note] was falsely made; and
5. The defendant did so with the intent to defraud
the United States.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
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doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
This instruction is for use when the defendant has been
charged with the offense set out in the fourth paragraph of 18
U.S.C. § 500.
For a definition of “intent to defraud” see the pattern instruc-
tion regarding that term as used in the mail and wire fraud
statutes, 18 U.S.C. §§ 1341 & 1343.
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18 U.S.C. § 500 FRAUDULENTLY ISSUING A
MONEY ORDER OR POSTAL NOTE—ELEMENTS
[The indictment charges the defendant[s] with;
Counts[s]
—
of the indictment charge[s] the defen-
dant[s] with] fraudulently issuing a [money order;
postal note]. In order for you to find [the; a] defendant
guilty of this charge, the government must prove each
of the [three] following elements beyond a reasonable
doubt:
1. The defendant issued a [money order; postal
note] without having previously received or paid the
full amount of money payable on the [order; note]; and
2. He did so for the purpose of [obtaining or
receiving money; enabling another person to obtain or
receive money] from the United States or its agents or
employees; and
3. That he did so with the intent to defraud the
United States.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
This instruction is for use when the defendant has been
charged with the offense set out in the fifth paragraph of 18 U.S.C.
§ 500.
For a definition of “intent to defraud” see the pattern instruc-
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tion regarding that term as used in the mail and wire fraud
statutes, 18 U.S.C. §§ 1341 & 1343.
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18 U.S.C. § 500 THEFT OF A MONEY ORDER—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] theft of a money order. In order for you to find
[the; a] defendant guilty of this charge, the government
must prove both of the following elements beyond a
reasonable doubt:
1. The defendant [embezzled; stole; converted to
his own use or the use of another; converted or disposed
of without authority] a blank money order form provided
under the authority of the United States Postal Service;
and
2. The defendant did so with the intent to deprive
the owner of the use or benefit of the document.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
This instruction is for use when the defendant has been
charged with the offense set out in the sixth paragraph of 18 U.S.C.
§ 500.
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18 U.S.C. § 500 RECEIPT OR POSSESSION OF A
STOLEN MONEY ORDER—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [receipt; possession] of a stolen money order. In
order for you to find [the; a] defendant guilty of this
charge, the government must prove each of the [three]
following elements beyond a reasonable doubt:
1. The defendant [received; possessed] a blank
money order form provided under the authority of the
United States Postal Service; and
2. The defendant did so with the intent to convert
it to [his own use or gain; the use or gain of another];
and
3. The defendant knew the document had been
[embezzled; stolen; converted].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
This instruction is for use when the defendant has been
charged with the offense set out in the seventh paragraph of 18
U.S.C. § 500.
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18 U.S.C. § 500 FALSE PRESENTMENT OF A
MONEY ORDER OR POSTAL NOTE—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] false presentment of a [money order; postal note].
In order for you to find [the; a] defendant guilty of this
charge, the government must prove each of the [three]
following elements beyond a reasonable doubt:
1. The defendant [transmitted; presented; caused
to be transmitted or presented] a [money order; postal
note]; and
2. The defendant knew that the [money order;
postal note] contained any forged or counterfeited
[signature; initials; stamped impression]; or, [contained
any material alteration which was unlawfully made;
was unlawfully issued without previous payment of the
amount required to have been paid upon issue; was
stamped without lawful authority]; and
3. The defendant [transmitted; presented] the doc-
ument with the intent to defraud the United States, the
Postal Service, or any person.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
This instruction is for use when the defendant has been
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charged with the offense set out in the eighth paragraph of 18
U.S.C. § 500.
For a definition of “intent to defraud” see the pattern instruc-
tion regarding that term as used in the mail and wire fraud
statutes, 18 U.S.C. §§ 1341 & 1343.
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18 U.S.C. § 500 THEFT OR RECEIPT OF A
MONEY ORDER MACHINE OR INSTRUMENT—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] theft or receipt of a [postal money order machine;
stamp specifically designed to be used in preparing or
filling out the blanks on postal money order forms; tool
specifically designed to be used in preparing or filling
out the blanks on postal money order forms; instru-
ment specifically designed to be used in preparing or
filling out the blanks on postal money order forms]. In
order for you to find [the; a] defendant guilty of this
charge, the government must prove each of the [two;
three] following elements:
1. The defendant [stole; received; possessed;
disposed of; attempted to dispose of] [item]; and
2. The [item] was a [postal money order machine;
stamp specifically designed to be used in preparing or
filling out the blanks on postal money order forms; tool
specifically designed to be used in preparing or filling
out the blanks on postal money order forms; instru-
ment specifically designed to be used in preparing or
filling out the blanks on postal money order forms] [.] [;
and]
[3. The defendant [received; possessed; disposed
of; attempted to dispose of] [item] with the intent to
defraud or without being lawfully authorized by the
United States Postal Service.]
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
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If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
This instruction is for use when the defendant has been
charged with the offense set out in the ninth paragraph of 18
U.S.C. § 500. When the defendant is charged with stealing the
item, this instruction should include only the first two elements.
For a definition of “intent to defraud” see the pattern instruc-
tion regarding that term as used in the mail and wire fraud
statutes, 18 U.S.C. §§ 1341 & 1343.
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18 U.S.C. § 500 DEFINITION OF “MATERIAL”
A signature, endorsement, initials, or stamp im-
pression is “material” if it has a natural tendency to
influence, or is capable of influencing, the decision of
the [person; decision-making body] to whom it was
addressed. The government is not required to prove
that the statement actually influenced [person; decision-
making body].
Committee Comment
This instruction was adapted from the pattern instruction
defining material under the mail and wire fraud statutes, 18 U.S.C.
§§ 1341 & 1343.
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18 U.S.C. § 500 DEFINITION OF “MATERIAL
ALTERATION”
An alteration of a [money order; postal note;
initials; signature; stamp impression; endorsement] is
material if it had the effect of influencing the action of
the recipient or was capable of or had a natural ten-
dency to influence.
Committee Comment
This instruction was adapted from the pattern instruction
defining materiality as used in the general false statement statute,
18 U.S.C. § 1001.
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18 U.S.C. § 511 ALTERING OR REMOVING
VEHICLE IDENTIFICATION NUMBERS
Committee Comment
Because this statute is rarely used, the Committee has not
drafted a corresponding pattern instruction. For cases discussing
the statute generally, see United States v. Chorman, 901 F.2d 102,
110 (4th Cir. 1990) (interpreting “knowingly” to mean “knowing
action”); United States v. Podell, 869 F.2d 328, 332 (7th Cir. 1989)
(discussing appropriate unit of prosecution under statute); United
States v. Enochs, 857 F.2d 491, 492–93 (8th Cir. 1988) (discussing
intent element of statute).
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18 U.S.C. § 542 ENTRY OF GOODS BY MEANS
OF FALSE STATEMENTS—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] entering goods into commerce by means of a false
statement. In order for you to find the defendant guilty
of this charge, the government must prove each of the
[three; four] following elements beyond a reasonable
doubt:
1. [Goods named in indictment] [was; were]
imported; and
2. The defendant [entered; introduced; attempted
to enter; attempted to introduce] [goods named in
indictment] into the commerce of the United States;
and
3. The defendant did so by means of a [fraudu-
lent; false] [invoice; declaration; affidavit; letter; paper;
practice] [written; verbal statement], which he [[knew;
had reason to believe] was [fraudulent; false; without
reasonable cause to believe to be true]]; and
[4. The [invoice; declaration; affidavit; letter;
paper; statement; practice] was material to the entry of
the merchandise.]
If you find from your consideration of all the evi-
dence that the government proved each of these ele-
ments beyond a reasonable doubt, then you should find
the defendant guilty.
If, on the other hand, you find from your consider-
ation of all the evidence that the government failed to
prove any of these elements beyond a reasonable doubt,
then you should find the defendant not guilty.
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Committee Comment
Title 18 U.S.C. § 542 describes three types of false statements.
The first does not contain any express intent requirement—it
simply proscribes “fraudulent” or “false” statements—but it has
been interpreted as requiring a knowing falsehood. See United
States v. Ven-Fuel, Inc., 602 F.2d 747, 753 (5th Cir. 1979). The
second and third expressly contain what amounts to a knowledge/
reckless disregard intent requirement.
The fourth element (materiality) is bracketed because the
Seventh Circuit has not decided whether materiality is an element
under 18 U.S.C. § 542. It appears, however, that every other circuit
that has considered the issue has ruled that § 542 requires proof of
materiality. See, e.g., United States v. An Antique Platter of Gold,
184 F.3d 131, 135 (2d Cir. 1999); United States v. Holmquist,36
F.3d 154, 158 (1st Cir. 1990); United States v. Corcuera-Valor, 910
F.2d 198, 199 (5th Cir. 1990); United States v. Bagnall, 907 F.2d
432, 435 (3d Cir. 1990); United States v. Teraoka, 669 F.2d 577,
579 (9th Cir. 1982). Of note is the Supreme Court’s decision in
United States v. Wells, 519 U.S. 482 (1997), to the effect that 18
U.S.C. § 1014, which like § 542 proscribes false statements, does
not require proof of materiality. But see also Neder v. United States,
527 U.S. 1, 22 (1999) (“the common law could not have conceived
of ‘fraud’ without proof of materiality”). The Committee takes no
position on whether the statute requires materiality.
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18 U.S.C. § 542 ENTRY OF GOODS BY MEANS
OF FALSE STATEMENTS—DEFINITION OF
“FRAUDULENT”
A [statement; document; practice] is “fraudulent” if
it is [made; conducted; caused to be made; caused to be
conducted] with the intent to deceive.
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18 U.S.C. § 542 DEFINITION OF “MATERIAL”
[A statement is “material” to the entry of merchan-
dise if it is capable of influencing the actions of [identify
agency] in a way that affects or facilitates the entry of
the merchandise into the United States. The govern-
ment is not required to prove that the statement actu-
ally influenced [identify agency]].
Committee Comment
The Seventh Circuit has not addressed the issue of whether
proof of materiality is required in the context of § 542. The instruc-
tion is therefore bracketed. For further discussion about whether
proof of materiality is required under § 542, see the commentary to
the elements instruction for this statute.
This instruction is derived from materiality instructions that
appear elsewhere in the Pattern Instructions, see, e.g., 18 U.S.C.
§ 1001; 18 U.S.C. § 152; 18 U.S.C. § 500; 18 U.S.C. §§ 1341, 1343,
1344; 18 U.S.C. § 1623; 18 U.S.C. § 7206. This instruction is
worded in a way that focuses on the language in section 542. See
United States v. Bagnall, 907 F.2d 432, 436 (3d Cir. 1990) (citing
cases); see also, United States v. Holmquist, 36 F.3d 154, 158–60
(1st Cir. 1994).
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18 U.S.C. § 542 ENTRY OF GOODS BY MEANS
OF FALSE STATEMENTS—DEFINITION OF
ENTRY
The process of entering or introducing merchandise
into the commerce of the United States does not begin
until after the merchandise has arrived in the United
States and the importer or owner of the merchandise
has begun the acts necessary for him to gain lawful
possession of the merchandise. The process is not
completed until the payment of all customs duties.
Committee Comment
See United States v. Mescall, 215 U.S. 26, 32 (1909); United
States v. Steinfels, 753 F.2d 373, 377–78 (5th Cir. 1985); Heike v.
United States, 192 F. 83, 99–100 (2d Cir. 1911).
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18 U.S.C. § 542 ENTRY OF GOODS BY MEANS
OF FALSE STATEMENTS—DEFINITION OF
IMPORTED MERCHANDISE
Committee Comment
Because the meaning of the term imported varies in different
contexts, the court must formulate a definition for the term on a
case by case basis. See, e.g., Schiavone-Chase Corp. v. United States,
553 F.2d 658, 663–64 (Ct. Cl. 1977); Kee Co. v. United States,13
C.C.P.A. 106, 109 (1925).
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18 U.S.C. § 542 ENTRY OF GOODS BY MEANS
OF FALSE STATEMENTS—UNITED STATES
HAS BEEN OR MAY HAVE BEEN DEPRIVED OF
ANY LAWFUL DUTIES—ELEMENTS
Committee Comment
The Committee has not drafted an instruction for the second
paragraph of § 542 because the few reported cases concerning that
paragraph leave its scope unclear. See generally United States v.
Yip, 930 F.2d 142, 148–50 (2d Cir. 1991).
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18 U.S.C. § 641 THEFT OF GOVERNMENT
PROPERTY—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [theft; embezzlement; knowing conversion] of
property of the United States. In order for you to find
[the; a] defendant guilty of this charge, the government
must prove each of the [four] following elements beyond
a reasonable doubt:
1. The [record; money; thing of value] described in
the indictment belonged to the United States; and
2. The [record; money; thing of value] had a value
that exceeded $1,000; and
3. The defendant [stole; embezzled; knowingly
converted] that [record; money; thing of value] to [the
defendant’s own use; the use of another]; and
OR
[3. The defendant [sold; conveyed; disposed of]
that [record; money; thing of value] without authority;
and]
4. The defendant did so knowingly with the intent
to deprive the owner of the use or benefit of that [rec-
ord; money; thing of value].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
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doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
Use the alternate third element when appropriate.
Section 641 of Title 18 consolidated theft, embezzlement, and
receipt of stolen property previously found in §§ 82, 87, 100, and
101 of Title 18. Section 641 contains a lesser included misdemeanor
for violations when the value of the money or property in question
does not exceed $1,000. “Value” is specifically defined in the
statute.
The Committee has drafted this instruction to be used in
felony cases. If the crime charged is a misdemeanor, the second el-
ement of this instruction should read: “2. The [record; money;
thing of value] had some value.” Where there is a real dispute as
to whether the value of the property exceeds $1,000, the Commit-
tee recommends that two separate instructions be given as op-
posed to use of a special interrogatory. Note that the value is
established at the time of possession rather than at the time of
theft. United States v. Ditata, 469 F.2d 1270 (7th Cir. 1972); see
also United States v. Brookins, 52 F.3d 615, 619 (7th Cir. 1995).
Furthermore, the statute provides that the value of the property is
determined “in the aggregate, combining amounts from all the
counts for which the defendant is convicted in a single case. . . .”
Where a defendant is charged in more than one count and there is
a dispute over whether the aggregate value of the property at is-
sue exceeds $1,000, Apprendi v. New Jersey, 530 U.S. 466 (2000),
requires that the jury determine the aggregate value. Thus, the
jury should be given an appropriate instruction.
See Morissette v. United States, 342 U.S. 246 (1952), regarding
the “intent to deprive element.” The government need only prove
that the defendant intended to deprive the owner of the use of the
money or property; the government need not prove that the
defendant knew the money or property belonged to the government.
Morissette, 342 U.S. at 276; see also United States v. Howard,30
F.3d 871, 875 (7th Cir. 1994). If lack of knowledge is asserted,
however, the Committee recommends that the following language
be added to the fourth element: “It does not matter whether the
defendant knew that the [record; money; thing of value] belonged
to the government, only that he know it did not belong to him.”
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18 U.S.C. § 641 DEFINITION OF “VALUE”
“Value” means face value, market value, [wholesale
or retail], or a price actually paid for the item in ques-
tion, whichever is greater. [Market value is the price
someone would be willing to pay for the item to some-
one else willing to sell it.] [To have value a thing need
not be a physical object [, and may be something like
[information, labor, etc.], as long as it has economic
worth].]
Committee Comment
See 18 U.S.C. § 641; United States v. Smith, 489 F.2d 1330
(7th Cir. 1973).
Regarding market value, see United States v. Brookins,52
F.3d 615 (7th Cir. 1995). Regarding intangible property, see United
States v. Howard, 30 F.3d 871 (7th Cir. 1994). The term “par value”
is eliminated because it is covered by the remaining terms. Rele-
vant illustration is encouraged in intangible property cases.
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18 U.S.C. § 659 EMBEZZLEMENT OR THEFT OF
GOODS FROM INTERSTATE SHIPMENT—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [embezzling; stealing; unlawfully taking, carrying
away, or concealing; or by fraud or deception obtaining]
goods or chattels [moving as interstate commerce; which
are a part of or which constitute an interstate shipment
of freight]. In order for you to find [the; a] defendant
guilty of this charge, the government must prove each
of the [four] following elements beyond a reasonable
doubt:
1. The defendant [embezzled; stole; unlawfully
took, carried away, or concealed; obtained by fraud or
deception] the goods or chattels described in the indict-
ment; and
2. The defendant did so with the intent to convert
the goods or chattels to his own use; and
3. The goods or chattels were moving as, or were
a part of, [an interstate; a foreign] shipment of prop-
erty; and
4. The goods or chattels had a value of $1,000 or
more.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
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292
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
Section 659 describes six distinct offenses; the instructions
should be modified as necessary.
The statute contains a lesser included offense where the value
of the goods or chattels is less than $1,000. The Committee has
drafted the instruction to be used when the value is or exceeds
$1,000. If the value charged is less than $1,000, then the fourth el-
ement of the instruction should read: “4. The goods or chattels had
a value less than $1,000.” If the value of the goods or chattels is in
issue, the court should give a lesser included offense instruction.
In cases in which “value” is in issue, the Committee recommends
using the proposed definition of “value” found in the Pattern
Instructions for 18 U.S.C. § 641.
659
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18 U.S.C. § 659 POSSESSION OF GOODS
STOLEN FROM INTERSTATE SHIPMENT—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] possession of goods or chattels stolen from an in-
terstate shipment. In order for you to find [the; a]
defendant guilty of this charge, the government must
prove each of the [four] following elements beyond a
reasonable doubt:
1. The goods or chattels described in the indict-
ment were [embezzled; stolen; unlawfully taken, car-
ried away, or concealed; obtained by fraud or decep-
tion]; and
2. The defendant possessed the goods or chattels
with knowledge that they were [embezzled; stolen;
unlawfully taken, carried away, or concealed; obtained
by fraud or deception]; and
3. The goods or chattels were moving as, or were
a part of, [an interstate; a foreign] shipment of prop-
erty; and
4. The goods or chattels had a value of $1,000 or
more.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
659
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Committee Comment
United States v. Zarattini, 552 F.2d 753 (7th Cir. 1977),
indicates that intent to convert is not an element under a charge of
possession.
The government must prove beyond a reasonable doubt that
goods were stolen from an interstate shipment and the person pos-
sessing the goods knew they had been stolen. United States v.
Green, 779 F.2d 1313, 1318 (7th Cir. 1985); United States v.
DeGeratto, 727 F. Supp. 1254, 1265 (N.D. Ind. 1990).
The statute contains a lesser included offense where the value
of the goods or chattels is less than $1,000. The Committee has
drafted the instruction to be used when the value is or exceeds
$1,000. If the value charged is less than $1,000, then the fourth el-
ement of the instruction should read: “4. The goods or chattels had
a value less than $1,000.” If the value of the goods or chattels is in
issue, the court should give a lesser included offense instruction.
In cases in which “value” is in issue, the Committee recommends
using the proposed definition of “value” found in the Pattern
Instructions for 18 U.S.C. § 641.
659
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18 U.S.C. § 666(a)(1)(A) THEFT CONCERNING
FEDERALLY FUNDED PROGRAM—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [embezzlement; theft; fraud; conversion;
misapplication]. In order for you to find [the; a] defen-
dant[s] guilty of this charge, the government must prove
each of the [five] following elements beyond a reason-
able doubt:
1. That the defendant was an agent of [an organi-
zation; a [state; local; Indian tribal] government, or any
agency of that government] [, such as [name charged
entity here if status is not in dispute]]; and
2. That the defendant [embezzled; stole; obtained
by fraud; knowingly and without authority converted to
the use of someone other than the rightful owner;
intentionally misapplied] some [money; property]; and
3. That the [money; property] was owned by, or
was under the care, custody or control of the [organiza-
tion; government; government agency]; and
4. That the [money; property] had a value of
$5,000 or more; and
5. That the [organization; government; govern-
ment agency], in a one year period, received benefits of
more than $10,000 under any Federal program involv-
ing a grant, contract subsidy, loan, guarantee, insur-
ance or other assistance. [The one year period must
begin no more than 12 months before the defendant
committed these acts and must end no more than 12
months afterward.]
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
666(a)(1)(A)
STATUTORY INSTRUCTIONS
296
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The government is not required to prove that the theft af-
fected the federal funds received by the organization or agency.
Salinas v. United States, 522 U.S. 52, 55–60 (1997). The jury
should be so instructed in the event a contrary argument is raised.
The statutory term “intentionally misapplies” does not cover
mere mistakes. United States v. Thompson, 484 F.3d 877, 881 (7th
Cir. 2007). Instead, an intentional misapplication is confined to
“theft, extortion, bribery, and similarly corrupt acts.” Id. Authori-
zation or ratification by an organization of an expenditure of funds
is important evidence “militating against a finding of intentional
misapplication,” but is not a defense if “criminal intent is proven.”
United States v. De La Cruz, 469 F.3d 1064, 1068 (7th Cir. 2006).
The definition of the one-year federal-funds period reflects 18
U.S.C. § 666(d)(5).
666(a)(1)(A)
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298
DELETED
299
DELETED
18 U.S.C. § 666(a)(1)(B) ACCEPTING A BRIBE—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s] of the indictment charge[s] the defendant[s]
with] bribery. In order for you to find [a; the] defendant
guilty of this count, the government must prove each of
the [five] following elements beyond a reasonable doubt:
1. The defendant was an agent of [an organiza-
tion; a [state; local; Indian tribal] government, or any
agency of that government] [, such as [name charged
entity here if status is not in dispute]]; and
2. The defendant [solicited], [demanded], [ac-
cepted] [or] [agreed to accept] a thing of value from an-
other person; and
3. The defendant did so corruptly, that is, with
the understanding that something of value is to be of-
fered or given to reward or influence [him/her] in con-
nection with [his/her] [organizational; official] duties;
and
4. The defendant acted with the intent to be
influenced or rewarded in connection with some busi-
ness, transaction or series of transactions of the [orga-
nization; government; government agency]; and
5. This business, transaction, or series of transac-
tions involved a thing of a value of $5,000 or more; and
6. The [organization; government; government
agency], in a one-year period, received benefits of more
than $10,000 under any Federal program involving a
grant, contract subsidy, loan, guarantee, insurance or
other assistance. [The one-year period must begin no
more than 12 months before the defendant committed
these acts and must end no more than 12 months
afterward.]
666(a)(1)(B)
STATUTORY INSTRUCTIONS
300
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the count
you are considering], then you should find the defendant
guilty [of that count].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the count you are considering], then you
should find the defendant not guilty [of that count].
Committee Comment
The definition of the one-year federal-funds period reflects 18
U.S.C. § 666(d)(5). The government is not required to prove that
the bribe or other payment affected the federal funds received by
the organization or agency. Salinas v. United States, 522 U.S. 52,
55–60 (1997). The jury should be so instructed in the event a con-
trary position is raised. The federal-funds element is not a require-
ment of subject matter jurisdiction. United States v. Bowling, 952
F.3d 861, 867 (7th Cir. 2020). Instead, it is an element that goes to
the merits. Id.
The definition of “corruptly” set forth above is derived from
United States v. Hawkins, 777 F.3d 880, 882 (7th Cir. 2015) (An
agent “act[s] corruptly if they know that the payor is trying to get
them to do the acts forbidden by the statute, and take the money
anyway.”) (emphasis in original); see also United States v. Mullins,
800 F.3d 866, 870 (7th Cir. 2015) (“An agent acts corruptly when
he understands that the payment given is a bribe, reward, or
gratuity.”) (emphasis added).
With regard to the definition of “corruptly,” in cases involving
an undercover agent or a cooperator, jurors might be confused if
they are asked to determine whether a defendant understood the
intent to influence or to reward when the undercover or cooperator
of course did not in fact have the intent to influence or to reward.
In those cases, some courts might prefer “with the belief” as a
more appropriate term than “with the understanding.” The term
“believes” is used in explaining attempt offenses for which “the
defendant’s conduct should be measured according to the circum-
stances as he believes them to be, rather than the circumstances as
they may have existed in fact.” See United States v. Williams, 553
U.S. 285, 300 (2008) (quoting ALI, Model Penal Code § 5.01, Com-
ment at 307, governing attempts) (emphasis added).
666(a)(1)(B)
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301
A defendant need only be partially motivated by the expecta-
tion of or desire for reward. United States v. Coyne, 4 F.3d 100
(2nd Cir. 1993).
The agent need not have unilateral control over the business
or transaction; influence is sufficient. United States v. Gee,432
F.3d 713, 715 (7th Cir. 2005) (rejecting defense argument that
legislator did not control executive branch grants: “This confuses
influence with power to act unilaterally ....Onedoes not need
to live in Chicago to know that a job description is not a complete
measure of clout.”)
The “business” or “transaction” of the government agency or
organization may include the “intangible” business or transaction
of the agency or organization, “such as the law-enforcement ‘busi-
ness’ of a police department that receives federal funds.” United
States v. Robinson, 663 F.3d 265, 271–73 (7th Cir. 2011). The Com-
mittee notes that, in McDonnell v. United States, 136 S. Ct. 2355,
2371-72 (2016), the Supreme Court interpreted what constitutes
an “official act” for purposes of three bribery laws: 18 U.S.C. § 201
(federal-employee bribery); § 1346 (honest services fraud); and
§ 1951 (Hobbs Act extortion). Section 666 does not use the term
“official act,” and instead uses “any business, transaction, or series
of transactions of such organization, government, or agency.”
§ 666(a)(1)(B), (a)(1)(2). But lawyers and judges should consider
the potential impact of McDonnell on § 666 cases.
Lawyers and judges should consider whether intent to “influ-
ence” and intent to “reward” are two separate theories of liability,
that is, bribery (“influence”) versus gratuity (“reward”). Although
Seventh Circuit opinions have stated, in broad terms, that a
specific quid pro quo is not required under § 666(a), see United
States v. Mullins, 800 F.3d 866, 871 (7th Cir. 2015); United States
v. Boender, 649 F.3d 650, 654 (7th Cir. 2011); United States v. Gee,
432 F.3d 713, 714 (7th Cir. 2005); United States v. Agostino, 132
F.3d 1183, 1190 (7th Cir.1997), those cases involved the govern-
ment’s pursuit of a “reward” theory as well. It is not clear that the
Seventh Circuit has directly answered whether a case presenting
only an intent to “influence” theory requires a quid pro quo.
The reasoning of United States v. Boender arguably suggests
that there is a difference between “influence” and “reward.” Boen-
der reaffirmed that § 666(a)(2) does not require a quid pro quo, but
the opinion examined the federal-employee bribery counterpart, 18
U.S.C. § 201(b), and relied on the distinction between bribes and
gratuities:
Whereas § 201(b) makes it a crime to “corruptly give[], offer[]
666(a)(1)(B)
STATUTORY INSTRUCTIONS
302
or promise[] anything of value to any public official . . . with
intent to influence any official act,” § 666(a)(2) criminalizes
corrupt giving “with intent to influence or reward” a state or
local official. Further, § 201(b) is complemented by § 201(c),
which trades a broader reach—criminalizing any gift given
“for or because of any official act performed or to be performed,”
§ 201(c)(1)(A)—for a less severe statutory maximum of two,
rather than fifteen, years’ imprisonment. Section 666(a)(2) has
and needs no such parallel: by its plain text, it already covers
both bribes and rewards.
Boender, 649 F.3d at 655 (first emphasis in original). In that
explanation, the Seventh Circuit appears to emphasize that the
intent to “reward” is the add-on that distinguishes § 666(a)(2) from
§ 201(b) bribery. Id. The passage’s concluding sentence says that
§ 666(a)(2) “covers both bribes and rewards.” Id. Arguably, then,
under § 666(a)(2), “intent to influence” covers bribes whereas
“intent to reward” covers gratuities. Also, Boender relied on the
bribery-versus-gratuity distinction drawn by the Supreme Court in
interpreting § 201(b) versus § 201(c), 649 F.3d at 655 (citing United
States v. Sun-Diamond Growers of California, 526 U.S. 398, 404,
406 (1999)), and § 201(b) uses the same intent to “influence” statu-
tory language as § 666(a).
In dictum, one Circuit arguably has treated the two theories of
liability independently, noting that where a defendant is charged
with bribery only, the jury instructions should not include the
“reward” language. See United States v. Munchak, 527 F. App’x
191, 194 (3d Cir. May 31, 2013) (“As [the defendant] was charged
with bribery under § 666, the Court’s instructions should not have
included the ‘reward’ language.”). It is worth noting too that the
Statutory Appendix of the Sentencing Guidelines directs § 666 cor-
ruption offenses to both Guideline § 2C1.1, which covers bribery,
and § 2C1.2, which covers gratuities.
In light of the uncertainty in the case law, the Committee does
not take a position on this issue. If the district court decides that
there is a distinction between the two forms of intent, then the
court should provide separate instructions for them.
In a case involving campaign contributions as the alleged thing
of value, the parties and the court should consider whether to give
an additional instruction explaining the lawfulness of contribu-
tions and distinguishing them from illegal bribes or illegal
gratuities. See the instruction and Committee Comment for 18
U.S.C. § 1951 Definition of Color of Official Right.
666(a)(1)(B)
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303
18 U.S.C. § 666(a)(2) PAYING A BRIBE—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—————
of the indictment charge[s] the
defendant[s] with] [paying or offering to pay] a bribe. In
order for you to find [a; the] defendant guilty of this
count, the government must prove each of the [four] fol-
lowing elements beyond a reasonable doubt:
1. The defendant gave, offered, or agreed to give a
thing of value to another person; and
2. The defendant did so corruptly with the intent
to influence or reward an agent of [an organization; a
[State; local; Indian tribal] government, or any agency
thereof] in connection with some business, transaction,
or series of transactions of the [organization; govern-
ment; government agency]; and
3. This business, transaction, or series of transac-
tions involved a thing with a value of $5,000 or more;
and
4. That the [organization; government; govern-
ment or agency], in a one-year period, received benefits
of more than $10,000 under any Federal program
involving a grant, contract subsidy, loan, guarantee, in-
surance or other assistance. [The one-year period must
begin no more than 12 months before the defendant
committed these acts and must end no more than 12
months afterward.]
[A person acts corruptly when that person acts with
the intent that something of value is given or offered to
reward or influence an agent of an [organization;
government; government agency] in connection with
the agent’s [organizational; official] duties.]
If you find from your consideration of all the evi-
666(a)(2)
STATUTORY INSTRUCTIONS
304
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the count
you are considering], then you should find the defendant
guilty [of that count].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the count you are considering], then you
should find the defendant not guilty [of that count].
Committee Comment
The definition of the one-year federal-funds period reflects 18
U.S.C. § 666(d)(5). The government is not required to prove that
the bribe or other payment affected the federal funds received by
the organization or agency. Sabri v. United States, 541 U.S. 600,
606 (2004); Salinas v. United States, 522 U.S. 52, 55–60 (1997).
The jury should be so instructed in the event a contrary position is
raised. The federal-funds element is not a requirement of subject
matter jurisdiction. United States v. Bowling, 952 F.3d 861, 867
(7th Cir. 2020). Instead, it is an element that goes to the merits.
Id.
The bracketed definition of “corruptly” set forth above is
derived from United States v. Bonito, 57 F.3d 167, 171 (2nd Cir.
1995) (“person acts corruptly, for example, when he gives or offers
to give something of value intending to influence or reward a
government agent in connection with his official duties”). Although
the Seventh Circuit has defined “corruptly” in cases in which the
defendant was a bribe recipient (not the bribe payer), United States
v. Hawkins, 777 F.3d 880, 882 (7th Cir. 2015); United States v.
Mullins, 800 F.3d 866, 870 (7th Cir. 2015), there is no definitive
holding from the Seventh Circuit on the definition as to bribe
payers. The Committee notes that the definition does not appear to
add any requirement beyond the intent requirement in the second
element of the Pattern Instruction, but absent a Seventh Circuit
holding on the issue, the Committee takes no further position.
The agent need not have unilateral control over the business
or transaction; influence is sufficient. United States v. Gee,432
F.3d 713, 715 (7th Cir. 2005) (rejecting defense argument that
legislator did not control executive branch grants: “This confuses
influence with power to act unilaterally.. . . One does not need to
live in Chicago to know that a job description is not a complete
measure of clout.”)
The “business” or “transaction” of the government agency or
666(a)(2)
CRIMINAL INSTRUCTIONS
305
organization may include the “intangible” business or transaction
of the agency or organization, “such as the law-enforcement ‘busi-
ness’ of a police department that receives federal funds.” United
States v. Robinson, 663 F.3d 265, 271–73 (7th Cir. 2011). The Com-
mittee notes that in McDonnell v. United States, 136 S. Ct. 2355,
2371-72 (2016), the Supreme Court interpreted what constitutes
an “official act” for purposes of three bribery laws: 18 U.S.C. § 201
(federal-employee bribery); § 1346 (honest services fraud); and
§ 1951 (Hobbs Act extortion). Section 666 does not use the term
“official act,” and instead uses “any business, transaction, or series
of transactions of such organization, government, or agency.”
§ 666(a)(1)(B), (a)(1)(2). But lawyers and judges should consider
the potential impact of McDonnell on § 666 cases.
Lawyers and judges should consider whether intent to “influ-
ence” and intent to “reward” are two separate theories of liability,
that is, bribery (“influence”) versus gratuity (“reward”). Although
Seventh Circuit opinions have stated, in broad terms, that a
specific quid pro quo is not required under § 666(a), see United
States v. Mullins, 800 F.3d 866, 871 (7th Cir. 2015); United States
v. Boender, 649 F.3d 650, 654 (7th Cir. 2011); United States v. Gee,
432 F.3d 713, 714 (7th Cir. 2005); United States v. Agostino, 132
F.3d 1183, 1190 (7th Cir.1997), those cases involved the govern-
ment’s pursuit of a “reward” theory as well. It is not clear that the
Seventh Circuit has directly answered whether a case presenting
only an intent to “influence” theory requires a quid pro quo.
The reasoning of United States v. Boender arguably suggests
that there is a difference between “influence” and “reward.” Boen-
der reaffirmed that § 666(a)(2) does not require a quid pro quo, but
the opinion examined the federal-employee bribery counterpart, 18
U.S.C. § 201(b), and relied on the distinction between bribes and
gratuities:
Whereas § 201(b) makes it a crime to “corruptly give[], offer[]
or promise[] anything of value to any public official . . . with
intent to influence any official act,” § 666(a)(2) criminalizes
corrupt giving “with intent to influence or reward” a state or
local official. Further, § 201(b) is complemented by § 201(c),
which trades a broader reach—criminalizing any gift given
“for or because of any official act performed or to be performed,”
§ 201(c)(1)(A)—for a less severe statutory maximum of two,
rather than fifteen, years’ imprisonment. Section 666(a)(2) has
and needs no such parallel: by its plain text, it already covers
both bribes and rewards.
Boender, 649 F.3d at 655 (first emphasis in original). In that
explanation, the Seventh Circuit appears to emphasize that the
666(a)(2)
STATUTORY INSTRUCTIONS
306
intent to “reward” is the add-on that distinguishes § 666(a)(2) from
§ 201(b) bribery. Id. The passage’s concluding sentence says that
§ 666(a)(2) “covers both bribes and rewards.” Id. Arguably, then,
under § 666(a)(2), “intent to influence” covers bribes whereas
“intent to reward” covers gratuities. Also, Boender relied on the
bribery-versus-gratuity distinction drawn by the Supreme Court in
interpreting § 201(b) versus § 201(c), 649 F.3d at 655 (citing United
States v. Sun-Diamond Growers of California, 526 U.S. 398, 404,
406 (1999)), and § 201(b) uses the same intent to “influence” statu-
tory language as § 666(a).
In dictum, one Circuit arguably has treated the two theories of
liability independently, noting that where a defendant is charged
with bribery only, the jury instructions should not include the
“reward” language. See United States v. Munchak, 527 F. App’x
191, 194 (3d Cir. May 31, 2013) (“As [the defendant] was charged
with bribery under § 666, the Court’s instructions should not have
included the ‘reward’ language.”). It is worth noting too that the
Statutory Appendix of the Sentencing Guidelines directs § 666 cor-
ruption offenses to both Guideline § 2C1.1, which covers bribery,
and § 2C1.2, which covers gratuities.
In light of the uncertainty in the case law, the Committee does
not take a position on this issue. If the district court decides that
there is a distinction between the two forms of intent, then the
court should provide separate instructions for them.
In a case involving campaign contributions as the alleged thing
of value, the parties and the court should consider whether to give
an additional instruction explaining the lawfulness of contribu-
tions and distinguishing them from illegal bribes or illegal
gratuities. See the instruction and Committee Comment for 18
U.S.C. § 1951 Definition of Color of Official Right.
666(a)(2)
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18 U.S.C. § 666(c) BONA FIDE COMPENSATION
Bona fide [salary, wages, fees, or other compensa-
tion paid; expenses paid or reimbursed], in the usual
course of business, [does; do] not qualify as a thing of
value [solicited or demanded; given, offered, or agreed
to be given] by the defendant.
Committee Comment
Section 666(c) exempts bona fide payments from the reach of
the bribery provisions: “This section does not apply to bona fide
salary, wages, fees, or other compensation paid, or expenses paid
or reimbursed, in the usual course of business.” 18 U.S.C. § 666(c).
This exemption applies only to “the bribe itself,” and does not ap-
ply to other elements of § 666, such as the element requiring that
the business or transaction at issue have a value of at least $5,000.
United States v. Robinson, 663 F.3d 265, 270 (7th Cir. 2011).
666(c)
STATUTORY INSTRUCTIONS
308
18 U.S.C. § 666 DEFINITION OF “AGENT”
An “agent” is a person who is authorized to act on
behalf of an [organization] [government or agency],
including an employee, officer, or representative.
Committee Comment
The common law definition of “agent” does not control the
statutory definition of “agent.” United States v. Lupton, 620 F.3d
790, 800 (7th Cir. 2010) (“The statutory definition of ‘agent’ is an
expansive one.”).
The defendant must be an agent of the organization from
which he unlawfully obtained funds, and the funds must have
been unlawfully obtained from the organization when it owned the
funds, or had care, custody, or control over the funds. United States
v. Abu-Shawish, 507 F.3d 550, 555–57 (7th Cir. 2007).
666
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18 U.S.C. § 669(a) HEALTH CARE THEFT OR
EMBEZZLEMENT—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [theft; embezzlement] from a health care benefit
program. In order for you to find [the; a] defendant
guilty of this charge, the government must prove each
of the [three] following elements beyond a reasonable
doubt:
1. The defendant [embezzled; stole; otherwise
without authority converted to the use of any person
other than the rightful owner; intentionally misapplied]
any [moneys; funds; securities; premiums; credits; prop-
erty; assets] of a health care benefit program; and
2. The defendant did so knowingly and willfully;
and
3. The [moneys; funds; securities; premiums;
credits; property; assets] had a value of more than $100.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The court should refer to the pattern instruction defining
“health care benefit program.” The statute uses both “knowingly”
and “willfully” to define the mens rea element. There is no case
that has definitively decided the meaning of “knowingly and will-
669(a)
STATUTORY INSTRUCTIONS
310
fully” in the context of this statute. See United States v. Wheeler,
540 F.3d 683 (7th Cir. 2008). Wheeler considered this issue under
a plain error standard and concluded that “there is a plausible
argument that the use of ‘knowingly and willfully’ in § 669 may
require that a defendant know his conduct was in some way
unlawful.” In discussing the meaning of willfully under § 669, the
Wheeler court noted that § 669 does not involve the complex statu-
tory scheme at issue in tax or structuring crimes which require a
defendant to violate a known legal duty. However, the Wheeler
court reasoned that there is also some support for the argument
that “willfully” means more than acting intentionally when it is
used conjunctively with “knowingly.”
Practitioners should also consider the potential application of
United States v. Schaul, 962 F.3d 917 (7th Cir. 2020). In Schaul,
the Seventh Circuit held that, in the context of 18 U.S.C. § 1347,
“knowingly” and “willfully” have separate meanings and must be
proven in the conjunctive. The Schaul court also equated “will-
fully” under § 1347 with an “intent to defraud,” which itself was
already considered an element of § 1347. Id. at 925. The Commit-
tee notes, however, that § 669 does not contain an explicit textual
reference to an intent to defraud. In the absence of controlling law,
litigants might also consider reference to the definition of “will-
fully” under 18 U.S.C. § 1035 (false statements in healthcare mat-
ters), which similarly has no textual reference to “intent to
defraud.” There, “willfully” is defined as acting “voluntarily and
intentionally and with the intent to do something he knows is
illegal.” See United States v. Natale, 719 F.3d 719, 741–42 (7th
Cir. 2013).
The Committee advises that if the district court deems “know-
ingly and willfully” to have the same meaning, then the court
should define the two terms in one instruction using the pattern
instruction for “knowingly.” If the court deems the two terms to
have separate meanings, then the court should consider splitting
them into separate elements and defining them separately.
This instruction contemplates a felony charge under the
statute. If the value of the money or property is $100 or less, the
offense constitutes a misdemeanor under 18 U.S.C. § 669(a).
669(a)
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311
18 U.S.C. § 669(a) DEFINITION OF “HEALTH
CARE BENEFIT PROGRAM”
A “health care benefit program” is a [public;
private] [plan; contract], affecting commerce, under
which any medical benefit, item or service is provided
to any individual and includes any individual or entity
who is providing a medical benefit, item or service for
which payment may be made under the plan or contract.
A health care program affects commerce if the
health care program had any impact on the movement
of any money, goods, services, or persons from one state
to another [or between another country and the United
States]. The government need only prove that the
health care program itself either engaged in interstate
commerce or that its activity affected interstate com-
merce to some degree. The government need not prove
that [the; a] defendant engaged in interstate commerce
or that the acts of [the; a] defendant affected interstate
commerce.
Committee Comment
“Health care benefit program” is defined in 18 U.S.C. § 24(b).
“Affecting commerce” means affecting interstate commerce under
18 U.S.C. § 24(b). See United States v. Natale, 719 F.3d 719, 732
n.5 (7th Cir. 2013). The court may also find it appropriate to adapt
for health care offenses the RICO Pattern Instruction describing
enterprises that engage in interstate commerce or whose activities
affect interstate commerce.
669(a)
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18 U.S.C. § 751 ESCAPE—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [attempted] escape. In order for you to find [the;
a] defendant guilty of this charge, the government must
prove both of the following elements beyond a reason-
able doubt:
1. The defendant was in the custody of [name or
describe custodial official, institution or agency] pursu-
ant to [describe authority for custody, e.g., judgment of
conviction, arrest, court order]; and
2. The defendant knowingly [left; attempted to
leave; intentionally failed to return to] that custody
without authorization to do so.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
See United States v. Bailey, 444 U.S. 394, 408 (1980); United
States v. Casteneda-Galvan, 205 F. App’x 437 (7th Cir. 2006) (cit-
ing the 1999 Pattern Instruction); United States v. Richardson,
687 F.2d 952, 961 (7th Cir. 1982).
Some additional definition of “custody” should be offered in
cases where it is minimal or constructive, as opposed to those obvi-
ous cases involving arrest, jail or prison.
751
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313
18 U.S.C. § 842(a)(1) IMPORTING,
MANUFACTURING, OR DEALING IN
EXPLOSIVE MATERIALS WITHOUT A
LICENSE—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] engaging in the business of [importing; manufac-
turing; dealing in] explosive materials without a license.
In order for you to find [the; a] defendant guilty of this
charge, the government must prove both of the follow-
ing elements beyond a reasonable doubt:
1. The defendant was an [importer; manufacturer;
dealer] of explosive materials; and
2. The defendant did not have a license, issued by
the Attorney General, permitting him to act as an
[importer; manufacturer; dealer] of explosive materials.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The terms “importer,” “manufacturer,” and “dealer” are defined
at 18 U.S.C. § 841(g), (h) and (i). The term “explosive materials” is
defined at 18 U.S.C. § 841(c).
Caution should be used in giving this instruction when the ef-
fect would be to constructively amend the indictment. See United
States v. Haldorson, 941 F.3d 284, 297–98 (7th Cir. 2019), cert.
842(a)(1)
STATUTORY INSTRUCTIONS
314
denied, 140 S. Ct. 1235, 206 L.Ed. 2d 226 (2020) (No constructive
amendment of the indictment in violation of the Fifth Amendment
where “[t]he jury instruction was tailored to the specifics of the
indictment and did not permit the jury to convict [the defendant]
based on non-indicted explosives.”).
842(a)(1)
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315
18 U.S.C. § 842(a)(2) WITHHOLDING
INFORMATION, MAKING A FALSE
STATEMENT, OR FURNISHING FALSE
IDENTIFICATION TO OBTAIN EXPLOSIVE
MATERIALS—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [withholding information; making a false written
or oral statement; furnishing or exhibiting any false or
misrepresented identification], intended or likely to
deceive, for the purpose of obtaining [explosive materi-
als; a license; a permit; an exemption; relief from
disability]. In order for you to find [the; a] defendant
guilty of this charge, the government must prove both
of the following elements beyond a reasonable doubt:
1. The defendant knowingly [withheld informa-
tion; made a false written or oral statement; furnished
or exhibited any false or misrepresented identification]
[from; to] the Attorney General or [his delegate; a
licensed importer; manufacturer; dealer in explosive
materials]; and
2. In doing so, the defendant intended to or was
likely to deceive for the purpose of obtaining [explosive
materials; a license; a permit; an exemption; relief from
disability].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
842(a)(2)
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316
Committee Comment
For a definition of “knowingly” see Pattern Instruction 4.10.
Caution should be used in giving this instruction when the ef-
fect would be to constructively amend the indictment. See United
States v. Haldorson, 941 F.3d 284, 297–98 (7th Cir. 2019), cert.
denied, 140 S. Ct. 1235, 206 L.Ed. 2d 226 (2020) (No constructive
amendment of the indictment in violation of the Fifth Amendment
where “[t]he jury instruction was tailored to the specifics of the
indictment and did not permit the jury to convict [the defendant]
based on non-indicted explosives.”).
842(a)(2)
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317
18 U.S.C. § 875(a) TRANSMISSION OF A
RANSOM OR REWARD—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
———
of the indictment charge[s] the defen-
dant[s] with] with transmitting a communication
containing a demand or request for a ransom or reward
for the release of a kidnapped person. In order for you
to find [the; a] defendant guilty of this charge, the
government must prove each of the [four] following ele-
ments beyond a reasonable doubt:
1. The defendant knowingly transmitted a com-
munication; and
2. The communication contained a [demand;
request] for a [ransom; reward] for the release of any
kidnapped person; and
3. The defendant transmitted the communication
[for the purpose of making a [demand; request] for a
[ransom; reward]]; [knowing that the communication
would be viewed as a [demand; request] for a [ransom;
reward]] for the release of any kidnapped person; and
4. The communication was transmitted in [inter-
state; foreign] commerce.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
875(a)
STATUTORY INSTRUCTIONS
318
Committee Comment
In paragraph 3, the language requiring the defendant to trans-
mit the communication either for the purpose of making a threat
or knowing that the communication would be viewed as a threat is
based on Elonis v. United States, 575 U.S. 723, 740 (2015) (“There
is no dispute that the mental state requirement in Section 875(c)
is satisfied if the defendant transmits a communication for the
purpose of issuing a threat, or with knowledge that the communica-
tion will be viewed as a threat.”). The instruction reflects the
purpose or knowledge mental state as the most common prosecu-
tion theories, but recklessness remains an open question. Id. (“Nei-
ther Elonis nor the government has briefed or argued that point
and we accordingly decline to address it.”).
875(a)
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319
18 U.S.C. § 875(b) TRANSMISSION OF AN
EXTORTIONATE THREAT TO KIDNAP OR
INJURE A PERSON—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
———
of the indictment charge[s] the defen-
dant[s] with] charges the defendant with transmitting
a communication containing a threat to kidnap or injure
a person with the intent to extort money or other thing
of value. In order for you to find [the; a] defendant guilty
of this charge, the government must prove each of the
[four] following elements beyond a reasonable doubt:
1. The defendant knowingly transmitted a com-
munication; and
2. The communication contained a threat to
[kidnap] [injure] any person; and
3. The defendant transmitted the communication
with the intent to extort [money] [other thing of value]
from any [person] [firm] [association] [corporation]; and
4. The communication was transmitted in inter-
state [foreign] commerce.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
In the third element, the requisite mental state is described as
875(b)
STATUTORY INSTRUCTIONS
320
intent to extort. It should be noted that, in a case addressing Sec-
tion 875(c) (rather than Section 875(b)), the Supreme Court
described the requisite mental state as requiring the defendant to
transmit the communication either for the purpose of making a
threat or knowing that the communication would be viewed as a
threat. Elonis v. United States, 135 S. Ct. 2001, 2012 (2015) (“There
is no dispute that the mental state requirement in Section 875(c)
is satisfied if the defendant transmits a communication for the
purpose of issuing a threat, or with knowledge that the communica-
tion will be viewed as a threat.”).
Other circuit courts of appeal have held that the intent to
extort by threat under § 875(b) incorporates the intent required by
Elonis, that the defendant intended the threat to be taken as a
threat. See United States v. White, 810 F.3d 212, 223 (4th Cir.
2016) (“In other words, the intent to carry out an unlawful act by
use of a threat necessarily subsumes the intent to threaten.”); ac-
cord United States v. Killen, 729 F. App’x 703, 711–12 (11th Cir.
2018) (discussing § 875(d) case). Fifth Circuit Court of Appeals
Pattern Jury Instructions (2019), Pattern Instruction 2.39, Note.
875(b)
CRIMINAL INSTRUCTIONS
321
18 U.S.C. § 875(c) TRANSMISSION OF A
THREAT TO KIDNAP OR INJURE—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
———
of the indictment charge[s] the defen-
dant[s] with] the defendant with transmitting a com-
munication containing a threat to kidnap or injure. In
order for you to find [the; a] defendant guilty of this
charge, the government must prove each of the [four]
following elements beyond a reasonable doubt:
1. The defendant knowingly transmitted a com-
munication; and
2. The communication contained a true threat to
[kidnap] [injure] any person; and
3. The defendant transmitted the communication
[for the purpose of making a threat] or [knowing the
communication would be viewed as a threat]; and
4. The communication was transmitted in inter-
state [foreign] commerce.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
In the third element, the language requiring the defendant to
transmit the communication either for the purpose of making a
threat or knowing that the communication would be viewed as a
875(c)
STATUTORY INSTRUCTIONS
322
threat is based on Elonis v. United States, 135 S. Ct. 2001, 2012
(2015) (“There is no dispute that the mental state requirement in
Section 875(c) is satisfied if the defendant transmits a communica-
tion for the purpose of issuing a threat, or with knowledge that the
communication will be viewed as a threat.”). The instruction
reflects the purpose or knowledge mental state as the most com-
mon prosecution theory, but recklessness remains an open
question. Id. at 2012 (“Neither Elonis nor the Government has
briefed or argued that point [whether recklessness suffices], and
we accordingly decline to address it.”).
The language regarding “true threats” was approved post
Elonis in United States v. Khan, 937 F.3d 1042, 1051 (7th Cir.
2019). Please see the Definition of True Threat and its Committee
Comment later in these instructions.
875(c)
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323
18 U.S.C. § 875(d) TRANSMISSION OF AN
EXTORTIONATE THREAT TO PROPERTY OR
REPUTATION—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
———
of the indictment charge[s] the defen-
dant[s] with] transmitting a communication containing
a threat to reputation with intent to extort money or
other thing of value. In order for you to find [the; a]
defendant guilty of this charge, the government must
prove each of the [four] following elements beyond a
reasonable doubt:
1. The defendant knowingly transmitted a com-
munication; and
2. The communication contained a threat [to
injure the [property; reputation] of the [addressee; an-
other]] [injure the reputation of a deceased person] [to
accuse [the addressee; any other person] of a crime];
3. The defendant transmitted the communication
with the intent to extort [money] [thing of value]; and
4. The communication was transmitted in inter-
state [foreign] commerce.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
875(d)
STATUTORY INSTRUCTIONS
324
Committee Comment
In the third element, the mental state is described as intent to
extort. It should be noted that, in a case addressing Section 875(c)
(rather than Section 875(d)), the Supreme Court described the
requisite mental state as requiring the defendant to transmit the
communication either for the purpose of making a threat or know-
ing that the communication would be viewed as a threat is based
on Elonis v. United States, 135 S. Ct. 2001, 2012 (2015) (“There is
no dispute that the mental state requirement in Section 875(c) is
satisfied if the defendant transmits a communication for the
purpose of issuing a threat, or with knowledge that the communica-
tion will be viewed as a threat.”).
Other circuit courts of appeal have held that the intent to
extort by threat under § 875(b) (which similarly bars extortionate
threats as § 875(d) does) incorporates the intent required by Elonis,
that the defendant intended the threat to be taken as a threat. See
United States v. White, 810 F.3d 212, 223 (4th Cir. 2016) (“In other
words, the intent to carry out an unlawful act by use of a threat
necessarily subsumes the intent to threaten.”); accord United
States v. Killen, 729 F. App’x 703, 711–12 (11th Cir. 2018) (discuss-
ing § 875(d) case). Fifth Circuit Court of Appeals Pattern Jury
Instructions (2019), Pattern Instruction 2.39, Note.
875(d)
CRIMINAL INSTRUCTIONS
325
18 U.S.C. § 876(a) MAILING A DEMAND FOR
RANSOM OR REWARD—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] mailing a communication containing a demand or
request for a ransom or reward for the release of a
kidnapped person. In order for you to find [the; a]
defendant guilty of this charge, the government must
prove each of the [three] following elements beyond a
reasonable doubt:
1. The defendant knowingly [deposited] [caused to
be delivered] through the United States mail, a com-
munication;
2. The communication contained a [demand;
request] for a [ransom; reward] for the release of any
kidnapped person; and
3. the defendant transmitted the communication
for the purpose of making a [demand; request] for a
[ransom; reward] for the release of any kidnapped
person.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
876(a)
STATUTORY INSTRUCTIONS
326
18 U.S.C. § 876(b) MAILING AN EXTORTIONATE
THREAT TO KIDNAP OR INJURE—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
———
of the indictment charge[s] the defen-
dant[s] with] mailing a communication containing a
threat to kidnap or injure a person with the intent to
extort money or other thing of value. In order for you to
find [the; a] defendant guilty of this charge, the govern-
ment must prove each of the [three] following elements
beyond a reasonable doubt:
1. The defendant knowingly [deposited] [caused to
be delivered] through the United States mail, a com-
munication;
2. The communication contained a threat to
[kidnap any person] [injure [the person of the ad-
dressee; the person of another]]; and
3. the defendant transmitted the communication
with the intent to extort [money] [other thing of value]
from any person.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
In the third element, the requisite mental state is described as
intent to extort. It should be noted that, in a case addressing Sec-
tion 875(c) (rather than Section 875(b)), the Supreme Court
876(b)
CRIMINAL INSTRUCTIONS
327
described the requisite mental state as requiring the defendant to
transmit the communication either for the purpose of making a
threat or knowing that the communication would be viewed as a
threat. Elonis v. United States, 135 S. Ct. 2001, 2012 (2015) (“There
is no dispute that the mental state requirement in Section 875(c)
is satisfied if the defendant transmits a communication for the
purpose of issuing a threat, or with knowledge that the communica-
tion will be viewed as a threat.”).
Other circuit courts of appeal have held that the intent to
extort by threat under § 875(b) incorporates the intent required by
Elonis, that the defendant intended the threat to be taken as a
threat. See United States v. White, 810 F.3d 212, 223 (4th Cir.
2016) (“In other words, the intent to carry out an unlawful act by
use of a threat necessarily subsumes the intent to threaten.”); ac-
cord United States v. Killen, 729 F. App’x 703, 711–12 (11th Cir.
2018) (discussing § 875(d) case). Fifth Circuit Court of Appeals
Pattern Jury Instructions (2019), Pattern Instruction 2.39, Note.
876(b)
STATUTORY INSTRUCTIONS
328
18 U.S.C. § 876(c) MAILING A THREAT TO
KIDNAP OR INJURE—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
———
of the indictment charge[s] the defen-
dant[s] with] mailing a communication containing a
threat to kidnap or injure. In order for you to find [the;
a] defendant guilty of this charge, the government must
prove each of the [three] following elements beyond a
reasonable doubt:
1. The defendant knowingly [deposited; caused to
be delivered] through the United States mail, a com-
munication; and
2. The communication contained a true threat to
[kidnap any person; injure the person of [the addressee;
another]]; and
3. The defendant [deposited the communication;
caused the communication to be delivered] either [for
the purpose of making a threat; knowing the com-
munication would be viewed as a threat].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
In the third element, the language requiring the defendant to
transmit the communication either for the purpose of making a
threat or knowing that the communication would be viewed as a
876(c)
CRIMINAL INSTRUCTIONS
329
threat is based on Elonis v. United States, 135 S. Ct. 2001, 2012
(2015) (“There is no dispute that the mental state requirement in
Section 875(c) is satisfied if the defendant transmits a communica-
tion for the purpose of issuing a threat, or with knowledge that the
communication will be viewed as a threat.”). The instruction
reflects the purpose or knowledge mental state as the most com-
mon prosecution theory, but recklessness remains an open
question. Id. at 2012 (“Neither Elonis nor the Government has
briefed or argued that point [whether recklessness suffices], and
we accordingly decline to address it.”).
The language regarding “true threats” was approved post
Elonis in United States v. Khan, 937 F.3d 1042, 1051 (7th Cir.
2019). Please see the Definition of True Threat and its Committee
Comment later in these instructions.
If the Government alleged that the communication was ad-
dressed to a United States judge, a Federal law enforcement of-
ficer, or an official who is covered by section 1114, that charging
language should be specified in the instruction.
876(c)
STATUTORY INSTRUCTIONS
330
18 U.S.C. § 876(d) MAILING AN EXTORTIONATE
THREAT TO REPUTATION—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
———
of the indictment charge[s] the defen-
dant[s] with] mailing a communication containing a
threat to reputation, with intent to extort money or
other thing of value. In order for you to find [the; a]
defendant guilty of this charge, the government must
prove each of the [three] following elements beyond a
reasonable doubt:
1. The defendant knowingly [deposited; caused to
be delivered] through the United States mail, a com-
munication; and
2. The communication contained a threat [to
injure the [property; reputation of the [addressee; an-
other]] [injure the reputation of a deceased person] [to
accuse [the addressee; any other person] of a crime]];
3. The defendant transmitted the communication
for the purpose of extorting [money; a thing of value]
from any person.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
In the third element, the mental state is described as intent to
876(d)
CRIMINAL INSTRUCTIONS
331
extort. It should be noted that, in a case addressing Section 875(c)
(rather than Section 875(d)), the Supreme Court described the
requisite mental state as requiring the defendant to transmit the
communication either for the purpose of making a threat or know-
ing that the communication would be viewed as a threat is based
on Elonis v. United States, 135 S. Ct. 2001, 2012 (2015) (“There is
no dispute that the mental state requirement in Section 875(c) is
satisfied if the defendant transmits a communication for the
purpose of issuing a threat, or with knowledge that the communica-
tion will be viewed as a threat.”).
Other circuit courts of appeal have held that the intent to
extort by threat under § 875(b) (which similarly bars extortionate
threats as § 875(d) does) incorporates the intent required by Elonis,
that the defendant intended the threat to be taken as a threat. See
United States v. White, 810 F.3d 212, 223 (4th Cir. 2016) (“In other
words, the intent to carry out an unlawful act by use of a threat
necessarily subsumes the intent to threaten.”); accord United
States v. Killen, 729 F. App’x 703, 711–12 (11th Cir. 2018) (discuss-
ing § 875(d) case). Fifth Circuit Court of Appeals Pattern Jury
Instructions (2019), Pattern Instruction 2.39, Note.
If the Government alleged that the communication was ad-
dressed to a United States judge, a Federal law enforcement of-
ficer, or an official who is covered by section 1114, that charging
language must be specified in the instruction.
876(d)
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DEFINITION OF “TRUE THREAT”
A “true threat” is a serious expression of intent to
commit unlawful physical violence against another
person or a group of people. The communication must
be one that a reasonable observer, considering the
context and circumstances of the statement, including
surrounding communications, would interpret as a true
threat.
The government does not have to prove that the
defendant actually intended to carry out the threat, or
even that the defendant had the capacity to do so. At
the same time lack of intent or lack of capacity to carry
out the threat can be relevant circumstances in decid-
ing whether a communication is a true threat.
A threat does not need to be communicated directly
to its intended victim, or specify a particular victim, or
specify when it will be carried out.
A communication is not a true threat if it is merely
idle or careless talk, exaggeration, or something said in
a joking manner.
[A threat may be conditional, that is, may threaten
violence if some condition is not fulfilled. The fact that
a communication is conditional, however, can be rele-
vant in deciding whether a communication is a true
threat.]
Committee Comment
The definition of true threat is based on Elonis v. United States,
135 S. Ct. 2001, 2012 (2015) (“There is no dispute that the mental
state requirement in Section 875(c) is satisfied if the defendant
transmits a communication for the purpose of issuing a threat, or
with knowledge that the communication will be viewed as a
threat.”).
The language regarding “true threats” was approved post
Elonis in United States v. Khan, 937 F.3d 1042, 1051 (7th Cir.
876(d)
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2019). In Khan, the Court, reviewed instructions given when the
defendant was charged under 18 U.S.C. 875(c). It held that a “true
threat” is “a serious expression of an intent to commit an act of
unlawful violence to a particular individual or group of
individuals.” United States v. Parr, 545 F.3d 491, 497 (7th Cir.
2008) (quoting Virginia v. Black, 538 U.S. 343, 359 (2003)). And
“[a]true threat does not require that the speaker intend to carry it
out, or even that she have the capacity to do so.” United States v.
Dutcher, 851 F.3d 757, 761 (7th Cir. 2017) (citations omitted);
Khan, 937 F.3d at 1051.
The instruction on idle or careless talk, exaggeration, or joking
is based on Khan, 937 F.3d at 1051 (“A communication is not a
true threat if it is merely idle or careless talk, exaggeration, or
something said in a joking manner.”).
The bracketed instruction on conditional threats is based on
United States v. Schneider, 910 F.2d 1569, 1570 (7th Cir. 1990).
Schneider explained that many threats are conditional (because
the speaker is trying to get the victim to do something or to stop
doing something), as in “Your money or your life.” Id.
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DEFINITION OF “INTENT TO EXTORT”
A person acts with an “intent to extort” when he
acts with the purpose of obtaining money or something
of value from someone who consents because of fear or
the wrongful use of actual or threatened force or
violence.
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18 U.S.C. § 892 EXTORTIONATE EXTENSION
OF CREDIT—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] making an extortionate extension of credit. In or-
der for you to find [the; a] defendant guilty of this
charge, the government must prove both of the follow-
ing elements beyond a reasonable doubt:
1. The defendant knowingly made an extension of
credit to a person, including the [making; extending] of
a loan or other thing of value for which repayment is
expected[, or the deferring of repayment of a debt][,
whether valid or invalid][, whether disputed or acknowl-
edged]; and
2. The defendant and the debtor understood, at
the time the extension of credit was made, that delay in
making repayment or failure to make repayment could
result in the use of violence [or other criminal means]
to cause harm to the [person; reputation; property] of
anyone.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
See United States v. Scotti, 47 F.3d 1237, 1245 (2d Cir. 1995);
United States v. Natale, 526 F.2d 1160, 1168 (2d Cir. 1975).
The statute contains a list of possible factors to consider in
892
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determining whether an extension of credit was extortionate (e.g.
legal enforceability, interest rate); the court should point out any
that may be applicable in individual cases.
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18 U.S.C. § 892 DEFINITION OF “DEBTOR”
A “debtor” is [a person to whom an extension of
credit was made; a person who guarantees repayment
or otherwise agrees or attempts to cover any loss to the
defendant because of a failure to repay the extension of
credit].
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18 U.S.C. § 892 DEFINITION OF
UNDERSTANDING
The government is not required to prove that, when
the extension of credit was made, the defendant and
debtor mutually agreed that delay in making repay-
ment or failure to make repayment could result in the
use of violence [or other criminal means] to cause harm
to the [person; reputation; property] of anyone. The
government is required to prove that both the defendant
and debtor understood that a threat of violence existed.
Committee Comment
See United States v. Zizzo, 120 F.3d 1338, 1353–54 (7th Cir.
1997).
892
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18 U.S.C. § 894 EXTORTIONATE COLLECTION
OF DEBT—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] collection of an extension of credit by extortionate
means. In order for you to find [the; a] defendant guilty
of this charge, the government must prove each of the
[three] following elements beyond a reasonable doubt:
[1. There was a[n] [attempt to collect; collection
of] an extension of credit, including [inducing; attempt-
ing to induce] in any way the repayment by anyone of a
loan or other thing of value for which repayment was
expected[, or the deferring of repayment of a debt][,
whether valid or invalid][, whether disputed or acknowl-
edged]; and]
OR
[1. A person was punished for the non-repayment
of an extension of credit, including a loan or other thing
of value for which repayment was expected,[ or the
deferring of repayment of a debt][, whether valid or in-
valid][, whether disputed or acknowledged]; and]
2. The [attempt to collect; collection; punishment]
involved the use of extortionate means, that is, the[, or
[express or implied] threat of the use] of violence [or
other criminal means] to cause harm to the [person;
reputation; property] of anyone; and
3. The defendant knowingly participated in some
way in the use of such extortionate means in that [at-
tempted; collection; punishment].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
894
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you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
See United States v. Khilchenko, 324 F.3d 917, 919–20 (7th
Cir. 2003); United States v. Toulomis, 771 F.2d 235 (7th Cir. 1985).
894
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18 U.S.C. § 894 DEFINITION OF
“EXTORTIONATE MEANS”
A defendant knowingly participates in use of
“extortionate means” when he intends by his conduct to
instill fear of harm in the debtor. Acts or statements
are a threat if they would reasonably induce fear of
harm in an ordinary person. A simple demand for
money is not a threat. The government is not required
to prove that the recipient of a threat actually feared
its consequences.
Committee Comment
Although there is no Seventh Circuit case on point, other
Circuits have held that the production of actual fear in the recipi-
ent is not an element of the offense. See, e.g., United States v.
DiSalvo, 34 F.3d 1204, 1211 (3d Cir. 1994); United States v. Polizzi,
801 F.2d 1543, 1547–48 (9th Cir. 1986); United States v. Joseph,
781 F.2d 549, 553 (6th Cir. 1986); United States v. Natale, 526
F.2d 1160, 1168 (2d Cir. 1975). This is unlike cases involving
charges under 18 U.S.C. § 892 in which the borrower’s state of
mind is an element. United States v. Lombardozzi, 491 F.3d 61,
68–69 (2d Cir. 2007). In a § 894 prosecution, the government must
prove that the defendant intended to take actions that would rea-
sonably induce fear in an ordinary person. Natale, 526 F.2d at
1168. It is the nature of the actions of the person seeking to collect
the indebtedness, not the debtor’s mental state, that is the focus of
the jury’s inquiry. Polizzi, 801 F.2d at 1548. When the indictment
contains both §§ 892 and 894 offenses, a specific instruction on the
distinction in the role of the debtor’s mental state may be
appropriate.
894
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FORFEITURE—THIRD PARTY INTERESTS
You are to determine only if a defendant’s rights,
title and interests, if any, in the specified property
should be forfeited. You are not called upon to determine
whether or not any other person has any right, title or
interest in this money or property, or whether or not
their interest should be forfeited. This is a matter to be
determined by the court in further proceedings, if
necessary. You need only determine whether or not the
government has proved by a preponderance of the evi-
dence that the defendant’s interest in this property, if
any, is forfeitable.
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18 U.S.C. § 911 REPRESENTATION OF
CITIZENSHIP OF UNITED STATES—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] misrepresentation of United States citizenship. In
order for you to find [the; a] defendant guilty of this
charge, the government must prove each of the [four]
following elements beyond a reasonable doubt:
1. The defendant claimed to be a citizen of the
United States; and
2. The defendant was not a citizen of the United
States; and
3. The defendant made the false representation;
and
4. The defendant [acted willfully, that is, he]
deliberately and voluntarily made the representation.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The plain language of 18 U.S.C. § 911 does not include a
materiality element; nor, does the statute require that the repre-
sentation be made to a designated category of persons, i.e. a
government official. Though the Seventh Circuit has not addressed
these issues, other circuits have incorporated such requirements
into the elements of the offense. In the Ninth Circuit, the govern-
911
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ment must prove three (3) elements under § 911: (1) defendant
made a false claim of United States citizenship; (2) the misrepre-
sentation was willful (i.e. voluntary and deliberate); and, (3) the
representation was conveyed to someone with good reason to
inquire into the defendant’s citizenship status. United States v.
Karaouni, 379 F.3d 1139, 1142 (9th Cir. 2004). In addition, some
circuits require the “representation of citizenship be made to a
person having some right to inquire or adequate reason for
ascertaining a defendant’s citizenship; it is not to be assumed that
so severe a penalty is intended for words spoken as a mere boast
or jest or to stop the prying of some busybody.” United States v.
Esparza-Ponce, 193 F.3d 1133, 1138 (9th Cir. 1999); United States
v. Achtner, 144 F.2d 49, 52 (2d Cir. 1944).
Several circuits have held that a statement from which United
States citizenship could be inferred is insufficient evidence to sup-
port a conviction under § 911. Defendant’s statement to an FBI
agent that he was born in New York City, as well as noting that
on an employment application, is not enough evidence to support
violation § 911. United States v. Franklin, 188 F.2d 182, 187–88
(7th Cir. 1951). Yet, answering “I am” to the question “are you a
citizen of the United States” by an FBI agent and answering “yes”
to employment application question “Citizen of U.S.?” does violate
the statute. Id.; see also Smiley v. United States, 181 F.2d 505,
506–07 (9th Cir. 1950) (§ 911 requires a direct representation of
United States citizenship); United States v. Karaouni, 379 F.3d
1139, 1144–45 (9th Cir. 2004) (merely checking a box on INS I-9
Employment Eligibility Verification Form next to printed
statement: “I attest, under penalty of perjury, that I am . . . [a]
citizen or national of the United States” is not a claim of being a
United States citizen under § 911); United States v. Anzalone, 197
F.2d 714, 715 & 718 (3d Cir. 1952) (signing a Pennsylvania voter
certificate that states “I am qualified to vote in this General Elec-
tion” does not violate § 911).
Willfulness is defined within the instruction. “Willfully” as
used in the statute means “that the misrepresentation was delib-
erate and voluntary.” See Chow Bing Kew v. United States, 248
F.2d 466, 469 (9th Cir. 1957). See also Hernandez-Robledo v. INS,
777 F.2d 536, 539 (9th Cir. 1985) (determining that willfully, as
used in 8 U.S.C. § 1182(a)(19), false representation of citizenship,
requires proof that the misrepresentation was deliberate and vol-
untary); Espinoza-Espinoza v. INS, 554 F.2d 921, 925 (9th Cir.
1977) (finding that willfully, as used in 8 U.S.C. § 1182(a)(19),
requires proof that “the misrepresentation was voluntarily and
deliberately made”) (quoting Chow Bing Kew, 248 F.2d at 469);
Anderson v. Cornejo, 284 F. Supp. 2d 1008, 1035 (N.D. Ill. 2003)
(willful and wanton conduct described as “a course of action which
shows an actual or deliberate intention to cause harm or which, if
911
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345
not intentional, shows an utter indifference to or conscious disre-
gard for the safety of others or their property”).
911
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18 U.S.C. § 912 IMPERSONATION OF AN
OFFICER OR EMPLOYEE OF THE UNITED
STATES
[The indictment charges the defendant[s] with;
Count[s]—of the indictment charge[s] the defendant[s]
with] falsely assuming or pretending to be a United
States officer or employee. In order for you to find [the;
a] defendant guilty of this charge, the government must
prove [all of] the following elements beyond a reason-
able doubt:
1. The defendant falsely impersonated or pretended to
be an [officer or employee] acting under the author-
ity of [the United States, or [name of department,
agency or officer thereof]]; and
2. The defendant did so knowing that he was not actu-
ally an [officer or employee] acting under the
authority of [the United States, or [name of depart-
ment, agency or officer thereof]]; and
3. While doing so, the defendant committed an act,
with the intent to cause [the victim] [to do some-
thing [he; she] otherwise would not have done; not
to do something [he; she] otherwise would have
done].
[OR]
[3. While doing so, the defendant [demanded; obtained]
[money; a paper; a document; a thing of value].]
If you find from your consideration of all the evidence
that the government has proved all of these elements
beyond a reasonable doubt [as to the charge you are
considering], then you should find the defendant guilty
[of that charge].
If, on the other hand, you find from your consideration
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of all the evidence that the government has failed to
prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The instruction regarding the first element may be modified to
include the specific agency, department, or officer under which
authority the defendant claimed to be acting.
As to the second element, the Seventh Circuit has read into
§ 912 a scienter requirement that the defendant’s falsehoods as to
being an officer or employee of the United States be made with
“knowledge.” United States v. Wade, 962 F.3d 1004, 1011 (7th Cir.
2020); United States v. Bonin, 932 F.3d 523, 538–39 (7th Cir. 2019),
cert. denied, 140 S. Ct. 960 (2020). For a definition of “knowingly,”
see Pattern Instruction 4.10.
As to the third element, § 912 creates two separate offenses:
“1) the false impersonation of a federal official coupled with an
overt act in conformity with the pretense (offense 1); and, 2) the
false impersonation of a federal official coupled with the demand-
ing or obtaining of an item of value (offense 2).” United States v.
Kimberlin, 781 F.2d 1247, 1250 (7th Cir. 1985) (concluding none-
theless that charging both in the same count was duplicitous, but
harmless error in that case); see also United States v. Rippee, 961
F.2d 677, 678 (7th Cir. 1992). If the defendant is charged with “of-
fense 2,” the above bracketed option should be substituted for the
third element.
For “offense 1,” the Seventh Circuit has concluded that, while
it is not essential to have a separate element as to an intent to
deceive or defraud, it would be helpful to the jury for the instruc-
tion to require intentional action sought to cause the deceived
person to follow some course they would not have otherwise, so as
to not unconstitutionally abridge protected speech. Wade, 962 F.3d
at 1009-11, citing Bonin, 932 F.3d at 536. This concept has been
incorporated into this instruction. Cf. id. at 539 (an element telling
jurors that the defendant’s acts must actually have caused some-
one to change their behavior is not required by the statute).
The Seventh Circuit has rejected challenges to the constitution-
ality of § 912’s “acts-as-such clause” (“offense 1”), and opined that
an instruction regarding the First Amendment “on a constitution-
ally valid statute risk[ed] confusion” and was unnecessary. Id. at
912
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533–37, 540.
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18 U.S.C. § 922 DEFINITION OF
“AMMUNITION”
“Ammunition” means ammunition or cartridge
cases, primers, or propellant powder designed for use in
any firearm.
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18 U.S.C. § 922(a)(6) MAKING A FALSE
STATEMENT OR FURNISHING FALSE
IDENTIFICATION TO A LICENSED FIREARMS
IMPORTER, MANUFACTURER, DEALER, OR
COLLECTOR IN CONNECTION WITH THE
ACQUISITION OF A FIREARM OR
AMMUNITION—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [making a false statement; furnishing or exhibit-
ing false or misrepresented identification] to a licensed
firearms [dealer; importer; manufacturer; collector] in
connection with the acquisition or attempted acquisi-
tion of a [firearm; ammunition]. In order for you to find
[the; a] defendant guilty of this charge, the government
must prove each of the [three] following elements be-
yond a reasonable doubt:
1. The defendant [made a false statement; fur-
nished or exhibited false or misrepresented identifica-
tion] in connection with the [acquisition; attempted
acquisition] of [a firearm; ammunition] from a licensed
firearms [dealer; importer; manufacturer; collector];
and
2. The defendant did so knowingly; and
3. The [statement; identification] was intended to
or likely to deceive the [dealer; importer; manufacturer;
collector] with respect to any fact material to the lawful-
ness of the sale or other disposition of the [firearm;
ammunition].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
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If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
For a definition of “knowingly” see Pattern Instruction 4.10.
For a definition of “materiality” see Pattern Instruction regard-
ing that term as used in connection with 18 U.S.C. § 500.
922(a)(6)
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18 U.S.C. § 922(d) SALE OR TRANSFER OF A
FIREARM OR AMMUNITION TO A PROHIBITED
PERSON—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] selling or otherwise transferring [a firearm; am-
munition] to a [Prohibited Person]. In order for you to
find [the; a] defendant guilty of this charge, the govern-
ment must prove each of the [three] following elements
beyond a reasonable doubt:
1. The defendant [sold; otherwise transferred] [a
firearm; ammunition]; and
2. The individual to whom the [firearm; ammuni-
tion] was [sold; transferred] was a [Prohibited Person];
and
3. The defendant knew or had reasonable cause to
believe that the individual was a [Prohibited Person].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The term ‘‘ ‘Prohibited Person’ denotes any person prohibited
from possessing a firearm under 18 U.S.C. §§ 922[(d) or] (g).” United
States v. Grap, 403 F.3d 439, 446 (7th Cir. 2005); see also United
States v. Jefferson, 334 F.3d 670, 675 (7th Cir. 2003); U.S.S.G.
§ 2K2.1, comment. (n.3). The term is merely used as a placeholder
922(d)
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353
in this instruction, and a specified class of persons prohibited under
§ 922(d) should be substituted as applicable. The term “Prohibited
Person” includes, but is not limited to: a person under “indict-
ment,” as defined by 18 U.S.C. § 921(a)(14); a “fugitive from
justice,” as defined by § 921(a)(15); an unlawful user of any con-
trolled substance as defined by 21 U.S.C. § 802 and any person ad-
dicted to any such controlled substance; as well as any person who
has been convicted in any court of a “crime punishable by imprison-
ment for a term exceeding one year,” as defined by § 921(a)(20).
A person who has been convicted in any court of a “misde-
meanor crime of domestic violence” is a “Prohibited Person” under
the statute. See 18 U.S.C. § 922(d)(9). The term “misdemeanor
crime of domestic violence” is defined by 18 U.S.C. § 921(a)(33)(A).
However, to convict under § 922(g)(9), does not require proof that a
domestic relationship was an element of the underlying misde-
meanor offense. See United States v. Hayes, 555 U.S. 415, 426
(2009).
For a definition of “knowingly” see Pattern Instruction 4.10.
Instead of the term “transfer” the statute uses the phrase
“dispose of.” But “dispose of” means “to transfer a firearm so that
the recipient acquires possession of the firearm.” See Jefferson,
334 F.3d at 675. The transfer can be gratuitous, temporary, or
both. Id. The Committee has used the term “transfer” in place of
“dispose of” for ease of understanding by the jury.
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18 U.S.C. § 922(d) DEFINITION OF
“REASONABLE CAUSE TO BELIEVE”
A person has “reasonable cause to believe” that
[name] was a [Prohibited Person] if he knows facts that
would cause a reasonable person, knowing the same
things, to conclude that [name] was a [Prohibited
Person].
Committee Comment
This definition of “reasonable cause to believe” is taken from
Eleventh Circuit Pattern Federal Criminal Jury Instructions No.
34.5, as considered in United States v. Haskins, 511 F.3d 688, 693
(7th Cir. 2007). While the district court in that case ultimately did
not issue such an instruction, the instruction should serve as a
strong model for defining this term.
The term “Prohibited Person” is used in this definition in the
same way that it is used in the elements instruction for 18 U.S.C.
§ 922 (d) (i.e. as a placeholder) and the Committee Comment as-
sociated with that instruction also applies to the use of that term
in this definition.
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18 U.S.C. § 922(g) DEFINITIONS OF “IN OR
AFFECTING COMMERCE” AND “IN
INTERSTATE OR FOREIGN COMMERCE”
“In or affecting commerce” and “interstate or
foreign commerce” include commerce between any place
in a State and any place outside of that State. The
terms do not include commerce between places within
the same State but through any place outside of that
State.
This requirement is satisfied if the firearm traveled
in interstate or foreign commerce prior to the defen-
dant’s possession of it. A firearm has traveled in inter-
state or foreign commerce if it has traveled between
one state and any other state or country, or across a
state or national boundary line. [The government need
not prove [how the firearm traveled in interstate com-
merce; that the firearm’s travel was related to the
defendant’s possession of it; that the defendant knew
the firearm had traveled in interstate commerce].]
Committee Comment
This instruction is based in part on 18 U.S.C. § 921(a)(2) which
defines “interstate or foreign commerce.” The terms “in or affecting
commerce” and “in interstate or foreign commerce” are
synonymous. Scarborough v. United States, 431 U.S. 563, 577 (1977)
(interpreting “in or affecting commerce” in § 922(g)’s forerunner,
18 U.S.C. § 1202(a)); United States v. Lowe, 860 F.2d 1370, 1374
(7th Cir. 1988) (rejecting contention that “commerce” is separate
and distinct from “interstate commerce”). “Movement in interstate
commerce is all the Supreme Court requires under the statute.”
United States v. Jackson, 479 F.3d 485, 492 (7th Cir. 2007) (citing
Scarborough, 431 U.S. at 577; United States v. Williams, 410 F.3d
397, 400 (7th Cir. 2005)).
Several cases have discussed the meaning of “in interstate or
foreign commerce” in the context of 18 U.S.C. § 922(g). See, e.g.,
United States v. Rice, 520 F.3d 811, 815–17 (7th Cir. 2008)
(concluding that the defendant’s possession of firearms manufac-
tured outside of the state, in some instances years after the fire-
arms had entered the state, satisfied § 922(g)(1)’s interstate com-
merce requirement); United States v. Jackson, 479 F.3d 485, 492
922(g)
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(7th Cir. 2007) (stating that § 922(g)(1)’s interstate commerce
requirement was satisfied where gun was manufactured outside
the United States, entered the United States in one state, and
then traveled to another state); United States v. Lewis, 100 F.3d
49, 52 (7th Cir. 1996) (“A single journey across state lines, however
remote from the defendant’s possession, is enough to establish . . .
a connection to interstate commerce”).
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18 U.S.C. § 922(g) DEFINITION OF
“POSSESSION”
Committee Comment
For a definition of “possession” see Pattern Instruction 4.13.
922(g)
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18 U.S.C. § 922(g)(1) UNLAWFUL SHIPMENT OR
TRANSPORTATION OF A FIREARM OR
AMMUNITION BY A CONVICTED FELON—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] unlawful [shipment; transportation] of [a firearm;
ammunition] by a person who has been convicted in
any court of a crime punishable by imprisonment for a
term exceeding one year. In order for you to find [the;
a] defendant guilty of this charge, the government must
prove each of the following elements beyond a reason-
able doubt:
1. The defendant knowingly [shipped; trans-
ported] [a firearm; ammunition] in interstate or foreign
commerce;
2. At the time of the charged act, the defendant
had previously been convicted in a court of a crime pun-
ishable by imprisonment for a term exceeding one year;
and
3. At the time of the [shipment; transport], the
defendant knew that he had been convicted of a crime
punishable by imprisonment for a term exceeding one
year.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
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Committee Comment
For a definition of “knowingly” see Pattern Instruction 4.10.
This instruction applies to a § 922(g)(1) offense. Instructions
are also provided for §§ (g)(3)(unlawful user or addict of a con-
trolled substance) and (g)(5)(alien illegally or unlawfully in the
United States). If the defendant is charged under another subsec-
tion of § 922(g), the second and third elements should be modified
accordingly.
In Rehaif v. United States, 139 S.Ct. 2191 (2019), the Supreme
Court held that the government must prove that a defendant knew
he or she possessed the firearm and knew that he or she belonged
to the relevant category of persons barred from possessing a
firearm. This knowledge requirement applies to a prosecution
under any subsection of § 922(g). See United States v. Triggs, 963
F.3d 710 (7th Cir. 2020) (government required to prove defendant
knew he had been convicted of a misdemeanor crime of domestic
violence); United States v. Cook, 970 F.3d 866, 880–81 (7th Cir.
2020) (government required to prove defendant knew he was an
unlawful user of marijuana). The government need not show that
the defendant knew his status prohibited him from possessing a
firearm, simply that he knew he held the status. United States v.
Maez, 960 F.3d 949, 954–55 (7th Cir. 2020).
922(g)(1)
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18 U.S.C. § 922(g)(1) UNLAWFUL POSSESSION
OR RECEIPT OF A FIREARM OR AMMUNITION
BY A PROHIBITED PERSON—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] unlawful [possession; receipt] of [a firearm; am-
munition] by a person who has been convicted in any
court of a crime punishable by imprisonment for a term
exceeding one year. In order for you to find [the; a]
defendant guilty of this charge, the government must
prove each of the following elements beyond a reason-
able doubt:
1. The defendant knowingly [possessed; received]
[a firearm; ammunition];
2. At the time of the charged act, the defendant
had previously been convicted in a court of a crime pun-
ishable by imprisonment for a term exceeding one year;
3. At the time of the [possession; receipt], the
defendant knew that he had been convicted of a crime
punishable by imprisonment for a term exceeding one
year; and
4. [[The [firearm; ammunition] had been shipped
or transported in interstate or foreign commerce before
the defendant received it.]; [The defendant’s possession
of the [firearm; ammunition] was in or affected
commerce.]]
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
922(g)(1)
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361
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
For a definition of “knowingly” see Pattern Instruction 4.10.
This instruction applies to a § 922(g)(1) offense. Instructions
are also provided for §§ (g)(3) (unlawful user or addict of a con-
trolled substance) and (g)(5) (alien illegally or unlawfully in the
United States). If the defendant is charged under another subsec-
tion of § 922(g), the second and third elements should be modified
accordingly.
In Rehaif v. United States, 139 S.Ct. 2191 (2019), the Supreme
Court held that the government must prove that a defendant knew
he or she possessed the firearm and knew that he or she belonged
to the relevant category of persons barred from possessing a
firearm. This knowledge requirement applies to a prosecution
under any subsection of § 922(g). See United States v. Triggs, 963
F.3d 710 (7th Cir. 2020) (government required to prove defendant
knew he had been convicted of a misdemeanor crime of domestic
violence); United States v. Cook, 970 F.3d 866, 880–81 (7th Cir.
2020) (government required to prove defendant knew he was an
unlawful user of marijuana). The government need not show that
the defendant knew his status prohibited him from possessing a
firearm, simply that he knew he held the status. United States v.
Maez, 960 F.3d 949, 954–55 (7th Cir. 2020).
922(g)(1)
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18 U.S.C. § 922(g)(3) DEFINITION OF
“UNLAWFUL USER”
The term “unlawful user of a controlled substance”
contemplates the regular and repeated use of a con-
trolled substance in a manner other than as prescribed
by a licensed physician. The one time or infrequent use
of a controlled substance is not sufficient to establish
the defendant as an “unlawful user.” Rather, the
defendant must have been engaged in use that was suf-
ficiently consistent and prolonged as to constitute a
pattern of regular and repeated use of a controlled
substance. The government need not show that defen-
dant used a controlled substance at the precise time he
[shipped; transported; possessed] a firearm. It must,
however, establish that he was engaged in a pattern of
regular and repeated use of a controlled substance dur-
ing a period that reasonably covers the time a firearm
was [shipped; transported; possessed].
Committee Comment
The definition of “unlawful user” is taken from Sixth Circuit
Pattern Criminal Jury Instructions 12.01, cited in United States v.
Cook, 970 F.3d 866, 880 (7th Cir. 2020). “Past, regular use would
not qualify as ongoing use if it has come to a definitive end before
one possesses a gun, for example, and likewise current but isolated
use (perhaps only when offered at the occasional social gathering)
likewise would not count as regular use.” Id. at 884. Use must be
regular or habitual and contemporaneous with the prohibited act.
Id. at 879.
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363
18 U.S.C. § 922(g)(3) UNLAWFUL SHIPMENT OR
TRANSPORTATION OF A FIREARM OR
AMMUNITION BY AN UNLAWFUL USER OR
ADDICT OF A CONTROLLED SUBSTANCE—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
———
of the indictment charge[s] the defen-
dant[s] with] unlawful [shipment; transportation] of [a
firearm; ammunition] by a person who is an unlawful
user of or addicted to a controlled substance. In order
for you to find [the; a] defendant guilty of this charge,
the government must prove each of the following ele-
ments beyond a reasonable doubt:
1. The defendant knowingly [shipped; trans-
ported] [a firearm; ammunition] in interstate or foreign
commerce;
2. At the time of the charged act, the defendant
was [an unlawful user of; addicted to] a controlled
substance; and
3. At the time of the [shipment; transport], the
defendant knew that he was [an unlawful user of; ad-
dicted to] a controlled substance.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
922(g)(3)
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364
Committee Comment
For a definition of “knowingly” see Pattern Instruction 4.10.
This instruction applies to a § 922(g)(3) offense. Instructions
are also provided for §§ (g)(1)(convicted felon) and (g)(5)(alien il-
legally or unlawfully in the United States). If the defendant is
charged under another subsection of § 922(g), the second and third
elements should be modified accordingly.
In Rehaif v. United States, 139 S.Ct. 2191 (2019), the Supreme
Court held that the government must prove that a defendant knew
he or she possessed the firearm and knew that he or she belonged
to the relevant category of persons barred from possessing a
firearm. This knowledge requirement applies to a prosecution
under any subsection of § 922(g). See United States v. Triggs, 963
F.3d 710 (7th Cir. 2020) (government required to prove defendant
knew he had been convicted of a misdemeanor crime of domestic
violence); United States v. Cook, 970 F.3d 866, 880-81 (7th Cir.
2020) (government required to prove defendant knew he was an
unlawful user of marijuana). The government need not show that
the defendant knew his status prohibited him from possessing a
firearm, simply that he knew he held the status. United States v.
Maez, 960 F.3d 949, 954-55 (7th Cir. 2020). However, the defendant
must know both that he was using a controlled substance and that
his use was “unlawful,” inquiries which may be “tricky” or
“nuanced.” United States v. Cook, 970 F.3d 866, 882-83 (7th Cir.
2020). “That [the defendant] ought to have known his use was
unlawful would not suffice to convict him; he had to actually know
his use was unlawful. Id. at 884 (emphasis in original).
In order to convict, the shipment or transportation of the
firearm (or ammunition) must be contemporaneous with an ongo-
ing pattern of drug use. United States v. Yancey, 621 F.3d 681 (7th
Cir. 2010).
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365
18 U.S.C. § 922(g)(3) UNLAWFUL POSSESSION
OR RECEIPT OF A FIREARM OR AMMUNITION
BY AN UNLAWFUL USER OR ADDICT OF A
CONTROLLED SUBSTANCE—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]—of the indictment charge[s] the defendant[s]
with] unlawful [possession; receipt] of [a firearm; am-
munition] by a person who is an unlawful user of or ad-
dicted to a controlled substance. In order for you to find
[the; a] defendant guilty of this charge, the government
must prove each of the following elements beyond a
reasonable doubt:
1. The defendant knowingly [possessed; received]
[a firearm; ammunition];
2. At the time of the charged act, the defendant
was [an unlawful user of; addicted to] a controlled
substance;
3. At the time of the [possession; receipt], the
defendant knew that he was [an unlawful user of; ad-
dicted to] a controlled substance; and
4. [[The [firearm; ammunition] had been shipped
or transported in interstate or foreign commerce before
the defendant received it.]; [The defendant’s possession
of the [firearm; ammunition] was in or affected
commerce.]]
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
922(g)(3)
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366
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
For a definition of “knowingly” see Pattern Instruction 4.10.
For a definition of “unlawful user” see the pattern instruction
regarding that term as used in the unlawful shipment or transpor-
tation instruction, 18 U.S.C. § 922(g)(3).
This instruction applies to a § 922(g)(3) offense. Instructions
are also provided for §§ (g)(1)(convicted felon) and (g)(5)(alien il-
legally or unlawfully in the United States). If the defendant is
charged under another subsection of § 922(g), the second and third
elements should be modified accordingly.
In Rehaif v. United States, 139 S.Ct. 2191 (2019), the Supreme
Court held that the government must prove that a defendant knew
he or she possessed the firearm and knew that he or she belonged
to the relevant category of persons barred from possessing a
firearm. This knowledge requirement applies to a prosecution
under any subsection of § 922(g). See United States v. Triggs, 963
F.3d 710 (7th Cir. 2020) (government required to prove defendant
knew he had been convicted of a misdemeanor crime of domestic
violence); United States v. Cook, 970 F.3d 866, 880-81 (7th Cir.
2020) (government required to prove defendant knew he was an
unlawful user of marijuana). The government need not show that
the defendant knew his status prohibited him from possessing a
firearm, simply that he knew he held the status. United States v.
Maez, 960 F.3d 949, 954-55 (7th Cir. 2020). However, the defendant
must know both that he was using a controlled substance and that
his use was “unlawful,” inquiries which may be “tricky” or
“nuanced.” United States v. Cook, 970 F.3d 866, 882-83 (7th Cir.
2020). “That [the defendant] ought to have known his use was
unlawful would not suffice to convict him; he had to actually know
his use was unlawful. Id. at 884 (emphasis in original).
In order to convict, the possession of the firearm (or ammuni-
tion) must be contemporaneous with an ongoing pattern of drug
use. United States v. Yancey, 621 F.3d 681 (7th Cir. 2010).
922(g)(3)
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18 U.S.C. § 922(g)(5) DEFINITION OF “ALIEN
ILLEGALLY OR UNLAWFULLY IN THE UNITED
STATES”
An alien is any person not a citizen or national of
the United States. Aliens who are unlawfully in the
United States are not in valid immigrant, nonim-
migrant, or parole status. This term includes a person
who unlawfully entered the United States without
inspection and authorization by immigration; who is
not an immigrant and whose authorized period of stay
has expired or who has violated the terms of admission;
who is under an order of deportation, exclusion or re-
moval, or who is under an order to depart the United
States voluntarily.
Committee Comment
Alien is defined at 27 CFR § 478.11.
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18 U.S.C. § 922(g)(5) UNLAWFUL POSSESSION
OR RECEIPT OF A FIREARM OR AMMUNITION
BY AN ALIEN ILLEGALLY OR UNLAWFULLY IN
THE UNITED STATES—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]—of the indictment charge[s] the defendant[s]
with] unlawful [possession; receipt] of [a firearm; am-
munition] by an alien illegally or unlawfully in the
United States. In order for you to find [the; a] defendant
guilty of this charge, the government must prove each
of the following elements beyond a reasonable doubt:
1. The defendant knowingly [possessed; received]
[a firearm; ammunition];
2. At the time of the charged act, the defendant
was an alien illegally or unlawfully in the United
States;
3. At the time of the [possession; receipt], the
defendant knew he was an alien illegally or unlawfully
in the United States; and
4. [[The [firearm; ammunition] had been shipped
or transported in interstate or foreign commerce before
the defendant received it.]; [The defendant’s possession
of the [firearm; ammunition] was in or affected
commerce.]]
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
922(g)(5)
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369
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
For a definition of “knowingly” see Pattern Instruction 4.10.
For a definition of “alien illegally or unlawfully in the United
States” see the pattern instruction regarding that term as used in
the unlawful shipment or transportation instruction, 18 U.S.C.
§ 922(g)(5).
This instruction applies to a § 922(g)(5) offense. Instructions
are also provided for §§ (g)(1)(convicted felon) and (g)(3)(unlawful
user or addict of a controlled substance). If the defendant is
charged under another subsection of § 922(g), the second and third
elements should be modified accordingly.
In Rehaif v. United States, 139 S.Ct. 2191 (2019), the Supreme
Court held that the government must prove that a defendant knew
he or she possessed the firearm and knew that he or she belonged
to the relevant category of persons barred from possessing a
firearm. This knowledge requirement applies to a prosecution
under any subsection of § 922(g). See United States v. Triggs, 963
F.3d 710 (7th Cir. 2020) (government required to prove defendant
knew he had been convicted of a misdemeanor crime of domestic
violence); United States v. Cook, 970 F.3d 866, 880-81 (7th Cir.
2020) (government required to prove defendant knew he was an
unlawful user of marijuana). The government need not show that
the defendant knew his status prohibited him from possessing a
firearm, simply that he knew he held the status. United States v.
Maez, 960 F.3d 949, 954-55 (7th Cir. 2020).
922(g)(5)
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370
18 U.S.C. § 922(g)(5) UNLAWFUL SHIPMENT OR
TRANSPORTATION OF A FIREARM OR
AMMUNITION BY AN ALIEN ILLEGALLY OR
UNLAWFULLY IN THE UNITED STATES—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]—of the indictment charge[s] the defendant[s]
with] unlawful [shipment; transportation] of [a firearm;
ammunition] by an alien illegally or unlawfully in the
United States. In order for you to find [the; a] defendant
guilty of this charge, the government must prove each
of the following elements beyond a reasonable doubt:
1. The defendant knowingly [shipped; trans-
ported] [a firearm; ammunition] in interstate or foreign
commerce;
2. At the time of the charged act, the defendant
was an alien illegally or unlawfully in the United
States; and
3. At the time of the [shipment; transport], the
defendant knew he was an alien illegally or unlawfully
in the United States.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
For a definition of “knowingly” see Pattern Instruction 4.10.
922(g)(5)
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371
This instruction applies to a § 922(g)(5) offense. Instructions
are also provided for §§ (g)(1)(convicted felon) and (g)(3)(unlawful
user or addict of a controlled substance). If the defendant is
charged under another subsection of § 922(g), the second and third
elements should be modified accordingly.
In Rehaif v. United States, 139 S.Ct. 2191 (2019), the Supreme
Court held that the government must prove that a defendant knew
he or she possessed the firearm and knew that he or she belonged
to the relevant category of persons barred from possessing a
firearm. This knowledge requirement applies to a prosecution
under any subsection of § 922(g). See United States v. Triggs, 963
F.3d 710 (7th Cir. 2020) (government required to prove defendant
knew he had been convicted of a misdemeanor crime of domestic
violence); United States v. Cook, 970 F.3d 866, 880-81 (7th Cir.
2020) (government required to prove defendant knew he was an
unlawful user of marijuana). The government need not show that
the defendant knew his status prohibited him from possessing a
firearm, simply that he knew he held the status. United States v.
Maez, 960 F.3d 949, 954-55 (7th Cir. 2020).
922(g)(5)
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DEFINITION OF “TRUE THREAT”
A “true threat” is a serious expression of intent to
commit unlawful physical violence against another
person or a group of people. The communication must
be one that a reasonable observer, considering the
context and circumstances of the statement, including
surrounding communications, would interpret as a true
threat.
The government does not have to prove that the
defendant actually intended to carry out the threat, or
even that the defendant had the capacity to do so. At
the same time lack of intent or lack of capacity to carry
out the threat can be relevant circumstances in decid-
ing whether a communication is a true threat.
A threat does not need to be communicated directly
to its intended victim, or specify a particular victim, or
specify when it will be carried out.
A communication is not a true threat if it is merely
idle or careless talk, exaggeration, or something said in
a joking manner.
[A threat may be conditional, that is, may threaten
violence if some condition is not fulfilled. The fact that
a communication is conditional, however, can be rele-
vant in deciding whether a communication is a true
threat.]
Committee Comment
The definition of true threat is based on Elonis v. United States,
135 S. Ct. 2001, 2012 (2015) (“There is no dispute that the mental
state requirement in Section 875(c) is satisfied if the defendant
transmits a communication for the purpose of issuing a threat, or
with knowledge that the communication will be viewed as a
threat.”).
The language regarding “true threats” was approved post
Elonis in United States v. Khan, 937 F.3d 1042, 1051 (7th Cir.
922(g)(5)
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373
2019). In Khan, the Court, reviewed instructions given when the
defendant was charged under 18 U.S.C. § 875(c). It held that a
“true threat” is “a serious expression of an intent to commit an act
of unlawful violence to a particular individual or group of
individuals.” United States v. Parr, 545 F.3d 491, 497 (7th Cir.
2008) (quoting Virginia v. Black, 538 U.S. 343, 359 (2003)). And
“[a]true threat does not require that the speaker intend to carry it
out, or even that she have the capacity to do so.” United States v.
Dutcher, 851 F.3d 757, 761 (7th Cir. 2017) (citations omitted);
Khan, 937 F.3d at 1051.
The instruction on idle or carless talk, exaggeration, or joking
is based on Khan, 937 F.3d at 1051 (“A communication is not a
true threat if it is merely idle or careless talk, exaggeration, or
something said in a joking manner.”).
The bracketed instruction on conditional threats is based on
United States v. Schneider, 910 F.2d 1569, 1570 (7th Cir. 1990).
Schneider explained that many threats are conditional (because
the speaker is trying to get the victim to do something or to stop
doing something), as in “Your money or your life.” Id.
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DEFINITION OF “INTENT TO EXTORT”
A person acts with an “intent to extort” when he
acts with the purpose of obtaining money or something
of value from someone who consents because of fear or
the wrongful use of actual or threatened force or
violence.
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18 U.S.C. §§ 922 & 924 DEFINITION OF
“FIREARM”
“Firearm” means [any weapon [including a starter
gun] which will or is designed to or may readily be
converted to expel a projectile by the action of an explo-
sive; the frame or receiver of any such weapon; any
firearm muffler or firearm silencer; any destructive
device]. [The term does not include an antique firearm.]
Committee Comment
This instruction will be unnecessary in the majority of cases
where there is no dispute about whether the object in question is a
firearm. The Committee recommends that this instruction only be
given when appropriate under the facts of the case being tried.
This definition is found at 18 U.S.C. § 921(a)(3). There is no
requirement that the gun be operable to be a “firearm” for purposes
of 18 U.S.C. § 924(c). See United States v. Castillo, 406 F.3d 806,
817 (7th Cir. 2005), vacated on other grounds, Castillo v. United
States, 552 U.S. 1137 (2008). The court should choose the appropri-
ate bracketed description based on the evidence about the object in
question introduced at trial.
The portion of the instruction excluding an “antique firearm”
should be given only in cases in which evidence is introduced that
the object in question could qualify as such pursuant to 18 U.S.C.
§ 921(a)(16), which is defined in the following Pattern Instruction.
922 & 924
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376
18 U.S.C. §§ 922 & 924 DEFINITION OF
“ANTIQUE FIREARM”
“Antique firearm” means:
(A) any firearm (including any firearm with a
matchlock, flintlock, percussion cap, or similar type of
ignition system) manufactured in or before 1898; or
(B) any replica of any firearm described in sub-
paragraph (A) if such replica
(i) is not designed or redesigned for using
rimfire or conventional centerfire fixed ammuni-
tion; or
(ii) uses rimfire or conventional centerfire
fixed ammunition which is no longer manufactured
in the United States and which is not readily avail-
able in the ordinary channels of commercial trade;
or
(C) any muzzle loading rifle, muzzle loading
shotgun, or muzzle loading pistol, which is designed to
use black powder, or a black powder substitute, and
which cannot use fixed ammunition. For purposes of
this subparagraph, the term “antique firearm” shall not
include any weapon which incorporates a firearm frame
or receiver, any firearm which is converted into a
muzzle loading weapon, or any muzzle loading weapon
which can be readily converted to fire fixed ammunition
by replacing the barrel, bolt, breechblock, or any
combination thereof.
Committee Comment
This definition is found at 18 U.S.C. § 921(a)(16). This defini-
tion should be given only in cases in which evidence is introduced
that the object in question could qualify as an “antique firearm”
pursuant to statute.
922 & 924
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377
18 U.S.C. §§ 922 & 924 BRANDISH/DISCHARGE
SPECIAL VERDICT INSTRUCTIONS—
DEFINITION OF “BRANDISH”
If you find the defendant guilty of the offense
charged in [Count
—
of] the indictment, you must then
determine whether the government has proven beyond
a reasonable doubt that the firearm was [brandished;
discharged].
[To “brandish” a firearm means to display all or
part of the firearm, or otherwise make the presence of
the firearm known to another person, in order to intim-
idate that person, regardless of whether the firearm is
directly visible to that person.]
You will see on the verdict form a question about
this issue. You should consider this question only if you
have found that the government has proven the defen-
dant guilty of the offense charged in [Count
—
of] the
indictment.
If you find that the government has proven beyond
a reasonable doubt that the defendant [brandished;
discharged] the firearm, then you should answer the
question “Yes.” If you find that the government has not
proven beyond a reasonable doubt that the defendant
[brandished; discharged] the firearm, then you should
answer the question “No.”
Committee Comment
The term “brandish” is defined in 18 U.S.C. § 924(c)(4).
The question of whether the firearm was brandished or
discharged must be determined by the jury in for the enhanced
mandatory minimum penalties to apply. See Alleyne v. United
States, 570 U.S. 99 (2013), in which the Supreme Court overruled
Harris v. United States, 536 U.S. 545 (2002), and held that any
fact that increases a mandatory minimum sentence is an “ele-
ment” of the crime, not a “sentencing factor” that must be submit-
ted to the jury.
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378
See also Dean v. United States, 556 U.S. 568 (2009), in which
the Supreme Court held that the “discharge” requirement in
§ 924(c) contains no mens rea requirement, and thus applies to
both intentional and accidental firings of the gun.
The Committee chose not to suggest a definition of the term
“discharge” both because the meaning is self-evident, and because
there is no relevant Seventh Circuit precedent. However, if there
were a dispute about whether a firearm was discharged in a given
case, the court may wish to define the term.
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18 U.S.C. § 924(c) DEFINITION OF “USE”
“Use” means the active employment of a firearm.
The term is not limited to use as a weapon, and includes
brandishing, displaying, bartering, striking with, firing,
and attempting to fire a firearm. A defendant’s refer-
ence to a firearm calculated to bring about a change in
the circumstances of the offense constitutes “use” dur-
ing and in relation to a crime. However, mere posses-
sion or storage of a firearm, at or near the site of the
crime, drug proceeds or paraphernalia is not enough to
constitute use of that firearm.
Committee Comment
See Bailey v. United States, 516 U.S. 137, 148–49 (1995). In
Smith v. United States, 508 U.S. 223, 241 (1993), the Supreme
Court held that a person who trades a gun for drugs “uses” it dur-
ing and in relation to a drug trafficking offense for purposes of
§ 924(c)(1). But a person who trades drugs for a gun does not “use”
the gun within the meaning of § 924(c)(1)(A). Watson v. United
States, 552 U.S. 74, 83 (2007). Where the defendant displayed a
firearm by placing it on the couch next to him as he was cutting
cocaine, he “used” the firearm within the meaning of § 924(c). Buggs
v. United States, 153 F.3d 439, 444 (7th Cir. 1998).
924(c)
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380
18 U.S.C. § 924(c) DEFINITION OF “CARRY”
A person “carries” a firearm when he knowingly
transports it on his person [or in a vehicle or container].
[A person may “carry” a firearm even when it is not
immediately accessible because it is in a case or
compartment [such as a glove compartment or trunk of
a car], even if locked.]
Committee Comment
Muscarello v. United States, 524 U.S. 125, 126–27, 137 (1998).
The term “carry” requires a connotation of transportation that oc-
curred during or in relation to the predicate crime. See Stanback
v. United States, 113 F.3d 651, 657–58 (7th Cir. 1997). “Carrying”
a firearm from one room to another is sufficient. See Buggs v.
United States, 153 F.3d 439, 444 (7th Cir. 1998).
The bracketed language should be used only if supported by
evidence in the case on trial.
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18 U.S.C. § 924(c) DEFINITION OF “DURING”
“During” means at any point within the offense
conduct charged in Count
—
of the indictment.
Committee Comment
The Seventh Circuit has stated that the terms “during” and
“in relation to” have separate meanings under § 924(c)(1)(A). United
States v. Young, 316 F.3d 649, 662 (7th Cir. 2002).
924(c)
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382
18 U.S.C. § 924(c) DEFINITION OF “IN
RELATION TO”
A person [uses; carries] a firearm “in relation to” a
crime if there is a connection between the use or carry-
ing of the firearm and the crime of violence or drug
trafficking crime. The firearm must have some purpose
or effect with respect to the crime; its presence or
involvement cannot be the result of accident or
coincidence. The firearm must at least facilitate, or have
the potential of facilitating, the crime.
Committee Comment
See Smith v. United States, 508 U.S. 223, 238 (1993); United
States v. Mancillas, 183 F.3d 682, 707 (7th Cir. 1999).
The Seventh Circuit has stated that the terms “during” and
“in relation to” have separate meanings under § 924(c)(1)(A). United
States v. Young, 316 F.3d 649, 662 (7th Cir. 2002).
924(c)
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383
18 U.S.C. § 924(c) DEFINITION OF “IN
FURTHERANCE OF”
A person possesses a firearm “in furtherance of” a
crime if the firearm furthers, advances, moves forward,
promotes or facilitates the crime. The mere presence of
a firearm at the scene of a crime is insufficient to estab-
lish that the firearm was possessed “in furtherance of”
the crime. There must be a connection between the
firearm and the crime.
Committee Comment
See United States v. Huddleston, 593 F.3d 596, 602 (7th Cir.
2010) (“in furtherance of” prong satisfied where jury could have
found that defendant possessed gun to protect himself and his
stash and his profits); United States v. Castillo, 406 F.3d 806,
814–16 (7th Cir. 2005) (holding evidence was sufficient to establish
that defendant possessed shotgun “in furtherance of” underlying
drug crime where he strategically placed the shotgun near his
cache of drugs to protect himself, his drugs, and his drug traffick-
ing business), vacated on other grounds, Castillo v. United States,
552 U.S. 1137 (2008).
The Seventh Circuit has acknowledged a non-exhaustive list
of factors developed by the Fifth Circuit for use in the determining
whether a firearm was possessed “in furtherance of” another crime.
The list includes “the type of drug activity that is being conducted,
accessibility of the firearm, the type of the weapon, whether the
weapon is stolen, the status of the possession (legitimate or ille-
gal), whether the gun is loaded, proximity to drugs or drug profits,
and the time and circumstances under which the gun is found.”
Castillo, 406 F.3d at 815 (internal citations omitted); see also United
States v. Seymour, 519 F.3d 700, 715 (7th Cir. 2008) (applying
factors). The Seventh Circuit has advised that “given the fact-
intensive nature of the ‘in furtherance of’ inquiry, the weight, if
any, these and other factors should be accorded necessarily will
vary from case to case.” Castillo, 406 F.3d at 815. In United States
v. Johnson, the Seventh Circuit emphasized that courts should
strive for “simple and succinct instructions [which] invite the jury
to rely on its own intuition and common sense.” United States v.
Johnson, 916 F.3d 579, 585–86 (7th Cir. 2019). Should the court
decide to instruct the jury on factors based on the evidence, some
of the factors the court may propose include the type of drug activ-
ity that is being conducted; accessibility of the firearm; the type of
firearm; whether the firearm is loaded; the proximity of the firearm
924(c)
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384
to drugs or drug profits; and the time and circumstances under
which the gun is found.
924(c)
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385
18 U.S.C. § 924(c)(1)(A) USING OR CARRYING A
FIREARM DURING AND IN RELATION TO A
CRIME OF VIOLENCE OR DRUG TRAFFICKING
CRIME—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [using; carrying] a firearm during and in relation
to a [crime of violence; drug trafficking crime]. In order
for you to find [the; a] defendant guilty of this charge,
the government must prove both of the following ele-
ments beyond a reasonable doubt:
1. The defendant committed the crime of [name
the specific crime of violence or drug trafficking crime];
and
2. The defendant knowingly [used; carried] a
firearm during and in relation to such crime.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The terms “drug trafficking crime” and “crime of violence” are
both defined by statute, 18 U.S.C. § 924(c)(2) and (3), respectively.
Whether a particular crime qualifies as such is a determination for
the court; accordingly, the Committee recommends that neither
term be defined for the jury. Instead, the bracketed portion of the
first element of this instruction should list the name of the “drug
trafficking crime” or “crime of violence” alleged in the indictment,
as determined qualified as such by the court.
924(c)(1)(A)
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386
The term “knowingly” is defined in Pattern Instruction 4.10.
If the indictment alleged the firearm was “brandished” or
“discharged,” facts which increase the mandatory minimum penal-
ties under § 924(c), those questions must be submitted to the jury.
Alleyne v. United States, 570 U.S. 99 (2013). A special verdict
instruction is included infra.
There is no requirement that the gun be operable to be a
“firearm” under 18 U.S.C. § 924(c). See United States v. Castillo,
406 F.3d 806, 817 (7th Cir. 2005), vacated on other grounds, Castillo
v. United States, 552 U.S. 1137 (2008).
924(c)(1)(A)
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387
18 U.S.C. § 924(c)(1)(A) USING OR CARRYING A
FIREARM DURING AND IN RELATION TO A
CRIME OF VIOLENCE OR DRUG TRAFFICKING
CRIME—ACCOUNTABILITY THEORY
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [aiding; counseling; commanding; inducing;
procuring] the [use; carrying] of a firearm during and
in relation to a [crime of violence; drug trafficking
crime]. In order for you to find [the; a] defendant guilty
of this charge, the government must prove the follow-
ing beyond a reasonable doubt:
1. The defendant had advance knowledge that
[another participant; name specific person] would [use;
carry] a firearm during and relation to [the; a] [name
the crime of violence; drug trafficking crime]; and
2. The defendant, having such knowledge, inten-
tionally facilitated the [use; carrying] of the firearm
[name the crime of violence; drug trafficking crime].
If you find from your consideration of all the evi-
dence that the government proved both of these ele-
ments beyond a reasonable doubt, then you should find
the defendant guilty.
If, on the other hand, you find from your consider-
ation of all the evidence that the government failed to
prove either of these elements beyond a reasonable
doubt, then you should find the defendant not guilty.
Committee Comment
This instruction is based on United States v. Moore, 572 F.3d
334, 341 (7th Cir. 2009); United States v. Andrews, 442 F.3d 996,
1002 (7th Cir. 2006); United States v. Daniels, 370 F.3d 689, 691
(7th Cir. 2004); and United States v. Taylor, 226 F.3d 593, 596–97
(7th Cir. 2000). The instruction should be given in addition to the
924(c)(1)(A)
STATUTORY INSTRUCTIONS
388
standard aiding and abetting instruction, Pattern Instruction
5.06(A). See also Rosemond v. United States, 572 U.S. 65 (2014), in
which the Supreme Court addressed accessory liability in a
§ 924(c)(1)(A) case. In Rosemond, the Court stated: “active
participation in a drug sale is sufficient for section 924(c) liability
(even if the conduct does not extend to the firearm), so long as the
defendant had prior knowledge of the gun’s involvement.” Id.at82
(emphasis added).
924(c)(1)(A)
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389
18 U.S.C. § 924(c)(1)(A) POSSESSION OF A
FIREARM IN FURTHERANCE OF A CRIME OF
VIOLENCE OR DRUG TRAFFICKING CRIME—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] possession of a firearm in furtherance of a [crime
of violence; drug trafficking crime]. In order for you to
find [the; a] defendant guilty of this charge, the govern-
ment must prove each of the [three] following elements
beyond a reasonable doubt:
1. The defendant committed the crime of [name
specific crime of violence or drug trafficking crime]; and
2. The defendant knowingly possessed a firearm;
and
3. The defendant’s possession of the firearm was
in furtherance of the [name specific crime of violence or
drug trafficking crime alleged in the indictment].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The terms “drug trafficking crime” and “crime of violence” are
both defined by statute, 18 U.S.C. § 924(c)(2) and (3), respectively.
Whether a particular crime qualifies as such is a determination for
the court to make; accordingly, the Committee recommends that
924(c)(1)(A)
STATUTORY INSTRUCTIONS
390
neither term be defined for the jury. Instead, the bracketed portion
of the first element of this instruction should list the name of the
“drug trafficking crime” or “crime of violence” alleged in the indict-
ment, as determined qualified as such by the court.
The term “knowingly” is defined in Pattern Instruction 4.10.
There is no requirement that the gun be operable to be a
“firearm” under 18 U.S.C. § 924(c). See United States v. Castillo,
406 F.3d 806, 817 (7th Cir. 2005), vacated on other grounds, Castillo
v. United States, 552 U.S. 1137 (2008).
“In furtherance of” is defined in Pattern Instruction 18 U.S.C.
§ 924(c) Definition of “In Furtherance Of.”
924(c)(1)(A)
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391
18 U.S.C. § 924(c)(1)(A) POSSESSION OF A
FIREARM IN FURTHERANCE OF A CRIME OF
VIOLENCE OR DRUG TRAFFICKING CRIME—
ACCOUNTABILITY THEORY ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [aiding; counseling; commanding; inducing;
procuring] the possession of a firearm during and in re-
lation to a [crime of violence; drug trafficking crime]. In
order for you to find [the; a] defendant guilty of this
charge, the government must prove the following be-
yond a reasonable doubt:
1. The defendant had advance knowledge that
[another participant; name specific person] would pos-
sess a firearm during and relation to [the; a] [name the
crime of violence; drug trafficking crime]; and,
2. The defendant, having such knowledge, inten-
tionally facilitated the [possession of the firearm] [name
the crime of violence; drug trafficking crime].
If you find from your consideration of all the evi-
dence that the government proved both of these ele-
ments beyond a reasonable doubt, then you should find
the defendant guilty.
If, on the other hand, you find from your consider-
ation of all the evidence that the government failed to
prove either of these elements beyond a reasonable
doubt, then you should find the defendant not guilty.
Committee Comment
This instruction is based on Rosemond v. United States, 572
U.S. 65 (2014). This instruction should be given in addition to the
standard aiding and abetting instruction, Pattern Instruction
5.06(A).
924(c)(1)(A)
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392
18 U.S.C. § 924(c)(1)(A) DEFINITION OF
“ADVANCE KNOWLEDGE”
“Advance knowledge” means knowledge at a time
the defendant had a realistic opportunity to either at-
tempt to alter the plan or to withdraw from it. It is suf-
ficient if the knowledge is gained in the midst of the
underlying crime, as long as the defendant had a realis-
tic opportunity to withdraw but continued to partici-
pate in the crime.
Committee Comment
In Rosemond v. United States, 572 U.S. 65 (2014), the Supreme
Court held that with respect to a charge of aiding and abetting the
offense of using a firearm in the commission of a violent crime or
drug felony, the government must prove that an unarmed
defendant had advance knowledge that his confederate would carry
or use a gun. Rosemond, 572 U.S. at 78. This means the defendant
must have had “knowledge at a time [he] can do something with
it—most notably, opt to walk away. Id. A person who knows
beforehand that his confederate plans to carry a gun meets this
requirement. He can “attempt to alter that plan or, if unsuccessful,
withdraw from the enterprise,” but “deciding instead to go ahead
with his role in the venture . . . shows his intent to aid an armed
offense.” Id. By contrast, a defendant who “knows nothing of a gun
until it appears at the scene . . . may already have completed his
acts of assistance” or “may at that late point have no realistic op-
portunity to quit the crime.” Id. In that case, “the defendant has
not shown the requisite intent to assist a crime involving a gun.”
Id.
The defendant’s advance knowledge does not have to exist
before the underlying crime is begun. It is sufficient if the knowl-
edge is gained in the midst of the underlying crime, so long as the
defendant continues his or her participation and had a meaningful
opportunity to withdraw. Id. “[I]f a defendant continues to partici-
pate in a crime after a gun was displayed or used by a confederate,
the jury can permissibly infer from his failure to object or withdraw
that he had such knowledge. In any criminal case, after all, the
factfinder can draw inferences about a defendant’s intent based on
all the facts and circumstances of a crime’s commission.” Id.at78,
n.9. Advance knowledge contemplates that, regardless of when the
defendant learned about the presence of the gun, he chose, with
full knowledge of the severity of the crime, to participate in it.
What constitutes “a realistic opportunity to withdraw” is an
924(c)(1)(A)
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393
inherently fact-specific inquiry that will vary from case to case and
call upon jurors to use their common sense in interpreting the
evidence.
924(c)(1)(A)
STATUTORY INSTRUCTIONS
394
18 U.S.C. § 981(a)(1)(A) FORFEITURE
INSTRUCTION
The government seeks to forfeit the following
property: [LIST PROPERTY]
In order for you to find that this property is subject
to forfeiture, the
government must prove both of the following ele-
ments by a preponderance of the evidence:
The property was involved in a transaction or at-
tempted transaction as charged in Count[s]
—————
[or is property traceable to such property]; and
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements by a preponderance of the evidence [as to the
property you are considering and as to the defendant
you are considering], then you should check the “Yes”
line on the Special Forfeiture Verdict Form [as to that
property and that defendant].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements by a preponderance
of the evidence [as to the property you are considering
and as to the defendant you are considering], then you
should check the “No” line on the Special Forfeiture
Verdict Form [as to that property and that defendant].
Committee Comment
Although 18 U.S.C. § 981(a)(1)(A) is a civil forfeiture provi-
sion, 28 U.S.C. § 2461(c) authorizes its use in a criminal case.
United States v. Venturella, 585 F.3d 1013, 1016 (7th Cir. 2009);
United States v. Silvious, 512 F.3d 364, 369 (7th Cir. 2008). Sec-
tion 981(a)(1)(A) applies where the real or personal property was
involved in a transaction or attempted transaction in violation of
one or more of these offenses: 1) 18 U.S.C. § 1956, laundering of
monetary instruments; 2) 18 U.S.C. § 1957, engaging in monetary
981(a)(1)(A)
CRIMINAL INSTRUCTIONS
395
transactions in property derived from specified unlawful activity;
or 3) 18 U.S.C. § 1960, unlicensed money transmitting businesses.
Nexus is defined in a separate instruction. Rule 32.2 requires
that “the jury must determine whether the government has
established the requisite nexus between the property and the of-
fense committed by the defendant.” Fed. R. Crim. P. 32.2(4). For
the most part, the nexus requirement of the Rule will be met under
the statutory requirement of what property is subject to forfeiture.
The Committee recognizes that there may be overlap between the
statutory requirement and the nexus requirement of the Rule, but
the Committee has concluded that this separate instruction is nec-
essary to meet both the statutory and Rule requirements.
The Committee recommends that attorneys consider the pos-
sible extension of the reasoning of Honeycutt v. United States, 137
S. Ct. 1626, 1632 (2017) to 18 U.S.C. § 981. In Honeycutt, the
Supreme Court held that under 21 U.S.C. § 853(a)(1) a defendant
may not be held “jointly and severally liable for property that his
co-conspirator derived from the crime but that the defendant
himself did not acquire.” 137 S. Ct. at 1632. In reaching this conclu-
sion, the Court highlighted Section 853(a)’s textual requirement
that a defendant “obtain” the proceeds—which evidenced the stat-
ute’s focus on personal possession or use. 137 S. Ct. at 1632. The
Court also highlighted the other provisions in Section 853(a), which
similarly address property the defendant personally obtained. For
instance, Section 853(a)(2) mandates forfeiture of property used to
facilitate the crime, but limits the forfeiture to “the person’s
property.” Id. at 1633. Similarly, Section 853(a)(3) requires the for-
feiture of property related to continuing criminal enterprises, but
requires the defendant to forfeit only “his interest in” the
enterprise. Id.
The Court’s holding in Honeycutt applies to Section 853 only,
but its reasoning arguably also applies to civil forfeiture statutes
such as 18 U.S.C. § 981. Section 981 authorizes in rem forfeiture of
all proceeds of one or more criminal offenses. See 18 U.S.C.
§ 981(a)(1)(C) (authorizing forfeiture of any property, “which con-
stitutes, or is derived from proceeds traceable” to the enumerated
criminal statutes). When § 981 is used in conjunction with 28
U.S.C. § 2461(c) to authorize a criminal forfeiture, however, the
resulting in personam criminal forfeiture is necessarily limited to
the defendant’s interest in the proceeds. See United States v. Gjeli,
2017 WL 3443691, at *6 (3d Cir. Aug. 11, 2017) (applying Honeycutt
to 18 U.S.C. § 981(a)(1)(C)); but see United States v. McIntosh,
2017 WL 3396429, at *3 (S.D.N.Y. Aug. 8, 2017) (not applying
Honeycutt to Section 981(a)(1)(C)). In Honeycutt, the Supreme
Court rejected the government’s Pinkerton argument, reasoning
that Section 853’s text and structure did not provide for co-
981(a)(1)(A)
STATUTORY INSTRUCTIONS
396
conspirator forfeiture liability and that joint and several liability is
inconsistent with in personam criminal forfeiture liability. Hon-
eycutt, 137 S. Ct. at 1634–35.
981(a)(1)(A)
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397
18 U.S.C. § 981(a)(1)(C) FORFEITURE
INSTRUCTION—ELEMENTS
The Forfeiture Allegation[s] in the Indictment al-
lege[s] that the following property is subject to
forfeiture:
[LIST PROPERTY]
In order to find that this property is subject to for-
feiture, the government must prove both of the follow-
ing elements by a preponderance of the evidence:
1. The property constituted or was derived from
proceeds traceable to the offense charged in Count
—
,
[or a conspiracy to commit that offense]; and
2. There is a nexus between the property alleged
to be forfeitable and the offense charged in Count[s]
———
.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements by a preponderance of the evidence [as to the
property you are considering and as to the defendant
you are considering], then you should check the “Yes”
line on the Special Forfeiture Verdict Form [as to that
property and that defendant].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements by a preponderance
of the evidence [as to the property you are considering
and as to the defendant you are considering], then you
should check the “No” line on the Special Forfeiture
Verdict Form [as to that property and that defendant].
Committee Comment
Although 18 U.S.C. § 981(a)(1)(C) is a civil forfeiture provi-
sion, 28 U.S.C. § 2461(c) authorizes its use in a criminal case.
981(a)(1)(C)
STATUTORY INSTRUCTIONS
398
United States v. Venturella, 585 F.3d 1013, 1016 (7th Cir. 2009);
United States v. Silvious, 512 F.3d 364, 369 (7th Cir. 2008). Sec-
tion 981(a)(1)(C) applies where the property constitutes or was
derived from proceeds traceable to a violation of, or conspiracy to
violate one of the following statutes: 1) 18 U.S.C. § 215, receipt of
commissions or gifts for procuring loans, theft; 2) 18 U.S.C. § 471,
false obligation of security; 3) 18 U.S.C. § 472, uttering counterfeit
obligations or securities; 4) 18 U.S.C. § 473, dealing in counterfeit
obligations or securities; 5) 18 U.S.C. § 474, plates, stones, or
analog, digital, or electronic images for counterfeiting obligations
or securities; 6) 18 U.S.C. § 476, taking impressions of tools used
for obligations or securities; 7) 18 U.S.C. § 477, possessing or sell-
ing impressions of tools used for obligations or securities; 8) 18
U.S.C. § 478, false foreign obligations or securities; 9) 18 U.S.C.
§ 479, uttering counterfeit foreign obligations or securities; 10) 18
U.S.C. § 480, possessing counterfeit foreign obligations or securi-
ties; 11) 18 U.S.C. § 481, plates, stones, or analog, digital, or
electronic images for counterfeiting foreign obligations or securi-
ties; 12) 18 U.S.C. § 485, false coins or bars; 13) 18 U.S.C. § 486,
uttering coins of gold, silver or other metal; 14) 18 U.S.C. § 487,
making or possessing counterfeit dies for U.S. coins; 15) 18 U.S.C.
§ 488, making or possessing counterfeit dies for foreign coins; 16)
18 U.S.C. § 501, counterfeit postage stamps, postage meter stamps,
and postal cards; 17) 18 U.S.C. § 502, counterfeit postage and rev-
enue stamps of foreign government; 18) 18 U.S.C. § 510, forging
endorsements on Treasury checks or bonds or securities of the
United States; 19) 18 U.S.C. § 542 entry of goods by means of false
statements; 20) 18 U.S.C. § 545, smuggling goods into the United
States; 21) 18 U.S.C. § 656, embezzlement, or misapplication by a
bank officer or employee; 22) 18 U.S.C. § 657, embezzlement, or
misapplication by a lending, credit or insurance institution officer
or employee; 23) 18 U.S.C. § 842, unlawful acts relating to explo-
sive materials; 24) 18 U.S.C. § 844, unlawful importation,
manufacture, distribution and storage of explosive materials; 25)
18 U.S.C. § 1005, false entries by a bank officer or employee; 26)
18 U.S.C. § 1006, false entries by officers or employees of federal
credit institutions; 27) 18 U.S.C. § 1007, false statements to influ-
ence the Federal Deposit Insurance Corporation; 28) 18 U.S.C.
§ 1014, false statement on loan or credit application; 29) 18 U.S.C.
§ 1028, fraud and related activity in connection with identification
documents, authentication features, and information; 30) 18 U.S.C.
§ 1029, fraud and related activity in connection with access de-
vices; 31) 18 U.S.C. § 1030, fraud and related activity in connec-
tion with computers; 32) 18 U.S.C. § 1032, civil penalties for a
violation of 18 U.S.C. § 1033; 33) 18 U.S.C. § 1344, bank fraud; or
34) “specified unlawful activity” as defined in 18 U.S.C. § 1956(c)(7).
The criminal forfeiture statute, 18 U.S.C. § 982, provides for
forfeiture in a mail/wire/interstate carrier fraud case only when
981(a)(1)(C)
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399
the fraud scheme is directed at a financial institution. Section
981(a)(1)(C) does not contain a similar limitation. “[P]roceeds of
basic mail fraud” may be forfeitable under § 981(a)(1)(C) as a result
of the bridging statute, § 2461(c). Venturella, 585 F.3d at 1016. Al-
though the mail/wire/interstate carrier fraud statutes are not
expressly listed in § 981(a)(1)(C), forfeiture proceedings in such
cases are authorized because “specified unlawful activity” defined
in 18 U.S.C. § 1956(c)(7) includes offenses listed in 18 U.S.C.
§ 1961(1), which, in turn, identifies the general mail/wire/interstate
carrier fraud statutes, 18 U.S.C. §§ 1341 & 1343. See United States
v. Black, 526 F.Supp.2d 870, 876 (N.D. Ill. 2007), aff’d on other
grounds, United States v. Black, 530 F.3d 596 (7th Cir. 2008),
vacated on other grounds, Black v. United States, 561 U.S. 465
(2010).
The Committee recommends that attorneys consider the pos-
sible extension of the reasoning of Honeycutt v. United States, 137
S. Ct. 1626, 1632 (2017) to 18 U.S.C. § 981. In Honeycutt, the
Supreme Court held that under 21 U.S.C. § 853(a)(1) a defendant
may not be held “jointly and severally liable for property that his
co-conspirator derived from the crime but that the defendant
himself did not acquire.” 137 S. Ct. at 1632. In reaching this conclu-
sion, the Court highlighted § 853(a)’s textual requirement that a
defendant “obtain” the proceeds—which evidenced the statute’s
focus on personal possession or use. Id. The Court also highlighted
the other provisions in § 853(a), which similarly address property
the defendant personally obtained. For instance, § 853(a)(2)
mandates forfeiture of property used to facilitate the crime, but
limits the forfeiture to “the person’s property.” Id. at 1633.
Similarly, § 853(a)(3) requires the forfeiture of property related to
continuing criminal enterprises, but requires the defendant to
forfeit only “his interest in” the enterprise. Id.
The Court’s holding in Honeycutt applies to § 853 only, but its
reasoning arguably also applies to civil forfeiture statutes such as
18 U.S.C. § 981. Section 981 authorizes in rem forfeiture of all
proceeds of one or more criminal offenses. See 18 U.S.C.
§ 981(a)(1)(C) (authorizing forfeiture of any property, “which con-
stitutes, or is derived from proceeds traceable” to the enumerated
criminal statutes). When § 981 is used in conjunction with 28
U.S.C. § 2461(c) to authorize a criminal forfeiture, however, the
resulting in personam criminal forfeiture is necessarily limited to
the defendant’s interest in the proceeds. See United States v. Gjeli,
867 F.3d 418 (3d Cir. 2017) (applying Honeycutt to 18 U.S.C.
§ 981(a)(1)(C)); but see United States v. McIntosh, 2017 WL
3396429, at *3 (S.D.N.Y. Aug. 8, 2017) (not applying Honeycutt to
Section 981(a)(1)(C)). In Honeycutt, the Supreme Court rejected
the government’s Pinkerton argument, reasoning that § 853’s text
and structure did not provide for co-conspirator forfeiture liability
981(a)(1)(C)
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400
and that joint and several liability is inconsistent with in personam
criminal forfeiture liability. Honeycutt, 137 S. Ct. at 1634–35.
981(a)(1)(C)
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401
18 U.S.C. § 981(a)(1)(G)(i–iii) FORFEITURE
INSTRUCTION—ELEMENTS
The Forfeiture Allegation[s] in the Indictment al-
lege[s] that the following property is subject to
forfeiture:
[LIST ASSET]
In order for you to find that the assets are subject
to forfeiture, the government must prove at least one of
the [four] following elements by a preponderance of the
evidence:
1. The asset belonged to any individual, entity, or
organization engaged in planning or perpetrating the
offense charged in Count[s]
———
;or
2. The asset afforded any persona source of influ-
ence over any entity or organization engaged in plan-
ning or perpetrating the offense charged in Count[s]
—
;
or
3. The asset was acquired or maintained by any
person with the intent and for the purpose of support-
ing, planning, conducting, or concealing the offense
charged in Count[s]
—
;or
4. The asset was derived from, involved in, or used
or intended to be used to commit the offense charged in
Count[s]
—
.
If you find from your consideration of all the evi-
dence that the government has proved at least one of
these elements by a preponderance of the evidence [as
to the property you are considering and as to the
defendant you are considering], then you should check
the “Yes” line on the Special Forfeiture Verdict Form
[as to that property and that defendant].
981(a)(1)(G)(i–iii)
STATUTORY INSTRUCTIONS
402
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any of these elements by a preponderance of
the evidence [as to the property you are considering
and as to the defendant you are considering], then you
should check the “No” line on the Special Forfeiture
Verdict Form [as to that property and that defendant].
Committee Comment
Section 981(a)(1)(G) provides for forfeiture of “assets” rather
than “property.” Subsections (i) through (iii) provide for the forfei-
ture of assets in connection with a Federal crime of terrorism
against the United States, its citizens or residents, or their
property. A Federal crime of terrorism is defined in 18 U.S.C.
§ 2332b(g)(5).
The Committee recommends that attorneys consider the pos-
sible extension of the reasoning of Honeycutt v. United States, 137
S. Ct. 1626, 1632 (2017) to 18 U.S.C. § 981. In Honeycutt, the
Supreme Court held that under 21 U.S.C. § 853(a)(1) a defendant
may not be held “jointly and severally liable for property that his
co-conspirator derived from the crime but that the defendant
himself did not acquire.” 137 S. Ct. at 1632. In reaching this conclu-
sion, the Court highlighted § 853(a)’s textual requirement that a
defendant “obtain” the proceeds—which evidenced the statute’s
focus on personal possession or use. Id. The Court also highlighted
the other provisions in § 853(a), which similarly address property
the defendant personally obtained. For instance, § 853(a)(2)
mandates forfeiture of property used to facilitate the crime, but
limits the forfeiture to “the person’s property.” Id. at 1633.
Similarly, § 853(a)(3) requires the forfeiture of property related to
continuing criminal enterprises, but requires the defendant to
forfeit only “his interest in” the enterprise. Id.
The Court’s holding in Honeycutt applies to § 853 only, but its
reasoning arguably also applies to civil forfeiture statutes such as
18 U.S.C. § 981. Section 981 authorizes in rem forfeiture of all
proceeds of one or more criminal offenses. See 18 U.S.C.
§ 981(a)(1)(C) (authorizing forfeiture of any property, “which con-
stitutes, or is derived from proceeds traceable” to the enumerated
criminal statutes). When § 981 is used in conjunction with 28
U.S.C. § 2461(c) to authorize a criminal forfeiture, however, the
resulting in personam criminal forfeiture is necessarily limited to
the defendant’s interest in the proceeds. See United States v. Gjeli,
867 F.3d 418 (3d Cir. 2017) (applying Honeycutt to 18 U.S.C.
§ 981(a)(1)(C)); but see United States v. McIntosh, 2017 WL
981(a)(1)(G)(i–iii)
CRIMINAL INSTRUCTIONS
403
3396429, at *3 (S.D.N.Y. Aug. 8, 2017) (not applying Honeycutt to
Section 981(a)(1)(C)). In Honeycutt, the Supreme Court rejected
the government’s Pinkerton argument, reasoning that § 853’s text
and structure did not provide for co-conspirator forfeiture liability
and that joint and several liability is inconsistent with in personam
criminal forfeiture liability. Honeycutt, 137 S. Ct. at 1634–35.
981(a)(1)(G)(i–iii)
STATUTORY INSTRUCTIONS
404
18 U.S.C. § 981(a)(1)(G)(iv) FORFEITURE
INSTRUCTION—ELEMENTS
The Forfeiture Allegation[s] in the Indictment al-
lege[s] that the following property is subject to
forfeiture:
[LIST ASSET]
To establish that the assets are subject to forfei-
ture, the government must prove that the asset be-
longed to any individual, entity or organization engaged
in planning or perpetrating the offense charged in
Count[s]
—
;
[If the property the government seeks to forfeit is
located outside the United States, you must find that
an act is furtherance of the planning or perpetration oc-
curred within the United States jurisdiction.]
Committee Comment
Section 981(a)(1)(G)(iv) applies to acts of international terror-
ism, defined in 18 U.S.C. § 2331.
The Committee recommends that attorneys consider the pos-
sible extension of the reasoning of Honeycutt v. United States, 137
S. Ct. 1626, 1632 (2017) to 18 U.S.C. § 981. In Honeycutt, the
Supreme Court held that under 21 U.S.C. § 853(a)(1) a defendant
may not be held “jointly and severally liable for property that his
co-conspirator derived from the crime but that the defendant
himself did not acquire.” 137 S. Ct. at 1632. In reaching this conclu-
sion, the Court highlighted § 853(a)’s textual requirement that a
defendant “obtain” the proceeds—which evidenced the statute’s
focus on personal possession or use. Id. The Court also highlighted
the other provisions in § 853(a), which similarly address property
the defendant personally obtained. For instance, § 853(a)(2)
mandates forfeiture of property used to facilitate the crime, but
limits the forfeiture to “the person’s property.” Id. at 1633.
Similarly, § 853(a)(3) requires the forfeiture of property related to
continuing criminal enterprises, but requires the defendant to
forfeit only “his interest in” the enterprise. Id.
The Court’s holding in Honeycutt applies to § 853 only, but its
reasoning arguably also applies to civil forfeiture statutes such as
981(a)(1)(G)(iv)
CRIMINAL INSTRUCTIONS
405
18 U.S.C. § 981. Section 981 authorizes in rem forfeiture of all
proceeds of one or more criminal offenses. See 18 U.S.C.
§ 981(a)(1)(C) (authorizing forfeiture of any property, “which con-
stitutes, or is derived from proceeds traceable” to the enumerated
criminal statutes). When § 981 is used in conjunction with 28
U.S.C. § 2461(c) to authorize a criminal forfeiture, however, the
resulting in personam criminal forfeiture is necessarily limited to
the defendant’s interest in the proceeds. See United States v. Gjeli,
867 F.3d 418 (3d Cir. 2017) (applying Honeycutt to 18 U.S.C.
§ 981(a)(1)(C)); but see United States v. McIntosh, 2017 WL
3396429, at *3 (S.D.N.Y. Aug. 8, 2017) (not applying Honeycutt to
Section 981(a)(1)(C)). In Honeycutt, the Supreme Court rejected
the government’s Pinkerton argument, reasoning that § 853’s text
and structure did not provide for co-conspirator forfeiture liability
and that joint and several liability is inconsistent with in personam
criminal forfeiture liability. Honeycutt, 137 S. Ct. at 1634–35.
981(a)(1)(G)(iv)
STATUTORY INSTRUCTIONS
406
18 U.S.C. § 981(a)(1)(H) FORFEITURE
INSTRUCTION—ELEMENTS
The Forfeiture Allegation[s] in the Indictment al-
lege[s] that the following property is subject to
forfeiture:
[LIST PROPERTY]
In order for you to find that this property is subject
to forfeiture, the government must prove both of the
following elements by a preponderance of the evidence:
1. The [real; personal] property was involved in a
violation or attempted violation, or constituted or was
derived from proceeds traceable to a violation of the of-
fense[s] as charged in Count[s]
—
; and
2. There is a nexus between the property alleged
to be forfeitable and the offense[s] charged in Count[s]
———
.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements by a preponderance of the evidence [as to the
property you are considering and as to the defendant
you are considering], then you should check the “Yes”
line on the Special Forfeiture Verdict Form [as to that
property and that defendant].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements by a preponderance
of the evidence [as to the property you are considering
and as to the defendant you are considering], then you
should check the “No” line on the Special Forfeiture
Verdict Form [as to that property and that defendant].
Committee Comment
Section 981(a)(1)(H) applies where the real or personal prop-
981(a)(1)(H)
CRIMINAL INSTRUCTIONS
407
erty at issue was involved in a violation or attempted violation, or
constituted, or was derived from proceeds traceable to a violation
of 18 U.S.C. § 2339C, financing terrorism activities.
The Committee recommends that attorneys consider the pos-
sible extension of the reasoning of Honeycutt v. United States, 137
S. Ct. 1626, 1632 (2017) to 18 U.S.C. § 981. In Honeycutt, the
Supreme Court held that under 21 U.S.C. § 853(a)(1) a defendant
may not be held “jointly and severally liable for property that his
co-conspirator derived from the crime but that the defendant
himself did not acquire.” 137 S. Ct. at 1632. In reaching this conclu-
sion, the Court highlighted § 853(a)’s textual requirement that a
defendant “obtain” the proceeds—which evidenced the statute’s
focus on personal possession or use. Id. The Court also highlighted
the other provisions in § 853(a), which similarly address property
the defendant personally obtained. For instance, § 853(a)(2)
mandates forfeiture of property used to facilitate the crime, but
limits the forfeiture to “the person’s property.” Id. at 1633.
Similarly, § 853(a)(3) requires the forfeiture of property related to
continuing criminal enterprises, but requires the defendant to
forfeit only “his interest in” the enterprise. Id.
The Court’s holding in Honeycutt applies to § 853 only, but its
reasoning arguably also applies to civil forfeiture statutes such as
18 U.S.C. § 981. Section 981 authorizes in rem forfeiture of all
proceeds of one or more criminal offenses. See 18 U.S.C.
§ 981(a)(1)(C) (authorizing forfeiture of any property, “which con-
stitutes, or is derived from proceeds traceable” to the enumerated
criminal statutes). When § 981 is used in conjunction with 28
U.S.C. § 2461(c) to authorize a criminal forfeiture, however, the
resulting in personam criminal forfeiture is necessarily limited to
the defendant’s interest in the proceeds. See United States v. Gjeli,
867 F.3d 418 (3d Cir. 2017) (applying Honeycutt to 18 U.S.C.
§ 981(a)(1)(C)); but see United States v. McIntosh, 2017 WL
3396429, at *3 (S.D.N.Y. Aug. 8, 2017) (not applying Honeycutt to
Section 981(a)(1)(C)). In Honeycutt, the Supreme Court rejected
the government’s Pinkerton argument, reasoning that § 853’s text
and structure did not provide for co-conspirator forfeiture liability
and that joint and several liability is inconsistent with in personam
criminal forfeiture liability. Honeycutt, 137 S. Ct. at 1634–35.
981(a)(1)(H)
STATUTORY INSTRUCTIONS
408
18 U.S.C. § 981(a)(2) DEFINITION OF
“PROCEEDS”
[“Proceeds” means property of any kind obtained
directly or indirectly, as a result of the commission of
the offense giving rise to forfeiture, and any property
traceable thereto, and is not limited to the net gain or
profit realized from the offense.]
[“Proceeds” means the amount of money acquired
through the illegal transactions resulting in the forfei-
ture, less the direct costs incurred in providing the
goods or services. The defendant has the burden of proof
with respect to the issue of direct costs. Direct costs do
not include any part of the overhead expenses of the
entity providing the goods or services, or any part of
the income taxes paid by the entity.]
[“Proceeds” subject to forfeiture does not include
any loan repayments or debt payments that did not
result in any financial loss to the victim.]
Committee Comment
These are the statutory definitions of the word “proceeds” for
use in forfeiture proceedings under 18 U.S.C. § 981(a)(1). See 18
U.S.C. § 981(a)(2); see also United States v. Venturella, 585 F.3d
1013 (7th Cir. 2009). The definition in the first paragraph applies
in cases involving illegal goods, illegal services, unlawful activities,
and telemarketing and health care fraud schemes. The definition
in the second paragraph applies in cases involving lawful goods or
lawful services that are sold or provided in an illegal manner. The
definition in the third paragraph applies in cases involving fraud
in the process of obtaining a loan or extension of credit.
In the context of the money laundering statute, a plurality of
the Supreme Court noted that because of the ambiguity of the
meaning of proceeds “the ‘profits’ definition of ‘proceeds’ is always
more defendant-friendly than the ‘receipts’ definition, the rule of
lenity dictates that it should be adopted.” United States v. Santos,
553 U.S. 507, 514 (2008). The Seventh Circuit has not ruled on
whether Santos applies in the forfeiture context. The Committee
takes no position on the question.
In United States v. Tedder, 403 F.3d 836, 842 (7th Cir. 2005),
981(a)(2)
CRIMINAL INSTRUCTIONS
409
the Seventh Circuit held that Fed. R. Crim. P. 32.2 only provides a
defendant with a jury trial in a forfeiture proceeding on the limited
issue of “the nexus between the funds and the crime; Rule 32.2
does not entitle the accused to a jury’s decision on the amount of
the forfeiture.”
981(a)(2)
STATUTORY INSTRUCTIONS
410
18 U.S.C. § 981(a)(2) DEFINITION OF
‘‘TRACEABLE TO’’
The term “traceable to” means that the acquisition
of the property is attributable to the offense[s] charged
in Count[s]
—
, as opposed to [a] source[s] other than
[this; these] offenses. If the offense[s] enabled the
acquisition of property, you may find the property is
“traceable to” the offense.
Committee Comment
The definition in the first paragraph comes from United States
v. Bornfield, 145 F.3d 1123 (10th Cir. 1998). Issues regarding
whether property is “trace-able to” an offense may arise when the
funds targeted for forfeiture are in a bank account, or when prop-
erty is purchased, in whole or part, with funds derived from an
offense. United States v. United States Currency Deposited in
Account No. 1115000763247, 176 F.3d 941, 946 (7th Cir. 1999),
noted that “only funds used in or traceable to the illegal activity
are subject to forfeiture, and not any commingled legitimate funds
used in facilitating the scheme.”
Account No. 1115000763247 held that the district court did
not err in ordering forfeiture when the criminal offense produced
funds that exceeded the amount on deposit in a bank account at
the time of the seizure. United States v. $448,342.85, 969 F.2d 474,
477 (7th Cir. 1992), found it unnecessary to apply tracing rules
when the criminal proceeds exceeded the sums on deposit in a
bank account at the time of the seizure. (Both cases involved civil
forfeiture proceedings and were decided before the Civil Asset
Reform Act of 2000, Pub. L. 106-185, which reallocated the burden
of proof in civil forfeiture matters to the government.)
United States v. Banco Cafetero Panama, 797 F.2d 1154,
1158–61 (2nd Cir. 1986), addressed various accounting approaches
to “tracing.”
United States v. Voigt, 89 F.3d 1050, 1084–87 (3rd Cir. 1996),
addressed the meaning of “traceable to” in a case in which the
personal property targeted for forfeiture (jewelry) was purchased
with bank account funds containing legitimate and illegitimate
funds. In Account No. 1115000763247, the Seventh Circuit found
Voigt factually distinguishable.
981(a)(2)
CRIMINAL INSTRUCTIONS
411
18 U.S.C. § 982(a)(1) FORFEITURE
INSTRUCTION
The government seeks to forfeit the following
property: [LIST PROPERTY]
In order for you to find that the property is subject
to forfeiture, the government must prove the following
by a preponderance of the evidence:
The [real] or [personal] property was involved in
the offense[s] as charged in Count[s]
—————
or is
property traceable to real or personal property involved
in [that] [those] offense[s];
If you find from your consideration of all the evi-
dence that the government has proved this by a
preponderance of the evidence [as to the property you
are considering and as to the defendant you are
considering], then you should check the “Yes” line on
the Special Forfeiture Verdict Form [as to that property
and that defendant].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove this by a preponderance of the evidence [as to
the property you are considering and as to the defendant
you are considering], then you should check the “No”
line on the Special Forfeiture Verdict Form [as to that
property and that defendant].
Committee Comment
Section 982(a)(1) applies where the real or personal property
was involved in one or more of these offenses: 1) 18 U.S.C. § 1956,
laundering of monetary instruments; 2) 18 U.S.C. § 1957, engaging
in monetary transactions in property derived from specified unlaw-
ful activity; or 3) 18 U.S.C. § 1960, unlicensed money transmitting
businesses. Section 982(a)(1) does not require a specific connection
between the property and the defendant. The only required con-
nection is between the property and the offense.
The Committee recommends that attorneys consider the pos-
982(a)(1)
STATUTORY INSTRUCTIONS
412
sible extension of the reasoning of Honeycutt v. United States, 137
S. Ct. 1626, 1632 (2017) to 18 U.S.C § 982. In Honeycutt, the
Supreme Court held that under 21 U.S.C. § 853(a)(1) a defendant
may not be held “jointly and severally liable for property that his
co-conspirator derived from the crime but that the defendant
himself did not acquire.” 137 S. Ct. at 1632. In reaching this conclu-
sion, the Court highlighted Section 853(a)’s textual requirement
that a defendant “obtain” the proceeds—which evidenced the stat-
ute’s focus on personal possession or use. 137 S. Ct. at 1632. The
Court also highlighted the other provisions in Section 853(a), which
similarly address property the defendant personally obtained. For
instance, Section 853(a)(2) mandates forfeiture of property used to
facilitate the crime, but limits the forfeiture to “the person’s
property.” Id. at 1633. Similarly, Section 853(a)(3) requires the for-
feiture of property related to continuing criminal enterprises, but
requires the defendant to forfeit only “his interest in” the
enterprise. Id.
The Court’s holding in Honeycutt applies to Section 853 only,
but its reasoning arguably reaches more broadly. Before discussing
Section 853, the Court referred to the consequences of applying
joint and several liability to co-conspirators “in the forfeiture
context.” Honeycutt, 137 S. Ct. at 1631. The Court focused on the
term “obtain” in Section 853(a)(1)’s text, but also grounded its deci-
sion on “several other provisions” in Section 853. Id. at 1633-34.
Those provisions—Sections 853(c), 853(e), and 853(p)—are widely
incorporated by reference in criminal forfeiture statutes. See, e.g.,
18 U.S.C. § 982(b)(1); 28 U.S.C. § 2461(c). Additionally, in rejecting
the government’s Pinkerton argument, the Court reasoned that
Section 853’s text and structure did not provide for co- conspirator
forfeiture liability and that joint and several liability is inconsis-
tent with in personam criminal forfeiture liability. Honeycutt, 137
S. Ct. at 1634-35. At least one Circuit has held that Honeycutt ap-
plies to 18 U.S.C. § 982(a)(2). See United States v. Brown, 2017
WL 3404979, at *1 (3d Cir. Aug. 9, 2017)(unpublished).
982(a)(1)
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413
18 U.S.C. § 982(a)(2) FORFEITURE
INSTRUCTION
The Forfeiture Allegation[s] in the Indictment al-
lege[s] that the following property is subject to
forfeiture:
[LIST PROPERTY]
In order for you to find that this property is subject
to forfeiture, the government must prove the following
by a preponderance of the evidence:
1. That the property constitutes or was derived
from proceeds the defendant[s] obtained directly or
indirectly as a result of the offense[s] charged in
Count[s] —; and
2. That the offense charged in Count[s]
—————
affected a financial institution.
If you find from your consideration of all the evi-
dence that the government has proved these things by
a preponderance of the evidence [as to the property you
are considering and as to the defendant you are
considering], then you should check the “Yes” line on
the Special Forfeiture Verdict Form [as to that property
and that defendant].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove these things by a preponderance of the evi-
dence [as to the property you are considering and as to
the defendant you are considering], then you should
check the “No” line on the Special Forfeiture Verdict
Form [as to that property and that defendant].
Committee Comment
Section 982(a)(2) applies where the property constitutes or
was derived from proceeds the defendant obtained directly or
982(a)(2)
STATUTORY INSTRUCTIONS
414
indirectly as a result of the violation of, or conspiracy to violate
one of the following statutes, as long as it affects a financial
institution: 1) 18 U.S.C. § 215, receipt of commissions or gifts for
procuring loans, theft; 2) 18 U.S.C. § 656, embezzlement, or misap-
plication by a bank officer or employee; 3) 18 U.S.C. § 657,
embezzlement, or misapplication by a lending, credit or insurance
institution officer or employee; 4) 18 U.S.C. § 1005, false entries by
a bank officer or employee; 5) 18 U.S.C. § 1006, false entries by of-
ficers or employees of federal credit institutions; 6) 18 U.S.C
§ 1007, false statements to influence the Federal Deposit Insur-
ance Corporation; 7) 18 U.S.C. § 1014, false statement on loan or
credit application; 8) 18 U.S.C. § 1341, mail fraud; 9) 18 U.S.C.
§ 1343, wire fraud; 10) 18 U.S.C. § 1344, bank fraud.
Section 982(a)(2) also applies where the property at issue con-
stitutes or was derived from proceeds the defendant obtained
directly or indirectly as a result of the violation of, or conspiracy to
violate one of the following statutes: 1) 18 U.S.C. § 471, false
obligation of security; 2) 18 U.S.C. § 472, uttering counterfeit
obligations or securities; 3) 18 U.S.C. § 473, dealing in counterfeit
obligations or securities; 4) 18 U.S.C. § 474, plates, stones, or
analog, digital, or electronic images for counterfeiting obligations
or securities; 5) 18 U.S.C. § 476, taking impressions of tools used
for obligations or securities; 6) 18 U.S.C. § 477, possessing or sell-
ing impressions of tools used for obligations or securities; 7) 18
U.S.C. § 478, false foreign obligations or securities; 8) 18 U.S.C.
§ 479, uttering counterfeit foreign obligations or securities; 9) 18
U.S.C. § 480, possessing counterfeit foreign obligations or securi-
ties; 10) 18 U.S.C. § 481, plates, stones, or analog, digital, or
electronic images for counterfeiting foreign obligations or securi-
ties; 11) 18 U.S.C. § 485, false coins or bars; 12) 18 U.S.C. § 486,
uttering coins of gold, silver or other metal; 13) 18 U.S.C. §§ 487 or
488, making or possessing counterfeit dies for U.S. or foreign coins;
14) 18 U.S.C. § 501, counterfeit postage stamps, postage meter
stamps, and postal cards; 15) 18 U.S.C. § 502, counterfeit postage
and revenue stamps of foreign government; 16) 18 U.S.C. § 510,
forging endorsements on Treasury checks or bonds or securities of
the United States; 17) 18 U.S.C. § 542 entry of goods by means of
false statements; 18) 18 U.S.C. § 545, smuggling goods into the
United States; 19) 18 U.S.C. § 842, unlawful acts relating to explo-
sive materials; 20) 18 U.S.C. § 844, unlawful importation manufac-
ture, distribution and storage of explosive materials; 21) 18 U.S.C.
§ 1028, fraud and related activity in connection with identification
documents, authentication features, and information; 22) 18 U.S.C.
§ 1029, fraud and related activity in connection with access de-
vices; and 23) 18 U.S.C. § 1030, fraud and related activity in con-
nection with computers. Unlike the offenses listed above, a viola-
tion of one of these statutes does not require that the offense
affected a financial institution for purposes of § 982(a)(2).
982(a)(2)
CRIMINAL INSTRUCTIONS
415
Section 982 does not define proceeds. Section 981, the civil for-
feiture statute, provides two different definitions of proceeds,
depending on the circumstances involved. In the context of the
money laundering statute, a plurality of the Supreme Court noted
that because of the ambiguity of the meaning of proceeds “the
‘profits’ definition of ‘proceeds’ is always more defendant-friendly
than the ‘receipts’ definition, the rule of lenity dictates that it
should be adopted.” United States v. Santos, 553 U.S. 507, 514
(2008). The Seventh Circuit has not ruled on whether Santos ap-
plies in the forfeiture context. The Committee takes no position on
the question.
982(a)(2)
STATUTORY INSTRUCTIONS
416
18 U.S.C. § 982(a)(3) FORFEITURE
INSTRUCTION
The Forfeiture Allegation[s] in the Indictment al-
lege[s] that the following property is subject to forfei-
ture under Title 18, United States Code, Section
982(a)(3):
[LIST PROPERTY]
In order for you to find that this property is subject
to forfeiture, the government must prove the following
by a preponderance of the evidence:
1. That the [real] or [personal] property represents
or is traceable to the gross receipts obtained, directly or
indirectly, as a result of the offense[s] charged in
Count[s]
—————
; and
2. That the offense[s] in Counts
—————
involved
the sale of assets acquired or held by [((the Resolution
Trust Corporation) (the Federal Deposit Insurance
Corporation) as a conservator or receiver for a financial
institution) (any other conservator for a financial
institution appointed by (the Office of the Comptroller
of the Currency or the Office of Thrift Supervision) (the
National Credit Union Administration) as conservator
or liquidating agent for a financial institution))].
If you find from your consideration of all the evi-
dence that the government has proved each of these
things by a preponderance of the evidence [as to the
property you are considering and as to the defendant
you are considering], then you should check the “Yes”
line on the Special Forfeiture Verdict Form [as to that
property and that defendant].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove these things by a preponderance of the evi-
982(a)(3)
CRIMINAL INSTRUCTIONS
417
dence [as to the property you are considering and as to
the defendant you are considering], then you should
check the “No” line on the Special Forfeiture Verdict
Form [as to that property and that defendant].
Committee Comment
Section 982(a)(3) applies where the real or personal property
represents or is traceable to the gross receipts obtained, directly or
indirectly, as a result of a violation of one of these statutes: 1) 18
U.S.C. § 666(a)(1), Federal program fraud; 2) 18 U.S.C. § 1001,
false statements; 3) 18 U.S.C. § 1031, major fraud against the
United States; 4) 18 U.S.C. § 1032, concealment of assets from con-
servator, receiver, or liquidating agent of insured financial institu-
tion; 5) 18 U.S.C. § 1341, mail fraud; or 6) 18 U.S.C. § 1343, wire
fraud. The offense under one of these statutes must involve the
sale of assets acquired or held by the Resolution Trust Corpora-
tion, the Federal Deposit Insurance Corporation, as conservator or
receiver for a financial institution, any other conservator for a
financial institution appointed by the Office of the Comptroller of
the Currency or the Office of Thrift Supervision, or the National
Credit Union Administration as conservator or liquidating agent
for a financial institution.
The Committee recommends that attorneys consider the pos-
sible extension of the reasoning of Honeycutt v. United States, 137
S. Ct. 1626, 1632 (2017) to 18 U.S.C § 982. In Honeycutt, the
Supreme Court held that under 21 U.S.C. § 853(a)(1) a defendant
may not be held “jointly and severally liable for property that his
co-conspirator derived from the crime but that the defendant
himself did not acquire.” 137 S. Ct. at 1632. In reaching this conclu-
sion, the Court highlighted Section 853(a)’s textual requirement
that a defendant “obtain” the proceeds—which evidenced the stat-
ute’s focus on personal possession or use. 137 S. Ct. at 1632. The
Court also highlighted the other provisions in Section 853(a), which
similarly address property the defendant personally obtained. For
instance, Section 853(a)(2) mandates forfeiture of property used to
facilitate the crime, but limits the forfeiture to “the person’s
property.” Id. at 1633. Similarly, Section 853(a)(3) requires the for-
feiture of property related to continuing criminal enterprises, but
requires the defendant to forfeit only “his interest in” the
enterprise. Id.
The Court’s holding in Honeycutt applies to Section 853 only,
but its reasoning arguably reaches more broadly. Before discussing
Section 853, the Court referred to the consequences of applying
joint and several liability to co-conspirators “in the forfeiture
context.” Honeycutt, 137 S. Ct. at 1631. The Court focused on the
982(a)(3)
STATUTORY INSTRUCTIONS
418
term “obtain” in Section 853(a)(1)’s text, but also grounded its deci-
sion on “several other provisions” in Section 853. Id. at 1633-34.
Those provisions—Sections 853(c), 853(e), and 853(p)—are widely
incorporated by reference in criminal forfeiture statutes. See, e.g.,
18 U.S.C. § 982(b)(1); 28 U.S.C. § 2461(c). Additionally, in rejecting
the government’s Pinkerton argument, the Court reasoned that
Section 853’s text and structure did not provide for co-conspirator
forfeiture liability and that joint and several liability is inconsis-
tent with in personam criminal forfeiture liability. Honeycutt, 137
S. Ct. at 1634-35. At least one Circuit has held that Honeycutt ap-
plies to 18 U.S.C. § 982(a)(2). See United States v. Brown, 2017
WL 3404979, at *1 (3d Cir. Aug. 9, 2017)(unpublished).
982(a)(3)
CRIMINAL INSTRUCTIONS
419
18 U.S.C. § 982(a)(4) FORFEITURE
INSTRUCTION
The Forfeiture Allegation[s] in the Indictment al-
lege[s] that the following property is subject to forfei-
ture under Title 18, United States Code, Section
982(a)(4):
[LIST PROPERTY]
In order for you to find that this property is subject
to forfeiture, the government must prove the following
by a preponderance of the evidence:
1. That the [real] or [personal] [tangible or
intangible] property represents or is traceable to the
gross receipts obtained, directly or indirectly, as a result
of the offense[s] charged in Count
—————
; and
2. That the offense[s] in Count
—————
[was]
[were] committed for the purpose of executing or at-
tempting to execute any scheme or artifice to defraud,
or for obtaining money or property by means of false or
fraudulent statements, pretenses, representations, or
promises.
If you find from your consideration of all the evi-
dence that the government has proved these things by
a preponderance of the evidence [as to the property you
are considering and as to the defendant you are
considering], then you should check the “Yes” line on
the Special Forfeiture Verdict Form [as to that property
and that defendant].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove these things by a preponderance of the evi-
dence [as to the property you are considering and as to
the defendant you are considering], then you should
982(a)(4)
STATUTORY INSTRUCTIONS
420
check the “No” line on the Special Forfeiture Verdict
Form [as to that property and that defendant].
Committee Comment
Section 982(a)(4) applies where the real or personal tangible
or intangible property are gross receipts obtained, directly or
indirectly, as a result of a violation of one of these statutes: 1) 18
U.S.C. § 666(a)(1), Federal program fraud; 2) 18 U.S.C. § 1001,
false statements; 3) 18 U.S.C. § 1031, major fraud against the
United States; 4) 18 U.S.C. § 1032, concealment of assets from con-
servator, receiver, or liquidating agent of insured financial institu-
tion; 5) 18 U.S.C. § 1341 mail fraud; or 6) 18 U.S.C. § 1343, wire
fraud.
The Committee recommends that attorneys consider the pos-
sible extension of the reasoning of Honeycutt v. United States, 137
S. Ct. 1626, 1632 (2017) to 18 U.S.C § 982. In Honeycutt, the
Supreme Court held that under 21 U.S.C. § 853(a)(1) a defendant
may not be held “jointly and severally liable for property that his
co-conspirator derived from the crime but that the defendant
himself did not acquire.” 137 S. Ct. at 1632. In reaching this conclu-
sion, the Court highlighted Section 853(a)’s textual requirement
that a defendant “obtain” the proceeds—which evidenced the stat-
ute’s focus on personal possession or use. 137 S. Ct. at 1632. The
Court also highlighted the other provisions in Section 853(a), which
similarly address property the defendant personally obtained. For
instance, Section 853(a)(2) mandates forfeiture of property used to
facilitate the crime, but limits the forfeiture to “the person’s
property.” Id. at 1633. Similarly, Section 853(a)(3) requires the for-
feiture of property related to continuing criminal enterprises, but
requires the defendant to forfeit only “his interest in” the
enterprise. Id.
The Court’s holding in Honeycutt applies to Section 853 only,
but its reasoning arguably reaches more broadly. Before discussing
Section 853, the Court referred to the consequences of applying
joint and several liability to co-conspirators “in the forfeiture
context.” Honeycutt, 137 S. Ct. at 1631. The Court focused on the
term “obtain” in Section 853(a)(1)’s text, but also grounded its deci-
sion on “several other provisions” in Section 853. Id. at 1633-34.
Those provisions—Sections 853(c), 853(e), and 853(p)—are widely
incorporated by reference in criminal forfeiture statutes. See, e.g.,
18 U.S.C. § 982(b)(1); 28 U.S.C. § 2461(c). Additionally, in rejecting
the government’s Pinkerton argument, the Court reasoned that
Section 853’s text and structure did not provide for co-conspirator
forfeiture liability and that joint and several liability is inconsis-
tent with in personam criminal forfeiture liability. Honeycutt, 137
982(a)(4)
CRIMINAL INSTRUCTIONS
421
S. Ct. at 1634-35. At least one Circuit has held that Honeycutt ap-
plies to 18 U.S.C. § 982(a)(2). See United States v. Brown, 2017
WL 3404979, at *1 (3d Cir. Aug. 9, 2017)(unpublished).
982(a)(4)
STATUTORY INSTRUCTIONS
422
18 U.S.C. § 982(a)(5) FORFEITURE
INSTRUCTION
The Forfeiture Allegation[s] in the Indictment al-
lege[s] that the following property is subject to forfei-
ture under Title 18, United States Code, Section
982(a)(5):
[LIST PROPERTY]
In order for you to find that this property is subject
to forfeiture, the government must prove the following
by a preponderance of the evidence:
1. That the [real] or [personal] property represents
or is traceable to the gross proceeds obtained, directly
or indirectly, as a result of the offense of which the
defendant [you are considering] was convicted in
Count[s]
—————
.
If you find from your consideration of all the evi-
dence that the government has proved this by a
preponderance of the evidence [as to the property you
are considering and as to the defendant you are
considering], then you should check the “Yes” line on
the Special Forfeiture Verdict Form [as to that property
and that defendant].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove this by a preponderance of the evidence [as to
property you are considering and as to the defendant
you are considering], then you should check the “No”
line on the Special Forfeiture Verdict Form [as to that
property and that defendant].
Committee Comment
Section 982(a)(5) applies where the real or personal property
represents or is traceable to the gross proceeds obtained, directly
or indirectly, as a result of a violation of, or a conspiracy to violate
982(a)(5)
CRIMINAL INSTRUCTIONS
423
1) 18 U.S.C. § 511, altering or removing motor vehicle identifica-
tion numbers; 2) 18 U.S.C. § 553, importing or exporting stolen
motor vehicles; 3) 18 U.S.C. § 2119, armed robbery of automobiles;
4) 18 U.S.C. § 2312, transporting stolen motor vehicles in inter-
state commerce; or 5) 18 U.S.C. § 2313, possessing or selling a
stolen motor vehicle that has moved in interstate commerce.
The Committee recommends that attorneys consider the pos-
sible extension of the reasoning of Honeycutt v. United States, 137
S. Ct. 1626, 1632 (2017) to 18 U.S.C § 982. In Honeycutt, the
Supreme Court held that under 21 U.S.C. § 853(a)(1) a defendant
may not be held “jointly and severally liable for property that his
co-conspirator derived from the crime but that the defendant
himself did not acquire.” 137 S. Ct. at 1632. In reaching this conclu-
sion, the Court highlighted Section 853(a)’s textual requirement
that a defendant “obtain” the proceeds—which evidenced the stat-
ute’s focus on personal possession or use. 137 S. Ct. at 1632. The
Court also highlighted the other provisions in Section 853(a), which
similarly address property the defendant personally obtained. For
instance, Section 853(a)(2) mandates forfeiture of property used to
facilitate the crime, but limits the forfeiture to “the person’s
property.” Id. at 1633. Similarly, Section 853(a)(3) requires the for-
feiture of property related to continuing criminal enterprises, but
requires the defendant to forfeit only “his interest in” the
enterprise. Id.
The Court’s holding in Honeycutt applies to Section 853 only,
but its reasoning arguably reaches more broadly. Before discussing
Section 853, the Court referred to the consequences of applying
joint and several liability to co-conspirators “in the forfeiture
context.” Honeycutt, 137 S. Ct. at 1631. The Court focused on the
term “obtain” in Section 853(a)(1)’s text, but also grounded its deci-
sion on “several other provisions” in Section 853. Id. at 1633-34.
Those provisions—Sections 853(c), 853(e), and 853(p)—are widely
incorporated by reference in criminal forfeiture statutes. See, e.g.,
18 U.S.C. § 982(b)(1); 28 U.S.C. § 2461(c). Additionally, in rejecting
the government’s Pinkerton argument, the Court reasoned that
Section 853’s text and structure did not provide for co-conspirator
forfeiture liability and that joint and several liability is inconsis-
tent with in personam criminal forfeiture liability. Honeycutt, 137
S. Ct. at 1634-35. At least one Circuit has held that Honeycutt ap-
plies to 18 U.S.C. § 982(a)(2). See United States v. Brown, 2017
WL 3404979, at *1 (3d Cir. Aug. 9, 2017)(unpublished).
982(a)(5)
STATUTORY INSTRUCTIONS
424
18 U.S.C. § 982(a)(6) FORFEITURE
INSTRUCTION
The Forfeiture Allegation[s] in the Indictment al-
lege[s] that the following property is subject to forfei-
ture under Title 18, United States Code, Section
982(a)(6):
[LIST PROPERTY]
In order for you to find that this property is subject
to forfeiture, the government must prove the following
by a preponderance of the evidence:
1. That the conveyance was used in commission of
the offense of which the defendant [you are consider-
ing] was convicted in Count[s]
—————
;or
2. That the [real] or [personal] property consti-
tutes or is derived from or is traceable to the proceeds
obtained directly or indirectly from the commission of
the offense of which the defendant [you are consider-
ing] was convicted in Count[s]
—————
;or
3. That the [real] or [personal] property was used
to facilitate or was intended to be used to facilitate the
commission of the offense of which the defendant [you
are considering] was convicted in Count[s]
—————
.
If you find from your consideration of all the evi-
dence that the government has proved these things by
a preponderance of the evidence [as to the property you
are considering and as to the defendant you are
considering], then you should check the “Yes” line on
the Special Forfeiture Verdict Form [as to that property
and that defendant].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove these things by a preponderance of the evi-
982(a)(6)
CRIMINAL INSTRUCTIONS
425
dence [as to the property you are considering and as to
the defendant you are considering], then you should
check the “No” line on the Special Forfeiture Verdict
Form [as to that property and that defendant].
Committee Comment
Section 982(a)(6) applies where the defendant has been
convicted of a violation of or conspiracy to violate one of these
statutes: Section 274(a), 274A(a)(1), or 274A(a)(2) of the Immigra-
tion and Nationality Act; or Section 555, constructing border tun-
nel or passage; Section 1425, unlawful procurement of citizenship
or naturalization; Section 1426, false/fraudulent reproduction of
naturalization or citizenship papers; Section 1427, unlawful sale of
naturalization or citizenship papers; Section 1541, issuance of
passport without authority; Section 1542, false statement in ap-
plication and use of passport; Section 1543, forgery or false use of
passport; Section 1544, misuse of passport; Section 1546, fraud
and misuse of visas, permits, and other documents; or Section
1028, fraud and related activity in connection with identification
documents, if committed in connection with passport or visa issu-
ance or use.
The Committee recommends that attorneys consider the pos-
sible extension of the reasoning of Honeycutt v. United States, 137
S. Ct. 1626, 1632 (2017) to 18 U.S.C § 982. In Honeycutt, the
Supreme Court held that under 21 U.S.C. § 853(a)(1) a defendant
may not be held “jointly and severally liable for property that his
co-conspirator derived from the crime but that the defendant
himself did not acquire.” 137 S. Ct. at 1632. In reaching this conclu-
sion, the Court highlighted Section 853(a)’s textual requirement
that a defendant “obtain” the proceeds—which evidenced the stat-
ute’s focus on personal possession or use. 137 S. Ct. at 1632. The
Court also highlighted the other provisions in Section 853(a), which
similarly address property the defendant personally obtained. For
instance, Section 853(a)(2) mandates forfeiture of property used to
facilitate the crime, but limits the forfeiture to “the person’s
property.” Id. at 1633. Similarly, Section 853(a)(3) requires the for-
feiture of property related to continuing criminal enterprises, but
requires the defendant to forfeit only “his interest in” the
enterprise. Id.
The Court’s holding in Honeycutt applies to Section 853 only,
but its reasoning arguably reaches more broadly. Before discussing
Section 853, the Court referred to the consequences of applying
joint and several liability to co-conspirators “in the forfeiture
982(a)(6)
STATUTORY INSTRUCTIONS
426
context.” Honeycutt, 137 S. Ct. at 1631. The Court focused on the
term “obtain” in Section 853(a)(1)’s text, but also grounded its deci-
sion on “several other provisions” in Section 853. Id. at 1633-34.
Those provisions—Sections 853(c), 853(e), and 853(p)—are widely
incorporated by reference in criminal forfeiture statutes. See, e.g.,
18 U.S.C. § 982(b)(1); 28 U.S.C. § 2461(c). Additionally, in rejecting
the government’s Pinkerton argument, the Court reasoned that
Section 853’s text and structure did not provide for co-conspirator
forfeiture liability and that joint and several liability is inconsis-
tent with in personam criminal forfeiture liability. Honeycutt, 137
S. Ct. at 1634-35. At least one Circuit has held that Honeycutt ap-
plies to 18 U.S.C. § 982(a)(2). See United States v. Brown, 2017
WL 3404979, at *1 (3d Cir. Aug. 9, 2017)(unpublished).
982(a)(6)
CRIMINAL INSTRUCTIONS
427
18 U.S.C. § 982(a)(7) FORFEITURE
INSTRUCTION
The Forfeiture Allegation[s] in the Indictment al-
lege[s] that the following property is subject to forfei-
ture under Title 18, United States Code, Section
982(a)(7):
[LIST PROPERTY]
In order for you to find that this property is subject
to forfeiture, the government must prove the following
by a preponderance of the evidence:
1. That the [real] or [personal] property that consti-
tutes or was derived, directly or indirectly, from the
gross proceeds traceable to the commission of the
federal health care offense of which the defendant [you
are considering] was convicted in Count[s]
—————
.
If you find from your consideration of all the evi-
dence that the government has proved this by a
preponderance of the evidence [as to the property you
are considering and as to the defendant you are
considering], then you should check the “Yes” line on
the Special Forfeiture Verdict Form [as to that property
and that defendant].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove this by a preponderance of the evidence [as to
the property you are considering and as to the defendant
you are considering], then you should check the “No”
line on the Special Forfeiture Verdict Form [as to that
property and that defendant].
Committee Comment
The Committee recommends that attorneys consider the pos-
sible extension of the reasoning of Honeycutt v. United States, 137
S. Ct. 1626, 1632 (2017) to 18 U.S.C § 982. In Honeycutt, the
982(a)(7)
STATUTORY INSTRUCTIONS
428
Supreme Court held that under 21 U.S.C. § 853(a)(1) a defendant
may not be held “jointly and severally liable for property that his
co-conspirator derived from the crime but that the defendant
himself did not acquire.” 137 S. Ct. at 1632. In reaching this conclu-
sion, the Court highlighted Section 853(a)’s textual requirement
that a defendant “obtain” the proceeds—which evidenced the stat-
ute’s focus on personal possession or use. 137 S. Ct. at 1632. The
Court also highlighted the other provisions in Section 853(a), which
similarly address property the defendant personally obtained. For
instance, Section 853(a)(2) mandates forfeiture of property used to
facilitate the crime, but limits the forfeiture to “the person’s
property.” Id. at 1633. Similarly, Section 853(a)(3) requires the for-
feiture of property related to continuing criminal enterprises, but
requires the defendant to forfeit only “his interest in” the
enterprise. Id.
The Court’s holding in Honeycutt applies to Section 853 only,
but its reasoning arguably reaches more broadly. Before discussing
Section 853, the Court referred to the consequences of applying
joint and several liability to co-conspirators “in the forfeiture
context.” Honeycutt, 137 S. Ct. at 1631. The Court focused on the
term “obtain” in Section 853(a)(1)’s text, but also grounded its deci-
sion on “several other provisions” in Section 853. Id. at 1633-34.
Those provisions—Sections 853(c), 853(e), and 853(p)—are widely
incorporated by reference in criminal forfeiture statutes. See, e.g.,
18 U.S.C. § 982(b)(1); 28 U.S.C. § 2461(c). Additionally, in rejecting
the government’s Pinkerton argument, the Court reasoned that
Section 853’s text and structure did not provide for co-conspirator
forfeiture liability and that joint and several liability is inconsis-
tent with in personam criminal forfeiture liability. Honeycutt, 137
S. Ct. at 1634-35. At least one Circuit has held that Honeycutt ap-
plies to 18 U.S.C. § 982(a)(2). See United States v. Brown, 2017
WL 3404979, at *1 (3d Cir. Aug. 9, 2017)(unpublished).
982(a)(7)
CRIMINAL INSTRUCTIONS
429
18 U.S.C. § 982(a)(8) FORFEITURE
INSTRUCTION
The Forfeiture Allegation[s] in the Indictment al-
lege[s] that the following property is subject to
forfeiture:
[LIST PROPERTY]
In order for you to find that this property is subject
to forfeiture, the government must prove the following
by preponderance of the evidence:
1. That the [real; personal] property was used or
intended to be used to commit, to facilitate or to
promote the offense of which the defendant [you are
considering] was convicted in Count[s]
—————
, and
that the offense involved telemarketing; or
2. That the [real; personal] property constituted,
was derived from or traceable to the gross proceeds
that the defendant [you are considering] obtained
directly or indirectly as a result of the offense of which
the defendant [you are considering] was convicted in
Count[s]
—————
, and that the offense involved
telemarketing.
If you find from your consideration of all the evi-
dence that the government has proved these things by
a preponderance of the evidence [as to the property you
are considering and as to the defendant you are
considering], then you should check the “Yes” line on
the Special Forfeiture Verdict Form [as to that property
and that defendant].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove these things by a preponderance of the evi-
dence [as to the property you are considering and as to
the defendant you are considering], then you should
982(a)(8)
STATUTORY INSTRUCTIONS
430
check the “No” line on the Special Forfeiture Verdict
Form [as to that property and that defendant].
Committee Comment
Section 982(a)(8) of Title 18 applies where the real or personal
property was used or intended to be used to commit, to facilitate or
to promote the violation of one of these statutes: 1) 18 U.S.C.
§ 1028, fraud and related activity in connection with identification
documents; 2) 18 U.S.C. § 1029, fraud and related activity in con-
nection with access devices; 3) 18 U.S.C. § 1341, mail fraud; 4) 18
U.S.C. § 1342, fictitious name or address; 5) 18 U.S.C. § 1343, wire
fraud; or 6) 18 U.S.C. § 1344, bank fraud where the conviction
involved telemarketing.
982(a)(8)
CRIMINAL INSTRUCTIONS
431
18 U.S.C. § 982(a)(8) DEFINITION OF “NEXUS”
INSTRUCTION
In order to establish a “nexus” between the prop-
erty alleged to be forfeitable and the offense giving rise
to the forfeiture allegation, the government must estab-
lish a connection between the property and the offense.
The connection must be more than incidental, but the
connection need not be substantial.
Committee Comment
Fed. R. Crim. P. 32.2(b)(5)(B) requires that, upon request, “the
jury must determine whether the government has established the
requisite nexus between the property and the offense committed
by the defendant.” For the most part, the nexus requirement of the
Rule will be met under the statutory requirement of what property
is subject to forfeiture. The Committee recognizes that there may
be overlap between the statutory requirement and the nexus
requirement of the Rule, but the Committee has concluded that we
need this separate instruction to meet both the statutory and Rule
requirements.
982(a)(8)
STATUTORY INSTRUCTIONS
432
18 U.S.C. § 982(a)(8) DEFINITION OF FEDERAL
“HEALTH CARE FRAUD OFFENSE”
A defendant is convicted of a “health care fraud of-
fense” if he is convicted of violating or conspiring to
violate: 1) theft or embezzlement in connection with
health care (18 U.S.C. § 669); 2) false statements relat-
ing to health care matters (18 U.S.C. § 1035); 3) health
care fraud (18 U.S.C. § 1347); or 4) obstruction of a
criminal investigation of a health care offense (18
U.S.C. § 1518). A defendant is also convicted of a health
care fraud offense if he is convicted of violating or
conspiring to violate: 1) submitting false, fictitious or
fraudulent claims (18 U.S.C. § 287); 2) conspiracy to
commit an offense or to defraud the United States (18
U.S.C. § 371); 3) theft or embezzlement from employee
benefit plan (18 U.S.C. § 664); 4) theft or bribery
concerning programs receiving Federal funds (18 U.S.C.
§ 666); 5) false statements (18 U.S.C. § 1001); 6) false
statements and concealment of facts in relation to docu-
ments required by the Employee Retirement Income
Security Act of 1974 (18 U.S.C. § 1027); 7) mail fraud
(18 U.S.C. § 1341); 8) wire fraud (18 U.S.C. § 1343); or
9) offer, acceptance, or solicitation to influence opera-
tions of an employee benefit plan (18 U.S.C. § 1954), if
the offense relates to a health care benefit program.
A health care benefit program is any public or
private plan or contract, affecting commerce, under
which any medical benefit, item, or service is provided
to any individual, and includes any individual or entity
who is providing a medical benefit, item, or service for
which payment may be made under the plan or contract.
Commerce was affected if the health care program[s]
had any impact on the movement of any money, goods,
services, or persons from one state to another [or be-
tween another country and the United States].
Committee Comment
This definition comes from 18 U.S.C. § 24—“definitions relat-
982(a)(8)
CRIMINAL INSTRUCTIONS
433
ing to Federal health care offense.” Courts have interpreted “af-
fecting commerce” under § 24 as requiring an interstate commerce
effect. United States v. Klein, 543 F.3d 206, 211 (5th Cir. 2008);
United States v. Lucien, 78 F. App’x 141 (2d Cir. 2003); United
States v. Whited, 311 F.3d 259 (3d Cir. 2002).
982(a)(8)
STATUTORY INSTRUCTIONS
434
18 U.S.C. § 982(a)(8) DEFINITION OF
“CONVEYANCE”
A “conveyance” includes a vessel, vehicle or aircraft
used in the commission of the offense.
Committee Comment
The definition of “conveyance” comes from 18 U.S.C.
§ 982(a)(6).
982(a)(8)
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435
18 U.S.C. § 982(a)(8) PROPERTY SUBJECT TO
FORFEITURE
The government is not required to prove that the
money obtained by the Defendant is still in the Defen-
dant’s possession. Rather, the government is only
required to prove the elements that I have described to
you. You are further instructed that what happens to
any property that is declared subject to forfeiture is
exclusively a matter for the court to decide. You should
not consider what might happen to the property in
determining whether the property is subject to
forfeiture. [In this connection, you should disregard any
claims that other persons may have to the property
because those interests will be taken into account by
the court at a later time.]
Committee Comment
United States v. Ginsburg, 773 F.2d 798 (7th Cir. 1985) (en
banc) holds that the government does not have to prove that the
property is in existence at the time of conviction.
982(a)(8)
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436
18 U.S.C. § 1001 DEFINITION OF FALSE OR
FICTITIOUS
A statement is [false; fictitious] if it was untrue
when made.
1001
CRIMINAL INSTRUCTIONS
437
18 U.S.C. § 1001 DEFINITION OF FRAUDULENT
A statement or representation is fraudulent if it is
made [or caused to be made] with intent to deceive.
1001
STATUTORY INSTRUCTIONS
438
18 U.S.C. § 1001 DEFINITION OF “MATERIAL”
A statement is “material” if it is capable of influenc-
ing the actions of the [name the body or agency]. [The
government is not required to prove that the statement
actually influenced the actions of the [name the body or
agency].]
Committee Comment
See United States v. Gaudin, 515 U.S. 506, 509 (1995) (To be
material for purposes of section 1001, a statement must have “a
natural tendency to influence, or [be] capable of influencing, the
decision of the decision-making body to which it was addressed.”);
United States v. Turner, 551 F.3d 657, 663 (7th Cir. 2008).
1001
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439
18 U.S.C. § 1001 DEFINITION OF “WILLFULLY”
A person acts “willfully” if he acts voluntarily and
intentionally, and with the intent to do something
illegal.
Committee Comment
This instruction defines the requirement of “willful” conduct
as used in the fourth element of the section 1001 instructions.
That same element also requires “knowing” conduct. Given the
standard definition of “knowing” conduct as set forth elsewhere in
the pattern instructions, there is some overlap between these two
concepts as they are used in section 1001. The Seventh Circuit,
however, has specifically approved the definition of “willful”
conduct under section 1001 as set forth in this instruction. See
United States v. Ranum, 96 F.3d 1020, 1028–29 (7th Cir. 1996).
The willfulness element does not require government to prove
that the underlying conduct about which the defendant made
representations was unlawful. See United States v. Lupton, 620
F.3d 790, 806 (7th Cir. 2010).
1001
STATUTORY INSTRUCTIONS
440
18 U.S.C. § 1001 DEPARTMENT OR AGENCY
The [name of department, agency, or office] is a
part of the [executive; legislative; judicial] branch of the
government of the United States. [Statements; Repre-
sentations; Facts] concerning [specify] are within the
jurisdiction of that branch.
Committee Comment
The statement need not be made directly to a United States
agency. If made to a local entity administering a totally or partially
federally funded program then such a statement may also be
within the jurisdiction of a federal agency. See United States v.
Petullo, 709 F.2d 1178, 1180 (7th Cir. 1983); see also United States
v. Ross, 77 F.3d 1525, 1544 (7th Cir. 1996) (“This court has repeat-
edly found the submission of a fraudulent statement to a private
(or non-federal government) entity to be within the jurisdiction of
a federal agency where the agency has given funding to the entity
and fraudulent statements cause the entity to utilize the funds
improperly.”).
It is of no consequence whether the government suffered
monetary loss or was actually deceived by the acts charged.
1001
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441
18 U.S.C. § 1001(a)(1) CONCEALING A
MATERIAL FACT—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] concealing a material fact. In order for you to find
[the; a] defendant guilty of this charge, the government
must prove each of the [four] following elements beyond
a reasonable doubt:
1. The defendant [falsified; concealed; covered up]
a fact by trick, scheme or device; and
2. The fact was material; and
3. [The defendant had a legal duty to disclose the
fact]; and
4. The defendant acted knowingly and willfully;
and
5. The defendant [falsified; concealed; covered up]
the material fact in a matter within the jurisdiction of
the [executive; legislative; judicial] branch of the
government of the United States.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
1001(a)(1)
STATUTORY INSTRUCTIONS
442
Committee Comment
See comment to Pattern Instruction 18 U.S.C. § 1001, Making
a False Statement or Representation.
On the third element (duty to disclose), see United States v.
Moore, 446 F.3d 671, 677 (7th Cir. 2006).
1001(a)(1)
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443
18 U.S.C. § 1001(a)(1) DEFINITION OF “TRICK,
SCHEME, OR DEVICE”
A “trick, scheme, or device” includes any plan or
course of action intended to deceive others.
1001(a)(1)
STATUTORY INSTRUCTIONS
444
18 U.S.C. § 1001(a)(2) MAKING A FALSE
STATEMENT OR REPRESENTATION—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] making a [false; fictitious; fraudulent] [statement;
representation]. In order for you to find [the; a] defen-
dant guilty of this charge, the government must prove
each of the [five] following elements beyond a reason-
able doubt:
1. The defendant made a [statement; representa-
tion]; and
2. The statement was [false; fictitious; fraudu-
lent]; and
3. The [statement; representation] was material;
and
4. The defendant acted knowingly and willfully;
and
5. The defendant made the [statement; represen-
tation] in a matter within the jurisdiction of the [execu-
tive; legislative; judicial] branch of the government of
the United States.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
1001(a)(2)
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445
Committee Comment
United States v. Moore, 446 F.3d 671, 677 (7th Cir. 2006), says
that the court has “identified five elements of a charge under sec-
tion 1001, and lists them in the manner set forth in the revised
pattern instruction.” See also, e.g., United States v. Ranum,96
F.3d 1020, 1028 (7th Cir. 1996); United States v. Petullo, 709 F.2d
1178, 1180 (7th Cir. 1983). The prior Pattern Instruction collapsed
elements 1 and 2 into a single element. This instruction separates
the making of the statement and its falsity into two separate
elements.
Section 1001 does not require proof that the defendant knew
the false statement involved a matter within the jurisdiction of a
federal agency. United States v. Yermian, 468 U.S. 63, 69 (1984).
Nor does it require proof of an intent to deceive the government.
Id. (“Any natural reading of § 1001 . . . establishes that the terms
‘knowingly and willfully’ modify only the making of ‘false, fictitious
or fraudulent statements’ . . . The statute contains no language
suggesting any additional element of intent, such as a requirement
that false statements be ‘knowingly made in a matter within
federal agency jurisdiction,’ or ‘with the intent to deceive the
Federal Government.’ ’’). See also, e.g., United States v. Lupton,
620 F.3d 790, 806 (7th Cir. 2010) (“the ‘knowingly and willfully’
requirement in 18 U.S.C. § 1001 relates only to the defendant’s
knowledge and intent that the statements he made to a govern-
ment entity were false or were made with the conscious purpose of
evading the truth.”).
1001(a)(2)
STATUTORY INSTRUCTIONS
446
18 U.S.C. § 1001(a)(3) MAKING OR USING A
FALSE WRITING OR DOCUMENT—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [making; using] a false [writing; document] know-
ing it to contain any [false; fictitious; fraudulent] [state-
ment; entry]. In order for you to find [the; a] defendant
guilty of this charge, the government must prove each
the [five] following elements beyond a reasonable doubt:
1. The defendant [made; used] a false [writing;
document]; and
2. The defendant knew the [writing; document]
contained a [false; fictitious; fraudulent] [statement;
entry]; and
3. The [false; fictitious; fraudulent] [statement;
entry] was material; and
4. The defendant [made; used] the [document;
writing] knowingly and willfully; and
5. The defendant [made; used] the [writing; docu-
ment] in a matter within the jurisdiction of the [execu-
tive; legislative; judicial] branch of the government of
the United States.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
1001(a)(3)
CRIMINAL INSTRUCTIONS
447
Committee Comment
See comment to Pattern Instruction 18 U.S.C. § 1001, Making
a False Statement or Representation.
1001(a)(3)
STATUTORY INSTRUCTIONS
448
18 U.S.C. § 1005 FRAUDULENTLY
BENEFITTING FROM A LOAN BY A
FEDERALLY INSURED INSTITUTION—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] fraudulently benefitting from a loan made by a
financial institution. In order for you to find [the; a]
defendant guilty of this charge, the government must
prove each of the [three] following elements beyond a
reasonable doubt:
1. The defendant received or otherwise benefitted,
directly or indirectly, from a loan made by a financial
institution; and
2. The defendant acted with the intent to defraud
the financial institution; and
3. The deposits of the [name the financial institu-
tion] were then insured by the Federal Deposit Insur-
ance Corporation.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
For the definition of “intent to defraud” see the Pattern
Instruction regarding that terms as used in the mail and wire
fraud statutes, 18 U.S.C. §§ 1341 and 1343.
1005
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449
18 U.S.C. § 1006 INSIDER FRAUD ON A
FEDERALLY INSURED FINANCIAL
INSTITUTION—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] defrauding a federally insured financial
institution. In order for you to find [the; a] defendant
guilty of this charge, the government must prove each
of the [three] following elements beyond a reasonable
doubt:
1. The defendant was an [officer, agent or em-
ployee of or connected in some capacity with] or [name
of qualifying institution as listed in the statute]; and
2. The defendant [choose whichever applies];
(A) made a false entry in a book, report or
statement of [name of institution].
(B) without authorization, drew an [order; bill
of exchange], [made an acceptance], [issued, put
forth or assigned a note, debenture, bond, draft,
bill of exchange, mortgage, judgment, or decree].
(C) [participated in; shared in; received],
directly or indirectly, [money; profit; property;
benefits] through a [transaction; loan; commission;
contract; or insert other act of the institution].
and
3. The defendant acted with the intent to defraud
the [name of defrauded institution, corporation, associa-
tion, or individual]
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
1006
STATUTORY INSTRUCTIONS
450
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
For the definition of “intent to defraud” see the Pattern
Instruction regarding that terms as used in the mail and wire
fraud statutes, 18 U.S.C. §§ 1341 and 1343.
1006
CRIMINAL INSTRUCTIONS
451
18 U.S.C. § 1007 FALSE STATEMENTS TO
INFLUENCE THE FDIC—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] making [or inviting reliance on] a false statement
[document or other thing] to influence the Federal De-
posit Insurance Corporation. In order for you to find
[the; a] defendant guilty of this charge, the government
must prove both of the following elements beyond a
reasonable doubt:
1. The defendant knowingly [made; invited reli-
ance on] a [false; forged; counterfeit] [statement; docu-
ment; thing] as alleged in Count
—
of the indictment;
and
2. The defendant acted for the purpose of influenc-
ing in some way an action of the Federal Deposit Insur-
ance Corporation.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The term “knowingly” is defined in Pattern Instruction 4.10.
1007
STATUTORY INSTRUCTIONS
452
18 U.S.C. § 1014 FALSE STATEMENT TO
FINANCIAL INSTITUTION—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] making a false statement to a [bank] [financial
institution]. In order for you to find [the; a] defendant
guilty of this charge, the government must prove each
of the [four] following elements beyond a reasonable
doubt:
1. The defendant made a false statement to a
[bank; financial institution], [orally; in writing]; and
2. At the time the defendant made the statement,
he knew it was false; and
3. The defendant made the statement with the
intent to influence the action of the [bank; financial
institution] concerning a[n] [describe type of action: ap-
plication, loan, etc.]; and
4. The accounts of the [bank; financial institution]
were insured by the Federal Deposit Insurance
Corporation.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
There are several types of institutions listed in the statute for
1014
CRIMINAL INSTRUCTIONS
453
which this instruction should be modified, but the vast majority of
section 1014 cases are based on statements to banks.
See United States v. Lane, 323 F.3d 568, 583 (7th Cir. 2003)
(elements of offense under 18 U.S.C. § 1014 include “knowledge of
falsity, and the intent to influence action by the financial institu-
tion concerning a loan or one of the other transactions listed in the
statute”). Proof of materiality is not required under section 1014.
United States v. Wells, 519 U.S. 482 (1997); Lane, 323 F.3d at 583.
The term “knowingly” is defined in Pattern Instruction 4.10.
1014
STATUTORY INSTRUCTIONS
454
18 U.S.C. § 1015(a) MAKING A FALSE
STATEMENT IN AN IMMIGRATION
DOCUMENT—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] making a false statement in an immigration
document. In order for you to find [the; a] defendant
guilty of this charge, the government must prove both
of the following elements beyond a reasonable doubt:
1. The defendant knowingly made a false state-
ment under oath; and
2. The statement was made in a [case; proceed-
ing; matter] [related to; under; by virtue of] any law of
the United States related to [naturalization; citizen-
ship; registry] of aliens.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The plain language of 18 U.S.C. § 1015(a) does not include a
materiality element. In Kungys v. United States, 485 U.S. 759, 770
(1988), the Supreme Court held that a statute which criminalizes
the making of a false statement without express reference to
materiality, criminalizes both material and not material false
statements. See also United States v. Youssef, 547 F.3d 1090 (9th
Cir. 2008) (18 U.S.C. § 1015(a) does not include a materiality
requirement).
The term “knowingly” is defined in Pattern Instruction 4.10.
1015(a)
CRIMINAL INSTRUCTIONS
455
18 U.S.C. § 1015(b) FALSE DENIAL OF
NATURALIZATION OR CITIZENSHIP—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] false denial of naturalization or citizenship. In or-
der for you to find [the; a] defendant guilty of this
charge, the government must prove each of the [three]
following elements beyond a reasonable doubt:
1. The defendant was a citizen of the United
States;
2. The defendant knowingly and intentionally
denied being a citizen of the United States; and
3. The defendant’s denial was made for the
purpose of avoiding any [duty; liability] [imposed;
required] as charged in the indictment.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
1015(b)
STATUTORY INSTRUCTIONS
456
18 U.S.C. § 1015(c) USE OF FRAUDULENT
IMMIGRATION DOCUMENT—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] fraudulent use of immigration document. In order
for you to find [the; a] defendant guilty of this charge,
the government must prove both of the following ele-
ments beyond a reasonable doubt:
1. The defendant [used; attempted to use] [the
document named in the indictment]; and
2. The defendant knew [the document named in
the indictment] was procured [by fraud; by false evi-
dence; without required [appearance; hearing] of the
applicant in court; otherwise unlawfully obtained].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
1015(c)
CRIMINAL INSTRUCTIONS
457
18 U.S.C. § 1015(d) MAKING FALSE
CERTIFICATE OF APPEARANCE—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] making false certificate of appearance. In order
for you to find [the; a] defendant guilty of this charge,
the government must prove both of the following ele-
ments beyond a reasonable doubt:
1. The defendant knowingly:
(a) made any false [certificate; acknowledg-
ment; statement] concerning the appearance of
[person named in the indictment] before the defen-
dant with respect to any [application; declaration;
petition; affidavit; deposition; certificate of natural-
ization; certificate of citizenship; other [paper; writ-
ing]]; or
(b) took an [oath; affirmation; signature; at-
testation; execution] by [person named in the
indictment] related to any [application; declaration;
petition; affidavit; deposition; certificate of natural-
ization; certificate of citizenship; other [paper; writ-
ing]]; and
2. The defendant knew the [certificate; acknowl-
edgment; statement; oath; affirmation; signature; attes-
tation] was [required; authorized] as charged in the
indictment.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
1015(d)
STATUTORY INSTRUCTIONS
458
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The term “knowingly” is defined in Pattern Instruction 4.10.
1015(d)
CRIMINAL INSTRUCTIONS
459
18 U.S.C. § 1015(e) FALSE CLAIM OF
CITIZENSHIP—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] making a false claim of citizenship. In order for
you to find [the; a] defendant guilty of this charge, the
government must prove each of the [three] following
elements beyond a reasonable doubt:
1. The defendant was an alien; and
2. The defendant knowingly made a [false state-
ment; claim] that the defendant [is; has been] a [citi-
zen; national] of the United States; and
3. The defendant made the [false statement;
claim] for the purpose of obtaining [Federal benefits;
State benefits; Federal services; State services; to
unlawfully gain employment] in the United States.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The term “knowingly” is defined in Pattern Instruction 4.10.
1015(e)
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460
18 U.S.C. § 1015(f) FALSE CLAIM OF
CITIZENSHIP IN ORDER TO VOTE—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] making a false claim of citizenship in order to
vote. In order for you to find [the; a] defendant guilty of
this charge, the government must prove both of the fol-
lowing elements beyond a reasonable doubt:
1. The defendant was an alien; and
2. The defendant knowingly made a false [state-
ment; claim] to be a citizen of the United States in or-
der to [register to vote; vote] in a [Federal; State; local]
election.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The term “knowingly” is defined in Pattern Instruction 4.10.
1015(f)
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461
18 U.S.C. § 1028 PENALTY-ENHANCING
INSTRUCTIONS AND SPECIAL VERDICT
FORMS
Committee Comment
The Supreme Court has held “that it is within the jury’s prov-
ince to determine any fact (other than the existence of a prior
conviction) that increases the maximum punishment authorized
for a particular offense.” Oregon v. Ice, 555 U.S. 160, 163 (2009)
(citing Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v.
Washington, 542 U.S. 296 (2004)). Therefore, if the government
seeks, and the evidence supports, an enhanced penalty under
§ 1028(b), then the principles of Apprendi require that the jury be
instructed on the penalty-enhancing factor(s). In that event, the
Committee suggests that the jury also be provided with a special
verdict form.
The default maximum penalty for § 1028(a) convictions ranges
from one to fifteen years of imprisonment. See 18 U.S.C. § 1028(b).
If the jury finds beyond a reasonable doubt that the government
has proven certain factors specified in § 1028(b), then the ap-
plicable statutory maximum is increased. But the elements of the
substantive offenses described in § 1028(a) remain the same; only
the statutory maximum is dependent on the factors specified in
§ 1028(b). If the penalty-enhancing factors were incorporated into
the offense-elements instruction, then the jury could mistakenly
find a defendant not guilty of the offense, when instead the
defendant should be found guilty of the offense but subject only to
the default statutory maximum. Thus, rather than incorporate
those penalty-enhancing factors into the offense-elements instruc-
tion, the court should provide the jury with an additional penalty-
enhancing instruction as necessary. But two significant caveats
apply.
Section 1028(c). First, § 1028(c)(1), has a potential impact on
the propriety of giving such an instruction. Section 1028(c) identi-
fies several federal-interest grounds; proof of one of them is an ele-
ment of a § 1028(a) offense. For example, one way to satisfy (c)(1)
is to prove that the identification document, authentication feature,
or false identification document “is or appears to be issued by or
under the authority of the United States.” If the indictment alleges
this ground as an element of the offense and the jury is so
instructed, then a finding of guilt would trigger the 15-year statu-
tory maximum in § 1028(b)(1)(A)(i). In that situation, no penalty-
enhancing instruction or corresponding special verdict form should
be given to the jury. That is, if the indictment in such a case al-
1028
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462
leges no fact to trigger the greater maximum in § 1028(b)(3) (20
years) or (b)(4) (30 years), specifically, that the offense was com-
mitted to facilitate a drug trafficking crime, in connection with a
crime of violence, or to facilitate an act of domestic terrorism or
international terrorism, then a penalty-enhancing instruction and
corresponding special verdict form are also unnecessary. But if the
indictment alleges and the evidence supports a fact that triggers
(b)(3) or (b)(4), then an additional penalty-enhancing instruction
and corresponding special verdict form should be given.
Section 1028(b)(3)(C). Second, is that one of the § 1028(b)
enhancements does not require a special verdict form. Specifically,
(b)(3)(C) provides for a 20-year statutory maximum if the offense is
committed “after a prior conviction under this section becomes
final.” An enhancement for a prior conviction is an exception to the
rule of Apprendi. Ice, 555 U.S. at 163 (describing Apprendi line of
cases as holding “that it is within the jury’s province to determine
any fact (other than the existence of a prior conviction) that
increases the maximum punishment authorized for a particular of-
fense”); Cunningham v. California, 549 U.S. 270, 274–75 (2007)
(Apprendi applies only to those facts “other than a prior
conviction”). Accordingly, the jury should not be asked to determine
the existence of the prior conviction. Indeed, the defendant could
be unduly prejudiced by evidence of the prior conviction if there is
no independent basis to admit that evidence.
The penalty-enhancing instructions and special verdict forms
for § 1028(a) offenses begin on the following page.
1028
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463
18 U.S.C. § 1028 PENALTY-ENHANCING
PROVISIONS UNDER § 1028(b)
If you find that the government proved beyond a
reasonable doubt [specify the offense charged in the
indictment] as charged in Count [
—
] of the indictment,
then you must also determine whether the government
proved beyond a reasonable doubt that the offense in
Count [
—
]:
(insert appropriate alternative(s))
[involved the production or transfer of an identifica-
tion document, authentication feature, or false identifi-
cation document that is or appears to be an identifica-
tion document or authentication feature issued by or
under the authority of the United States.] ((b)(1)(A)(i))
-or-
[involved the production or transfer of an identifica-
tion document, authentication feature, or false identifi-
cation document that is or appears to be a birth certifi-
cate, or a driver’s license or personal identification
card.] ((b)(1)(A)(ii))
-or-
[involved the production or transfer of more than
five identification documents, authentication features,
or false identification documents.] ((b)(1)(B))
-or-
[involved the transfer, possession, or use of 1 or
more means of identification and, as a result of the of-
fense, [the defendant] obtained anything of value ag-
gregating $1,000 or more during any 1 year period.]
[(b)(1)(D) for 1028(a)(7) offenses only]
-or-
1028
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464
[involved any production, transfer, or use of a
means of identification, an identification document,
authentication feature, or a false identification
document.] ((b)(2)(A))
-or-
[was committed to facilitate a drug trafficking
crime.] ((b)(3)(A))
-or-
[was committed in connection with a crime of
violence.] ((b)(3)(B))
-or-
[was committed to facilitate an [act of domestic ter-
rorism; act of international terrorism].] ((b)(4))
Committee Comment
The jury’s determination on these characteristics of the of-
fense influences the defendant’s maximum sentence. If supported
by allegations in the indictment and proof at trial, this instruction
may be given for any of the offenses listed under § 1028(a). The
Committee recommends that if this instruction is given, then the
jury also be given a special verdict form, see the following.
The bracketed citations to the subsections of § 1028(b) at the
end of each of the above alternatives are included only to assist
the court in crafting an appropriate instruction. The citations are
not intended to be included in the instructions given to the jury.
It should again be noted that § 1028(c)(1), may impact the
propriety of giving a penalty-enhancing instruction and special
verdict form. Section 1028(c) identifies several federal-interest
grounds; proof of one of them is an element of a § 1028(a) offense.
For example, one way to satisfy (c)(1) is to prove that the identifica-
tion document, authentication feature, or false identification docu-
ment “is or appears to be issued by or under the authority of the
United States.” If the indictment alleges this ground as an element
of the offense and the jury is so instructed, then a finding of guilt
1028
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465
would trigger the statutory maximum in § 1028(b)(1)(A)(i). In that
situation, no penalty-enhancing instruction or corresponding
special verdict form should be given to the jury. If the indictment
alleges no fact to trigger the greater maximum in § 1028(b)(3) or
(b)(4), specifically, that the offense was committed to facilitate a
drug trafficking crime, in connection with a crime of violence, or to
facilitate an act of domestic terrorism or international terrorism,
then a penalty-enhancing instruction and corresponding special
verdict form are also unnecessary. But if the indictment alleges
and the evidence supports a fact that triggers (b)(3) or (b)(4) other
than the fact of a prior conviction under § 1028, then an additional
penalty-enhancing instruction and corresponding special verdict
form should be given.
See the Committee Comment to Penalty-Enhancing Instruc-
tions and Special Verdict Forms preceding this instruction.
1028
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466
18 U.S.C. § 1028 SPECIAL VERDICT FORM
If you find the defendant(s) guilty of [specify the of-
fense charged in the indictment] in Count [
—
], then
you must also answer the following question(s).
We, the jury, find beyond a reasonable doubt that
the offense described in Count [
—
]:
[involved the production or transfer of an identifica-
tion document, authentication feature, or false identifi-
cation document that is or appears to be an identifica-
tion document or authentication feature issued by or
under the authority of the United States.] [(b)(1)(A)(i)]
-or-
[involved the production or transfer of an identifica-
tion document, authentication feature, or false identifi-
cation document that is or appears to be a birth certifi-
cate, or a driver’s license or personal identification
card.] [(b)(1)(A)(ii)]
-or-
[involved the production or transfer of more than
five identification documents, authentication features,
or false identification documents.] [(b)(1)(B)]
-or-
[involved the transfer, possession, or use of 1 or
more means of identification and, as a result of the of-
fense, [the defendant] obtained anything of value ag-
gregating $1,000 or more during any 1 year period.]
[(b)(1)(D) for § 1028(a)(7) offenses only]
-or-
[involved any production, transfer, or use of a
means of identification, an identification document,
1028
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467
authentication feature, or a false identification
document.] [(b)(2)(A)]
-or-
[was committed to facilitate a drug trafficking
crime.] [(b)(3)(A)]
-or-
[was committed in connection with a crime of
violence.] [(b)(3)(B)]
-or-
[was committed to facilitate an [act of domestic ter-
rorism; act of international terrorism].] [(b)(4)]
Committee Comment
The bracketed citations to the subsections of § 1028(b) at the
end of each of the above alternatives are included only to assist
the court in crafting an appropriate special verdict form. The cita-
tions are not intended to be included in the verdict form given to
the jury.
Care should be exercised in determining whether a special
verdict form is necessary. Certain convictions under § 1028(a),
which by necessity contain elements that trigger the penalty-
enhancing provisions of § 1028(b), do not require the giving of any
penalty-enhancing instruction or corresponding verdict form, un-
less the indictment alleges, and the evidence supports, finding
facts that would trigger a greater maximum penalty under other
subsections of § 1028(b). See the Committee Comment to Penalty-
Enhancing Instructions and Special Verdict Forms preceding this
instruction.
1028
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468
18 U.S.C. § 1028 DEFINITIONS
Committee Comment
These definitions are designed to accompany the pattern
instructions for the offenses listed in §§ 1028(a) and 1028A(a). The
source of most of these definitions is § 1028(d), which defines sev-
eral terms unique to §§ 1028(a) and 1028A(a).
In providing these definitions, the Committee does not intend
to imply that the court should always instruct the jury on all of
the definitions. The court should provide the jury with the defini-
tions only for the terms that are necessary for the particular case
on trial. In addition, the court should excise from each definition
terms that are inapplicable to the facts of the particular case.
Unless otherwise noted, these pattern definitions simply
reproduce the definitions provided by § 1028(d) with only minor
stylistic changes. Incorporating the complete statutory definitions
in this manner is consistent with the relatively few pattern instruc-
tions for § 1028(a) published by other circuits.
1028
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469
18 U.S.C. § 1028 DEFINITION OF “LAWFUL
AUTHORITY”
“Lawful authority” means authorization recognized
by statute or regulation. Thus, “without lawful author-
ity” means without authorization recognized by statute
or regulation.
To prove the “without lawful authority” element,
the government need not prove that the identification
document(s), authentication feature(s), false identifica-
tion documents(s), or means of identification were
stolen. However, proof that such documents, features or
means of identification were stolen would satisfy the
“without lawful authority” element.
Committee Comment
The “without lawful authority” language used in § 1028A(a) is
also used in § 1028(a)(1), (2), (6) and (7), and the Committee
believes the same meaning should be applied under the latter
statute.
A number of circuits have held that “without lawful authority”
includes situations in which a defendant comes into lawful posses-
sion of identifying information and had the lawful authority to use
that information for a lawful purpose, but used the information for
an unlawful purpose.
See United States v. Abdelshafi, 592 F.3d 602, 608–09 (4th
Cir. 2010) (government was not required to prove that the identify-
ing information was stolen or misappropriated in order to prove a
violation of the aggravated-identity theft statute, 18 U.S.C.
§ 1028A(a)(1)); United States v. Hurtado, 508 F.3d 603, 607–08
(11th Cir. 2007) (per curiam) (18 U.S.C. § 1028A(a)(1) does not
require the government to prove that the defendant stole the
identification of another person); United States v. Mahmood, 820
F.3d 177, 187–88 (5th Cir. 2016); United States v. Gatwas, 910
F.3d 362, 368 (8th Cir. 2018); United States v. Osuna-Alvarez, 788
F.3d 1183, 1186 (9th Cir. 2015); United States v. Reynolds, 710
F.3d 434, 436 (D.C. Cir. 2013). Litigants have cited the Seventh
Circuit’s opinion in United States v. Spears, 729 F.3d 753, 757 (7th
Cir. 2013), as evidence that the Seventh Circuit takes a contrary
position. See, e.g., Mahmood, 820 F.3d at 188–189. The Seventh
Circuit, however, has not yet articulated a position on the scope of
1028
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470
“without lawful authority.”
1028
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471
18 U.S.C. § 1028 DEFINITION OF “INTERSTATE
OR FOREIGN COMMERCE”
“Interstate or foreign commerce” involves business,
trade, travel, transportation or communication between
any place in a state and any place outside that state [,
or any two places within a state but through any place
outside that state]. A defendant’s conduct affects com-
merce if the natural consequences of the defendant’s ac-
tions had some effect on commerce, however minimal.
Committee Comment
This definition is derived from instructions addressing the
Hobbs Act, 18 U.S.C. § 1951, which uses the similar phrase “af-
fects commerce.”
1028
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472
18 U.S.C. § 1028(a) OFFENSES AND § 1028(b)
PENALTIES
Committee Comment
Section 1028(a) defines eight substantive fraud offenses in
subsections (a)(1) through (a)(8). Section 1028(b) provides for a va-
riety of punishments ranging from one year to thirty years depend-
ing on the manner in which § 1028(a) was violated. See 18 U.S.C.
§ 1028(b)(1) (15 years maximum), (b)(2) (5 years maximum), (b)(3)
(20 years maximum), (b)(4) (30 years maximum), (b)(6) (one year
maximum). Section 1028(b)(5) provides for forfeiture. Subject to
the analysis in the Notes below, the default statutory maxima
(that is, the maxima that apply when no other factors are proven
except for the elements of the offense) are:
Subsection Default Maximum Citation
(a)(1) 5 years’ imprisonment § 1028(b)(2)(A)
1
(a)(2) 5 years’ imprisonment § 1028(b)(2)(A)
2
(a)(3) 5 years’ imprisonment § 1028(b)(2)(B)
(a)(4) 1 year imprisonment § 1028(b)(6)
3
(a)(5) 15 years’ imprisonment § 1028(b)(1)(C)
(a)(6) 1 year imprisonment § 1028(b)(6)
3
(a)(7) 5 years’ imprisonment § 1028(b)(2)(B)
(a)(8) 5 years’ imprisonment § 1028(b)(2)(A)
4
Note 1. Section 1028(b)(2)(A) applies because the circumstances
in (b)(2)(A) are necessarily proven if the § 1028(a)(1) offense ele-
ments are proven. Compare (b)(2)(A) (“any other production . . . of
. . . an identification document, authentication feature, or a false
identification document”) with (a)(1) (“knowingly and without law-
ful authority produces an identification document, authentication
feature, or a false identification document”).
Note 2. Section 1028(b)(2)(A) applies because the circumstances
in (b)(2)(A) are necessarily proven if the § 1028(a)(2) offense ele-
ments are proven. Compare (b)(2)(A) (“any other . . . transfer . . .
of . . . an identification document, authentication feature, or a
false identification document”) with (a)(2) (“knowingly transfers an
identification document, authentication feature, or a false
identification document knowing that such document or feature
was stolen or produced without lawful authority”).
Note 3. Neither § 1028(a)(4) nor (a)(6)—which are possession of-
fenses—are covered by the penalty provisions in § 1028(b)(1) and
(b)(2). The reason is that, setting aside (a)(5) offenses and certain
(a)(7) offenses, an offense satisfies (b)(1) only “if the offense is” the
“production or transfer” of a covered document or feature. Likewise,
setting aside (a)(3) and (a)(7) offenses, an offense satisfies (b)(2)
1028(a)
CRIMINAL INSTRUCTIONS
473
only “if the offense is” “any other production, transfer, or use” of a
covered document or feature. Possession “is” not production,
transfer, or use. Additionally, the legislative history of (a)(4) and
(a)(6)’s original enactment described them as default
misdemeanors. See H.R. Rep. 97-802, at 7 (1982), reprinted in
1982 U.S.C.C.A.N. 3519, 3525 (characterizing (a)(4) as “a misde-
meanor with a maximum fine of $5000 and imprisonment of not
more than one year or both”); H.R. Rep. 97-975 at 1, 4 (1982) (Conf.
Rep.) (describing (a)(6) as “a misdemeanor subject to a fine of not
more than $5,000, imprisonment for not more than one year, or
both.”). To be sure, other subsections do provide circumstances
that would elevate (a)(4) and (a)(6) offenses to felonies, namely, if
the subsequently-enacted penalties in § 1028(b)(3) and (b)(4) apply.
But (b)(1) and (b)(2) do not apply to (a)(4) and (a)(6) offenses.
Note 4. Section 1028(b)(2)(A) applies because the circumstances
in (b)(2)(A) are necessarily proven if the § 1028(a)(8) offense ele-
ments are proven, so long as it is correct to interpret “traffics” in
(a)(8) as necessarily comprising “transfer” or “use” of an authenti-
cation feature in (b)(2)(A). Compare (b)(2)(A) (“any other . . .
transfer, or use . . . of . . . an . . . authentication feature”) with
(a)(8) (“knowingly traffics in false or actual authentication features
for use in false identification documents, document making imple-
ments, or means of identification”). The statutory definition of
“traffic” includes “transfer.” 18 U.S.C. § 1028(d)(12)(A).
1028(a)
STATUTORY INSTRUCTIONS
474
18 U.S.C. § 1028(a)(1) FRAUDULENT
PRODUCTION OF AN IDENTIFICATION
DOCUMENT, AUTHENTICATION FEATURE, OR
FALSE IDENTIFICATION DOCUMENT—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] fraud in connection with the production of [a; an]
[identification document; authentication feature; false
identification document]. In order for you to find [the;
a] defendant guilty of this charge, the government must
prove each of the [three] following elements beyond a
reasonable doubt:
1. The defendant knowingly produced [a; an]
[identification document; authentication feature; false
identification document]; and
2. He did so without lawful authority; and
[3. The [document; feature] is or appears to be is-
sued by or under the authority of [the United States; a
sponsoring entity of an event designated as a special
event of national significance]];
-or-
[3. [The production of the [document; feature] oc-
curred in or affected interstate or foreign commerce.];
[The document was transported in the mail in the
course of the production.]]
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
1028(a)(1)
CRIMINAL INSTRUCTIONS
475
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The alternate third elements, which set forth the circum-
stances described in § 1028(c) that are required for any conviction
under § 1028(a), should be used as appropriate based on the facts
of the case. The first alternate should be used if the evidence sup-
ports a finding that the defendant produced an identification docu-
ment or authentication feature that is or appears to be “issued by
or under the authority of the United States or a sponsoring entity
of an event designated as a special event of national significance.”
When the production of the document or feature occurred in or af-
fected interstate or foreign commerce, or the document was
transported in the mail in the course of the production, use the
other alternate element.
For a discussion of the effect of 18 U.S.C. § 1028(b)’s enhanced
penalty provisions on the jury instructions, see the Committee
Comment on those issues below. However, it bears emphasizing
here that certain convictions under § 1028(a)(1) will by necessity
contain elements that trigger a § 1028(b) penalty-enhancing provi-
sion and in such a case do not require the giving of a penalty-
enhancing instruction and corresponding special verdict form, un-
less other factors triggering another penalty-enhancing provision
exist. For example, if the offense elements of § 1028(a)(1) are
proven, then the circumstances in § 1028(b)(2)(A), which trigger a
five-year maximum, are necessarily proven. Compare
§ 1028(b)(2)(A) (“any other production . . . of . . . an identification
document, authentication feature, or a false identification docu-
ment”), with § 1028(a)(1) (“knowingly and without lawful authority
produces an identification document, authentication feature, or a
false identification document”).
Similarly, if the third element of the § 1028(a)(1) offense
involves a document or feature that “is or appears to be issued by
or under the authority of the United States,” then upon a finding
of guilt, the statutory maximum provided in § 1028(b)(1)(A)(i) of
fifteen years applies, and no penalty-enhancing instruction or cor-
responding verdict form should be given, unless the facts alleged
and proved trigger another penalty-enhancing provision (such as
facilitation of a drug trafficking crime, § 1028(b)(3)(A) (20 years),
connection with a crime of violence, § 1028(b)(3)(B) (20 years), or
1028(a)(1)
STATUTORY INSTRUCTIONS
476
facilitation of an act of domestic terrorism or international terror-
ism, § 1028(b)(4) (30 years)).
However, if the elements involved in the offense charged do
not necessarily involve a finding that the document or feature at
issue “is or appears to be issued by or under the authority of the
United States,” then the penalty-enhancing provisions of § 1028(b)
should be addressed if the facts alleged in the indictment and
proved at trial support those enhancements.
“Drug trafficking crime” is defined at 18 U.S.C. § 929(a)(2),
“crime of violence” at § 924(c)(3), “act of domestic terrorism” at
§ 2331(5), and “act of international terrorism” at § 2331(1).
The term “knowingly” is defined at Pattern Instruction 4.10.
1028(a)(1)
CRIMINAL INSTRUCTIONS
477
18 U.S.C. § 1028(a)(2) FRAUDULENT TRANSFER
OF AN IDENTIFICATION DOCUMENT,
AUTHENTICATION FEATURE, OR FALSE
IDENTIFICATION DOCUMENT—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
———
of the indictment charge[s] the defen-
dant[s] with] fraud in connection with the transfer of
a[n] [identification document; authentication feature;
false identification document]. In order for you to find
[the; a] defendant guilty of this charge, the government
must prove each of the [three] following elements be-
yond a reasonable doubt:
1. The defendant knowingly transferred a[n]
[identification document; authentication feature; false
identification document]; and
2. The defendant knew that such [identification
document; authentication feature; false identification
document] was stolen or produced without lawful
authority; and
[3. The [document; feature] is or appears to be is-
sued by or under the authority of [the United States; a
sponsoring entity of an event designated as a special
event of national significance]];
-or-
[3. [The transfer of the [document; feature] oc-
curred in or affected interstate or foreign commerce
[including the transfer of a document by electronic
means.]; [The document was transported in the mail in
the course of the transfer.]]
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
1028(a)(2)
STATUTORY INSTRUCTIONS
478
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The alternate third elements, which set forth the circum-
stances described in § 1028(c) that are required for any conviction
under § 1028(a), should be used as appropriate based on the facts
of the case. The first alternate should be used if the evidence sup-
ports a finding that the defendant transferred an identification
document or authentication feature that is or appears to be “issued
by or under the authority of the United States or a sponsoring
entity of an event designated as a special event of national
significance.” When the transfer of the document or feature oc-
curred in or affected interstate or foreign commerce, or the docu-
ment was transported in the mail in the course of the transfer, use
the other alternate element.
For a discussion of the effect of 18 U.S.C. § 1028(b)’s enhanced
penalty provisions on the jury instructions, see the Committee
Comment below on those issues. However, it bears emphasizing
here that certain convictions under § 1028(a)(2) will by necessity
contain elements that trigger a § 1028(b) penalty-enhancing provi-
sion and in such a case do not require the giving of a penalty-
enhancing instruction and corresponding special verdict form, un-
less other factors triggering another penalty-enhancing provision
exist. For example, if the offense elements of § 1028(a)(2) are
proven, then the circumstances in § 1028(b)(2)(A), which trigger a
five-year maximum, are necessarily proven. Compare (b)(2)(A)
(“any other . . . transfer . . . of . . . an identification document,
authentication feature, or a false identification document”) with
(a)(2) (“knowingly transfers an identification document, authentica-
tion feature, or a false identification document knowing that such
document or feature was stolen or produced without lawful
authority”).
Similarly, if the third element of the § 1028(a)(2) offense
involves a document or feature that “is or appears to be issued by
or under the authority of the United States,” then upon a finding
of guilt, the statutory maximum provided in § 1028(b)(1)(A)(i) of
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fifteen years applies, and no penalty-enhancing instruction or cor-
responding verdict form should be given, unless the facts alleged
and proved trigger another penalty-enhancing provision (such as
facilitation of a drug trafficking crime, § 1028(b)(3)(A) (20 years),
connection with a crime of violence, § 1028(b)(3)(B) (20 years), or
facilitation of an act of domestic terrorism or international terror-
ism, § 1028(b)(4) (30 years)).
However, if the elements involved in the offense charged do
not necessarily involve a finding that the document or feature at
issue “is or appears to be issued by or under the authority of the
United States,” then the penalty-enhancing provisions of § 1028(b)
should be addressed if the facts alleged in the indictment and
proved at trial support those enhancements.
“Drug trafficking crime” is defined in 18 U.S.C. § 929(a)(2),
“crime of violence” at § 924(c)(3), “act of domestic terrorism” at
§ 2331(5), and “act of international terrorism” at § 2331(1).
The term “knowingly” is defined in Pattern Instruction 4.10.
1028(a)(2)
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18 U.S.C. § 1028(a)(3) FRAUDULENT
POSSESSION OF FIVE OR MORE
IDENTIFICATION DOCUMENTS,
AUTHENTICATION FEATURES, OR FALSE
IDENTIFICATION DOCUMENTS—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] fraud in connection with the possession of five or
more [identification documents; authentication features;
false identification documents]. In order for you to find
[the; a] defendant guilty of this charge, the government
must prove each of the [three] following elements be-
yond a reasonable doubt:
1. The defendant knowingly possessed five or
more [identification documents; authentication features;
false identification documents]; and
2. The defendant intended to use or transfer those
[identification documents; authentication features; false
identification documents] [in a manner that would
violate one or more federal, state, or local laws]; and
[3. The [documents; features] are or appear to be
issued by or under the authority of [the United States;
a sponsoring entity of an event designated as a special
event of national significance].]
-or-
[3. [The possession of the [documents; features]
occurred in or affected interstate or foreign commerce.];
[The documents were transported in the mail in the
course of the possession.]]
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
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you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
In the second element, the bracketed language “in a manner
that would violate one or more federal, state, or local laws” is
intended to serve as a placeholder only. The Committee recom-
mends that the court instruct the jury as to what federal, state or
local law is alleged to have been violated and the manner in which
that law was allegedly violated by the defendant.
The alternate third elements, which set forth the circum-
stances described in § 1028(c) that are required for any conviction
under § 1028, should be used as appropriate based on the facts of
the case. The first alternate should be used if the evidence sup-
ports a finding that the defendant possessed identification docu-
ments or authentication features that are or appear to be “issued
by or under the authority of the United States or a sponsoring
entity of an event designated as a special event of national
significance.” When the possession of the documents or features oc-
curred in or affected interstate or foreign commerce, or the docu-
ments or features were transported in the mail in the course of the
possession, use the other alternate element.
For a discussion of the effect of 18 U.S.C. § 1028(b)’s enhanced
penalty provisions on the jury instructions, see the Committee
Comment below on those issues. However, note that a conviction
under § 1028(a)(3) will necessarily trigger the penalty provision in
§ 1028(b)(2)(B), which provides for a five-year maximum for a
§ 1028(a)(3) offense. If this is the only penalty provision supported
by the allegations and facts proved at trial, then an additional
penalty-enhancing instruction and special verdict form would be
unnecessary.
Similarly, if the third element of the § 1028(a)(3) offense
involves documents or features that are or appear “to be issued by
or under the authority of the United States,” then upon a finding
of guilt, the statutory maximum provided in § 1028(b)(1)(A)(i) of
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fifteen years applies, and no penalty-enhancing instruction or cor-
responding verdict form should be given, unless the facts alleged
and proved trigger another penalty-enhancing provision (such as
facilitation of a drug trafficking crime, § 1028(b)(3)(A) (20 years),
connection with a crime of violence, § 1028(b)(3)(B) (20 years), or
facilitation of an act of domestic terrorism or international terror-
ism, § 1028(b)(4) (30 years)).
However, if the elements involved in the offense charged do
not necessarily involve a finding that the documents or features at
issue are or appear “to be issued by or under the authority of the
United States,” then the penalty-enhancing provisions of § 1028(b)
should be addressed if the facts alleged in the indictment and
proved at trial support those enhancements.
“Drug trafficking crime” is defined at 18 U.S.C. § 929(a)(2),
“crime of violence” at § 924(c)(3), “act of domestic terrorism” at
§ 2331(5), and “act of international terrorism” at § 2331(1).
The term “knowingly” is defined in Pattern Instruction 4.10.
1028(a)(3)
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18 U.S.C. § 1028(a)(4) POSSESSION OF AN
IDENTIFICATION DOCUMENT,
AUTHENTICATION FEATURE, OR FALSE
IDENTIFICATION DOCUMENT WITH INTENT
TO DEFRAUD THE UNITED STATES—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
———
of the indictment charge[s] the defen-
dant[s] with] fraud in connection with the possession of
a[n] [identification document; authentication feature;
false identification document]. In order for you to find
[the; a] defendant guilty of this charge, the government
must prove both of the following elements:
1. The defendant knowingly possessed a[n] [iden-
tification document; authentication feature; false
identification document]; and
2. The defendant did so with the intent that it be
used to defraud the United States.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
For a discussion of the effect of 18 U.S.C. § 1028(b)’s enhanced
penalty provisions on the jury instructions, see the Committee
Comment on those issues below. However, it should be noted that
the penalty provisions in § 1028(b)(1) and (b)(2) do not apply to
§ 1028(a)(4) offenses, which are possession offenses. With a few
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484
exceptions not applicable to (a)(4) offenses, (b)(1) and (b)(2) apply
only to offenses involving production, transfer, or use. The penalty
provisions in § 1028(b)(3) (20 years) (applicable to offenses commit-
ted to facilitate a drug trafficking crime or in connection with a
crime of violence) and § 1028(b)(4) (30 years) (applicable to offen-
ses committed to facilitate an act of domestic terrorism or
international terrorism) may apply to § 1028(a)(4) offenses if the
facts alleged and proved at trial warrant it.
“Drug trafficking crime” is defined in 18 U.S.C. § 929(a)(2),
“crime of violence” at § 924(c)(3), “act of domestic terrorism” at
§ 2331(5), and “act of international terrorism” at § 2331(1).
The term “knowingly” is defined at Pattern Instruction 4.10.
For a general definition of “intent to defraud” see the Pattern
Instruction regarding that term as used in the mail and wire fraud
statutes, 18 U.S.C. §§ 1341 & 1343. It should be noted, however,
that the intent required under § 1028(a)(4) is that the document or
feature “be used to defraud the United States.”
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18 U.S.C. § 1028(a)(5) FRAUDULENT
PRODUCTION, TRANSFER, OR POSSESSION OF
A DOCUMENT—MAKING IMPLEMENT OR
AUTHENTICATION FEATURE—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] fraud in connection with the [production; transfer;
possession] of a [document-making implement; authen-
tication feature]. In order for you to find [the; a]
defendant guilty of this charge, the government must
prove each of the [three] following elements:
1. The defendant knowingly [produced; trans-
ferred; possessed] a [document-making implement;
authentication feature]; and
2. The defendant intended that the [document-
making implement; authentication feature] be used to
produce [a false identification document; another
document-making implement or authentication feature
which will be used to create a false identification docu-
ment]; and
[3. The document-making implement is designed
or suited for making a[n] [identification document;
authentication feature; false identification document]
that is or appears to be issued by or under the author-
ity of [the United States; a sponsoring entity of an event
designated as a special event of national significance].]
-or-
[3. The authentication feature is or appears to be
issued by or under the authority of [the United States;
a sponsoring entity of an event designated as a special
event of national significance].]
-or-
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486
[3. [The [production; transfer; possession] of the
[document-making implement; authentication feature]
is in or affects interstate or foreign commerce.]; [The
document-making implement is transported in the mail
in the course of the [production; transfer; possession.]]
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The third element sets forth the circumstances described in
subsection (c) that are required for any conviction under § 1028.
The first two alternatives contain subsection (c)(1)’s circumstances
that either the “document-making implement” be suited for mak-
ing one of the covered documents, or the “authentication feature”
appear to be issued by the United States. The third alternative
contains the circumstances described in subsection (c)(3) and thus
applies when the production, transfer or possession of the
document-making implement was in or affected interstate or
foreign commerce or the document-making implement was
transported in the mail in the course of the production, transfer or
possession.
For a discussion of the effect of 18 U.S.C. § 1028(b)’s enhanced
penalty provisions on the jury instructions, see the Committee
Comment below on those issues. However, note that a conviction
under § 1028(a)(5) will necessarily trigger the penalty provision in
§ 1028(b)(1)(C), which provides for a fifteen-year maximum for a
§ 1028(a)(5) offense. If this is the only penalty provision supported
by the allegations and facts proved at trial, then an additional
penalty-enhancing instruction and special verdict form would be
unnecessary. If the facts alleged and proved at trial trigger the
greater maximum penalty in § 1028(b)(3) (20 years) or (b)(4) (30
years) (such as facilitation of a drug trafficking crime,
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487
§ 1028(b)(3)(A), connection with a crime of violence, § 1028(b)(3)(B),
or facilitation of an act of domestic terrorism or international ter-
rorism, § 1028(b)(4)), then the penalty-enhancing provisions of
§ 1028(b) should be addressed.
“Drug trafficking crime” is defined at 18 U.S.C. § 929(a)(2),
“crime of violence” at § 924(c)(3), “act of domestic terrorism” at
§ 2331(5), and “act of international terrorism” at § 2331(1).
The term “knowingly” is defined at Pattern Instruction 4.10.
1028(a)(5)
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488
18 U.S.C. § 1028(a)(6) POSSESSION OF A
STOLEN IDENTIFICATION DOCUMENT OR
AUTHENTICATION FEATURE—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] possession of a stolen [identification document;
authentication feature]. In order for you to find [the; a]
defendant guilty of this charge, the government must
prove each of the [three] following elements beyond a
reasonable doubt:
1. The defendant knowingly possessed a[n] [docu-
ment; authentication feature] that is or appears to be
an [identification document; authentication feature] of
the [United States; a sponsoring entity of an event
designated as a special event of national significance];
and
2. The [document; authentication feature] was
[stolen; produced without lawful authority]; and
3. The defendant knew that the [document;
authentication feature] was [stolen; produced without
lawful authority].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
For a discussion of the effect of 18 U.S.C. § 1028(b)’s enhanced
1028(a)(6)
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489
penalty provisions on the jury instructions, see the Committee
Comment below on those issues. However, it should be noted that
the penalty provisions in § 1028(b)(1) and (b)(2) do not apply to
§ 1028(a)(6) offenses, which are possession offenses. With a few
exceptions not applicable to (a)(6) offenses, (b)(1) and (b)(2) apply
only to offenses involving production, transfer, or use. The penalty
provisions in § 1028(b)(3) (20 years) (applicable to offenses commit-
ted to facilitate a drug trafficking crime or in connection with a
crime of violence) and § 1028(b)(4) (30 years) (applicable to offen-
ses committed to facilitate an act of domestic terrorism or
international terrorism) may apply to § 1028(a)(6) offenses if the
facts alleged and proved at trial warrant it.
The term “knowingly” is defined in Pattern Instruction 4.10.
“Drug trafficking crime” is defined at 18 U.S.C. § 929(a)(2),
“crime of violence” at § 924(c)(3), “act of domestic terrorism” at
§ 2331(5), and “act of international terrorism” at § 2331(1).
1028(a)(6)
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490
18 U.S.C. § 1028(a)(7) FRAUDULENT
TRANSFER, POSSESSION, OR USE OF A MEANS
OF IDENTIFICATION—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
———
of the indictment charge[s] the defen-
dant[s] with] fraud in connection with the [transfer;
possession; use] of a means of identification. In order
for you to find [the; a] defendant guilty of this charge,
the government must prove each of the [five] elements
beyond a reasonable doubt:
1. The defendant knowingly [transferred; pos-
sessed; used] a means of identification of another
person; and
2. The defendant knew that the means of identifi-
cation belonged to another person; and
3. The defendant acted [with the intent to [com-
mit; aid or abet]; in connection with] any activity that
[violates federal law; is a felony under any applicable
State or local law]; and
4. The defendant acted without lawful authority;
and
5. The [transfer; possession; use] of the means of
identification occurred in or affected interstate or
foreign commerce; [The means of identification was
transported in the mail in the course of the [transfer;
possession; use].]
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
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491
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
In the third element, the bracketed language “violates federal
law; is a felony under any applicable State or local law” is intended
to serve as a placeholder only. The Committee recommends that
the court instruct the jury as to the specific law which would have
been violated by the alleged activity.
A single identification document or false identification docu-
ment that contains one or more means of identification shall be
construed to be one means of identification. 18 U.S.C. § 1028(i).
Similarly, in United States v. Miller, 883 F.3d 998, 1004 (7th Cir.
2018), the Court held that where an individual possesses multiple
means of identification in a single notebook as part of the same
predicate violation of law, they can only be convicted of one viola-
tion of § 1028(a)(7).
If the means of identification is of a certain type, e.g., a driv-
er’s license, and it is undisputed that the means of identification
was a driver’s license, then the court should substitute the specific
type of a means of identification, e.g., a driver’s license, for “a
means of identification” wherever used in the instruction.
In Flores Figueroa v. United States, 556 U.S. 646 (2009), the
Supreme Court held that 18 U.S.C. § 1028A(a)(1) (aggravated
identity theft) required the Government to prove that the
defendant knew that the means of identification at issue belonged
to another person. The language of § 1028A is nearly identical to
that in § 1028(a)(7)—“knowingly transfers, possesses, or uses . . .
a means of identification of another person.” Thus, the holding in
Flores Figueroa should apply to § 1028(a)(7) offenses as well.
For a discussion of the effect of 18 U.S.C. § 1028(b)’s enhanced
penalty provisions on the jury instructions, see the Committee
Comment below on those issues. However, note that a conviction
under § 1028(a)(7) will necessarily trigger the penalty provision in
§ 1028(b)(2)(B), which provides for a five-year maximum for a
§ 1028(a)(7) offense. If this is the only penalty provision supported
by the allegations and facts proved at trial, then an additional
penalty-enhancing instruction and special verdict form would be
unnecessary. But if the facts alleged and proved at trial trigger the
greater maximum penalty in § 1028(b)(1) (15 years), (b)(3) (20
1028(a)(7)
STATUTORY INSTRUCTIONS
492
years) or (b)(4) (30 years), then the penalty-enhancing provisions
of § 1028(b) should be addressed.
“Drug trafficking crime” is defined at 18 U.S.C. § 929(a)(2),
“crime of violence” at § 924(c)(3), “act of domestic terrorism” at
§ 2331(5), and “act of international terrorism” at § 2331(1).
The term “knowingly” is defined in Pattern Instruction 4.10.
1028(a)(7)
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493
18 U.S.C. § 1028(a)(8) TRAFFICKING IN FALSE
OR ACTUAL AUTHENTICATION FEATURES—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] trafficking in authentication features. In order for
you to find [the; a] defendant guilty of this charge, the
government must prove each of the [three] following
elements beyond a reasonable doubt:
1. The defendant knowingly trafficked in [false]
authentication features; and
2. The authentication features were for use in
[false identification documents; document-making
implements; means of identification]; and
[3. The authentication features were or appeared
to be issued by or under the authority of [the United
States; a sponsoring entity of an event designated as a
special event of national significance].]
-or-
[3. The trafficking in the [false] authentication
features occurred in or affected [interstate; foreign]
commerce [including the transfer of a document by
electronic means].]
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
1028(a)(8)
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494
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The first element can involve trafficking in either false or
actual authentication features. The word “false” should be included
in this element only if the evidence at trial proved that the
authentication features in question were false.
The third element has two alternatives. The appropriate one
should be selected based on the facts alleged in the indictment and
proved at trial.
For a discussion of the effect of 18 U.S.C. § 1028(b)’s enhanced
penalty provisions on the jury instructions, see the Committee
Comment below on those issues. However, it bears emphasizing
here that certain convictions under § 1028(a)(8) may necessarily
contain elements that trigger a § 1028(b) penalty-enhancing provi-
sion and in such a case do not require the giving of a penalty-
enhancing instruction and corresponding special verdict form, un-
less other factors triggering another penalty-enhancing provision
exist. For example, if the offense elements of § 1028(a)(8) are
proven, then the circumstances in § 1028(b)(2)(A), which trigger a
five-year maximum, are necessarily proven, as long as it is correct
to interpret “traffics” in (a)(8) as necessarily comprising “transfer”
or “use” of an authentication feature in (b)(2)(A). Compare (b)(2)(A)
(“any other . . . transfer, or use . . . of . . . an . . . authentica-
tion feature”) with (a)(8) (“knowingly traffics in false or actual
authentication features for use in false identification documents,
document making implements, or means of identification”). The
statutory definition of “traffic” includes “transfer.” 18 U.S.C.
§ 1028(d)(12)(A).
Similarly, if the third element of the § 1028(a)(8) offense
involves authentication features that were or appeared “to be is-
sued by or under the authority of the United States,” then upon a
finding of guilt, the statutory maximum provided in
§ 1028(b)(1)(A)(i) of fifteen years applies, and no penalty-enhancing
instruction or corresponding verdict form should be given, unless
the facts alleged and proved at trial trigger a greater maximum
penalty under another penalty-enhancing provision (such as facili-
tation of a drug trafficking crime, § 1028(b)(3)(A) (20 years), con-
nection with a crime of violence, § 1028(b)(3)(B) (20 years), or facil-
itation of an act of domestic terrorism or international terrorism,
§ 1028(b)(4) (30 years)).
However, if the elements involved in the offense charged do
1028(a)(8)
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495
not necessarily involve a finding that the authentication features
at issue were or appeared “to be issued by or under the authority
of the United States,” then the penalty-enhancing provisions of
§ 1028(b) should be addressed if the facts alleged in the indictment
and proved at trial support those enhancements.
“Drug trafficking crime” is defined at 18 U.S.C. § 929(a)(2),
“crime of violence” at § 924(c)(3), “act of domestic terrorism” at
§ 2331(5), and “act of international terrorism” at § 2331(1).
The term “knowingly” is defined in Pattern Instruction 4.10.
1028(a)(8)
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496
18 U.S.C. § 1028(d)(1) DEFINITION OF
“AUTHENTICATION FEATURE”
“Authentication feature” means any hologram, wa-
termark, certification, symbol, code, image, sequence of
numbers or letters that is used by the issuing authority
on an identification document, document making imple-
ment, or means of identification to determine if the doc-
ument is counterfeit, altered, or otherwise falsified. The
issuing authority may use the authentication feature
either by itself or in combination with another feature
to make this determination.
Committee Comment
This instruction is applicable to offenses under 18 U.S.C.
§ 1028(a)(1)–(6) and (8) and the definitions of “false authentication
feature” and “issuing authority.”
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497
18 U.S.C. § 1028(d)(2) DEFINITION OF
“DOCUMENT-MAKING IMPLEMENT”
“Document making implement” means any imple-
ment, impression, template, computer file, computer
disc, electronic device, or computer hardware or soft-
ware, that is specifically configured or primarily used
for making an identification document, a false identifi-
cation document, or another document making
implement.
Committee Comment
This instruction is applicable to offenses under 18 U.S.C.
§ 1028(a)(5) and (8) and the definitions of “authentication feature,”
“false authentication feature,” and “transfer.”
For definitions of the terms “hardware” and “software” see the
definitions regarding those terms as used under § 1029.
1028(d)(2)
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498
18 U.S.C. § 1028(d)(3) DEFINITION OF
“IDENTIFICATION DOCUMENT”
“Identification document” means a document made
or issued by or under the authority of the United States
Government, a State, political subdivision of a State, a
sponsoring entity of an event designated as a special
event of national significance, a foreign government, po-
litical subdivision of a foreign government, an interna-
tional governmental or an international quasi-
governmental organization which, when completed with
information concerning a particular individual, is of a
type intended or commonly accepted for the purpose of
identification of individuals.
Committee Comment
This instruction is applicable to offenses under 18 U.S.C.
§ 1028(a)(1)–(4), (6), and the definitions of “authentication feature,”
“document-making implement,” “false authentication feature,” “is-
suing authority,” “personal identification card” and “transfer.”
1028(d)(3)
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499
18 U.S.C. § 1028(d)(4) DEFINITION OF “FALSE
IDENTIFICATION DOCUMENT”
“False identification document” means a document
that is of a type that is intended or commonly accepted
to identify individuals that [is not issued by or under
the authority of a governmental entity; was issued
under the authority of a governmental entity but was
subsequently altered for purposes of deceit] and ap-
pears to be issued by or under the authority of [the
United States Government; a State; a political subdivi-
sion of a State; a sponsoring entity of an event desig-
nated by the President as a special event of national
significance; a foreign government; a political subdivi-
sion of a foreign government; or an international
governmental or quasi-governmental organization].
Committee Comment
This definition is applicable to offenses under 18 U.S.C.
§ 1028(a)(1)–(5) and (8) and § 1028A(a)(2) and the definitions of
“document-making implement” and “transfer.”
Ideally, the facts charged in the indictment or the evidence
presented at trial will be particular enough to allow the court to
determine which alternative definition of “false identification docu-
ment” applies. If not, the court may have to give both alternative
definitions.
1028(d)(4)
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500
18 U.S.C. § 1028(d)(5) DEFINITION OF “FALSE
AUTHENTICATION FEATURE”
“False authentication feature” means an authenti-
cation feature that
[is genuine in origin, but, without the authoriza-
tion of the issuing authority, has been tampered with
or altered for purposes of deceit.]
-or-
[is genuine, but, without the authorization of the
issuing authority, has been distributed or is intended
for distribution for use other than by the issuing author-
ity in a lawfully made [identification document; docu-
ment making implement; means of identification].]
-or-
[appears to be genuine, but is not.]
Committee Comment
This pattern instruction, to be used in connection with offen-
ses charged under 18 U.S.C. § 1028(a)(8), separates the three
definitions of “false authentication feature” provided by 18 U.S.C.
§ 1028(d)(5)(A)–(C) into three alternative jury instructions. The
second alternative significantly condenses the language of
§ 1028(d)(5)(B), which contains several terms that seem unneces-
sary to convey the key requirement that the distribution be for a
purpose other than making a valid identification document.
1028(d)(5)
CRIMINAL INSTRUCTIONS
501
18 U.S.C. § 1028(d)(6) DEFINITION OF “ISSUING
AUTHORITY”
“Issuing authority” means any governmental entity
or agency that is authorized to issue identification docu-
ments, means of identification, or authentication
features. An issuing authority includes the United
States Government, a State, a political subdivision of a
State, a sponsoring entity of an event designated by the
President as a special event of national significance, a
foreign government, a political subdivision of a foreign
government, or an international government or quasi-
governmental organization.
Committee Comment
This instruction is applicable to offenses under 18 U.S.C.
§ 1028 and the definitions of “authentication feature” and “false
authentication feature.”
1028(d)(6)
STATUTORY INSTRUCTIONS
502
18 U.S.C. § 1028(d)(7) DEFINITION OF “MEANS
OF IDENTIFICATION”
“Means of identification” means any name or
number that may be used, alone or in conjunction with
any other information, to identify a specific individual.
A means of identification includes any
[name; social security number; date of birth; official
State or government issued driver’s license or identifica-
tion number; alien registration number; government
passport number; employer or taxpayer identification
number.]
[unique biometric data, such as fingerprint, voice
print, retina or iris image, or other unique physical
representation.]
[unique electronic [identification number; address;
routing code].]
[electronic serial number or any other number or
signal that identifies a specific telecommunications
instrument or account; a specific communication
transmitted from a telecommunications instrument.]
[card; plate; code; account number; electronic serial
number; mobile identification number; personal identifi-
cation number; or other telecommunications service,
equipment, or instrument identifier; or other means of
account access] that can be [used, alone or in conjunc-
tion with another access device, to obtain money, goods,
services, or any other thing of value; used to initiate a
transfer of funds (other than a transfer originated solely
by paper instrument).]
Committee Comment
This instruction is applicable to offenses under 18 U.S.C.
§ 1028(a)(7)–(8) and § 1028A(a)(1)–(2) and the definitions of
“authentication feature,” “issuing authority” and “false authentica-
tion feature.”
1028(d)(7)
CRIMINAL INSTRUCTIONS
503
The statutory definition of “means of identification” provides
an uncommonly long list of examples, all of which are reproduced
here as alternative sets of examples. In crafting a jury instruction
from this pattern definition, the court should incorporate only
those examples that are most relevant to the facts of the particular
case on trial.
The final set of examples of a “means of identification”
provided by § 1028(d)(7)(D) contains a cross-reference to § 1029(e)’s
definitions of “telecommunication identifying information” and “ac-
cess device.” Accordingly, the final two sets of examples in this
pattern definition reproduce the definitions of those terms provided
by § 1029(e)(1), (11).
In United States v. Thomas, 763 F.3d 689, 692–93 (7th Cir.
2014), the court found that a name is a “means of identification”
within the meaning of the statute.
1028(d)(7)
STATUTORY INSTRUCTIONS
504
18 U.S.C. § 1028(d)(8) DEFINITION OF
“PERSONAL IDENTIFICATION CARD”
“Personal identification card” means an identifica-
tion document issued by a State or local government
solely for the purpose of identification.
Committee Comment
This instruction is applicable to production or transfer offen-
ses subject to a 15-year maximum under 18 U.S.C.
§ 1028(b)(1)(A)(ii).
1028(d)(8)
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505
18 U.S.C. § 1028(d)(9) DEFINITION OF
“PRODUCE”
“Produce” includes alter, authenticate, and
assemble.
Committee Comment
This instruction is applicable to offenses under 18 U.S.C.
§ 1028(a)(1) and (5).
1028(d)(9)
STATUTORY INSTRUCTIONS
506
18 U.S.C. § 1028(d)(10) DEFINITION OF
“TRANSFER”
“Transfer” includes selecting an identification docu-
ment, false identification document, or document mak-
ing implement and placing or directing the placement
of such identification document, false identification doc-
ument, or document making implement on an online lo-
cation where it is available to others.
Committee Comment
This instruction is applicable to offenses under 18 U.S.C.
§ 1028(a)(2)–(3), (5), and (7) and § 1028A(a)(1)–(2) and the defini-
tion of “traffic.”
The court should give this pattern definition of “transfer” only
when appropriate based on the facts of the particular case. Al-
though the statutory definition provided by § 1028(d)(10) makes
clear that the transfers prohibited by § 1028 may include an online
posting, a conviction under § 1028 does not require such an
electronic transfer. If the defendant is charged with physically car-
rying counterfeit identification documents, this pattern definition
would be unnecessary and potentially confusing to the jury.
1028(d)(10)
CRIMINAL INSTRUCTIONS
507
18 U.S.C. § 1028(d)(11) DEFINITION OF “STATE”
“State” includes any state of the United States, the
District of Columbia, the Commonwealth of Puerto Rico,
and any other commonwealth, possession, or territory
of the United States.
Committee Comment
This instruction is applicable to offenses under 18 U.S.C.
§ 1028(a)(7) and the definitions of “identification document,” “false
identification document,” “issuing authority,” “means of identifica-
tion,” and “personal identification card.”
1028(d)(11)
STATUTORY INSTRUCTIONS
508
18 U.S.C. § 1028(d)(12) DEFINITION OF
“TRAFFIC”
“Traffic” means to transport, transfer, or otherwise
dispose of, to another, for anything of value, or to make
or obtain control of with intent to so transport, transfer,
or otherwise dispose of.
Committee Comment
This instruction is applicable to offenses under 18 U.S.C.
§ 1028(a)(8).
1028(d)(12)
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509
18 U.S.C. § 1028A DEFINITION OF “IN
RELATION TO”
A person [transfers; possesses; uses] a [means of
identification; false identification document] “in relation
to” a crime if it had a purpose, role or effect with re-
spect to the [felony; terrorism] offense. It also means
that the [transfer; possession; use] of the [means of
identification; false identification document] had a con-
nection to or relationship with the [felony; terrorism]
offense.
Committee Comment
Section 1028A of Title 18 does not provide a specific definition
for “in relation to.” This definition borrows from the meaning of
that phrase in the firearms context, see Pattern Instruction 18
U.S.C. § 924(c)(1); see also Pattern Crim. Jury Instr. 5th Cir. 2.44
(2020); Mod. Crim. Jury Instr. 3rd Cir. 6.18.924B (2018); Pattern
Crim. J. Instr. 11th Cir. OI 35.2 (2020). The definition should be
tailored to the particular facts of the case on trial and the
government’s theory of how the defendant’s transfer, possession, or
use was related to the felony or terrorism offense.
1028A
STATUTORY INSTRUCTIONS
510
18 U.S.C. § 1028A(a)(1) AGGRAVATED
IDENTITY THEFT—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] aggravated identity theft. In order for you to find
[the; a] defendant guilty of this count, the government
must prove each of the [four] following elements beyond
a reasonable doubt:
1. The defendant committed the felony offense of
[title of offense] [as charged in Count [
———
]].
2. The defendant knowingly [transferred; pos-
sessed; used] a means of identification;
3. The defendant knew the means of identifica-
tion belonged to another person;
4. The defendant knew that such [transfer; pos-
session; use] was without lawful authority;
5. The defendant did so during and in relation to
[name charged felony].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the count
you are considering], then you should find the defendant
guilty [of that count].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the count you are considering], then you
should find the defendant not guilty [of that count].
Committee Comment
In the first element of the offense, the term “title of offense”
should be substituted with the specific name of the predicate felony
from 18 U.S.C. § 1028A(c).
1028A(a)(1)
CRIMINAL INSTRUCTIONS
511
In Flores-Figueroa v. United States, 556 U.S. 646 (2009), the
Supreme Court held that 18 U.S.C. § 1028A(a)(1) required the
government to prove that the defendant knew that the means of
identification at issue belonged to another person.
In United States v. LaFaive, 618 F.3d 613, 615–18 (7th Cir.
2010), the Seventh Circuit decided that the phrase “another
person” in subsection (a)(1) of § 1028A includes both living and
deceased persons. The court stated that its conclusion was sup-
ported by the plain language of § 1028A(a)(1), the structure of
§ 1028A, and decisions of other courts. In United States v. Aslan,
644 F.3d 526, 550 (7th Cir. 2011), the court held that a defendant
must know that the “means of identification” belonged to a real
person, not a purely fictitious creation not tied to any person. In
United States v. Spears, 729 F.3d 753, 757 (7th Cir. 2013), the
court ruled that “another person” means a “person who did not
consent to the information’s use, rather than a person other than
the defendant.” Further, in United States v. Thomas, 763 F.3d 689,
692–93 (7th Cir. 2014), the court found that forging someone’s
name on a document is a “knowing use” of that name “without
lawful authority” and that a name is a “means of identification”
within the meaning of the statute. The court also outlined the ele-
ments of the offense that must be proven to sustain a violation of
the statute. Id. at 692. In United States v. Miller, 883 F.3d 998,
1004 (7th Cir. 2018), the court held that where an individual pos-
sesses multiple means of identification in a single notebook as part
of the same predicate violation of law, he can only be convicted of
one violation of § 1028A(1)(a).
The First, Sixth, Ninth Circuits have held that the term “use”
requires an individual to attempt to pass him or herself off as an-
other person or purport to take some other action on another
person’s behalf. See United States v. Berroa, 856 F.3d 141, 156 n.2
(1st Cir. 2017); United States v. Miller, 734 F.3d 530 (6th Cir.
2013); United States v. Hong, 938 F.3d 1040, 1051 (9th Cir. 2019).
Berroa and Hong approvingly cited the reasoning in the Seventh
Circuit’s opinion in United States v. Spears, 729 F.3d 753, 757 (7th
Cir. 2013), in reaching this result. The Seventh Circuit, however,
has not articulated a position on the proper interpretation of “use”
in this context.
The term “knowingly” is defined in Pattern Instruction 4.10,
which should also be given to define the term “knew” in the third
element of this instruction.
If the predicate offense is not separately charged, the jury
must be instructed as to the elements of that count and has to find
the elements beyond a reasonable doubt.
1028A(a)(1)
STATUTORY INSTRUCTIONS
512
18 U.S.C. § 1029 ACCESS DEVICE FRAUD—
DEFINITIONS
Committee Comment
These pattern definitions are designed to accompany the Pat-
tern Instructions for the offenses listed in 18 U.S.C. § 1029. The
source of most of these definitions is § 1029(e), which defines sev-
eral terms unique to § 1029.
In providing these definitions, the Committee does not intend
to imply that the court should always instruct the jury on all of
the definitions. The court should provide the jury with the defini-
tions only for the terms that are necessary for the particular case
on trial. In addition, the court should excise from each definition
terms that are inapplicable to the facts of the particular case.
Unless otherwise noted, these pattern definitions simply
reproduce the definitions provided by § 1029(e) with only minor
stylistic changes.
1029
CRIMINAL INSTRUCTIONS
513
18 U.S.C. § 1029 DEFINITION OF
“TELECOMMUNICATIONS INSTRUMENT”
“Telecommunications instrument” means a device,
tool or implement, especially one held in the hand,
which is used to transmit information over a distance
by electronic means such as by cable, telegraph,
telephone, or broadcasting. [A mobile phone, often
referred to as a cellular phone, is an example of a
telecommunications instrument.]
Committee Comment
This definition is applicable to offenses under 18 U.S.C.
1029(a)(7) and (9) and the definition of “telecommunication
identifying information.” It is based on several sources, including
The New Oxford American Dictionary, the definition of “telecom-
munications” in 47 U.S.C. § 153(43), and the online glossary of
computer and internet terms, http://pc.net/glossary/definition/telec
ommunication.
1029
STATUTORY INSTRUCTIONS
514
18 U.S.C. § 1029 DEFINITION OF “HARDWARE”
“Hardware” consists of the machines, wiring, and
other physical components of a computer or other
electronic system or media storage device. Hardware
includes the [cables; connectors; power supply units;
monitors; keyboards; mice; audio speakers; printers;
scanners; microprocessors; disks; disk drives; optical
drives; USB drives; and digital media but not data
stored on the devices].
Committee Comment
This definition is applicable for offenses under 18 U.S.C.
§ 1029(a)(9). It is adapted from several sources, including the New
Oxford American Dictionary, The Oxford English Dictionary, the
online glossary of computer and internet terms, http://pc.net/glos
sary and the online dictionary of technology terms, www.techdictio
nary.com.
The facts of the case determine which of the items within the
brackets should be included in the definition for the particular
case.
1029
CRIMINAL INSTRUCTIONS
515
18 U.S.C. § 1029 DEFINITION OF “SOFTWARE”
“Software” includes programs, applications, operat-
ing instructions, code, and other digital information or
data used or processed by a microprocessor.
Committee Comment
This definition is applicable for offenses under 18 U.S.C.
§ 1029(a)(9). It is adapted from several sources, including the New
Oxford American Dictionary, The Oxford English Dictionary, the
online glossary of computer and internet terms, http://pc.net/glos
sary and the online dictionary of technology terms, www.techdictio
nary.com.
1029
STATUTORY INSTRUCTIONS
516
18 U.S.C. § 1029 DEFINITION OF “INTERSTATE
OR FOREIGN COMMERCE”
Committee Comment
“Interstate or foreign commerce” is not defined within § 1029.
The Committee recommends employing the pattern definition sug-
gested for offenses in violation of 18 U.S.C. § 1028.
This definition is applicable to offenses under 18 U.S.C.
§ 1029(a)(1)–(10).
1029
CRIMINAL INSTRUCTIONS
517
18 U.S.C. § 1029(a)(1) PRODUCTION, USE OR
TRAFFICKING IN COUNTERFEIT ACCESS
DEVICES—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] the [production; use; trafficking] of [a] counterfeit
access device[s]. In order for you to find [the; a]
defendant guilty of this charge, the government must
prove each of the following [three] elements beyond a
reasonable doubt:
1. The defendant knowingly [produced; used; traf-
ficked in] one [or more] counterfeit access device[s]; and
2. The defendant did so with the intent to defraud;
and
3. The defendant’s conduct affected [interstate;
foreign] commerce.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The Committee recommends that the court name the access
device (such as “credit card” or “debit card”) rather than using the
generic term “access device” in its instructions unless there is an
issue as to whether the device qualifies as an “access device.”
The Committee also recommends that the court instruct the
1029(a)(1)
STATUTORY INSTRUCTIONS
518
jury on the definition of “interstate or foreign commerce” and
“intent to defraud.” For a definition of “interstate or foreign com-
merce” see the Pattern Instruction regarding that term as used in
18 U.S.C. § 1028. For a definition of “intent to defraud” see the
Pattern Instruction regarding that term as used in the mail and
wire fraud statutes, 18 U.S.C. §§ 1341 & 1343.
1029(a)(1)
CRIMINAL INSTRUCTIONS
519
18 U.S.C. § 1029(a)(2) TRAFFICKING OR USE OF
UNAUTHORIZED ACCESS DEVICES—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] the [use of; trafficking in] [an] access device[s]. In
order for you to find [the; a] defendant guilty of this
charge, the government must prove each of the [four]
following elements beyond a reasonable doubt:
1. The defendant knowingly [used; trafficked in]
one or more [unauthorized access devices [as charged in
the indictment]; and
2. By such conduct the defendant obtained any
[money; good(s); service(s); any other thing of value]
with a total value of at least $1,000 during any one
year period; and
3. The defendant did so with the intent to defraud;
and
4. The defendant’s conduct affected [interstate;
foreign] commerce.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The Committee recommends that the court name the access
1029(a)(2)
STATUTORY INSTRUCTIONS
520
device (such as “credit card” or “debit card”) rather than using the
generic term “access device” in its instructions unless there is an
issue as to whether the device qualifies as an “access device.”
The Committee recommends that the court instruct the jury
on the definition of “interstate or foreign commerce” and “intent to
defraud.” For a definition of “interstate or foreign commerce” see
the Pattern Instruction regarding that term as used in 18 U.S.C.
§ 1028. For a definition of “intent to defraud” see the Pattern
Instruction regarding that term as used in the mail and wire fraud
statutes, 18 U.S.C. §§ 1341 & 1343.
When the indictment alleges an attempt, Pattern Instruction
4.09 for attempt should also be employed.
1029(a)(2)
CRIMINAL INSTRUCTIONS
521
18 U.S.C. § 1029(a)(3) POSSESSION OF
MULTIPLE UNAUTHORIZED OR
COUNTERFEIT ACCESS DEVICES—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] possession of multiple access devices with intent
to defraud. In order for you to find [the; a] defendant
guilty of this charge, the government must prove each
of the [four] following elements beyond a reasonable
doubt:
1. The defendant knowingly possessed fifteen or
more [unauthorized; counterfeit] access devices; and
2. The defendant possessed those devices with the
intent to defraud; and
3. The defendant’s conduct affected [interstate;
foreign] commerce.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The Committee recommends that the court name the access
device (such as “credit card” or “debit card”) rather than using the
generic term “access device” in its instructions unless there is a
dispute over whether the device at issue qualifies as an “access
device.”
The Committee recommends that the court instruct the jury
1029(a)(3)
STATUTORY INSTRUCTIONS
522
on the definition of “interstate or foreign commerce” and “intent to
defraud.” For a definition of “interstate or foreign commerce” see
the Pattern Instruction regarding that term as used in 18 U.S.C.
§ 1028. For a definition of “intent to defraud” see the Pattern
Instruction regarding that term as used in the mail and wire fraud
statutes, 18 U.S.C. §§ 1341 & 1343.
When the indictment alleges an attempt, Pattern Instruction
4.09 for attempt should also be employed.
1029(a)(3)
CRIMINAL INSTRUCTIONS
523
18 U.S.C. § 1029(a)(4) PRODUCTION,
TRAFFICKING AND POSSESSION OF DEVICE-
MAKING EQUIPMENT—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] fraud involving access device making equipment.
In order for you to find [the; a] defendant guilty of this
charge, the government must prove each of the [three]
following elements beyond a reasonable doubt:
1. The defendant knowingly [produced; trafficked
in; had control or custody of; possessed] device making
equipment; and
2. The defendant did so with the intent to defraud;
and
3. The defendant’s conduct affected [interstate;
foreign] commerce.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The Committee recommends that district courts name the ac-
cess device (such as “credit card” or “debit card”) rather than using
the generic term “access device” in its instructions unless there is
an issue as to whether the device qualifies as an “access device.”
The Committee recommends that district courts instruct juries
1029(a)(4)
STATUTORY INSTRUCTIONS
524
on the definition of “interstate or foreign commerce” and “intent to
defraud.” For a definition of “interstate or foreign commerce” see
the Pattern Instruction regarding that term as used in 18 U.S.C.
§ 1028. For a definition of “intent to defraud” see the Pattern
Instruction regarding that term as used in the mail and wire fraud
statutes, 18 U.S.C. §§ 1341 & 1343.
1029(a)(4)
CRIMINAL INSTRUCTIONS
525
18 U.S.C. § 1029(a)(5) FRAUDULENT
TRANSACTIONS WITH ANOTHER’S ACCESS
DEVICE—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] fraud in connection with access devices issued to
others. In order for you to find [the; a] defendant guilty
of this charge, the government must prove each of the
[four] following elements beyond a reasonable doubt:
1. The defendant knowingly [engaged in; caused;
conducted] [a] transaction[s] with [one; or more] access
device[s] that had been issued to another person[s]; and
2. The defendant did so to obtain [money; good(s);
service(s); any other thing of value] with a total value
of at least $1,000 during any one-year period; and
3. The defendant did so with the intent to defraud;
and
4. The defendant’s conduct affected [interstate;
foreign] commerce.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The Committee recommends that the court name the access
device (such as “credit card” or “debit card”) rather than using the
1029(a)(5)
STATUTORY INSTRUCTIONS
526
generic term “access device” in its instructions unless there is an
issue as to whether the device qualifies as an “access device.”
The Committee recommends that the court instruct the jury
on the definition of “interstate or foreign commerce” and “intent to
defraud.” For a definition of “interstate or foreign commerce” see
the Pattern Instruction regarding that term as used in 18 U.S.C.
§ 1028. For a definition of “intent to defraud” see the Pattern
Instruction regarding that term as used in the mail and wire fraud
statutes, 18 U.S.C. §§ 1341 & 1343.
The Committee notes that the statute employs the phrase “ef-
fects transactions” but recommends that district courts use
“engaged in,” “caused” or “conducted” transactions because those
terms are more likely to be understood by juries.
1029(a)(5)
CRIMINAL INSTRUCTIONS
527
18 U.S.C. § 1029(a)(6) SOLICITATION TO SELL
ACCESS DEVICE OR INFORMATION
REGARDING AN ACCESS DEVICE—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] fraud in connection with the unauthorized solici-
tation of information relating to access devices. In order
for you to find [the; a] defendant guilty of this charge,
the government must prove each of the [four] following
elements beyond a reasonable doubt:
1. The defendant knowingly solicited a person for
the purpose of [offering an access device; selling infor-
mation regarding an access device; selling information
regarding an application to obtain an access device];
and
2. The defendant did so without authorization of
the issuer of the access device; and
3. The defendant did so with the intent to defraud;
and
4. The defendant’s conduct affected [interstate;
foreign] commerce.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
1029(a)(6)
STATUTORY INSTRUCTIONS
528
Committee Comment
The Committee recommends that the court name the access
device (such as “credit card” or “debit card”) rather than using the
generic term “access device” in its instructions unless there is an
issue as to whether the device qualifies as an “access device.”
The Committee recommends that the court instruct the jury
on the definition of “interstate or foreign commerce” and “intent to
defraud.” For a definition of “interstate or foreign commerce” see
the Pattern Instruction regarding that term as used in 18 U.S.C.
§ 1028. For a definition of “intent to defraud” see the Pattern
Instruction regarding that term as used in the mail and wire fraud
statutes, 18 U.S.C. §§ 1341 & 1343.
1029(a)(6)
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18 U.S.C. § 1029(a)(7) USE, PRODUCTION,
TRAFFICKING OR POSSESSION OF MODIFIED
TELECOMMUNICATION INSTRUMENT—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] fraud in connection with [insert type of telecom-
munications instrument]. In order for you to find [the;
a] defendant guilty of this charge, the government must
prove each of the [three] following elements beyond a
reasonable doubt:
1. The defendant knowingly [used; produced; traf-
ficked in; had control or custody of; possessed] a [insert
type of telecommunications instrument] that has been
modified or altered to obtain unauthorized use of
telecommunications services; and
2. The defendant did so with the intent to defraud;
and
3. The defendant’s conduct affected [interstate;
foreign] commerce.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The Committee recommends that the court name the particu-
1029(a)(7)
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530
lar telecommunications instrument at issue (such as “cellular
telephone”) rather than using the generic term “telecommunica-
tions instrument” in its instructions unless there is an issue as to
whether the device qualifies as an “telecommunications
instrument.” If there is such a dispute, then the jury should be
instructed on the meaning of a “telecommunications instrument.”
The Committee recommends that the court instruct the jury
on the definition of “interstate or foreign commerce” and “intent to
defraud.” For a definition of “interstate or foreign commerce” see
the Pattern Instruction regarding that term as used in 18 U.S.C.
§ 1028. For a definition of “intent to defraud” see the Pattern
Instruction regarding that term as used in the mail and wire fraud
statutes, 18 U.S.C. §§ 1341 & 1343.
1029(a)(7)
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531
18 U.S.C. § 1029(a)(8) USE, PRODUCTION,
TRAFFICKING OR POSSESSION OF A
SCANNING RECEIVER—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] fraud involving scanning receivers. In order for
you to find [the; a] defendant guilty of this charge, the
government must prove each of the [three] following
elements beyond a reasonable doubt:
1. The defendant knowingly [used; produced; traf-
ficked in; had control or custody of; possessed] [a; one or
more] scanning receiver[s]; and
2. The defendant acted with the intent to defraud;
and
3. The defendant’s conduct affected [interstate;
foreign] commerce.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The Committee recommends that the court instruct the jury
on the definition of “interstate or foreign commerce” and “intent to
defraud.” For a definition of “interstate or foreign commerce” see
the Pattern Instruction regarding that term as used in 18 U.S.C.
§ 1028. For a definition of “intent to defraud” see the Pattern
Instruction regarding that term as used in the mail and wire fraud
1029(a)(8)
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532
statutes, 18 U.S.C. §§ 1341 & 1343.
1029(a)(8)
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533
18 U.S.C. § 1029(a)(9) USE, PRODUCTION,
TRAFFICKING OR POSSESSION OF
HARDWARE OR SOFTWARE CONFIGURED TO
OBTAIN TELECOMMUNICATION SERVICES—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] fraud involving hardware or software used to
obtain unauthorized telecommunications services. In
order for you to find [the; a] defendant guilty of this
charge, the government must prove each of the [three]
following elements beyond a reasonable doubt:
1. The defendant knowingly [used; produced; traf-
ficked in; had control or custody of; possessed] [hard-
ware; software] that has been configured to [insert;
modify] telecommunication identifying information [as-
sociated with; contained in] a telecommunications
instrument so that the instrument may be used to
obtain telecommunications services without authoriza-
tion; and
2. The defendant knew the software or hardware
had been so configured; and
3. The defendant’s conduct affected [interstate;
foreign] commerce.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
1029(a)(9)
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534
Committee Comment
If no issue exists as to whether the device is a “telecommunica-
tions instrument” (such as a cellular telephone), the Committee
recommends that the phrase “telecommunications instrument” be
replaced with the name of the device. If an issue does exist as to
whether the device is a telecommunications instrument then, of
course, the term should be used and defined for the jury.
The Committee recommends that court instruct the jury on
the definition of “interstate or foreign commerce.” For a definition
of “interstate or foreign commerce” see the Pattern Instruction
regarding that term as used in 18 U.S.C. § 1028.
1029(a)(9)
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535
18 U.S.C. § 1029(a)(10) FRAUDULENT
PRESENTATION OF EVIDENCE OF CREDIT
CARD TRANSACTION TO CLAIM
UNAUTHORIZED PAYMENT—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] fraud involving [a] claim[s] for unauthorized pay-
ment[s] of [a] credit card transaction[s]. In order for
you to find [the; a] defendant guilty of this charge, the
government must prove each of the [four] following ele-
ments beyond a reasonable doubt:
1. The defendant knowingly [arranged for; caused]
another person to present, for payment to a credit card
system [member; agent], one or more [records; evi-
dences] of transactions made by an access device [as
described in the indictment]; and
2. The defendant was not authorized by the credit
card system [member; agent] to [arrange; cause] such a
claim for payment; and
3. The defendant acted with the intent to defraud;
and
4. The defendant’s conduct affected [interstate;
foreign] commerce.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
1029(a)(10)
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536
Committee Comment
The Committee recommends that the court name the access
device (such as “credit card” or “debit card”) rather than using the
generic term “access device” in its instructions unless there is an
issue as to whether the device qualifies as an “access device.”
The Committee also recommends that, if there is agreement
on the issue, the court name the bank or other institution rather
than using the generic term “credit card system member.”
The Committee recommends that the court instruct the jury
on the definition of “interstate or foreign commerce” and “intent to
defraud.” For a definition of “interstate or foreign commerce” see
the Pattern Instruction regarding that term as used in 18 U.S.C.
§ 1028. For a definition of “intent to defraud” see the Pattern
Instruction regarding that term as used in the mail and wire fraud
statutes, 18 U.S.C. §§ 1341 & 1343.
1029(a)(10)
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537
18 U.S.C. §§ 1029(b)(1) & (b)(2) ATTEMPT AND
CONSPIRACY—ELEMENTS
Committee Comment
18 U.S.C. §§ 1029(b)(1) and (b)(2) proscribe attempts and
conspiracies to violate any subsection of § 1029(a). Where the
indictment charges an attempt adjust the instruction accordingly,
using relevant elements from the attempt pattern jury instruc-
tions, see Pattern Instructions 4.09 (Attempt), as appropriate.
18 U.S.C. §§ 1029(b)(2) provides for criminal liability for con-
spiracy “if any of the parties engages in any conduct in further-
ance of such offense. . ..” Therefore, the statutory language for
conspiracies under § 1029 requires proof of an overt act, a few
courts appear to have assumed that such proof is required. See
United States v. Luttrell, 889 F.2d 806, 809–10 (9th Cir. 1989)
(concluding that the government proved an overt act was commit-
ted and thus the evidence was sufficient to support the conspiracy
conviction under § 1029), amended and vacated in other part, 923
F.2d 764 (9th Cir. 1991) (en banc); United States v. Ayeki, 289 F.
Supp. 2d 183, 189 (D. Conn. 2003) (holding indictment was suf-
ficient and noting that it listed six overt acts allegedly performed
by the coconspirators). Therefore, Pattern Instruction 5.08(A),
Conspiracy—Overt Act Required should be given along with other
relevant Pattern Instructions 5.09 et seq. as appropriate.
1029(b)(1) & (b)(2)
STATUTORY INSTRUCTIONS
538
18 U.S.C. § 1029(e)(1) DEFINITION OF “ACCESS
DEVICE”
“Access device” includes a credit card, debit card or
a personal identification number such as that used to
obtain cash at an ATM. It also means [a; an] [card;
plate; code; account number; electronic serial number;
mobile identification number; personal identification
number] or other [telecommunications service; equip-
ment; instrument identifier; other means of account ac-
cess] that can be used, alone or in conjunction with an-
other access device, [to obtain [money; goods; services;
any other thing of value]; to initiate a transfer of funds].
Committee Comment
The Committee recommends that courts name the access de-
vice (such as “credit card” or “debit card”) rather than using the
generic term “access device” in its instructions unless there is an
issue as to whether the device qualifies as an “access device.”
This definition is applicable to offenses under 18 U.S.C.
§ 1029(a)(5), (6) and (10) and the definitions of “counterfeit access
device,” “unauthorized access device,” and “device-making
equipment.”
1029(e)(1)
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539
18 U.S.C. § 1029(e)(2) DEFINITION OF
“COUNTERFEIT ACCESS DEVICE”
“Counterfeit access device” means any access de-
vice that is [counterfeit; fictitious; altered; forged]. [The
term also includes an identifiable component of an ac-
cess device or a counterfeit access device.]
Committee Comment
This definition is applicable to offenses under 18 U.S.C.
§ 1029(a)(1) and (3) and the definition of “device-making
equipment.”
1029(e)(2)
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540
18 U.S.C. § 1029(e)(3) DEFINITION OF
“UNAUTHORIZED ACCESS DEVICE”
“Unauthorized access device” means any access de-
vice that is [lost; stolen; expired; revoked; canceled;
obtained with intent to defraud].
Committee Comment
This definition is applicable to offenses under 18 U.S.C.
§ 1029(a)(2) and (3).
1029(e)(3)
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541
18 U.S.C. § 1029(e)(4) DEFINITION OF
“PRODUCE”
“Produce” includes [design; alter; authenticate;
duplicate; assemble].
Committee Comment
This definition is applicable to offenses under 18 U.S.C.
§ 1029(a)(1), (4), and (7)–(9).
1029(e)(4)
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542
18 U.S.C. § 1029(e)(5) DEFINITION OF
“TRAFFIC” OR “TRAFFICKING”
“Traffic” or “trafficking” means to transfer some-
thing to another, or otherwise dispose of something. It
also means to obtain control of something with intent
to transfer or dispose of it.
Committee Comment
This definition is applicable to offenses under 18 U.S.C.
§ 1029(a)(1), (2), (4), and (7)–(9).
1029(e)(5)
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543
18 U.S.C. § 1029(e)(6) DEFINITION OF “DEVICE-
MAKING EQUIPMENT”
“Device making equipment” means any equipment,
mechanism, or impression designed or primarily used
for making an access device or a counterfeit access
device.
Committee Comment
This definition is applicable to offenses under 18 U.S.C.
§ 1029(a)(4).
1029(e)(6)
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544
18 U.S.C. § 1029(e)(7) DEFINITION OF “CREDIT
CARD SYSTEM MEMBER”
“Credit card system member” means an entity,
including a financial institution, that is a member of a
credit card system, such as a bank, credit union, or
credit card company. The term includes an entity that
is the sole member of a credit card system, whether af-
filiated with or identical to the credit card issuer.
Committee Comment
This definition is applicable to offenses under 18 U.S.C.
§ 1029(a)(10).
1029(e)(7)
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545
18 U.S.C. § 1029(e)(8) DEFINITION OF
“SCANNING RECEIVER”
“Scanning receiver” means a device or apparatus
that can be used to intercept an electronic serial
number, mobile identification number, or other identi-
fier of any telecommunications service, equipment, or
instrument.
Committee Comment
This definition is applicable to offenses under 18 U.S.C.
§ 1029(a)(8).
The statutory definition of “scanning receiver” includes a de-
vice that can be used to intercept wire or electronic communica-
tions in violation of chapter 119 (18 U.S.C. §§ 2510–2522). The
types of devices and conduct covered by §§ 2510 to 2522 are so
broad, that the Committee concluded it would be unable to capture
all of the potential conduct in a pattern instruction. Thus, the
Committee recommends that if the theory of prosecution addresses
a scanning receiver that can be used to intercept wire or electronic
communications, the district court should craft a definition of
“scanning receiver” that is specific to §§ 2510 to 2522.
1029(e)(8)
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546
18 U.S.C. § 1029(e)(9) DEFINITION OF
“TELECOMMUNICATIONS SERVICE”
“Telecommunications service” means the offering of
telecommunications for a fee directly to the public, or to
such classes of users as to be effectively available
directly to the public, regardless of the facilities used.
Telephone service, cellular telephone service, instant
messaging and email messaging services are all ex-
amples of “telecommunications services.”
Committee Comment
This definition is applicable to offenses under 18 U.S.C.
§ 1029(a)(7) and (9) and the definitions of “access device” and “scan-
ning receiver.”
1029(e)(9)
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547
18 U.S.C. § 1029(e)(11) DEFINITION OF
“TELECOMMUNICATION IDENTIFYING
INFORMATION”
“Telecommunication identifying information”
means electronic serial number or any other number or
signal that identifies a specific telecommunications
instrument or account, or a specific communication
transmitted from a telecommunications instrument.
Committee Comment
This definition applies to offenses under 18 U.S.C. § 1029(a)(9).
1029(e)(11)
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548
18 U.S.C. § 1030 COMPUTER FRAUD AND
RELATED ACTIVITY—DEFINITIONS
Committee Comment
These pattern definitions are designed to accompany the pat-
tern instructions for the offenses listed in 18 U.S.C. § 1030. The
source of most of these definitions is § 1030(e), which defines sev-
eral terms unique to § 1030.
In providing these definitions, the Committee does not intend
to imply that the court should always instruct the jury on all of
the definitions. The court should provide the jury with the defini-
tions only for the terms that are necessary for the particular case
on trial. In addition, the court should excise from each definition
terms that are inapplicable to the facts of the particular case.
Unless otherwise noted, these pattern definitions simply
reproduce the definitions provided by § 1030(e) with only minor
stylistic changes.
1030
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549
18 U.S.C. § 1030 DEFINITION OF
“GOVERNMENT ENTITY”
“Government entity” includes the Government of
the United States, any state or political subdivision of
the United States, any foreign country, and any state,
province, municipality, or other political subdivision of
a foreign country.
Committee Comment
This definition is applicable where the enhanced penalty under
18 U.S.C. § 1030(c)(4)(A)(V) is sought and in the definition of
“person,” 18 U.S.C. § 1030(e)(12).
1030
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550
18 U.S.C. § 1030 DEFINITION OF “PASSWORD”
A “password” is a sequence of letters, numbers,
symbols or other characters used to gain access to a
computer, computer system, network, file, program, or
function. A password helps ensure that only authorized
users access the computer, computer system, network,
file, program or function.
Committee Comment
This definition is based on several sources: The New Oxford
American Dictionary, The Oxford English Dictionary, the online
glossary of computer and internet terms, http://pc.net/glossary,
and the online dictionary of technology terms, www.techdictionary.
com.
This definition is applicable to offenses under 18 U.S.C.
§ 1030(a)(6).
1030
CRIMINAL INSTRUCTIONS
551
18 U.S.C. § 1030(a)(1) OBTAINING
INFORMATION FROM COMPUTER INJURIOUS
TO THE UNITED STATES—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] obtaining government protected information from
a computer. In order for you to find [the; a] defendant
guilty of this count, the government must prove each of
the [four] following elements beyond a reasonable
doubt:
1. The defendant knowingly [accessed a computer
without authorization; exceeded his authorized access
to a computer]; and
2. In doing so, the defendant obtained [informa-
tion that had been determined by the United States
Government to require protection against disclosure for
reasons of national defense or foreign relations; data
regarding the design, manufacture or use of atomic
weapons]; and
3. The defendant obtained the [information; data]
with reason to believe that the information could be
used to injure the United States or to the advantage of
any foreign nation; and
4. The defendant willfully [[communicated; deliv-
ered; transmitted] the [information; data] to any person
not entitled to receive it] [retained the [information;
data] and failed to deliver it to the officer or employee
of the United States entitled to receive it].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the count
you are considering], then you should find the defendant
guilty [of that count].
1030(a)(1)
STATUTORY INSTRUCTIONS
552
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the count you are considering], then you
should find the defendant not guilty [of that count].
Committee Comment
The statute includes “causes to be communicated, delivered, or
transmitted” and “attempts to communicate, deliver, transmit, or
cause to be communicated, delivered, or transmitted.” The “causes
to be communicated, delivered, or transmitted” and “attempts to
communicate, deliver, transmit, or cause to be communicated,
delivered, or transmitted” language should be used where relevant
to the particular case on trial.
When the indictment alleges an attempt, Pattern Instruction
4.09 for attempt should also be employed.
1030(a)(1)
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553
18 U.S.C. § 1030(a)(2)(A), (B) & (C) OBTAINING
FINANCIAL INFORMATION BY
UNAUTHORIZED ACCESS OF A COMPUTER—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] obtaining financial information by unauthorized
access of a computer. In order for you to find [the; a]
defendant guilty of this charge, the government must
prove both of the following elements beyond a reason-
able doubt:
1. The defendant intentionally [accessed a com-
puter without authorization; exceeded his or her autho-
rized access to a computer]; and
2. By accessing the computer the defendant
obtained [information contained in a [financial record of
(name financial institution), a financial institution; of
(name card issuer), a card issuer]; file of (name con-
sumer reporting agency), a consumer reporting agency
maintained on a consumer]; information from any
department or agency of the United States; information
from any protected computer].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The Supreme Court has held “that it is within the jury’s prov-
1030(a)(2)(A), (B) & (C)
STATUTORY INSTRUCTIONS
554
ince to determine any fact (other than the existence of a prior
conviction) that increases the maximum punishment authorized
for a particular offense.” Oregon v. Ice, 555 U.S. 160, 163 (2009)
(citing Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v.
Washington, 542 U.S. 296 (2004)). Therefore, if the government
seeks, and the evidence supports, the enhanced maximum penalty
provided by 18 U.S.C. § 1030(c)(2)(B), that is, if the offense was
committed for purpose of commercial advantage or private financial
gain, was in furtherance of any criminal or tortious act, or the
value of the information obtained exceeded $5,000, then the
principles of Apprendi require that the jury be instructed on the
penalty-enhancing factor(s).
The instruction on the penalty-enhancing factor(s) should read:
If you find that the government proved beyond a reasonable
doubt [specify the offense charged in the indictment] as charged in
Count [
—
] of the indictment, then you must also determine
whether the government proved beyond a reasonable doubt that
(insert appropriate alternative(s))
[the offense in Count [
—
] was committed for purposes of com-
mercial advantage or private financial gain] [(c)(2)(B)(i)]
-or-
[the offense in Count [
—
] was committed in furtherance of any
criminal or tortious act in violation of the Constitution or laws of
the United States or of any State] [(c)(2)(B)(ii)]
-or-
[the value of the information obtained exceeded $5,000]
[(c)(2)(B)(iii)].
The bracketed citations to the subsections of § 1030(c) at the
end of each of the above alternatives are included only to assist
the court in crafting an appropriate instruction. They are not
intended to be included in the instructions given to the jury.
The Committee recommends that if this instruction is given,
then the jury also be given a special verdict form as follows:
Special Verdict Form
If you find the defendant(s) guilty of [specify the offense
1030(a)(2)(A), (B) & (C)
CRIMINAL INSTRUCTIONS
555
charged in the indictment] Count [
—
], then you must also answer
the following question(s).
We, the jury, find beyond a reasonable doubt that
[the offense in Count [
—
] was committed for purposes of com-
mercial advantage or private financial gain] [(c)(2)(B)(i)]
-or-
[the offense in Count [
—
] was committed in furtherance of any
criminal or tortious act in violation of the Constitution or laws of
the United States or of any State] [(c)(2)(B)(ii)]
-or-
[the value of the information obtained by the defendant
exceeded $5,000] [(c)(2)(B)(iii)].
Yes
———
No
———
(As before, the bracketed citations to the appropriate subparts
of § 1030(c) at the end of e ach of the above alternatives are
included only to assist the court in crafting an appropriate special
verdict form. They are not intended to be included in the verdict
form given to the jury.)
1030(a)(2)(A), (B) & (C)
STATUTORY INSTRUCTIONS
556
18 U.S.C. § 1030(a)(3) ACCESSING A NON-
PUBLIC GOVERNMENT COMPUTER—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] accessing a non-public government computer. In
order for you to find [the; a] defendant guilty of this
charge, the government must prove each of the [three]
following elements beyond a reasonable doubt:
1. The defendant intentionally accessed a non-
public computer of a (identify department or agency of
the United States); and
2. [The computer was exclusively for the use of
the government; the computer was used by or for the
government and defendant’s conduct affected the use
by or for the government]; and
3. The defendant lacked authorization to access
any non-public computer of (identify the department or
agency of the United States).
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
1030(a)(3)
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557
18 U.S.C. § 1030(a)(4) COMPUTER FRAUD USE
BY OR FOR FINANCIAL INSTITUTION OR
GOVERNMENT—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] fraud by using a protected computer. In order for
you to find [the; a] defendant guilty of this charge, the
government must prove each of the [four] following ele-
ments beyond a reasonable doubt:
1. The defendant knowingly [accessed a protected
computer without authorization; exceeded authorized
access to a protected computer]; and
2. The defendant did so with the intent to defraud;
and
3. By [accessing; exceeding authorized access to]
the protected computer, the defendant furthered the
fraud; and
4. The defendant thereby obtained anything of
value.
–or–
[4. The object of the fraud and the thing obtained
was the use of the computer and the value of that use
exceeded $5000 in any one-year period.]
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
1030(a)(4)
STATUTORY INSTRUCTIONS
558
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The Committee recommends that the court define “intent to
defraud.” For a definition of “intent to defraud” see the Pattern
Instruction regarding that term as used in the mail and wire fraud
statutes, 18 U.S.C. §§ 1341 & 1343.
A person does not violate this statute if the object of the fraud
and the thing of value obtained consists only of the use of the com-
puter and the value of such use is not more than $5000 in any
1-year period. If the theory of the case is that the object of the
fraud was simply the use of the computer, and there is evidence to
support a finding that the value of that use exceeded $5000 in any
one-year period, then the alternate fourth element should be used.
1030(a)(4)
CRIMINAL INSTRUCTIONS
559
18 U.S.C. § 1030(a)(5)(A) TRANSMISSION OF
PROGRAM TO INTENTIONALLY CAUSE
DAMAGE TO A COMPUTER—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] transmitting a program that damages a computer.
In order for you to find [the; a] defendant guilty of this
charge, the government must prove both of the follow-
ing elements beyond a reasonable doubt:
1. The defendant knowingly caused the transmis-
sion of a [program; information; code; command]; and
2. By doing so, the defendant intentionally caused
damage to a protected computer without authorization.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The Supreme Court has held “that it is within the jury’s prov-
ince to determine any fact (other than the existence of a prior
conviction) that increases the maximum punishment authorized
for a particular offense.” Oregon v. Ice, 555 U.S. 160, 163 (2009)
(citing Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v.
Washington, 542 U.S. 296 (2004)). Therefore, if the government
seeks, and the evidence supports, an enhanced maximum penalty
provided by 18 U.S.C. § 1030(c)(4)(B), (E) or (F), the principles of
Apprendi require that the jury be instructed on the penalty-
enhancing factor(s). The additional jury instruction on the penalty-
enhancing factor(s) should read:
1030(a)(5)(A)
STATUTORY INSTRUCTIONS
560
If you find that the government proved beyond a reasonable
doubt [specify the offense charged in the indictment] as charged in
Count [
—
] of the indictment, then you must also determine
whether the government proved beyond a reasonable doubt that
(insert appropriate alternative(s))
the offense [caused; if completed, would have caused] [loss to
one or more persons during any one-year period aggregating at
least $5,000 in value; the modification or impairment, or potential
modification or impairment, of the medical examination, diagnosis,
treatment, or care of one or more individuals; physical injury to
any person; a threat to public health or safety; damage affecting a
computer used by or for an entity of the United States Govern-
ment in furtherance of the administration of justice, national
defense, or national security; damage affecting ten or more
protected computers during any one-year period]. [(c)(4)(B)]
-or-
[the defendant [attempted to cause; knowingly or recklessly
caused] serious bodily injury] [(c)(4)(E)]
-or-
[the defendant [attempted to cause; knowingly or recklessly
caused] death]. [(c)(4)(F)]
The bracketed citations to the subsections of § 1030(c) are
included only to assist the court in crafting an appropriate
instruction. They are not intended to be included in the jury
instruction.
If the government pursues a “recklessness” theory, the Com-
mittee recommends that the term be defined as follows:
A person acts recklessly if he was aware of a substantial and
unjustifiable risk that his actions would cause [serious bodily
injury; death] and that the defendant consciously disregarded that
risk.
See Model Jury Instructions, Criminal, Third Circuit, Section
5.08 (West 2009).
If the term “serious bodily injury” is used, the Committee
recommends that the term be defined as follows:
1030(a)(5)(A)
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561
Serious bodily injury means bodily injury which involves a
substantial risk of death; extreme physical pain; protracted
and obvious disfigurement; or protracted loss or impairment of
the function of a bodily member, organ or mental faculty.
This definition of “serious bodily injury” is the same as the
pattern instruction regarding that term as used in these Pattern
Instructions under the manslaughter statute, 18 U.S.C. § 1112,
which is taken from 18 U.S.C. § 1365(h)(3).
The Committee recommends that if the additional instruction
is given, then the jury also be given a special verdict form as
follows:
Special Verdict Form
If you find the defendant(s) guilty of [specify the offense
charged in the indictment] Count [
—
], then you must also answer
the following question(s).
We, the jury, find beyond a reasonable doubt that
the offense [caused; in the case of an attempted offense would,
if completed, have caused] [loss to one or more persons during any
one-year period aggregating at least $5,000 in value; the modifica-
tion or impairment, or potential modification or impairment, of the
medical examination, diagnosis, treatment, or care of one or more
individuals; physical injury to any person; a threat to public health
or safety; damage affecting a computer used by or for an entity of
the United States Government in furtherance of the administra-
tion of justice, national defense, or national security; damage af-
fecting ten or more protected computers during any one-year pe-
riod]] [(c)(4)(B)]
-or-
[the defendant [attempted to cause; knowingly or recklessly
caused] serious bodily injury] [(c)(4)(E)]
-or-
[the defendant [attempted to cause; knowingly or recklessly
caused] death]. [(c)(4)(F)]
Yes
———
No
———
1030(a)(5)(A)
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562
(As before, the bracketed citations to the appropriate subparts
of § 1030(c) at the end of each of the above alternatives are
included only to assist the court in crafting an appropriate special
verdict form. They are not intended to be included in the verdict
form given to the jury.)
1030(a)(5)(A)
CRIMINAL INSTRUCTIONS
563
18 U.S.C. § 1030(a)(5)(B) RECKLESSLY
CAUSING DAMAGE BY ACCESSING A
PROTECTED COMPUTER—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] recklessly causing damage by accessing a pro-
tected computer. In order for you to find [the; a]
defendant guilty of this charge, the government must
prove both of the following elements beyond a reason-
able doubt:
1. The defendant intentionally accessed a pro-
tected computer without authorization; and
2. As a result of that conduct, the defendant reck-
lessly caused damage.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The Committee recommends that district courts define the
term “recklessly,” as follows:
A person acts recklessly if he was aware of a substantial
and unjustifiable risk that his conduct would cause damage
and that the defendant consciously disregarded that risk.
See Model Jury Instructions, Criminal, 3d Circuit § 5.08 (West
2009).
The Supreme Court has held “that it is within the jury’s prov-
1030(a)(5)(B)
STATUTORY INSTRUCTIONS
564
ince to determine any fact (other than the existence of a prior
conviction) that increases the maximum punishment authorized
for a particular offense.” Oregon v. Ice, 555 U.S. 160, 163 (2009)
(citing Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v.
Washington, 542 U.S. 296 (2004)). Therefore, if the government
seeks, and the evidence supports, the enhanced maximum penalty
under 18 U.S.C. § 1030(c)(4)(A), then the principles of Apprendi
require that the jury be instructed on the penalty-enhancing
factor(s).
The additional instruction on the penalty-enhancing factor(s)
should read:
If you find that the government proved beyond a reasonable
doubt [specify the offense charged in the indictment] as charged in
Count [
—
] of the indictment, then you must also determine
whether the government proved beyond a reasonable doubt that
[the offense caused; the attempt to commit the offense would, if
completed, have caused] [a loss to one or more persons during any
one-year period aggregating at least $5,000 in value; the modifica-
tion or impairment, or potential modification or impairment, of the
medical examination, diagnosis, treatment, or care of one or more
individuals; physical injury to any person; a threat to public health
or safety; damage affecting a computer used by or for an entity of
the United States Government in furtherance of the administra-
tion of justice, national defense, or national security; damage af-
fecting ten or more protected computers during any one-year
period].
The Committee recommends that if this additional instruction
is given, then the jury also be given a special verdict form as
follows:
Special Verdict Form
If you find the defendant(s) guilty of [specify the offense
charged in the indictment] Count [
—
], then you must also answer
the following question(s).
We, the jury, find beyond a reasonable doubt that [the offense
caused; the attempt to commit the offense would, if completed,
have caused] [a loss to one or more persons during any one-year
period aggregating at least $5,000 in value; the modification or
impairment, or potential modification or impairment, of the medi-
cal examination, diagnosis, treatment, or care of one or more
individuals; physical injury to any person; a threat to public health
1030(a)(5)(B)
CRIMINAL INSTRUCTIONS
565
or safety; damage affecting a computer used by or for an entity of
the United States Government in furtherance of the administra-
tion of justice, national defense, or national security; damage af-
fecting ten or more protected computers during any one-year
period].
Yes
———
No
———
1030(a)(5)(B)
STATUTORY INSTRUCTIONS
566
18 U.S.C. § 1030(a)(5)(C) CAUSING DAMAGE
AND LOSS BY ACCESSING A PROTECTED
COMPUTER—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] causing damage and loss by accessing a protected
computer. In order for you to find [the; a] defendant
guilty of this charge, the government must prove both
of the following elements beyond a reasonable doubt:
1. The defendant, without authorization, inten-
tionally accessed a protected computer; and
2. As a result of that conduct, the defendant
caused damage and loss.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
1030(a)(5)(C)
CRIMINAL INSTRUCTIONS
567
18 U.S.C. § 1030(a)(6) TRAFFICKING IN
PASSWORDS—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] trafficking in passwords. In order for you to find
[the; a] defendant guilty of this charge, the government
must prove each of the [three] following elements be-
yond a reasonable doubt:
1. The defendant knowingly and without authori-
zation trafficked in a password, or similar information
through which a computer may be accessed; and
2. The defendant acted with intent to defraud;
and
3. The defendant’s acts [affected interstate or
foreign commerce; involved access to a computer used
by or for the government of the United States].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
“Trafficking” is not defined in § 1030; the Committee recom-
mends the definition in § 1029(e)(5).
The phrase “interstate or foreign commerce” is not defined in
§ 1030. The Committee recommends employing the pattern defini-
tion suggested for offenses in violation of 18 U.S.C. § 1028.
1030(a)(6)
STATUTORY INSTRUCTIONS
568
The Committee recommends instructing the jury on the mean-
ing of “intent to defraud.” For a definition of “intent to defraud” see
the Pattern Instruction regarding that term as used in the mail
and wire fraud statutes, 18 U.S.C. §§ 1341 & 1343.
1030(a)(6)
CRIMINAL INSTRUCTIONS
569
18 U.S.C. § 1030(a)(7)(A) EXTORTION BY
THREATENING TO DAMAGE A PROTECTED
COMPUTER—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] extortion by threatening to damage a protected
computer. In order for you to find [the; a] defendant
guilty of this charge, the government must prove both
of the following elements beyond a reasonable doubt:
1. The defendant transmitted, in interstate or
foreign commerce, a threat to cause damage to a
protected computer; and
2. The defendant intended to extort money or
anything of value from any person.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The phrase “interstate or foreign commerce” is not defined in
18 U.S.C. § 1030; the Committee recommends employing the pat-
tern definition suggested for offenses in violation of § 1028.
The term “extort” is also not defined in § 1030; the Committee
recommends that the pattern definition for “extortion” suggested
for Hobbs Act offenses in violation of 18 U.S.C. § 1951, be adapted
for this offense.
1030(a)(7)(A)
STATUTORY INSTRUCTIONS
570
18 U.S.C. § 1030(a)(7)(B) EXTORTION BY
THREATENING TO OBTAIN INFORMATION
FROM A PROTECTED COMPUTER—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] extortion by threatening to obtain information
from a protected computer. In order for you to find [the;
a] defendant guilty of this charge, the government must
prove both of the following elements beyond a reason-
able doubt:
1. The defendant transmitted, in interstate or
foreign commerce, a threat [to obtain information from
a protected computer without authorization; to obtain
information from a protected computer in excess of au-
thorization; to impair the confidentiality of information
obtained from a protected computer without authoriza-
tion; to impair the confidentiality of information
obtained from a protected computer by exceeding au-
thorized access]; and
2. By doing so, the defendant intended to extort
money or anything of value from any person.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The phrase “interstate or foreign commerce” is not defined in
1030(a)(7)(B)
CRIMINAL INSTRUCTIONS
571
18 U.S.C. § 1030; however, the Committee recommends employing
the pattern definition suggested for offenses in violation of 18
U.S.C. § 1028.
The term “extort” is also not defined in § 1030; the Committee
recommends that the pattern definition for “extortion” suggested
for Hobbs Act offenses in violation of 18 U.S.C. § 1951, be adapted
for this offense.
1030(a)(7)(B)
STATUTORY INSTRUCTIONS
572
18 U.S.C. § 1030(a)(7)(C) EXTORTION BY
DEMANDING MONEY IN RELATION TO A
PROTECTED COMPUTER—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] extortion by demanding money in relation to a
protected computer. In order for you to find [the; a]
defendant guilty of this charge, the government must
prove each of the [three] following elements beyond a
reasonable doubt:
1. The defendant transmitted in interstate or
foreign commerce any communication containing a
demand or request for money or other thing of value in
relation to damage to a protected computer;
2. The defendant did so with intent to extort
money or anything of value from any person; and
3. Damage to a protected computer was caused to
facilitate the extortion.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The phrase “interstate or foreign commerce” is not defined in
18 U.S.C. § 1030; the Committee recommends employing the pat-
tern definition suggested for offenses in violation of 18 U.S.C.
§ 1028.
1030(a)(7)(C)
CRIMINAL INSTRUCTIONS
573
The statute does not define the phrase “in relation to.” The
Committee recommends that the phrase be defined as in the fol-
lowing instruction.
The term “extort” is also not defined in § 1030; the Committee
recommends that the pattern definition for “extortion” suggested
for Hobbs Act offenses in violation of 18 U.S.C. § 1951, adapted for
this offense.
1030(a)(7)(C)
STATUTORY INSTRUCTIONS
574
18 U.S.C. § 1030(a)(7)(C) DEFINITION OF “IN
RELATION TO”
“In relation to” means that the communication had
a purpose, role or effect with respect to the damage to
the protected computer. It also means that the com-
munication had a connection to or relationship with the
damage to the protected computer.
Committee Comment
Section 1030(a)(C) of Title 18 does not define “in relation to”
as used in the statute. This definition borrows from the meaning of
that phrase as used in the firearms context, see Pattern Instruc-
tion 18 U.S.C. § 924(c)(1), see Pattern Crim. Jury Instr. 5th Cir.
2.48 (2001); Mod. Crim. Jury Instr. 3rd Cir. 6.18.924B (2009);
Pattern Crim. J. Instr. 11th Cir. OI 35.2 (2003).
This definition is applicable to offenses under § 1030(a)(7)(C).
1030(a)(7)(C)
CRIMINAL INSTRUCTIONS
575
18 U.S.C. § 1030(b) ATTEMPT AND
CONSPIRACY—ELEMENTS
Committee Comment
Section 1030(b) of Title 18 proscribes attempts and conspira-
cies to violate any subsection of § 1030(a). Where the indictment
charges an attempt or conspiracy adjust the instruction accord-
ingly, using relevant elements from the attempt pattern instruc-
tion or pattern instruction for conspiracies where an overt act is
not required, see Pattern Instructions 4.09 and 5.08(B), as
appropriate.
18 U.S.C. § 1030(b) was amended in 1986 to delete the require-
ment of an overt act to support a conspiracy conviction.
1030(b)
STATUTORY INSTRUCTIONS
576
18 U.S.C. § 1030(e)(1) DEFINITION OF
“COMPUTER”
“Computer” means an electronic, magnetic, optical,
electrochemical, or other high speed data processing de-
vice performing logical, arithmetic, or storage functions.
The term includes any data storage facility or com-
munications facility directly related to or operating in
conjunction with such device. But the term does not
include an automated typewriter or typesetter, a porta-
ble hand held calculator, or other similar device.
Committee Comment
This definition is applicable to offenses under 18 U.S.C.
§ 1030(a)(1)–(7).
The Committee anticipates that in most cases, it will be un-
necessary to instruct the jury on the meaning of the term
“computer.”
1030(e)(1)
CRIMINAL INSTRUCTIONS
577
18 U.S.C. § 1030(e)(2) DEFINITION OF
“PROTECTED COMPUTER”
“Protected computer” means a computer that is
[exclusively for the use of a financial institution or the
United States government] [not exclusively for the use
of, used by or for a financial institution or the United
States government when the defendant’s conduct af-
fects the use of the computer by or for the financial
institution or the government] [used in or affecting in-
terstate or foreign commerce or communication, even if
the computer is located outside of the United States]
[part of a voting system and is used for the manage-
ment, support, or administration of a Federal election].
Committee Comment
This definition is applicable to offenses under 18 U.S.C.
§ 1030(a)(2), (4), (5), and (7).
In 2018, 18 U.S.C. § 1030(e)(2) was amended to add
§ 1030(e)(2)(C), which expanded the definition of “protected com-
puter” to include one that is part of a voting system for a Federal
election. If the case involves a voting system, the definition of “vot-
ing system” and “Federal election” should be included as found in
18 U.S.C. § 1030(e)(13) and (14).
1030(e)(2)
STATUTORY INSTRUCTIONS
578
18 U.S.C. § 1030(e)(3) DEFINITION OF “STATE”
“State” includes the District of Columbia, the Com-
monwealth of Puerto Rico, and any other common-
wealth, possession or territory of the United States.
Committee Comment
This definition is applicable to 18 U.S.C. § 1030(a)(2) when the
enhanced penalty under § 1030(c)(2)(B)(ii) is sought.
1030(e)(3)
CRIMINAL INSTRUCTIONS
579
18 U.S.C. § 1030(e)(4) DEFINITION OF
“FINANCIAL INSTITUTION”
“Financial institution” means an institution whose
deposits are insured by the Federal Deposit Insurance
Corporation or the National Credit Union Administra-
tion; the Federal Reserve or a member of the Federal
Reserve including any Federal Reserve Bank; a member
of the Federal home loan bank system and any home
loan bank; any institution of the Farm Credit System; a
broker dealer registered with the Securities and
Exchange Commission; the Securities Investor Protec-
tion Corporation; a branch or agency of a foreign bank;
and an organization operating under § 25 or § 25(a) of
the Federal Reserve Act.
Committee Comment
This definition applies to offenses under 18 U.S.C. § 1030(a)(2)
and the definitions of “protected computer,” “financial record,” and
“person.” It should not be confused with the more generally ap-
plicable definition of “financial institution” set forth at 18 U.S.C.
§ 20.
The Committee recommends that the term “financial institu-
tion” not be defined except when an issue exists as to whether an
entity qualifies as a financial institution. Whenever the term
“financial institution” is defined, only that part which is pertinent
to the trial should be employed.
1030(e)(4)
STATUTORY INSTRUCTIONS
580
18 U.S.C. § 1030(e)(5) DEFINITION OF
“FINANCIAL RECORD”
“Financial record” means information derived from
any record held by a financial institution pertaining to
a customer’s relationship with the financial institution.
Committee Comment
This definition is applicable for offenses under 18 U.S.C.
§ 1030(a)(2).
1030(e)(5)
CRIMINAL INSTRUCTIONS
581
18 U.S.C. § 1030(e)(6) DEFINITION OF
“EXCEEDS AUTHORIZED ACCESS”
“Exceeds authorized access” means to access a com-
puter with authorization but to use such access to
obtain or alter information in the computer that the
person is not entitled to obtain or alter.
Committee Comment
This definition is applicable for offenses under 18 U.S.C.
§ 1030(a)(1), (2), and (4).
1030(e)(6)
STATUTORY INSTRUCTIONS
582
18 U.S.C. § 1030(e)(7) DEFINITION OF
“DEPARTMENT OF THE UNITED STATES”
“Department of the United States” means the
legislative or judicial branch of the Government or one
of the executive departments of the United States.
Committee Comment
This definition is applicable for offenses under 18 U.S.C.
§ 1030(a)(2) and (3).
1030(e)(7)
CRIMINAL INSTRUCTIONS
583
18 U.S.C. § 1030(e)(8) DEFINITION OF
“DAMAGE”
“Damage” means any impairment to the integrity
or availability of data, a program, a system, or
information.
Committee Comment
This definition is applicable for offenses under 18 U.S.C.
§ 1030(a)(5) and (7)(A) and (C) and where an enhanced penalty is
sought under § 1030(c)(4)(A).
1030(e)(8)
STATUTORY INSTRUCTIONS
584
18 U.S.C. § 1030(e)(10) DEFINITION OF
“CONVICTION”
“Conviction” includes a conviction under the law of
any state for a crime punishable by imprisonment for
more than 1 year, an element of which is unauthorized
access, or exceeding authorized access, to a computer.
Committee Comment
This definition is for use when certain enhanced penalties
under 18 U.S.C. § 1030(c) are sought.
1030(e)(10)
CRIMINAL INSTRUCTIONS
585
18 U.S.C. § 1030(e)(11) DEFINITION OF “LOSS”
“Loss” means any reasonable cost to any victim,
including the cost of responding to an offense, conduct-
ing a damage assessment, and restoring the data,
program, system, or information to its condition prior
to the offense. The term also includes any revenue lost,
cost incurred, or other consequential damages incurred
because of interruption of service.
Committee Comment
This definition is applicable to offenses under 18 U.S.C.
§ 1030(a)(5)(C) and where the enhanced penalties under
§ 1030(c)(4)(A)(i)(I) are sought.
1030(e)(11)
STATUTORY INSTRUCTIONS
586
18 U.S.C. § 1030(e)(12) DEFINITION OF
“PERSON”
“Person” means any individual, firm, corporation,
educational institution, financial institution, govern-
mental entity, or legal or other entity.
Committee Comment
The Committee recommends that the term “person” not be
defined unless the term is being used in the case to describe an
entity other than a human being.
This definition is applicable to offenses under § 1030(a)(1) and
(7) and when certain enhanced penalties are sought under
§ 1030(c)(4)(A).
1030(e)(12)
CRIMINAL INSTRUCTIONS
587
18 U.S.C. § 1030(e)(13) DEFINITION OF
“FEDERAL ELECTION”
The term “Federal election” is an election for the
office of President, Vice President, Senator, or Congres-
sional Representative, or Delegate or Resident Commis-
sioner to Congress.
The term “election” includes:
(A) a general, special, primary, or runoff election;
(B) a convention or caucus of a political party
which has authority to nominate a candidate;
(C) a primary election held for the selection of
delegates to a national nominating convention of a po-
litical party; or
(D) a primary election held for the expression of a
preference for the nomination of individuals for election
to the office of President.
The term “Federal office” means the office of Presi-
dent or Vice President, or of Senator or Representative
in, or Delegate or Resident Commissioner to, the
Congress.
Committee Comment
18 U.S.C. § 1030(e)(13) adopts this definition from § 30101(1)
of the Federal Election Campaign Act of 1971 (52 U.S.C. 30101(1)
and (3)).
1030(e)(13)
STATUTORY INSTRUCTIONS
588
18 U.S.C. § 1030(e)(14) DEFINITION OF
“VOTING SYSTEM”
The term “voting system” means—
(1) the total combination of mechanical, electrome-
chanical, or electronic equipment (including the soft-
ware, firmware, and documentation required to pro-
gram, control, and support the equipment) that is
used—
(A) to define ballots;
(B) to cast and count votes;
(C) to report or display election results; and
(D) to maintain and produce any audit trail
information; and
(2) the practices and associated documentation
used—
(A) to identify system components and ver-
sions of such components;
(B) to test the system during its development
and maintenance;
(C) to maintain records of system errors and
defects;
(D) to determine specific system changes to
be made to a system after the initial qualification
of the system; and
(E) to make available any materials to the
voter (such as notices, instructions, forms, or paper
ballots).
1030(e)(14)
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Committee Comment
18 U.S.C. § 1030(e)(14) adopts this definition from section
301(b) of the Help America Vote Act of 2002 (52 U.S.C. 21081(b)).
1030(e)(14)
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18 U.S.C. § 1035 FALSE STATEMENTS
RELATED TO HEALTH CARE MATTERS:
FALSIFICATION AND CONCEALMENT—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] making a false statement in a matter involving a
health care benefits program. In order for you to find
[the; a] defendant guilty of this charge, the government
must prove each of the [four] following elements beyond
a reasonable doubt:
1. The defendant [falsified; concealed; covered up
by any trick, scheme or device] a fact in a matter involv-
ing a health care benefit program;
2. The fact was material;
3. The defendant did so knowingly and willfully;
and
4. The defendant did so in connection with the
delivery of or payment for health care benefits, items or
services.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the count
that you are considering], then you should find the
defendant guilty [of that count].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any of these elements beyond a reasonable
doubt [as to the count that you are considering], then
you should find the defendant not guilty [of that count].
Committee Comment
This instruction is modeled on the general false statements
1035
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instruction under 18 U.S.C. § 1001.
1035
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18 U.S.C. § 1035 FALSE STATEMENTS
RELATED TO HEALTH CARE MATTERS: FALSE
STATEMENT—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] making a false statement in a matter involving a
health care benefits program. In order for you to find
[the; a] defendant guilty of this charge, the government
must prove each of the [five] following elements beyond
a reasonable doubt:
1. The defendant made a [statement; representa-
tion] in a matter involving a health care benefit
program;
2. The [statement; representation] was in connec-
tion with the [delivery of; payment for] health care
benefits, items or services;
3. The [statement; representation] was material
to the health care benefit program;
4. The [statement; representation] was [false;
fictitious; fraudulent]; and
5. The defendant made the statement knowingly
and willfully.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the count
that you are considering], then you should find the
defendant guilty [of that count].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any of these elements beyond a reasonable
doubt [as to the count that you are considering], then
you should find the defendant not guilty [of that count].
1035
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Committee Comment
See United States v. Natale, 719 F.3d 719, 742 (7th Cir. 2013).
1035
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18 U.S.C. § 1035(a)(1) & (2) DEFINITION OF
“HEALTH CARE BENEFIT PROGRAM”
A “health care benefit program” is a [public;
private] [plan; contract], affecting commerce, under
which any medical benefit, item or service is provided
to any individual and includes any individual or entity
who is providing a medical benefit, item or service for
which payment may be made under the plan or contract.
A health care program affects commerce if the health
care program had any impact on the movement of any
money, goods, services, or persons from one state to an-
other [or between another country and the United
States].
The government need only prove that the health
care program itself either engaged in interstate com-
merce or that its activity affected interstate commerce
to some degree. The government need not prove that
[the; a] defendant engaged in interstate commerce or
that the acts of [the; a] defendant affected interstate
commerce.
Committee Comment
“Health care benefit program” is defined in 18 U.S.C. § 24(b).
In this statute, “affecting commerce” means affecting interstate
commerce. See United States v. Natale, 719 F.3d 719, 732 n.5 (7th
Cir. 2013). The court may also find it appropriate to adapt for
health care offenses the RICO Pattern Instruction describing
enterprises that engage in interstate commerce or whose activities
affect interstate commerce. This definition is taken from the paral-
lel instruction under 18 U.S.C. § 669(a).
1035(a)(1) & (2)
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18 U.S.C. § 1035(a)(1) & (2) DEFINITION OF
“MATERIAL”
A statement is “material” if it is capable of influenc-
ing the decision of the health care benefit program
regarding the [delivery of; payment for] health care
[benefits; items; services].
Committee Comment
See United States v. Natale, 719 F.3d 719, 737 (7th Cir. 2013).
1035(a)(1) & (2)
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18 U.S.C. § 1035(a)(1) & (2) DEFINITION OF
“WILLFULLY”
A person acts “willfully” if he acts voluntarily and
intentionally and with the intent to do something he
knows is illegal.
Committee Comment
See United States v. Bryan, 524 U.S. 184, 191–92 (1998) (“[I]n
order to establish a willful violation of a statute, the Government
must prove that the defendant acted with knowledge that his
conduct was unlawful.”) (internal quotation marks omitted); United
States v. Natale, 719 F.3d 719, 740–41 (7th Cir. 2013) (Section
1035 does not require specific intent to deceive; approving an
instruction that included language that “[a]n act is done willfully if
done voluntarily and intentionally and with intent to do something
the law forbids.”).
1035(a)(1) & (2)
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18 U.S.C. § 1111 FIRST DEGREE MURDER—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] murder in the first degree. In order for you to find
[the; a] defendant guilty of this charge, the government
must prove each of the [four] following elements beyond
a reasonable doubt:
1. Within the [special maritime; territorial juris-
diction] of the United States;
2. Defendant unlawfully killed [X];
3. With malice aforethought; and
4. With premeditation.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the count
you are considering], then you should find the defendant
guilty [of that count].
If on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the count you are considering], then you
should find the defendant not guilty [of that count].
[You would then need to consider the charge of second-
degree murder, which I will explain to you shortly.]
Committee Comment
Generally, “premeditation” is the element that distinguishes
first degree murder from second degree murder. See United States
v. Delaney, 717 F.3d 553, 555–56 (7th Cir. 2013) (premeditation
distinguishes first and second-degree murder). However, 18 U.S.C.
§ 1111 provides that murder committed under any of the following
circumstances also constitutes murder in the first degree (examples
of premeditation or a premeditation substitute):
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[by poison]
[by lying in wait]
[during the perpetration of, or attempt to perpetrate [arson;
escape; murder; kidnapping; treason; espionage; sabotage; ag-
gravated sexual abuse or sexual abuse; child abuse; burglary; rob-
bery]]
[as part of a pattern or practice of assault or torture against a
child or children]
[as the result of a premeditated design to affect the death of
any human being other than him who is killed].
The United States Supreme Court has held that the burden is
upon the government to prove the absence of heat of passion when
the defendant properly raises a heat of passion defense. Mullaney
v. Wilbur, 421 U.S. 684, 697-98 (1975). In that circumstance, the
Committee recommends adding a fifth element:
5. Not in the heat of passion.
In Mullaney v. Wilbur, 421 U.S. 684, 697–98 (1975), Maine’s
murder statute defined murder as a killing with “malice afore-
thought,” and malice aforethought was defined as a state of mind
consisting of, among other things, an intent to kill “without
considerable provocation.” A killing with provocation was classified
as manslaughter and subject to a lower punishment. In Mullaney,
the Supreme Court held that the defendant’s due process rights
were violated by Maine’s decision to place upon the defendant the
burden of proving legal provocation. Because provocation negated
the “malice aforethought” required to convict him of murder, the
approach used in Maine violated In re Winship, 397 U.S. 358
(1970), which required the government to prove “beyond a reason-
able doubt every fact necessary to constitute the crime charged.”
Instructions containing the elements and definitions applicable to
voluntary manslaughter should then also be given. The Seventh
Circuit discussion in United States v. Delaney, 717 F. 3d 553 (7th
Cir. 2013), provides guidance on proper jury instruction in murder
cases.
For many years, precedent also dictated that in cases where
self-defense is properly invoked, a fifth element “not in self-
defense” should also be added, thereby requiring the United States
to disprove the defense. Following the Supreme Court’s decision in
Dixon v. United States, 548 U.S. 1 (2006), the issue of which party
bears the burden of proof is unsettled. The Court in Dixon held
1111
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that burden of proving the defense of duress is on the defendant.
In United States v. White Feather, 768 F.3d 735 (7th Cir. 2014),
the court affirmed the trial court’s refusal of a jury instruction on
the issue of self-defense but did not address the burden of proof.
See also Michael D. Monico & Barry A. Spevack, Federal Criminal
Practice: Seventh Circuit Criminal Handbook § 411 (2015) (discuss-
ing White Feather, “affirmative” as opposed to “substantive” de-
fenses, and the burden of proof). Cf. Patterson v. New York, 432
U.S. 197, 207–09 (1977), in which the Supreme Court held that the
government is not required to “prove beyond a reasonable doubt
every fact, the existence or nonexistence of which it is willing to
recognize as an exculpatory or mitigating circumstance affecting
the degree or culpability or the severity of the punishment.”
1111
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18 U.S.C. § 1111 DEFINITION OF “MALICE
AFORETHOUGHT”
A person acts with “malice aforethought” if the
person takes someone else’s life deliberately and
intentionally, or willfully acts with callous disregard for
human life, knowing that a serious risk of death or seri-
ous bodily harm would result.
1111
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18 U.S.C. § 1111 DEFINITION OF
“PREMEDITATION”
“Premeditation” requires planning and deliberation
beyond the simple conscious intent to kill. Enough time
must pass between the formation of the plan and fatal
act for the defendant to have deliberated, and the
defendant must have, in fact, deliberated during that
time.
Committee Comment
Premeditation is the difference between first and second-
degree murder. United States v. Delaney, 717 F.3d 553, 555–56
(7th Cir. 2013). In United States v. Bell, the Seventh Circuit noted,
“Premeditation requires planning and deliberation beyond the
simple conscious intent to kill. There must be an appreciable elapse
of time between the formation of a design and the fatal act, [cita-
tions omitted] although no specific period of time is required. [Cita-
tions omitted.] But more is required than the simple passage of
time: the defendant must, in fact, have deliberated during that
time period.” United States v. Bell, 819 F.3d 310, 319 (7th Cir.
2016).
That the death resulted from another predetermined criminal
act does not make the death premeditated. United States v. Prevatte,
16 F.3d 767, 780 (7th Cir. 1994).
Premeditation may be proved by circumstantial evidence. Bell,
at *7.
1111
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18 U.S.C. § 1111 SECOND DEGREE MURDER—
ELEMENTS
If you have found the defendant not guilty of the
charge of murder in the first degree, or if you cannot
unanimously agree that the defendant is guilty or not
guilty of murder in the first degree, you must consider
whether the government has proven the charge of mur-
der in the second degree. In order for you to find the
defendant guilty of this charge, the government must
prove each of the [three] following elements beyond a
reasonable doubt:
1. Within the [special maritime; territorial juris-
diction] of the United States;
2. Defendant unlawfully killed [X];
3. With malice aforethought.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
[You would then need to consider the charge of [volun-
tary manslaughter; involuntary manslaughter] which I
will explain to you shortly.]
Committee Comment
The United States Supreme Court has held that the burden is
upon the government to prove the absence of heat of passion when
the issue is properly raised. Mullaney v. Wilbur, 421 U.S. 684,
697–98 (1975). In that circumstance, the Committee recommends
adding a fourth element:
1111
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4. Not in the heat of passion.
The elements and definitions applicable to voluntary man-
slaughter should also be given. The Seventh Circuit discussion in
United States v. Delaney, 717 F. 3d 553 (7th Cir. 2013), provides
guidance on proper jury instruction in murder cases.
When involuntary manslaughter is raised as a lesser included
offense, elements and definitions applicable to involuntary man-
slaughter should also be given.
If instructions on lesser included offenses are given, the jury
should also be advised that the definitions provided as to the rele-
vant elements of proof apply equally to the charge of second-degree
murder, as they did to the charge of first- degree murder. The only
difference between the two charges is that first-degree murder
requires proof of premeditation whereas second-degree murder
does not.
For many years, precedent also dictated that in cases where
self-defense is properly invoked, a fifth element “not in self-
defense” should also be added, thereby requiring the United States
to disprove the defense. Following the Supreme Court’s decision in
Dixon v. United States, 548 U.S. 1 (2006), the issue of which party
bears the burden of proof is unsettled. The Court in Dixon held
that burden of proving the defense of duress is on the defendant.
The most recent Seventh Circuit opinion addressing self-defense,
United States v. White Feather, 768 F.3d 735 (7th Cir. 2014) af-
firmed the trial court’s refusal of a jury instruction on the issue of
self-defense but did not address the burden of proof. See also Michael
D. Monico & Barry A. Spevack, Federal Criminal Practice: Seventh
Circuit Criminal Handbook § 411 (2015) (discussing White Feather,
“affirmative” as opposed to “substantive” defenses, and the burden
of proof). Cf. Patterson v. New York, 432 U.S. 197, 207–09 (1977),
in which the Supreme Court held that the government is not
required to “prove beyond a reasonable doubt every fact, the exis-
tence or nonexistence of which it is willing to recognize as an
exculpatory or mitigating circumstance affecting the degree or
culpability or the severity of the punishment.”
1111
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18 U.S.C. §§ 1111 & 1112 JURISDICTION
[The parties have agreed; The Court takes judicial
notice] that the [charged location] is within the [special
maritime; territorial jurisdiction] of the United States.
Committee Comment
The Committee suggests that this element will rarely be at is-
sue and will be amenable to either a stipulation or a finding by
judicial notice. 18 U.S.C. § 7 describes the locations included in the
special maritime and territorial jurisdiction of the United States,
and also includes Indian Territory when murder is the charged
crime. See 18 U.S.C. § 1152.
1111 & 1112
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18 U.S.C. §§ 1111 & 1112 CONDUCT CAUSED
DEATH
The requirement that “defendant unlawfully killed
[X]”—requires the government to prove that the defen-
dant’s conduct caused [X]’s death. This means that the
government must prove that the defendant injured [X],
or caused his injury, from which [X] died.
Committee Comment
If a defendant commits an unintended killing while commit-
ting another felony, the defendant can be convicted of murder for
causing the death. Dean v. United States, 556 U.S. 568, 575 (2009)
(citing 18 U.S.C. § 1111).
The Seventh Circuit has noted that “[c]riminal statutes
frequently punish defendants for their action’s unintended
consequences. ‘It is unusual to impose criminal punishment for the
consequences of purely accidental conduct. But it is not unusual to
punish individuals for the unintended consequences of their unlaw-
ful acts.’ ’’ United States v. Waldrip, 859 F.3d 446, 451 (7th Cir.
2017) (quoting Dean v. United States, 556 U.S. 568, 575 (2009)).
1111 & 1112
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18 U.S.C. § 1112 DEFINITIONS
The following definitions may be relevant to a de-
termination of whether the crime of manslaughter is
voluntary manslaughter or involuntary manslaughter:
“Assault” means to intentionally inflict, attempt to
inflict, or threaten to inflict bodily injury upon another
person with the apparent and present ability to cause
such injury that creates in the victim a reasonable fear
or apprehension of bodily harm. An assault may be com-
mitted without actually touching, striking, or injuring
the other person.
A “deadly or dangerous weapon” means any object
that can be used to inflict severe bodily harm or injury.
The object need not actually be capable of inflicting
harm or injury. Rather, an object is a deadly or danger-
ous weapon if it, or the manner in which it is used,
would cause fear in the average person.
“Serious bodily injury” means bodily injury which
involves a substantial risk of death; extreme physical
pain; protracted and obvious disfigurement; or pro-
tracted loss or impairment of the function of a bodily
member, organ or mental faculty.
Committee Comment
The definition provided in the instruction is the same as the
pattern instruction for “assault” as used in the bank robbery stat-
ute, 18 U.S.C. § 2113(d). See, e.g., United States v. Vallery, 437
F.3d 626, 631 (7th Cir. 2006); United States v. Smith, 103 F.3d
600, 605 (7th Cir. 1996); United States v. Woody, 55 F.3d 1257,
1265–66 (7th Cir. 1995); United States v. Rizzo, 409 F.2d 400,
402–03 (7th Cir. 1969).
The definition provided in the instruction is the same as the
pattern instruction for “dangerous weapon or device” as used in
the bank robbery statute, 18 U.S.C. § 2113(d).
In United States v. Loman, 551 F.2d 164, 169 (7th Cir. 1977),
the Seventh Circuit, in finding a walking stick as used constituted
1112
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a dangerous weapon under 18 U.S.C. § 111, explained that “[n]ot
the object’s latent capability alone, but that, coupled with the man-
ner of its use, is determinative.” As the Fourth Circuit concluded
in United States v. Murphy, 35 F.3d 143, 147 (4th Cir. 1994), many
objects, “even those seemingly innocuous, may constitute danger-
ous weapons,” including a garden rake, shoes, and a wine bottle.
See also U.S. Sentencing Guidelines Manual § 1B1.1 cmt. n.1
(2018).
In United States v. Gometz, 879 F.2d 256, 259 (7th Cir. 1989),
the Seventh Circuit rejected the defendant’s argument that a defec-
tive zip gun was not a dangerous weapon within the meaning of 18
U.S.C. § 111. In so doing, the Court found that the Supreme Court’s
logic in McLaughlin v. United States, 476 U.S. 16 (1986), which
held an unloaded gun to be a dangerous weapon under 18 U.S.C.
§ 2113, applied to § 111 as well. “In particular we believe that
Congress, in enacting § 111, could reasonably presume that a zip
gun is an inherently dangerous object and meant to proscribe all
assaults with this object irrespective of the particular zip gun’s
capability to inflict injury. Moreover, a zip gun, like an ordinary
gun, instills fear in the average citizen and creates an immediate
danger that a violent reaction will ensue.” Gometz, 879 F.2d at
259; see also Eleventh Circuit Pattern Criminal Instruction O1.1
(2020).
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18 U.S.C. § 1112 DEFINITIONS OF
MANSLAUGHTER
Malice marks the boundary that separates the
crimes of murder and manslaughter.
Manslaughter is the unlawful killing of a human
being without malice. It is of two kinds:
Voluntary Manslaughter is the intentional unlaw-
ful killing of a human being without malice and upon a
sudden quarrel or in the heat of passion.
Involuntary Manslaughter is the unlawful killing
of a human being [in the commission of an unlawful act
not amounting to a felony] [in the commission [in an
unlawful manner] [without due caution and circumspec-
tion] of a lawful act which might produce death].
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18 U.S.C. § 1112 VOLUNTARY
MANSLAUGHTER—ELEMENTS
If you have found the defendant not guilty of the
charge of murder in the first degree and not guilty on
the charge of murder in the second degree (or if you
cannot reach a unanimous verdict on either of those
charges), you should consider whether he is guilty of
the lesser offense of voluntary manslaughter. In order
for you to find [the; a] defendant guilty of this charge,
the government must prove each of the [four] following
elements beyond a reasonable doubt:
1. [Within the [special maritime; territorial juris-
diction] of the United States;]
2. Defendant unlawfully killed [X];
3. Intentionally; and
4. In the heat of passion but without malice.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
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18 U.S.C. § 1112 DEFINITION OF “HEAT OF
PASSION”
The “heat of passion” means a passion of fear, rage
or anger that caused the defendant to lose self-control
and act upon impulse without self-reflection as a result
of circumstances that would provoke such passion in a
reasonable person, but which did not justify the use of
deadly force.
[As noted, the government must prove beyond a
reasonable doubt that the defendant was not acting in
the heat of passion before you may find that the
defendant acted with malice.]
Committee Comment
The bracketed paragraph should be read when the govern-
ment has the burden of disproving heat of passion. If voluntary
manslaughter is the charged crime, the bracketed paragraph would
not be read.
The United States Supreme Court has held that the burden is
upon the government to prove the absence of heat of passion when
the issue is properly raised. Mullaney v. Wilbur, 421 U.S. 684,
697–98 (1975). See also United States v. Delaney, 717 F.3d 553,
559–60 (7th 2013), for discussion of heat of passion.
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18 U.S.C. § 1112 INVOLUNTARY
MANSLAUGHTER—ELEMENTS
The crime of murder also includes the lesser of-
fense of involuntary manslaughter. If you have found
the defendant not guilty of the charge of murder in the
first degree and not guilty on the charge of murder in
the second degree (or if you cannot reach a unanimous
verdict on either of those charges), you should proceed
to determine whether he is guilty or not guilty of the
lesser offense of involuntary manslaughter.
Involuntary manslaughter is the unlawful killing
of a human being without malice in the commission of
an unlawful act not amounting to a felony.
In order for you to find [the; a] defendant guilty of
this charge, the government must prove each of the
[four] following elements beyond a reasonable doubt:
1. Within the [special maritime; territorial juris-
diction] of the United States;
2. [X] was unlawfully killed;
3. As a result of an act done by the defendant dur-
ing the commission of [an unlawful act not amounting
to a felony; a lawful act, done either in an unlawful
manner or without due caution, which might produce
death]; and
4. The defendant [knew that such conduct was a
threat to the life of [X]; knew of circumstances that
might would reasonably cause the defendant to foresee
that such conduct might be a threat to the life of [X]].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
1112
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you are considering], then you should find the defendant
guilty [of that charge].
If on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
In cases not involving an unlawful act, the mens rea require-
ment for involuntary manslaughter is equivalent to gross or crimi-
nal negligence. United States v. Ganadonegro, 854 F. Supp. 2d
1068 (D. N.M. 2012). Wanton or reckless disregard for human life
is required, but not of the nature that constitutes a finding of
malice. United States v. Paul, 37 F.3d 496 (9th Cir. 1994). To be
convicted of involuntary manslaughter, a defendant must have
acted with gross negligence—meaning a wanton or reckless disre-
gard for human life—and had knowledge that his conduct was a
threat to the life of another or knowledge of such circumstances as
could reasonably have enabled him to foresee the peril to which
his act might subject another. United States v. Hicks, 389 F.3d 514
(5th Cir. 2004).
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18 U.S.C. § 1201(a)(1) KIDNAPPING
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] kidnapping. In order for you to find [the; a]
defendant guilty of this charge, the government must
prove each of the following elements beyond a reason-
able doubt:
1. The defendant unlawfully [seized; confined;
inveigled; decoyed; kidnapped; abducted; carried away]
the victim without [his; her] consent; and
2. [The defendant intentionally transported the
victim across state lines] [the defendant [traveled in
[interstate; foreign] commerce] [used the mail [in com-
mitting; in furtherance of] the offense] [used any
[means; facility; instrumentality] of [interstate; foreign]
commerce in [committing; furtherance of committing]
the offense].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The government does not have to prove that the kidnapping
was committed for ransom or personal financial gain. See United
States v. Healy, 376 U.S. 75, 82 (1964) (holding a kidnapping does
not have to be for pecuniary or illegal benefit). Moreover, “purpose
is not an element of the offense of kidnapping and need not be
charged or proven to support a conviction.” United States v. Atchi-
son, 524 F.2d 367, 371 (7th Cir. 1975).
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The victim’s lack of consent is necessary to establish the crime
because it is the “involuntariness of the seizure and detention”
that is “the very essence of the crime of kidnapping.” Chatwin v.
United States, 326 U.S. 455, 464 (1946). If the victim is of such an
age or mental state as to be incapable of having a recognizable
will, the confinement must be against the will of the parents or
legal guardian of the victim. Id. at 460; see also United States v.
Eason, 854 F.3d 922 (7th Cir. 2017).
The fact that the victim may have initially voluntarily ac-
companied the defendant does not negate the existence of a later
kidnapping. United States v. Redmond, 803 F.2d 438, 439 (9th Cir.
1986).
The government need not prove that the defendant knew he
was transporting the victim in interstate [foreign] commerce, only
that he did. See United States v. Hattaway, 740 F.2d 1419, 1427
(7th Cir. 1984) (interstate transportation requirement for Mann
Act violation “is an element of federal jurisdiction and not part of
the knowledge requirement for a Mann Act conviction”) (citing
United States v. Bankston, 603 F.2d 528, 532 (5th Cir. 1979) (a
conviction under 18 U.S.C. § 1201 “does not require that an of-
fender know that he is crossing state lines [with victim]”)).
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18 U.S.C. § 1201(a)(1) KIDNAPPING—
DEFINITION OF INTERSTATE OR FOREIGN
COMMERCE
“Interstate commerce” means commerce between
different states, territories, and possessions of the
United States, including the District of Columbia.
“Foreign commerce” as used above means commerce
between any state, territory, or possession of the United
States and a foreign country.
“Commerce” include, among other things, travel,
trade, transportation, and communication.
Committee Comment
These definitions of “interstate commerce” and “foreign com-
merce” are found at 18 U.S.C. § 10 and are modified here to consol-
idate and harmonize various definitions of those terms.
The government need not prove that the defendant knew he
was transporting the victim in interstate [foreign] commerce, only
that he did. See United States v. Hattaway, 740 F.2d 1419, 1427
(7th Cir. 1984) (interstate transportation requirement for Mann
Act violation “is an element of federal jurisdiction and not part of
the knowledge requirement for a Mann Act conviction”) (citing
United States v. Bankston, 603 F.2d 528, 532 (5th Cir. 1979) (a
conviction under 18 U.S.C. § 1201 “does not require that an of-
fender know that he is crossing state lines [with victim]”)).
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18 U.S.C. § 1201(a)(1) KIDNAPPING—
DEFINITION OF INVEIGLE OR DECOY
To inveigle or decoy a person means to lure, or
entice, or lead the person astray by false representa-
tions or promises, or other deceitful means.
Committee Comment
See United States v. Macklin, 671 F.2d 60, 64 (2d Cir. 1982)
(‘‘ ‘Inveigle’ means to entice, lure or lead astray, by false represen-
tations or promises, or by other deceitful means. ‘Decoy’ means
enticement or luring by means of some fraud, trick or temptation”).
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18 U.S.C. §§ 1341 & 1343 MAIL/WIRE/CARRIER
FRAUD—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [mail; wire; carrier] fraud. In order for you to find
[the; a] defendant guilty of this charge, the government
must prove each of the [four] following elements beyond
a reasonable doubt:
1. That the defendant knowingly [devised; partici-
pated in] a scheme [to defraud], as described in Count[s]
—
; and
2. That the defendant did so with the intent to
defraud; and
3. The scheme to defraud involved a materially
false or fraudulent pretense, representation, or prom-
ise; and
4. That for the purpose of carrying out the scheme
[or attempting to do so], the defendant [used; caused
the use of] [the United States Mails] [a private or com-
mercial interstate carrier] [caused interstate wire com-
munications to take place] in the manner charged in
the particular count.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
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Committee Comment
Section 1341 (and § 1343) of Title 18 begins, “Whoever, having
devised or intending to devise any scheme or artifice to defraud, or
for obtaining money or property by means of false or fraudulent
pretenses, representations, or promises . . ..” The 1999 pattern
instruction set forth the elements as if there are two separate
types of prohibited schemes, using bracketed language to signify
the different types: a scheme “[to defraud] [or] [to obtain money or
property by means of false pretenses, representations, or
promises].” In other words, the current pattern instruction treats
§ 1341 as prohibiting (a) schemes to defraud and (b) schemes to
obtain money or property by false representations.
To conform the instruction to controlling case law and to
improve the instruction’s comprehensibility, the Committee
proposes that the instruction refer only to a singular “scheme to
defraud,” with another instruction further defining “scheme to
defraud.” In Cleveland v. United States, 531 U.S. 12, 25–26 (2000),
the Supreme Court rejected the argument that § 1341 prohibits
two separate types of schemes. The Supreme Court acknowledged
that, “[b]ecause the two phrases identifying the proscribed schemes
appear in the disjunctive, it is arguable that they are to be
construed independently.” Id. at 26. But the Court rejected that in-
terpretation, and reaffirmed a prior decision that had construed
the second phrase—the “for obtaining money or property”
phrase—as “simply modif[ying] the first” to make clear that the
statute covered false representations as to future events, not just
already-existing facts. Id. (citing McNally v. United States, 483
U.S. 350, 359 (1987)). Accordingly, the pattern instruction should
refer only to a “scheme to defraud,” with a further instruction
defining that term, and should not refer to a separate scheme to
obtain money or property.
Another substantive change involves the addition of the
materiality element. See Neder v. United States, 527 U.S. 1 (1999).
Cases recommend inclusion of the materiality element in jury
instructions. See United States v. Fernandez, 282 F.3d 500, 509 n.
6 (7th Cir. 2002); United States v. Reynolds, 189 F.3d 521, 525 n. 2
(7th Cir. 2000).
Because the honest services statute defines a form of a “scheme
to defraud,” United States v. Boscarino, 437 F.3d 634, 636 (7th Cir.
2006), it has not been separately identified as a type of mail/wire/
carrier fraud in the elements instruction.
The wire fraud statute, 18 U.S.C. § 1343, does not provide for
attempt liability on its own. Instead, attempt liability for a wire
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fraud is authorized under 18 U.S.C. § 1349. The bracketed “[or at-
tempting to do so]” language in the fourth element should only be
used in mail fraud cases under 18 U.S.C. § 1341 (which does
contain attempt liability) or in wire fraud cases that charge a
violation of 18 U.S.C. § 1349.
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18 U.S.C. §§ 1341 & 1343 USE OF MAILS/
INTERSTATE CARRIER/INTERSTATE
COMMUNICATION FACILITY
The government must prove that [the United States
mails; [a] private or commercial interstate carrier[s];
interstate communication facilities] [was; were] used to
carry out the scheme, or [was; were] incidental to an es-
sential part of the scheme.
In order to [use; cause the use of] [the United States
mails; a private or commercial interstate carrier] [cause
interstate wire communications to take place], [the; a]
defendant need not actually intend that use to take
place. You must find that the defendant knew this use
would actually occur, or that the defendant knew that
it would occur in the ordinary course of business, or
that the defendant knew facts from which that use
could reasonably have been foreseen. [However, the
government does not have to prove that [the; a] defen-
dant knew that [the wire communication was of an in-
terstate nature; the carrier was an interstate carrier].]
[The defendant need not actually or personally use
[the mail; an interstate carrier; interstate communica-
tion facilities].]
[Although an item [mailed; sent by interstate car-
rier; communicated interstate] need not itself contain a
fraudulent representation or promise or a request for
money, it must carry out or attempt to carry out the
scheme.]
[In connection with whether a [mailing; wire trans-
mission] was made, you may consider evidence of the
habit or the routine practice of [a person; an
organization].]
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[Each separate use of [the mail; an interstate car-
rier; interstate communication facilities] in furtherance
of the scheme to defraud constitutes a separate offense.]
Committee Comment
A defendant does not actually have to use the mail or wire or
a carrier to violate § 1341; he only needs to cause such use to occur
as a part of the scheme. The two essential elements are a scheme
to defraud and that mailing or wiring or use of a carrier occurred
as a part of that scheme. Pereira v. United States, 347 U.S. 1, 8–9
(1954). The use of mail need not be intended, but must be reason-
ably foreseeable and follow in the course of business of furthering
the scheme. United States v. Ashman, 979 F.2d 469, 481–84 (7th
Cir. 1992); United States v. Draiman, 784 F.2d 248, 251 (7th Cir.
1986); United States v. Briscoe, 65 F.3d 576,583 (7th Cir. 1995);
United States v. Hickok, 77 F.3d 992, 1004 (7th Cir. 1996); United
States v. Kenofskey, 243 U.S. 440 (1917); United States v. Calvert,
523 F.2d 895 (8th Cir. 1975); Hart v. United States, 112 F.2d 128
(5th Cir. 1940).
United States v. Briscoe, 65 F.3d 576, 583 (7th Cir. 1995),
holds that wire fraud parallels mail fraud. Consequently, the
government is not required to prove the scheme was successful,
but only that use of a wire communication was reasonably foresee-
able, and actual wiring occurred in furtherance of the scheme.
United States v. Kenofskey, 243 U.S. 440 (1917); United States v.
Clavert, 523 F.2d 895 (8th Cir. 1975); Hart v. United States, 112
F.2d 128 (5th Cir. 1940).
The Committee has combined separate mail and wire instruc-
tions, and has added interstate carrier language. It has also added
the “incidental to” line in response to Schmuck v. United States,
489 U.S. 705, 710–11 (1989). The Committee has also amended the
knowledge requirement to conform with Pereira v. United States,
347 U.S. 1 (1954) and, in the case of interstate wire/interstate car-
rier communications, with United States v. Lindemann, 85 F.3d
1232 (7th Cir. 1996).
The instruction also includes optional language related to
habit or practice that is drawn from Fed. R. Evid. 406.
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18 U.S.C. §§ 1341 & 1343 SUCCESS NOT
REQUIRED
The [mail; interstate carrier; wire] fraud statute
can be violated whether or not there is any [loss or dam-
age to the victim of the crime; gain to the defendant].
[The government need not prove that the scheme
to defraud actually succeeded.]
Committee Comment
See United States v. Lupton, 620 F.3d 790, 805 (7th Cir. 2010)
(the “wire fraud statutes criminalize the fraudulent acts under-
taken to secure illicit gains, not their ultimate successes”).
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18 U.S.C. §§ 1341 & 1343 DEFINITION OF
“SCHEME TO DEFRAUD”
A scheme is a plan or course of action formed with
the intent to accomplish some purpose.
[A “scheme to defraud” is a scheme that is intended
to deceive or cheat another and [to obtain money or
property or cause the [potential] loss of money or prop-
erty to another by means of materially false or fraudu-
lent pretenses, representations or promises]; [to deprive
another of the intangible right to honest services
through [bribery; kickbacks].]]
[A materially false or fraudulent pretense, repre-
sentation, or promise may be accomplished by [an]
omission[s] or the concealment of material information.]
Committee Comment
The “scheme to defraud” and “intent to defraud” elements are
distinct, and subject to definition in separate instructions. See
United States v. Doherty, 969 F.2d 425, 429 (7th Cir. 1992).
As the Supreme Court held in Skilling v. United States, 561
U.S. 358, 409 (2010) the honest services statue only covers bribery
and kickback schemes.
In cases in which the indictment alleges multiple schemes, the
jury should be instructed that it must be unanimous on at least
one of the schemes. See United States v. Davis, 471 F.3d 783, 791
(7th Cir. 2006) (“Jury Instruction 13 informed the jury that the
government need not prove every scheme that it had alleged, but
that it must prove one of them beyond a reasonable doubt.”); see
also United States v. Sababu, 891 F.2d 1308, 1326 (7th Cir. 1989).
A unanimity instruction can be found at Pattern Instruction 4.04.
A jury need not be given a specific unanimity instruction
regarding the means by which an offense is committed. See
Richardson v. United States, 526 U.S. 813, 817 (1999) (citing Schad
v. Arizona, 501 U.S. 624, 631–32 (1991) (plurality)); see also United
States v. Griggs, 569 F.3d 341 (7th Cir. 2009) (jury is not required
to unanimously agree on overt act in a conspiracy prosecution). In
the absence of definitive precedent on the subject, the Committee
takes no position on whether a specific unanimity instruction as to
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624
money/property and honest services fraud should be given when
the indictment charges both money/property and honest services
fraud. If money/property and honest services fraud are viewed as
establishing separate scheme objects, a specific unanimity instruc-
tion may be appropriate. On the other hand, if money/property and
honest services fraud are viewed as different means by which to
commit the “scheme to defraud” essential element, cf. United States
v. Boscarino, 437 F.3d 634 (7th Cir. 2006) (honest services is a def-
inition of scheme to defraud), or as something akin to an overt act,
the general unanimity instruction applicable to essential elements
may be sufficient. See United States v. Blumeyer, 114 F.3d 758,
769 (8th Cir. 1997) (dicta) (“we have serious doubts whether the
jury was required to agree on the precise manner in which the
scheme violated the law”); United States v. Zeidman, 540 F.2d 314,
317–18 (7th Cir. 1976) (“[T]he indictment cannot be attacked
because it would permit a conviction by less than a unanimous
jury. The trial judge clearly instructed the jury that they must not
return a guilty verdict unless they all agreed that the defendants
had devised a scheme to defraud at least the creditor or the
debtor.”).
The mail/wire fraud statutes do not include the words “omis-
sion” or “concealment,” but cases interpreting the statutes hold
that omissions or concealment of material information may consti-
tute money/property fraud, without proof of a duty to disclose the
information pursuant to a specific statute or regulation. See United
States v. Powell, 576 F.3d 482, 490, 492 (7th Cir. 2009); United
States v. Stephens, 421 F.3d 503, 507 (7th Cir. 2005); United States
v. Palumbo Bros., Inc., 145 F.3d 850, 868 (7th Cir. 1998); United
States v. Biesiadecki, 933 F.2d 539, 543 (7th Cir. 1991); United
States v. Keplinger, 776 F.2d 678, 697–98 (7th Cir. 1985); see also
United States v. Colton, 231 F.3d 890, 891–901 (4th Cir. 2000).
Nevertheless, it is not clear that an omission by itself is suf-
ficient to comprise a scheme to defraud. Most of the cases cited in
the preceding paragraph involved more than just an omission;
their facts also included other misrepresentations or affirmative
acts of concealment. Some cases state the proposition in a way
that suggests that an omission-based fraud scheme must include
an act of concealment. Powell, 576 F.3d at 491 (“a failure to dis-
close information may constitute fraud if the ‘omission [is] ac-
companied by acts of concealment’ ’’) (quoting Stephens, 421 F.3d
at 507)). It is also worth noting that in Skilling, 561 U.S. at 409–
11, the Supreme Court refused to hold that an undisclosed conflict
of interest by itself constituted honest services fraud. The Court
cautioned that an attempt to criminalize undisclosed conflicts of
interest would require answering specific questions. Id. at 411,
n.44 (“How direct or significant does the conflicting financial inter-
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est have to be? To what extent does the official action have to fur-
ther that interest in order to amount to fraud? To whom should
the disclosure be made and what information should it convey?
These questions and others call for particular care in attempting
to formulate an adequate criminal prohibition in this context.”). In
cases where the indictment charges that the scheme to defraud
was to obtain “property,” the property cannot include State
licenses. In Cleveland v. United States, 531 U.S. 12, 23–24 (2000),
the Supreme Court explained that a State gambling license was
not, for purposes of § 1341, “property” in the hands of the State.
Id. at 23–24, 26–27. The same reasoning would apply to § 1343
(wire fraud), and was so applied in a wire (and mail) fraud case to
reverse convictions premised on the obtaining of vehicle title
papers issued by the State. United States v. Borrero, 771 F.3d 973,
976 (7th Cir. 2014) (citing Cleveland, 531 U.S. at 23–24, and Toulabi
v. United States, 875 F.2d 122 (7th Cir. 1989)). If the evidence at
trial raises the risk that a jury would rely on State licenses to be a
form of “property,” then it might be appropriate to include an ex-
plicit instruction in a way that prevents that reliance. See also
Kelly v. United States, 140 S. Ct. 1565, 1574 (2020) (applying
Cleveland to a traffic-regulation decision and holding that the
employee-labor costs was not the object of the fraud).
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18 U.S.C. §§ 1341 & 1343 PROOF OF SCHEME
In considering whether the government has proven
a scheme to defraud, the government must prove that
one or more of the [false or fraudulent pretenses,
representations or promise] [bribes; kickbacks] charged
in the portion of the indictment describing the scheme
be proved beyond a reasonable doubt. The government,
however, is not required to prove all of them.
Committee Comment
Where unanimity as to a specific act is required, refer to Pattern
Instruction 4.04.
If the scheme involves an omission or concealment, the second
paragraph of the instruction defining materiality should be given.
The mail/wire fraud statutes do not include the words “omission”
or “concealment,” but cases interpreting them hold that omissions
or concealment of material information may constitute money/
property fraud, even without proof of a duty to disclose the infor-
mation pursuant to a specific statute or regulation. See United
States v. Powell, 576 F.3d 482, 490, 492 (7th Cir. 2009); United
States v. Stephens, 421 F.3d 503, 507 (7th Cir. 2005); United States
v. Palumbo Bros., Inc., 145 F.3d 850, 868 (7th Cir. 1998); United
States v. Biesiadecki, 933 F.2d 539, 543 (7th Cir. 1991); United
States v. Keplinger, 776 F.2d 678, 697–98 (7th Cir. 1985); see also
United States v. Colton, 231 F.3d 890, 891–901 (4th Cir. 2000).
Nevertheless, it is not clear that an omission by itself is suf-
ficient to comprise a scheme to defraud. Most of the cases cited in
the preceding paragraph involved more than just an omission;
their facts also included other misrepresentations or affirmative
acts of concealment. Some cases state the proposition in a way
that suggests that an omission-based fraud scheme must include
an act of concealment. Powell, 576 F.3d at 491 (“a failure to dis-
close information may constitute fraud if the ‘omission [is] ac-
companied by acts of concealment’ ’’) (quoting Stephens, 421 F.3d
at 507)). It is also worth noting that in Skilling v. United States,
561 U.S. at 409–11 (2010), the Supreme Court refused to hold that
an undisclosed conflict of interest by itself constituted honest ser-
vices fraud. The Court cautioned that an attempt to criminalize
undisclosed conflicts of interest would require answering specific
questions. Id. at 411, n.44 (“How direct or significant does the
conflicting financial interest have to be? To what extent does the
official action have to further that interest in order to amount to
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fraud? To whom should the disclosure be made and what informa-
tion should it convey? These questions and others call for particu-
lar care in attempting to formulate an adequate criminal prohibi-
tion in this context.”)
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18 U.S.C. §§ 1341 & 1343 DEFINITION OF
“MATERIAL”
A false or fraudulent pretense, representation, [or]
promise[,] [omission, or concealment] is “material” if it
is capable of influencing the decision of the [person[s];
list victim] to whom it was addressed.
[It is not necessary that the false or fraudulent
pretense, representation, promise, omission, or conceal-
ment actually have that influence or be relied on by the
alleged victim, as long as it is capable of doing so.]
Committee Comment
Neder v. United States, 527 U.S. 1 (1999), held that material-
ity is an essential element of mail/wire fraud. Cases recommend
inclusion of the materiality element in jury instructions. See United
States v. Fernandez, 282 F.3d 500, 509 n.6 (7th Cir. 2002); United
States v. Reynolds, 189 F.3d 521, 525 n.2 (7th Cir. 2000).
The mail/wire fraud statutes do not include the words “omis-
sion” or “concealment,” but cases interpreting them hold that omis-
sions or concealment of material information may constitute fraud
without proof of a duty to disclose the information pursuant to a
specific statute or regulation. See United States v. Powell, 576 F.3d
482, 490–92 (7th Cir. 2009); United States v. Stephens, 421 F.3d
503, 507 (7th Cir. 2005); United States v. Palumbo Bros., Inc., 145
F.3d 850, 868 (7th Cir. 1998); United States v. Biesiadecki, 933
F.2d 539, 543 (7th Cir. 1991); United States v. Keplinger, 776 F.2d
678, 697–98 (7th Cir. 1985); see also United States v. Colton, 231
F.3d 890, 891–901 (4th Cir. 2000). It is unclear whether an omis-
sion by itself is sufficient to comprise a scheme to defraud. Most of
the cases cited above also involved other misrepresentations or
acts of concealment. Some cases suggest that an omission-based
fraud scheme must be accompanied by an act of concealment. Pow-
ell, 576 F.3d at 491 (“a failure to disclose information may consti-
tute fraud if the ‘omission [is] accompanied by acts of conceal-
ment’ ’’); quoting Stephens, 421 F.3d at 507. It is also worth noting
that, in Skilling v. United States, 561 U.S. at 409–11 (2010), the
Supreme Court declined to interpret honest-services fraud to
encompass an undisclosed conflict of interest by itself. The Court
cautioned that an attempt to criminalize undisclosed conflicts of
interest would require answering specific questions. Id. at 411,
n.44 (“How direct or significant does the conflicting financial inter-
est have to be? To what extent does the official action have to fur-
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ther that interest in order to amount to fraud? To whom should
the disclosure be made and what information should it convey?
These questions and others call for particular care in attempting
to formulate an adequate criminal prohibition in this context.”)
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18 U.S.C. §§ 1341 & 1343 DEFINITION OF
“INTENT TO DEFRAUD”
A person acts with “intent to defraud” if he acts
knowingly with the intent to deceive or cheat [the
victim] in order to cause [a gain of money or property to
the defendant or another; the potential] [loss of money
or property to another; to deprive another of the
intangible right to honest services through bribery or
kickbacks].
Committee Comment
In United States v. Spano, 421 F.3d 599, 603 (7th Cir. 2005),
the court stated, “A participant in a scheme to defraud is guilty
even if he is an altruist and all the benefits of the fraud accrue to
other participants.” In United States v. Sorich, 523 F.3d 702,
709–10 (7th Cir. 2008), the court held that fraud could exist when
the benefit accrues to third parties who are not co-schemers.
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18 U.S.C. §§ 1341, 1343 & 1346 TYPES OF MAIL/
WIRE/CARRIER FRAUD
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] committing [mail; wire; carrier] fraud in two dif-
ferent ways: First, the defendant[s] [is; are] charged
with [mail; wire; carrier] fraud by participating in a
scheme to obtain money or property. Second, the
defendant[s] [is; are] charged with [mail; wire; carrier]
fraud by participating in a scheme to defraud [list
victim of the intangible right to honest services].
Committee Comment
This instruction applies when the indictment charges more
than one type of mail/wire/carrier fraud, 18 U.S.C. §§ 1341, 1343 &
1346.
When an indictment charges both money/property and honest
services fraud, the court may consider giving a special verdict form
requiring the jury to make findings on each theory. The Commit-
tee takes no position on whether such a verdict form should be
given. In Black v. United States, 561 U.S. 465 (2010), the Supreme
Court discussed special verdict forms in mail/wire fraud cases
charging both money/property and honest services fraud. The
Supreme Court held that the defendants did not forfeit their right
to challenge the jury instructions simply because they objected to
the government’s request for a special verdict form requiring the
jury to make separate findings on money/property and honest ser-
vices fraud.
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18 U.S.C. §§ 1341, 1343 & 1346 DEFINITION OF
“HONEST SERVICES”
A scheme to defraud another of the intangible right
to “honest services” consists of a scheme to violate a fi-
duciary duty by bribery or kickbacks. A fiduciary duty
is a duty to act only for the benefit of the [public;
employer; shareholder; union].
[A public official owes a fiduciary duty to the
public.]
[An employee owes a fiduciary duty to his
employer.]
[An officer of a corporation owes a fiduciary duty to
the corporation’s shareholders.]
[A union official owes a fiduciary duty to the union.]
[The defendant need not owe the fiduciary duty
personally, so long as he devises or participates in a
bribery or kickback scheme intended to deprive the
[public; employer; union] of its right to a fiduciary’s
honest services.]
Committee Comment
As the Supreme Court held in Skilling v. United States, 561
U.S. 358 (2010), the honest services statute covers only bribery
and kickback schemes. See the bribery and kickback instructions
for further definition.
Skilling noted certain examples of fiduciary relationships
covered by § 1346. See 561 U.S. at 408, n.42. The list of fiduciary
duties in this instruction is not exhaustive and courts may need to
use other fiduciary duties than those identified above. See, e.g.,
United States v. Hausmann, 345 F.3d 952, 955–56 (7th Cir. 2003).
In most cases, public official status will not be in dispute. If
public official status is a disputed issue, the court may consider
giving an instruction tailored for the case.
The final bracketed instruction may be given in cases in which
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633
one or more of the trial defendants is not the individual who
personally owed the fiduciary duty. See, e.g., United States v. Alexan-
der, 741 F.2d 962, 964 (7th Cir. 1984) (“[t]here can be no doubt
that a non-fiduciary who schemes with a fiduciary to deprive the
victim of intangible rights is subject to prosecution under the mail
fraud statute”), overruled on other grounds, United States v.
Ginsburg, 773 F.2d 798 (7th Cir. 1985) (en banc); United States v.
Lovett, 811 F.2d 979, 984 (7th Cir. 1987) (lawyer guilty of mail
fraud for bribing mayor, and thereby depriving the citizens of their
right to the mayor’s honest services). The public official/fiduciary,
in fact, need not even be a party to the scheme. See United States
v. Potter, 463 F.3d 9, 17 (1st Cir. 2006) (businessmen guilty of hon-
est services fraud for scheming to bribe state speaker of the house;
no requirement that public official agree to the scheme; “that [of-
ficial] might prove unwilling or unable to perform, or that the
scheme never achieved its intended end, would not preclude
conviction”).
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18 U.S.C. §§ 1341, 1343 & 1346 RECEIVING A
BRIBE OR KICKBACK
[A [public official; employee; corporate officer; union
official; defendant] commits bribery when he [demands;
solicits; seeks; asks for; agrees to accept; agrees to
receive; accepts; receives], directly or indirectly,
something of value from another person in exchange for
a promise for, or performance of, an [official act].]
[A kickback occurs when a [public official; em-
ployee; corporate officer; union official; defendant]
[demands; solicits; seeks; asks for; agrees to accept or
receive; accepts; receives], directly or indirectly,
something of value from another person in exchange for
a promise for, or performance of, an [official act], and
the act itself provides the source of the funds to be
“kicked back.”]
“Something of value” includes money or property
[and prospective employment].
Committee Comment
In the first paragraph, the bracketed list of fiduciaries is not
necessarily an exhaustive list. Also, in the first paragraph, the of-
ficial act will vary in each case and the court may need to vary the
instruction based on it. For the definition of an “official act,” see
the Pattern Instruction for the same term in 18 U.S.C. § 201, which
discusses McDonnell v. United States, 136 S. Ct. 2355, 2371–72
(2016).
A kickback is a form of bribery where the official action, typi-
cally the granting of a government contract or license, is the source
of the funds to be paid to the fiduciary. As Skilling v. United States,
561 U.S. 358 (2010), explains, that is what happened in McNally v.
United States, 483 U.S. 350, 359 (1987). See Skilling, 561 U.S. at
410 (“a public official, in exchange for routing. . . insurance busi-
ness through a middleman company, arranged for that company to
share its commissions with entities in which the official held an
interest”); see also, e.g., United States v. Blanton, 719 F.2d 815,
816–818 (6th Cir. 1983) (governor arranged for friends to receive
state liquor licenses in exchange for a share of the profits.).
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In cases in which the defendant asserts that the payment was
a mere gratuity or that the defendant falsely promised to take of-
ficial action but never intended to do so, the parties and the court
should examine United States v. Hawkins, 777 F.3d 880, 883–84
(7th Cir. 2015), and McDonnell v. United States, 136 S. Ct. 2355,
2371 (2016). Hawkins held that § 1346 only covers bribery and
kickback schemes and does not cover mere gratuities. Hawkins,
777 F.3d at 883. The Seventh Circuit also held that § 1346 does
not apply if a public official makes a false promise to take official
action. Id. at 883–84. In other words, if a public official is “scam-
ming” the would-be bribe payers, then there is no bribery or
kickback scheme under § 1346. Id. at 884. Among other things,
Hawkins reasoned that 18 U.S.C. § 201(b) (bribery of federal of-
ficials) “requires proof that the public official demanded or took
money in exchange for doing or omitting some official act.” Id. at
883.
But there is some reason to question that line of reasoning,
because § 201(b) does deem a false promise to commit an official
act as bribery. In United States v. Peleti, the public official argued
that he did not actually intend to commit the official act for which
he had been paid. 576 F.3d 377, 382 (7th Cir. 2009). In discussing
the definition of corruptly, the Seventh Circuit explained:
An officer can act corruptly without intending to be
influenced; the officer need only “solicit or receive the money
on the representation that the money is for the purpose of
influencing his performance of some official act.
Id. (quoting United States v. Arroyo, 581 F.2d 649, 657 (7th Cir.
1978)). The public official “knew, when he accepted the money,
that [the bribe payer] gave Peleti the money for the purposes of
influencing Peleti’s official actions.” Id. That was enough to act
“corruptly.” See id.
Also, in McDonnell, the Supreme Court arguably contradicted
Hawkins by stating that honest-services bribery does not require
that the public official actually intend to perform the official act.
136 S. Ct. at 2371 (“Nor must the public official in fact intend to
perform the ‘official act,’ so long as he agrees to do so. A jury could,
for example, conclude that an agreement was reached if the evi-
dence shows that the public official received a thing of value know-
ing that it was given with the expectation that the official would
perform an ‘official act’ in return.”) But this part of McDonnell is
arguably dicta; does not discuss Skilling v. United States, 561 U.S.
358, 404, 413 (2010), which described honest-services bribery as of-
ficial action “in exchange for” value and as a crime in which the
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bribes are paid by “a third party who had not been deceived”; and
relies on Evans v. United States, 504 U.S. 255, 268 (1992), which
arguably does not hold that a false promise to take official action
qualifies as bribery. The Committee does not adopt a position
because the case law is currently unclear.
Skilling cites 18 U.S.C. § 201 as an example of a bribery stat-
ute that gives content to 1346’s bribery scope, and § 201 refers to
bribes comprising “anything of value.” Skilling, 561 U.S. at 412.
Accordingly, “anything of value” may include various forms of
money and property, United States v. Williams, 705 F.2d 603,
622–23 (2d Cir. 1983) (“anything of value” under § 201 includes
shares in corporation), and may also include prospective employ-
ment, United States v. Gorman, 807 F.2d 1299, 1302, 1305 (6th
Cir. 1986) (“anything of value” under § 201 includes a side job for
federal employee as reward for official action).
The definition of “something of value” provides common
examples but is not intended to be an exhaustive list.
When the alleged bribe is in the form of a campaign contribu-
tion, an additional instruction may be required. In McCormick v.
United States, 500 U.S. 257, 273 (1991), the Court held that the
jury should have been instructed that the receipt of campaign
contributions constitutes extortion under color of official right, 18
U.S.C. § 1951, “only if the payments are made in return for an ex-
plicit promise or undertaking by the official to perform or not
perform an official act.” In Evans v. United States, 504 U.S. 255
(1992), another Hobbs Act case involving campaign contributions,
the Court elaborated on the quid pro quo requirement from Mc-
Cormick, holding that “the Government need only show that a
public official has obtained a payment to which he was not entitled,
knowing that the payment was made in return for official acts.” Id.
at 268. The Court in Evans held that the following jury instruction
satisfied McCormick:
[I]f a public official demands or accepts money in exchange for
[a] specific requested exercise of his or her official power, such
a demand or acceptance does constitute a violation of the
Hobbs Act regardless of whether the payment is made in the
form of a campaign contribution.
Id. at 258, 268 (second brackets in original). Furthermore, in United
States v. Allen, 10 F.3d 405, (7th Cir. 1993), the court discussed
the district court’s giving of a McCormick instruction in a case in
which RICO predicate acts included bribery in violation of Indiana
law.
The instruction defining “color of official right” for § 1951
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purposes also addresses the role of campaign contributions. See
Instruction 18 U.S.C. § 1951 Color of Official Right—Definition.
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18 U.S.C. §§ 1341, 1343 & 1346 OFFERING A
BRIBE OR KICKBACK
[A defendant offers a bribe when he, directly or
indirectly, [promises; gives; offers] a [public official; em-
ployee; corporate officer; union official] anything of
value in exchange for a promise for, or performance of,
an [official act].] [Describe act at issue.]
[A defendant offers a kickback when he, directly or
indirectly, [promises; gives; offers] a [public official; em-
ployee; corporate officer; union official] something of
value in exchange for a promise for, or performance of,
an [official act.], and the act itself provides the source of
the funds to be “kicked back.”] [Describe act at issue.]
“Something of value” includes money or property
[and prospective employment].
Committee Comment
See Committee Comment for the pattern instruction on Receiv-
ing a Bribe or Kickback.
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18 U.S.C. §§ 1341, 1343 & 1346 INTENT TO
INFLUENCE
It is not necessary that the [public official; defen-
dant] had the power to or did perform the act for which
he was promised or which he agreed to receive some-
thing of value; it is sufficient if the matter was before
him in his official capacity. [Nor is it necessary that the
[public official; defendant] in fact intended to perform
the specific official act. It is sufficient if the [public of-
ficial; defendant] knew that the thing of value was of-
fered with the intent to exchange the thing of value for
the performance of the official act.]
Committee Comment
This instruction was adapted from the Intent to Influence
instruction for 18 U.S.C. § 201. But the parties and the court
should review the Committee Comment for 18 U.S.C. §§ 1341,
1343 & 1346 (Receiving a Bribe or Kickback), for a discussion of
the case law’s uncertainty on whether an official must actually
intend to perform the official act. It remains accurate to say, as
this Intent to Influence instruction does, that the official need not
actually carry out the official action in order to be convicted of
bribery. McDonnell v. United States, 136 S. Ct. 2355, 2371 (2016)
(citing Evans v. United States, 504 U.S. 255, 268 (1992)).
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18 U.S.C. § 1343 WIRE COMMUNICATION
[Telephone calls,] [mobile or cellular telephone
calls,] [facsimiles,] [e-mails,] [instant messages,] [wire
transfer of funds,] [text messages] [and] [electronic fil-
ing of documents] constitute[s] transmission by means
of wire communication.
Committee Comment
This instruction lists various types of transmissions covered
by the wire fraud statute. The list may not be exhaustive given the
evolution of technology.
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18 U.S.C. § 1344(1) SCHEME TO DEFRAUD A
FINANCIAL INSTITUTION—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [bank; financial institution] fraud. In order for
you to find [the; a] defendant guilty of this charge, the
government must prove each of the [four; five] following
elements beyond a reasonable doubt:
1. There was a scheme to defraud a [bank; speci-
fied financial institution under 18 U.S.C. § 20] as
charged in the indictment; and
2. The defendant knowingly [carried out; at-
tempted to carry out] the scheme; and
3. The defendant acted with the intent to defraud
the [bank; specified financial institution under 18
U.S.C. § 20]
4. The scheme involved a materially false or
fraudulent pretense, representation, or promise [; and
5. At the time of the charged offense the deposits
of the [bank; financial institution] were insured by the
Federal Deposit Insurance Corporation.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
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Committee Comment
In Loughrin v. United States, 573 U.S. 351 (2014), the
Supreme Court held that the Government need not prove that a
defendant charged under 18 U.S.C. § 1344(2) intended to defraud
the bank or financial institution that owned, or had custody or
control over, the money or property that was the object of the
scheme. Accordingly, the Committee has divided the previously
unified instruction for § 1344 into two separate instructions.
In Neder v. United States, 527 U.S. 1 (1999), the Supreme
Court held that materiality is an element under § 1344. Following
Neder, “district courts should include materiality in the jury
instructions for section 1344.” United States v. Reynolds, 189 F.3d
521, 525 n. 2 (7th Cir. 1999); see also United States v. LeBeau, 949
F.3d 334, 341 (7th Cir. 2020) (materiality required under both
subsections of § 1344); United States v. Fernandez, 282 F.3d 500,
509 (7th Cir. 2002). Reference may be made to the Pattern Instruc-
tion for materiality (“Definition of Material”) accompanying the
mail and wire fraud instructions, which incorporates the notion
that a materially false or fraudulent pretense, representation, or
promise may be accomplished by an omission or by the conceal-
ment of material information.
The final element concerns proof that the institution’s deposits
were federally insured, which was a required element in the 1999
instructions. Effective May 20, 2009, though, the definition of
“financial institution” set forth at 18 U.S.C. § 20 was broadened
substantially by the Fraud Enforcement and Recovery Act, Pub. L.
111-21, to include several types of financial institutions the assets
of which might not be federally insured. The definition of the term
“financial institution” set forth in § 20 is incorporated into § 1344,
as well as into other statutes such as 18 U.S.C. § 215 (bank brib-
ery), and is also addressed in 18 U.S.C. §§ 1341 and 1343 in con-
nection with mail or wire fraud schemes that affect a financial
institution. This instruction should be appropriately modified in
the event that the indictment charges a scheme directed at the
money or property of a financial institution other than a federally
insured bank.
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18 U.S.C. § 1344(1) DEFINITION OF “SCHEME”
A “scheme” is a plan or course of action formed with
the intent to accomplish some purpose.
A scheme to defraud a [bank; financial institution]
is a plan or course of action that is intended [to deceive
or cheat that [bank; financial institution]] [or] [to obtain
money or property or to cause the [potential] loss of
money or property [belonging to; in the [care; custody;
control] of] the [bank; financial institution]. [A scheme
to defraud need not involve any specific false statement
or misrepresentation of fact.]
Committee Comment
This instruction is based on the instruction applicable to the
mail/wire fraud statutes, 18 U.S.C. §§ 1341 and 1343. For a discus-
sion of the use of proof of omission or concealment to show a
scheme to defraud, see the Committee Comment to that instruc-
tion and to the accompanying “Definition of Material” instruction.
For a discussion of whether a unanimity instruction should be
given, see the Committee Comment to Pattern Instruction 18
U.S.C. §§ 1341 & 1343—Definition of Scheme to Defraud.
The Seventh Circuit has held that § 1344(1) covers check kit-
ing schemes, even though it believes that they may not involve
specific false statements or misrepresentations of fact. United
States v. Doherty, 969 F.2d 425, 429 (7th Cir. 1992) (“As its
ordinary meaning suggests, the term ‘scheme to defraud’ describes
a broad range of conduct, some which involve false statements or
misrepresentations of fact. . . and others which do not....[O]ne
need not make a false representation to execute a scheme to
defraud.”); see also United States v. Norton, 108 F.3d 133, 135 (7th
Cir. 1997); United States v. LeDonne, 21 F.3d 1418, 1427–28 (7th
Cir. 1994).
The final bracketed sentence in this instruction reflects the
holdings in the check kiting cases, and should be given in a case
(like one charging check kiting) where no specific false statement
or misrepresentation is charged. However, the Committee recog-
nizes that there is tension between that language, which says that
a scheme need not involve a specific false statement or misrepre-
sentation, and the language in the fourth element of the elements
1344(1)
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instruction for § 1344(1), which requires the government to prove
that “[t]he scheme involved a materially false or fraudulent
pretense, representation, or promise.” The Committee believes
that this language in the fourth element under § 1344(1) is, de-
spite the holdings in the check kiting cases, made necessary by the
holdings in Neder v. United States, 527 U.S. 1 (1999), and United
States v. Reynolds, 189 F.3d 521, 525 n. 2 (7th Cir. 1999), that
juries must be instructed on the requirement of materiality in
bank fraud cases, as they are in mail and wire fraud cases. More-
over, consistent with the additional observation in Neder that the
mail, wire and bank fraud statutes should be considered similarly,
the Committee believes that the materiality requirement must be
addressed this way in the elements instruction, as is done in the
mail and wire fraud instructions. But reconciling the requirement
of a “materially false or fraudulent pretense, representation, or
promise” in the fourth element under § 1344(1) with the holding in
the Doherty line of cases that no specific false statement or misrep-
resentation is required, and determining just what it is that must
be material in a check-kiting case, is beyond the Committee’s
authority to resolve.
In the Committee Comment to the “Definition of Scheme to
Defraud” instruction applicable to the mail and wire fraud instruc-
tions, the Committee discusses at some length cases that address
whether, and when, a mail or wire fraud conviction can be based
on an omission and/or concealment. As that Comment points out,
omissions plus an affirmative act of concealment can comprise a
scheme to defraud in mail/wire fraud cases. But it is not clear,
even from cases construing those statutes, whether an omission
itself, without more, is enough. As unresolved as the issue is with
respect to the mail and wire fraud statutes, it is even more so with
respect to bank fraud. In bank fraud cases in which the issue
arises, the court may wish to consider adding some iteration of the
final bracketed sentence in the mail and wire fraud scheme
instruction: “A materially false or fraudulent pretense, representa-
tion, or promise may be accomplished by [an] omission[s] [and] [or]
the concealment of material information.”
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18 U.S.C. § 1344(2) OBTAINING BANK
PROPERTY BY FALSE OR FRAUDULENT
PRETENSES—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] scheming to obtain [money; property] belonging
to a [bank; financial institution] by false or fraudulent
pretenses or misrepresentations. In order for you to
find [the; a] defendant guilty of this charge, the govern-
ment must prove each of the [four; five] following ele-
ments beyond a reasonable doubt:
1. There was a scheme to obtain moneys, funds,
credits, assets, securities, or other property that [was;
were] [owned by; in the [care; custody; control] of] a
[bank; specified financial institution under 18 U.S.C.
§ 20] by means of false or fraudulent pretenses, repre-
sentations or promises, as charged in the indictment;
and
2. The defendant knowingly [carried out; at-
tempted to carry out] the scheme; and
3. The defendant acted with the intent to defraud;
and
4. The scheme involved a materially false or
fraudulent pretense, representation, or promise [; and
5. At the time of the charged offense the deposits
of the [bank; other financial institution] were insured
by the Federal Deposit Insurance Corporation]].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
1344(2)
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646
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
In Loughrin v. United States, 573 U.S. 351 (2014), the
Supreme Court held that the Government need not prove that a
defendant charged under 18 U.S.C. § 1344(2) intended to defraud
the bank or financial institution that owned, or had custody or
control over, the money or property that was the object of the
scheme. This separate instruction for violations of § 1344(2) reflects
that holding.
In Neder v. United States, 527 U.S. 1 (1999), the Supreme
Court held that materiality is an element under § 1344. Following
Neder, “district courts should include materiality in the jury
instructions for section 1344.” United States v. Reynolds, 189 F.3d
521, 525 n. 2 (7th Cir. 1999); see also United States v. LeBeau, 949
F.3d 334, 341 (7th Cir. 2020) (materiality required under both
subsections of § 1344); United States v. Fernandez, 282 F.3d 500,
509 (7th Cir. 2002).
The final element concerns proof that the institution’s deposits
were federally insured, which was a required element in the 1999
instructions. Effective May 20, 2009, though, the definition of
“financial institution” set forth at 18 U.S.C. § 20 was broadened
substantially by the Fraud Enforcement and Recovery Act, Pub. L.
111-21, to include several types of financial institutions the assets
of which might not be federally insured. The definition of the term
“financial institution” set forth in § 20 is incorporated in § 1344, as
well as in other statutes such as 18 U.S.C. § 215 (bank bribery),
and is also addressed in 18 U.S.C. §§ 1341 and 1343 in connection
with mail or wire fraud schemes that affect a financial institution.
This instruction should be appropriately modified in the event that
the indictment charges a scheme directed at the money or property
of a financial institution other than a federally insured bank.
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18 U.S.C. § 1344(2) DEFINITION OF SCHEME
A scheme is a plan or course of action formed with
the intent to accomplish some purpose.
To prove a scheme to obtain moneys, funds, credits,
assets, securities, or other property [belonging to; in the
[care; custody; control] of] a [bank; financial institution]
by means of false pretenses, representations or prom-
ises, the government must prove that [the; a] false
pretense, representation or promise charged was what
induced[, or would have induced,] the [bank; financial
institution] to part with the [money; property].
[In considering whether the government has proven
a scheme to obtain moneys, funds, credits, assets, secu-
rities, or other property [belonging to; in the [care;
custody; control] of] a [bank; financial institution] by
means of false pretenses, representations or promises,
the government must prove at least one of the [false
pretenses, representations, promises, or] acts charged
in the portion of the indictment describing the scheme.
However, the government is not required to prove all of
them.]
Committee Comment
The second paragraph of this instruction is based on the
discussion in Loughrin v. United States, 573 U.S. 351, 362–64
(2014), of the requirement in 18 U.S.C. § 1344(2) that the money
or property at issue in a scheme punishable under § 1344(2) be
obtained “by means of” the false pretense(s), representation(s)
and/or promise(s) charged. In that discussion the Court observed
that the “by means of” requirement contained “a relational
component,” that is, that “the given result (the ‘end’) is achieved,
at least in part, through the specified action, instrument, or method
(the ‘means’), such that the connection between the two is
something more than oblique, indirect and incidental.” Id.at
362–63 (emphasis original). As the Court emphasized, this may
require something more than mere “but-for” causation. The Court’s
discussion of this requirement in Loughrin is complex, though, as
is the range of concepts of causation potentially encompassed by
the word “induced.” In an appropriate case the court may wish to
1344(2)
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648
consider whether some word other than “induced” more accurately
captures the meaning of the “by means of” requirement. The
bracketed phrase “or would have induced” should be given in a
case in which there is an issue with respect to whether the charged
scheme actually came to fruition.
Although this instruction reflects the holding in Loughrin that
a § 1344(2) violation does not require proof of intent to defraud the
financial institution that owns or holds the subject money or prop-
erty, it does retain “intent to defraud” as an element. It has been
suggested that § 1344(2), which does not itself mention “fraud” or
“defraud” or “intent to defraud”—but still requires a “scheme or ar-
tifice”—does not require proof of intent to defraud at all. While
this argument may have merit, no federal appellate court has yet
addressed it. The Committee also notes that the pattern instruc-
tions of other Circuits are not unanimous on the issue. For
example, the Eighth and Ninth Circuits, like this Committee,
continue to require intent to defraud in § 1344(2) cases after
Loughrin. See Eighth Circuit Pattern Criminal Jury Instruction
6.18.1344; Ninth Circuit Pattern Criminal Jury Instruction 8.127.
So do pattern instructions used in the Fourth Circuit, see E.W.
Ruschky, Pattern Jury Instructions for Federal Criminal Cases,
District of South Carolina 253 (2016 ed.), available at http://www.s
cd.uscourts.gov/pji/patternjuryinstructions.pdf. By contrast, the
Third and Fifth Circuits’ pattern instructions leave out “intent to
defraud,” citing Loughrin. See Third Circuit Pattern Criminal
Jury Instruction 6.18.1344 Fifth Circuit Pattern Criminal Jury
Instruction 2.58B. While the Committee believes the pattern
instruction should remain as it is in the absence of guiding case
law, it flags the issue for litigants.
The final, bracketed paragraph should be given in cases in
which, as will usually be the case, more than one false pretense,
representation or promise is charged.
In the Committee Comment to the “Definition of Scheme to
Defraud” instruction applicable to the mail and wire fraud instruc-
tions, the Committee discusses at some length cases that address
whether, and when, a mail or wore fraud conviction can be based
on an omission and/or concealment. As that Comment points out,
it is not clear, even from cases construing those statutes, whether
an omission itself, without more, can comprise a scheme to defraud.
As unresolved as the issue is with respect to the mail and wire
fraud statutes, it is even more so with respect to bank fraud. In
bank fraud cases in which the issue arises, the Court may wish to
consider adding some iteration of the final bracketed sentence in
the mail and wire fraud scheme instruction: “A materially false or
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fraudulent pretense, representation or promise may be ac-
complished by [an] omission[s] [and] [or] the concealment of mate-
rial information.”
For a discussion of whether a unanimity instruction should be
given, see the Committee Comment to Pattern Instruction 18
U.S.C. §§ 1341 & 1343—Definition of Scheme to Defraud.
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18 U.S.C. § 1347(a) DEFINITION OF “HEALTH
CARE BENEFIT PROGRAM”
A “health care benefit program” is a [public;
private] [plan; contract], affecting commerce, under
which any medical benefit, item or service is provided
to any individual and includes any individual or entity
who is providing a medical benefit, item or service for
which payment may be made under the plan or contract.
A health care program affects commerce if the
health care program had any impact on the movement
of any money, goods, services, or persons from one state
to another [or between another country and the United
States]. The government need only prove that the
health care program itself either engaged in interstate
commerce or that its activity affected interstate com-
merce to some degree. The government need not prove
that [the; a] defendant engaged in interstate commerce
or that the acts of [the; a] defendant affected interstate
commerce.
Committee Comment
“Health care benefit program” is defined in 18 U.S.C. § 24(b).
“Affecting commerce” means affecting interstate commerce under
18 U.S.C. § 24(b). See United States v. Natale, 719 F.3d 719, 732
n.5 (7th Cir. 2013). The court may also find it appropriate to adapt
for health care offenses the RICO Pattern Instruction describing
enterprises that engage in interstate commerce or whose activities
affect interstate commerce.
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18 U.S.C. § 1347(a)(1) HEALTH CARE FRAUD—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] health care fraud. In order for you to find [the; a]
defendant guilty of this charge, the government must
prove each of the following five elements beyond a rea-
sonable doubt:
1. There was a scheme to defraud a health care
benefit program, as charged in the indictment; and
2. The defendant knowingly [carried out; at-
tempted to carry out] the scheme; and
3. The defendant willfully [carried out; attempted
to carry out] the scheme, which means to act with the
intent to defraud the health care benefit program; and
4. The scheme involved a materially false or
fraudulent pretense, representation, or promise; and
5. The scheme was in connection with the delivery
of or payment for [health care benefits; health care
items; health care services].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
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Committee Comment
In Loughrin v. United States, 573 U.S. 351 (2014), the
Supreme Court held that the Government need not prove that a
defendant charged under 18 U.S.C. § 1344(2) intended to defraud
the bank or financial institution that owned, or had custody or
control over, the money or property that was the object of the
scheme. The bank fraud statute is almost identical to the health
care fraud statute. Accordingly, the Committee has divided the
previously unified instruction for this statute, which is structured
similarly to the bank fraud statute, into two separate instructions.
See the Committee Comment to the Pattern Instructions related to
§ 1347(a)(2) for further discussions of this issue.
Willfulness: For mens rea, § 1347(a) uses both “knowingly”
and “willfully.” In United States v. Schaul, the Seventh Circuit
held that “knowingly” and “willfully” have separate meanings and
must be proven in the conjunctive. 962 F.3d 917, 924 (7th Cir.
2020). The Seventh Circuit further held that the defendant in that
case acted willfully because he had an intent to defraud. Id. at
925. In light of Schaul, the Committee has listed “knowingly” and
“willfully” as separate elements. Further, the Seventh Circuit in
Schaul equated the definition of “willfully” in § 1347 with “intent
to defraud,” which was already considered an element of § 1347.
Thus, “willfully” and “intent to defraud” have been listed as a
single element. See the Committee Comment explaining Intent to
Defraud for further discussions of this definition.
In United States v. Awad, 551 F.3d 930, 939 (9th Cir. 2008),
the Ninth Circuit held that to establish a willful state of mind in a
§ 1347 prosecution, the government must prove that the defendant
acted with knowledge that his conduct was unlawful. But in 2010,
after Awad was decided, Congress amended § 1347 and added, in
what is now § 1347(b), that “a person need not have actual knowl-
edge of this section or specific intent to commit a violation of this
section.” No Seventh Circuit decision has interpreted this amend-
ment, so it remains an open question whether it is strictly limited
to “this section,” meaning specifically § 1347, or whether the
amendment more broadly eliminates the need to prove that the
defendant knew he was violating any law. Additionally, § 1347
prosecutions are sometimes premised on representations that are
deemed to be false due to a federal regulation, and it is also an
open question whether a defendant must know that he is violating
the regulation.
Intent to Defraud: The third element requires the govern-
ment to prove that there was a “specific intent to deceive or
defraud.” See United States v. Natale, 719 F.3d 719, 741–42 (7th
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Cir. 2013) (“intent to defraud requires a specific intent to deceive
or mislead”) (citing Awad, 551 F.3d at 940 (‘‘ ‘intent to defraud’ [is]
defined as ‘an intent to deceive or cheat’ ’’); United States v.
Choiniere, 517 F.3d 967, 972 (7th Cir. 2008) (in a § 1347 prosecu-
tion jury instructions defined intent to defraud to mean that “the
acts charged were done knowingly and with the intent to do deceive
or cheat the victims”); United States v. White, 492 F.3d 380, 393–94
(6th Cir. 2007) (“the government must prove the defendant’s
‘specific intent to deceive or defraud’ ’’). As noted above, effective
on March 23, 2010, the Patient Protection and Affordable Care
Act, Pub. L. 111-148, Title VI, § 10606(b), added § 1347(b), which
provides that “a person need not have actual knowledge of this sec-
tion or specific intent to commit a violation of this section.” Just as
the interpretation of Section 1347(b) remains open on the issue of
willfulness (see the discussion above), no Seventh Circuit decision
has interpreted this section for purposes of the specific-intent
element.
Materiality: With regard to the fourth element, in Neder v.
United States, 527 U.S. 1 (1999), the Supreme Court held that
materiality is an element of the offense defined at 18 U.S.C. §
1344. Following Neder, ‘‘district courts should include materiality
in the jury instructions for section 1344.’’ United States v. Reynolds,
189 F.3d 521, 525 n. 2 (7th Cir. 1999); see also United States v.
Fernandez, 282 F.3d 500, 509 (7th Cir. 2002). The Seventh Circuit
addressed the application of Neder to § 1344(1) in United States v.
LeBeau, 949 F.3d 334 (7th Cir. 2020), cert. denied, 19-1424, 2020
WL 5882354 (U.S. Oct. 5, 2020). In LeBeau, the Seventh Circuit
acknowledged its recent holding that the materiality element was
required only when section 1344(2) was charged in United States
v. Ajayi, 808 F.3d 1113, 1119 (7th Cir. 2015), and concluded that
“[t]he better course, consistent with Neder, is to require the
materiality instruction on all bank-fraud charges, whether brought
under section 1344(1) or (2). The government has informed us that
this is its current practice, and we encourage that practice to
continue until such time as we receive greater clarity from the
Supreme Court about what is required.” LeBeau, 949 F.3d at 342.
The Ninth Circuit, in United States v. Omer, 395 F.3d 1087 (9th
Cir. 2005), has similarly held that materiality is an element of a §
1344(1) violation under Neder. In light of LeBeau and the general
admonitions in Neder and in Reynolds, as well as the similarity of
the bank fraud statute to the health care fraud statute, this
instruction has been modified to reflect this requirement. Refer-
ence may be made to the Pattern Instruction for materiality (‘‘Def-
inition of Material’’) accompanying the mail and wire fraud instruc-
tions, which incorporate the notion that a materially false or
fraudulent pretense, representation, or promise may be ac-
complished by an omission or by the concealment of material
information.
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The jury instruction defining Health Care Benefit Program
and Interstate Commerce should be given in conjunction with this
instruction.
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18 U.S.C. § 1347(a)(1) DEFINITION OF
“SCHEME”
A scheme is a plan or course of action formed with
the intent to accomplish some purpose.
A scheme to defraud a health care benefit program
means a plan or course of action intended to deceive or
cheat that health care benefit program [or to obtain
money or property or to cause the [potential] loss of
money or property [belonging to; in the [care; custody;
control] of] the health care benefit program]. [A scheme
to defraud need not involve any false statement or mis-
representation of fact.]
Committee Comment
This instruction is based on the instructions applicable to
mail/wire/bank fraud statutes, 18 U.S.C. § § 1341, 1343, and 1344.
For a discussion of the use of proof of omission or concealment to
show a scheme to defraud, see the Committee Comment to the
mail/wire fraud statutes instruction and to the accompanying ‘‘Def-
inition of Material’’ instruction.
For a discussion of whether the unanimity instruction should
be given see the Committee Comment to Pattern Instruction 18
U.S.C. § § 1341 & 1343—Definition of “Scheme to Defraud.”
The issue of whether a specific false statement or misrepre-
sentation of fact is necessary has not been decided in the context of
health care fraud. Under the bank fraud statute, the Seventh
Circuit has recognized that a check-kiting scheme can be charged
under § 1344(1) even though the scheme may not involve a specific
false statement or misrepresentation of fact. United States v.
Doherty, 969 F.2d 425, 429 (7th Cir. 1992) (“As its ordinary mean-
ing suggests, the term ‘scheme to defraud’ describes a broad range
of conduct, some which involve false statements or misrepresenta-
tions of fact... and others which do not..... [O]ne need not make a
false representation to execute a scheme to defraud.”); see also
United States v. Norton, 108 F.3d 133, 135 (7th Cir. 1997); United
States v. LeDonne, 21 F.3d 1418, 1427–28 (7th Cir. 1994). If such a
scheme is charged, the Committee recommends that the final
bracketed sentence in the first bracketed paragraph reflects these
holdings, and should be given in a case where no specific false
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statement or misrepresentation is charged. For a more detailed
discussion of this issue, see the Committee Comment to Pattern
Instruction 18 U.S.C. § 1344(1)—Definition of “Scheme.”
In the Committee Comment to the Definition of “Scheme to
Defraud” Pattern Instruction applicable to the mail and wire fraud
instructions the Committee discusses at some length cases that
address whether, and when, a mail or wire fraud conviction can be
based on an omission and/or concealment. As that Comment points
out, omissions plus an affirmative act of concealment can comprise
a scheme to defraud in mail/wire fraud cases. But it is not clear,
even from cases construing those statutes, whether an omission
itself, without more, is enough. Similarly, the Seventh Circuit has
not resolved this issue with respect to health care fraud. Note,
however, that the Sixth Circuit has approved the use of omission
only, without further affirmative acts, to sustain a conviction under
18 U.S.C. § 1347. See United States v. Bertram, 900 F.3d 743,
748–49 (6th Cir. 2018). As such, in health care fraud cases in
which the issue arises, the Court may wish to consider adding
some iteration of the final bracketed sentence in the mail and wire
fraud scheme instruction: “A materially false or fraudulent
pretense, representation, or promise may be accomplished by [an]
omission[s] [and] [or] the concealment of material information.”
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18 U.S.C. § 1347(a)(2) OBTAINING PROPERTY
FROM A HEALTH CARE BENEFIT PROGRAM
BY FALSE OR FRAUDULENT PRETENSES—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] scheming to obtain [money; property] belonging
to a health care benefit program by false or fraudulent
pretenses or misrepresentations. In order for you to
find [the; a] defendant guilty of this charge, the govern-
ment must prove each of the following five elements be-
yond a reasonable doubt:
1. There was a scheme to obtain the [money; prop-
erty] that [was; were] [owned by; in the [care; custody;
control] of] a health care benefit program by means of
false or fraudulent pretenses, representations, or
promises, as charged in the indictment; and
2. The defendant knowingly [carried out; attempted
to carry out] the scheme; and
3. The defendant willfully [carried out; attempted
to carry out] the scheme, which means to act with the
intent to defraud; and
4. The scheme involved a materially false or fraud-
ulent, pretense, representation, or promise; and
5. The scheme was in connection with the delivery
of or payment for [health care benefits; health care
items; health care services].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
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If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
In McNally v. United States, 483 U.S. 350 (1987), the Supreme
Court held that language in the mail fraud statute, 18 U.S.C. §
1341, “sets forth just one offense, using the mail to advance a
scheme to defraud.” But in Loughrin v. United States, 573 U.S.
351 (2014), the Court held that different language in the bank
fraud statute, 18 U.S.C. § 1344—language that is almost identical
to that used in § 1347(a)—gives rise to two theories of liability,
and that the government need not prove that a defendant charged
under § 1344(2) intended to defraud the financial institution that
owned or had custody or control over the money or property that
was the object of the scheme.
This separate instruction for § 1347(a)(2) reflects that holding.
(For further discussion of this issue, see the Committee Comments
to the Elements and Scheme Pattern Instructions for § 1344(2).)
Although the Supreme Court has not yet applied Loughrin to §
1347(a), that statute is constructed almost identically to § 1344.
See United States v. Hickman, 331 F.3d 439, 445-46 (5th Cir. 2003)
(language and structure of the health care fraud statute indicates
that Congress patterned it after the bank fraud statute); United
States v. Awad, 551 F.3d 930 (9th Cir. 2008) (agreeing with
Hickman’s view that the health care fraud statute provides two
theories of liability). For those reasons the Committee has
concluded that, like the bank fraud statute, § 1347(a) sets forth
two theories of liability. It is important to note, though, that the
Loughrin Court supported its holding that the bank fraud statute
described two theories of liability in part by noting that, at the
time the bank fraud statute was enacted, the two clauses of the
mail fraud statute had been construed independently by the courts.
The health care fraud statute, though, was enacted after McNally
was decided and after the Court had limited the mail fraud statute
to a single theory of liability.
Willfulness: For mens rea, § 1347(a) uses both “knowingly”
and “willfully.” In United States v. Schaul, the Seventh Circuit
held that “knowingly” and “willfully” have separate meanings and
must be proven in the conjunctive. 962 F.3d 917, 924 (7th Cir.
2020). The Seventh Circuit further held that the defendant in that
case acted willfully because he had an intent to defraud. Id. at
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925. In light of Schaul, the Committee has listed “knowingly” and
“willfully” as separate elements. F urther, while open to some in-
terpretation, the Seventh Circuit in Schaul equated the definition
of “willfully” in § 1347 with “intent to defraud,” which was already
considered an element of § 1347. Thus, “willfully” and “intent to
defraud” have been listed as a single element. See the Committee
Comment explaining intent to defraud for further discussions of
this definition.
In United States v. Awad, 551 F.3d 933, 939 (9th Cir. 2008),
the Ninth Circuit held that to establish a willful state of mind in a
§ 1347 prosecution, the government must prove that the defendant
acted with knowledge that his conduct was unlawful. But in 2010,
after Awad was decided, Congress amended § 1347 and added, in
§ 1347(b), that “a person need not have actual knowledge of this
section or specific intent to commit a violation of this section.” 18
U.S.C. 1347(b). No Seventh Circuit decision has interpreted this
amendment, so it remains an open question whether it is strictly
limited to “this section,” meaning specifically § 1347, or whether
the amendment more broadly eliminates the need to prove that
the defendant knew he was violating any law. Additionally, §
1347 prosecutions are sometimes premised on representations that
are deemed to be false due to a federal regulation, and it is also an
open question whether a defendant must know that he is violating
the regulation.
Intent to Defraud: Although this instruction reflects the
holding in Loughrin that a § 1344(2) violation does not require
proof of intent to defraud the financial institution that owns or
holds the subject money or property, it does, like the Pattern
Instruction for § 1344(2), retain “intent to defraud” as an element.
It has been suggested that § 1344(2), which does not itself men-
tion “fraud” or “defraud” or “intent to defraud”—but that still
requires proof of a “scheme or artifice”—does not require proof of
intent to defraud at all. While this argument may have merit, no
federal appellate court has yet addressed it. The Committee also
notes that the pattern instructions of other Circuits are not unani-
mous on the issue. For example, the Eighth and Ninth Circuits,
like this Committee, continue to include a requirement of proof of
intent to defraud in § 1344(2) cases, even after Loughrin. See
Eighth Circuit Pattern Criminal Jury Instruction 6.18.1344; Ninth
Circuit Pattern Criminal Jury Instruction 8.127. So do pattern
instructions used in the Fourth Circuit, see E.W. Ruschky, Pattern
Jury Instructions for Federal Criminal Cases, District of South
Carolina 366 (2019 ed.), available at http://www.scd.uscourts.gov/p
ji/patternjuryinstructions.pdf. But the Third and Fifth Circuits’
pattern instructions leave out “intent to defraud,” citing Loughrin.
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See Third Circuit Pattern Criminal Jury Instruction 6.18.1344;
Fifth Circuit Pattern Criminal Jury Instruction 2.58B. While the
Committee believes the Pattern Instruction should remain as it is
in the absence of guiding Seventh Circuit case law, it flags the is-
sue for litigants.
Materiality: In Neder v. United States, 527 U.S. 1 (1999), the
Supreme Court held that materiality is an element of the offense
defined in 18 U.S.C. § 1344. Following Neder, “district courts
should include materiality in the jury instructions for section
1344.” United States v. Reynolds, 189 F.3d 521, 525 n. 2 (7th Cir.
1999); United States v. LeBeau, 949 F.3d 334, 342 (7th Cir. 2020),
cert. denied, 19-1424, 2020 WL 5882354 (U.S. Oct. 5, 2020) (“The
better course, consistent with Neder, is to require the materiality
instruction on all bank-fraud charges, whether brought under sec-
tion 1344(1) or (2).”); see also United States v. Fernandez, 282 F.3d
500, 509 (7th Cir. 2002). In keeping with the similarity between
section 1344 and section 1347, the fourth element of this instruc-
tion includes materiality.
The jury instruction defining “Health Care Benefit Program”
under 18 U.S.C. § 1347(a) should be given in conjunction with this
instruction.
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18 U.S.C. § 1347(a)(2) DEFINITION OF SCHEME
A scheme is a plan or course of action formed with
the intent to accomplish some purpose.
To prove a scheme to obtain money [or other prop-
erty] [belonging to; in the [care; custody; control] of] a
health care benefit program by means of false pretenses,
representations or promises, the government must
prove that [the; a] false pretense, representation or
promise charged was what induced[, or would have
induced,] the health care benefit program to part with
the [money; property].
[In considering whether the government has proven
a scheme to obtain moneys or other property [belonging
to; in the [care; custody; control] of] a health care bene-
fit program by means of false pretenses, representa-
tions or promises, the government must prove at least
one of the [false pretenses, representations, promises,
or] acts charged in the portion of the indictment describ-
ing the scheme. However, the government is not
required to prove all of them.]
Committee Comment
This instruction is based on the mail/wire/bank fraud statutes,
18 U.S.C. § § 1341, 1343, and 1344. For a discussion of whether
the unanimity instruction should be given see the Committee Com-
ment to Pattern Instruction 18 U.S.C. § § 1341 & 1343—Definition
of “Scheme to Defraud.”
The second paragraph of this instruction is based on the
discussion in Loughrin v. United States, 573 U.S. 351, 362-65
(2014), of the requirement in 18 U.S.C. § 1344(2) that the money
or property at issue be obtained “by means of” the false pretense(s),
representation(s) and/or promise(s) charged. Although this case
involved the bank fraud statute, as previously noted the language
of the health care fraud statute substantially similar. In the
Loughrin discussion, the Court observed that the “by means of”
requirement contained “a relational component,” that is, that “the
given result (the ‘end’) is achieved, at least in part, through the
specified action, instrument, or method (the “means”), such that
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the connection between the two is something more than oblique,
indirect and incidental.” Id. at 362-63 (emphasis original). As the
Court emphasized, this may require something more than mere
“but-for” causation. The Court’s discussion of this requirement in
Loughrin is complex, though, as is the range of concepts of causa-
tion potentially encompassed by the word “induced.” In an ap-
propriate case the Court may wish to consider whether some word
other than “induced” more accurately captures the meaning of the
“by means of” requirement. The bracketed phrase “or would have
induced” should be given in a case in which there is an issue with
respect to whether the charged scheme actually came to fruition.
The final, bracketed paragraph should be given in cases in
which, as will usually be the case, more than one false pretense,
representation or promise is charged.
In the Committee Comment to Definition of “Scheme to
Defraud” instruction applicable to the mail and wire fraud instruc-
tions the Committee discusses at some length cases that address
whether, and when, a mail or wire fraud conviction can be based
on an omission and/or concealment. As that Comment points out,
omissions plus an affirmative act of concealment can comprise a
scheme to defraud in mail/wire fraud cases. But it is not clear,
even from cases construing those statutes, whether an omission
itself, without more, is enough. Similarly, this issue has not been
resolved with respect to health care fraud. In health care fraud
cases in which the issue arises, the Court may wish to consider
adding some iteration of the final bracketed sentence in the mail
and wire fraud scheme instruction: “A materially false or fraudu-
lent pretense, representation, or promise may be accomplished by
[an] omission[s] [and] [or] the concealment of material
information.”
For a discussion of whether a unanimity instruction should be
given, see the Committee Comment to Pattern Instruction for 18
U.S.C. § § 1341 & 1343—Definition of “Scheme to Defraud.”
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18 U.S.C. § 1461 MAILING OBSCENE
MATERIAL—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] mailing obscene material. In order for you to find
[the; a] defendant guilty of this charge, the government
must prove each of the [three] following elements be-
yond a reasonable doubt:
1. The defendant knowingly [used the mails;
caused the mails to be used] for the delivery of certain
materials, as charged; and
2. The defendant knew the content, character, and
nature of the materials; and
3. The materials were obscene.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
To fulfill the “knowingly” requirement of 18 U.S.C. § 1461, the
Supreme Court held that the prosecution need only show that the
defendant had knowledge of the content, character and nature of
the materials, not of the law. Hamling v. United States, 418 U.S.
87, 122–24 (1974) (the defendant must have knowledge of the
contents and the “character and nature” of the materials); see also
Elonis v. United States, 575 U.S. 723, 135 S. Ct. 2001, 2012 (2015)
(knowledge of substance of material is required); United States v.
Wellman, 663 F.3d 224, 230–31 (4th Cir. 2011) (knowledge of
1461
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content of material required, but a defendant’s knowledge of the
law “is not a relevant consideration” and a jury need not find that
a defendant “knew that the images at issue were obscene”); United
States v. Little, 365 F. App’x 159, 166 (11th Cir. 2010) (no require-
ment that the defendant have knowledge of the illegality of the
materials in question); United States v. Johnson, 855 F.2d 299,
306 (6th Cir. 1988) (in affirming a conviction under 18 U.S.C.
§ 1461, stating that defendant must know the nature and character
of the materials).
Because the statute’s references to materials that are indecent,
filthy and vile raise constitutional issues, the proposed pattern
instruction does not include them.
“Obscene” is defined in Pattern Instruction 18 U.S.C. § 1470.
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18 U.S.C. § 1462 BRINGING OBSCENE
MATERIAL INTO THE UNITED STATES—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] bringing obscene material into the United States.
In order for you to find [the; a] defendant guilty of this
charge, the government must prove each of the [three]
following elements beyond a reasonable doubt:
1. The defendant knowingly brought [name the
material charged in the indictment] into the United
States; and
2. The defendant knew the character or nature of
[name the material charged in the indictment] at the
time it was brought into the United States; and
3. [Name the material charged in the indictment]
was obscene.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
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18 U.S.C. § 1462 TAKING OR RECEIVING
OBSCENE MATERIAL—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
———
of the indictment charge[s] the defen-
dant[s] with] taking or receiving obscene material. In
order for you to find [the; a] defendant guilty of this
charge, the government must prove each of the [three]
following elements beyond a reasonable doubt:
1. The defendant knowingly took or received
[name the material charged in the indictment] from
[any express company; other common carrier; interac-
tive computer service]; and
2. The defendant knew the content, character and
nature of [the material charged in the indictment] at
the time it was [taken; received]; and
3. [The material charged in the indictment] was
obscene.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
With regard to the requisite level of knowledge, the Supreme
Court has held that the prosecution need only show that the
defendant had knowledge of the content, character and nature of
the materials, not of the law. Hamling v. United States, 418 U.S.
87, 122–24 (1974) (the defendant must have knowledge of the
1462
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667
contents and the “character and nature” of the materials); see also
Elonis v. United States, 575 U.S. 723, 135 S. Ct. 2001, 2012 (2015)
(knowledge of substance of material is required); United States v.
Wellman, 663 F.3d 224, 230–31 (4th Cir. 2011) (knowledge of
content of material required, but a defendant’s knowledge of the
law “is not a relevant consideration” and a jury need not find that
a defendant “knew that the images at issue were obscene”); United
States v. Little, 365 F. App’x 159, 166 (11th Cir. 2010) (no require-
ment that the defendant have knowledge of the illegality of the
materials in question); United States v. Johnson, 855 F.2d 299,
306 (6th Cir. 1988) (in affirming a conviction under 18 U.S.C.
§ 1461, stating that defendant must know the nature and character
of the materials).
“Computer” is defined in Pattern Instruction 18 U.S.C.
§ 1030(e)(1).
“Obscene” is defined in Pattern Instruction 18 U.S.C. § 1470.
1462
STATUTORY INSTRUCTIONS
668
18 U.S.C. § 1462 IMPORTING OR
TRANSPORTING OBSCENE MATERIAL—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] importing or transporting obscene material. In or-
der for you to find [the; a] defendant guilty of this
charge, the government must prove each of the [three]
following elements beyond a reasonable doubt:
1. The defendant knowingly used [any express
company; other common carrier; interactive computer
service] to transport [name the material charged in the
indictment] in interstate or foreign commerce; and
2. The defendant knew the content, character, and
nature of [name the material charged in the indictment]
at the time of such use; and
3. [Name the material charged in the indictment]
was obscene.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
With regard to the requisite level of knowledge, the Supreme
Court has held that the prosecution need only show that the
defendant had knowledge of the content, character and nature of
the materials, not of the law. Hamling v. United States, 418 U.S.
1462
CRIMINAL INSTRUCTIONS
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87, 122–24 (1974) (the defendant must have knowledge of the
contents and the “character and nature” of the materials); see also
Elonis v. United States, 575 U.S. 723, 135 S. Ct. 2001, 2012 (2015)
(knowledge of substance of material is required); United States v.
Wellman, 663 F.3d 224, 230–31 (4th Cir. 2011) (knowledge of
content of material required, but a defendant’s knowledge of the
law “is not a relevant consideration” and a jury need not find that
a defendant “knew that the images at issue were obscene”); United
States v. Little, 365 F. App’x 159, 166 (11th Cir. 2010) (no require-
ment that the defendant have knowledge of the illegality of the
materials in question); United States v. Johnson, 855 F.2d 299,
306 (6th Cir. 1988) (in affirming a conviction under 18 U.S.C.
§ 1461, stating that defendant must know the nature and character
of the materials).
“Computer” is defined in Pattern Instruction 18 U.S.C.
§ 1030(e)(1).
The definitions of “interstate commerce” and “foreign com-
merce” are found at 18 U.S.C. § 10 and are set forth in Pattern
Instruction on Definition of Interstate or Foreign Commerce, below,
which consolidates and harmonizes various definitions of those
terms.
“Obscene” is defined in Pattern Instruction 18 U.S.C. § 1470.
1462
STATUTORY INSTRUCTIONS
670
18 U.S.C. § 1465 PRODUCTION WITH INTENT
TO TRANSPORT/DISTRIBUTE/TRANSMIT
OBSCENE MATERIAL FOR SALE OR
DISTRIBUTION—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] production of obscene material with the intent to
[transport; distribute; transmit] obscene material for
the purpose of [sale; distribution]. In order for you to
find [the; a] defendant guilty of this charge, the govern-
ment must prove each of the [four] following elements
beyond a reasonable doubt:
1. The defendant knowingly used [any express
company] [other common carrier] [interactive computer
service] to [transport; distribute; transmit] [name the
material charged in the indictment] in interstate or
foreign commerce; and
2. The defendant knowingly produced the materi-
als with the intent to [transport; distribute; transmit]
them; and
3. The defendant knew of the content, character
and nature of [name the material charged in the indict-
ment] at the time of production; and
4. [Name the material charged in the indictment]
was obscene.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
1465
CRIMINAL INSTRUCTIONS
671
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
With regard to the requisite level of knowledge, the Supreme
Court has held that the prosecution need only show that the
defendant had knowledge of the content, character and nature of
the materials, not of the law. Hamling v. United States, 418 U.S.
87, 122–24 (1974) (the defendant must have knowledge of the
contents and the “character and nature” of the materials); see also
Elonis v. United States, 575 U.S. 723, 135 S. Ct. 2001, 2012 (2015)
(knowledge of substance of material is required); United States v.
Wellman, 663 F.3d 224, 230–31 (4th Cir. 2011) (knowledge of
content of material required, but a defendant’s knowledge of the
law “is not a relevant consideration” and a jury need not find that
a defendant “knew that the images at issue were obscene”); United
States v. Little, 365 F. App’x 159, 166 (11th Cir. 2010) (no require-
ment that the defendant have knowledge of the illegality of the
materials in question); United States v. Johnson, 855 F.2d 299,
306 (6th Cir. 1988) (in affirming a conviction under 18 U.S.C.
§ 1461, stating that defendant must know the nature and character
of the materials).
“Computer” is defined in Pattern Instruction 18 U.S.C.
§ 1030(e)(1).
The definitions of “interstate commerce” and “foreign com-
merce” are found at 18 U.S.C. § 10 and are set forth in Pattern
Instruction on Definition of Interstate or Foreign Commerce, below,
which consolidates and harmonizes various definitions of those
terms.
“Obscene” is defined in Pattern Instruction 18 U.S.C. § 1470.
1465
STATUTORY INSTRUCTIONS
672
18 U.S.C. § 1465 TRANSPORTATION OF
OBSCENE MATERIAL FOR SALE OR
DISTRIBUTION—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] transportation of obscene material for the purpose
of [sale; distribution]. In order for you to find [the; a]
defendant guilty of this charge, the government must
prove each of the [four] following elements beyond a
reasonable doubt:
1. The defendant knowingly [transported in; trav-
eled in; used any facility or means of] interstate or
foreign commerce; and
2. The defendant did so for the purpose of [sale;
distribution] of [name the material charged in the
indictment]; and
3. The defendant knew of the content, character
and nature of [name the material charged in the indict-
ment] at the time of [transportation; travel]; and
4. [Name the material charged in the indictment]
was obscene.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
1465
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673
Committee Comment
It is possible for a defendant to travel in interstate commerce
for the purpose of selling or distributing obscene material, without
possessing the obscene material at the time of travel. It is also
arguably possible for a defendant to use a facility or means of in-
terstate or foreign commerce for the purpose of selling or distribut-
ing obscene material, without sending the obscene material
through the means of interstate commerce. The Committee takes
no position on whether the statute is intended to apply to these
situations.
In certain cases, a rebuttable presumption may apply to the
defendant’s intent to sell or distribute. See 18 U.S.C. § 1465, ¶ 2.
1465
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674
DEFINITION OF INTERSTATE OR FOREIGN
COMMERCE
“Interstate commerce” means commerce between
different states, territories, and possessions of the
United States, including the District of Columbia.
“Foreign commerce” as used above, means com-
merce between any state, territory or possession of the
United States and a foreign country.
“Commerce” includes, among other things, travel,
trade, transportation and communication.
Images transmitted or received over the Internet
have moved in interstate or foreign commerce. 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].
Committee Comment
These instructions are intended for use in cases involving
various sexual exploitation-related charges, and are cross-
referenced for many of them. These definitions of “interstate com-
merce” and “foreign commerce” are found at 18 U.S.C. § 10, and
are modified here to consolidate and harmonize various definitions
of those terms.
Several circuits have now held that use of the internet satis-
fies the interstate commerce nexus. See United States v. Lewis,
554 F.3d 208, 215 (1st Cir. 2009); United States v. MacEwan, 445
F.3d 237, 244 (3d Cir. 2006); United States v. Runyon, 290 F.3d
223, 239 (5th Cir. 2002).
The bracketed language that addresses material that “was
produced” should only be used in cases that charge such conduct,
including cases brought under 18 U.S.C. § 2252A(a)(5)(B) or (6)(B).
1465
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675
18 U.S.C. § 1466 ENGAGING IN BUSINESS OF
PRODUCING/SELLING OBSCENE MATTER—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] engaging in the business of [producing obscene
material with intent to [distribute; sell]] [[selling;
transferring] obscene material]. In order for you to find
[the; a] defendant guilty of this charge, the government
must prove each of the [four] following elements beyond
a reasonable doubt:
1. The defendant is engaged in the business of
[producing; selling; transferring] [name the material
charged in the indictment]; and
2. The defendant knowingly [[sold; transferred;
produced] [name the material charged in the indict-
ment]] with intent to [distribute; sell]; and
3. [The material charged in the indictment] is
obscene; and
4. [The material charged in the indictment] has
been [shipped; transported] in [interstate; foreign]
commerce.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
1466
STATUTORY INSTRUCTIONS
676
Committee Comment
In certain cases, a rebuttable presumption may apply. See 18
U.S.C. § 1466(b).
“Producing” is defined in Pattern Instruction 18 U.S.C.
§ 2256(3).
“Obscene” is defined in Pattern Instruction 18 U.S.C. § 1470.
1466
CRIMINAL INSTRUCTIONS
677
18 U.S.C. § 1466 ENGAGING IN BUSINESS OF
SELLING/TRANSFERRING OBSCENE
MATTER—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] engaging in the business of [selling; transferring]
obscene material. In order for you to find [the; a]
defendant guilty of this charge, the government must
prove each of the [four] following elements beyond a
reasonable doubt:
1. The defendant is engaged in the business of
[selling; transferring] [name the material charged in
the indictment]; and
2. The defendant knowingly [sold; transferred]
[name the material charged in the indictment]; and
3. [Name the material charged in the indictment]
is obscene; and
4. The [name the material charged in the indict-
ment] has been [shipped; transported] in interstate or
foreign commerce.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
1466
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678
Committee Comment
In certain cases, a rebuttable presumption may apply. See 18
U.S.C. § 1466(b).
The definitions of “interstate commerce” and “foreign com-
merce” are found at 18 U.S.C. § 10 and are set forth in Pattern
Instruction on Definition of Interstate or Foreign Commerce, above,
which consolidates and harmonizes various definitions of those
terms.
“Obscene” is defined in Pattern Instruction 18 U.S.C. § 1470.
1466
CRIMINAL INSTRUCTIONS
679
18 U.S.C. § 1466 ENGAGING IN BUSINESS OF
RECEIVING/POSSESSING OBSCENE MATTER—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] engaging in the business of [receiving; possessing]
obscene material with intent to distribute. In order for
you to find [the; a] defendant guilty of this charge, the
government must prove each of the [four] following ele-
ments beyond a reasonable doubt:
1. The defendant is engaged in the business of
[receiving; possessing] [name the material charged in
the indictment]; and
2. The defendant knowingly [received; possessed]
[name the material charged in the indictment] with
intent to distribute; and
3. [Name the material charged in the indictment]
is obscene; and
4. [Name the material charged in the indictment]
has been [shipped; transported] in interstate or foreign
commerce.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
1466
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680
Committee Comment
In certain cases, a rebuttable presumption may apply. See 18
U.S.C. § 1466(b).
The definitions of “interstate commerce” and “foreign com-
merce” are found at 18 U.S.C. § 10 and are set forth in Pattern
Instruction on Definition of Interstate or Foreign Commerce, above,
which consolidates and harmonizes various definitions of those
terms.
“Obscene” is defined in Pattern Instruction 18 U.S.C. § 1470.
1466
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681
18 U.S.C. § 1466(b) DEFINITION OF “ENGAGED
IN THE BUSINESS”
A person who produces, sells or transfers or offers
to sell or transfer obscene matter is “engaged in the
business” of doing so, if he devotes time, attention or
labor to such activities, as a regular course of trade or
business, with the objective of earning a profit. It is not
necessary that the person make a profit or that the pro-
duction, selling or transferring or offering to sell or
transfer such material be the person’s sole or principal
business or source of income.
1466(b)
STATUTORY INSTRUCTIONS
682
18 U.S.C. § 1466A(a)(1) PRODUCING/
DISTRIBUTING/RECEIVING/POSSESSING WITH
INTENT TO DISTRIBUTE OBSCENE VISUAL
REPRESENTATIONS OF SEXUAL ABUSE OF
CHILDREN—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charges the defendant[s]
with] [producing; distributing; receiving; possessing
with intent to distribute], a visual depiction. In order
for you to find [the; a] defendant guilty of this charge,
the government must prove each of the [four] following
elements beyond a reasonable doubt:
1. The defendant knowingly [produced; distrib-
uted; received; possessed with intent to distribute], a
visual depiction; and
2. The visual depiction is of a minor engaging in
sexually explicit conduct; and
3. The visual depiction is obscene; and
4. [A communication involved in or made in
furtherance of this offense was communicated or
transported by [mail; in interstate or foreign commerce,
including by computer]]
[A communication involved in or made in further-
ance of the offense contemplated the transmission or
transportation of a visual depiction by the [mail; in in-
terstate or foreign commerce, including by computer]]
[Any person traveled or was transported in inter-
state or foreign commerce in the course of or in further-
ance of the commission of this offense]
[Any visual depiction involved in the offense was
produced using materials that were [mailed; shipped or
1466A(a)(1)
CRIMINAL INSTRUCTIONS
683
transported in interstate or foreign commerce, includ-
ing by computer]]
[The offense was committed in the special mari-
time or territorial jurisdiction of the United States].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
“Sexually explicit conduct” is defined in Pattern Instruction 18
U.S.C. § 2256(2)(A).
The definitions of “interstate commerce” and “foreign com-
merce” are found at 18 U.S.C. § 10 and are set forth in Pattern
Instruction on Definition of Interstate or Foreign Commerce, above,
which consolidates and harmonizes various definitions of those
terms.
“Computer” is defined in Pattern Instruction 18 U.S.C.
§ 1030(e)(1).
“Minor” is defined in Pattern Instruction 18 U.S.C. § 2256(1).
“Obscene” is defined in Pattern Instruction 18 U.S.C. § 1470.
1466A(a)(1)
STATUTORY INSTRUCTIONS
684
18 U.S.C. § 1466A(a)(2) PRODUCING/
DISTRIBUTING/RECEIVING/POSSESSING WITH
INTENT TO DISTRIBUTE OBSCENE VISUAL
REPRESENTATIONS OF SEXUAL ABUSE OF
CHILDREN—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [producing; distributing; receiving; possessing
with intent to distribute, a visual depiction. In order for
you to find [the; a] defendant guilty of this charge, the
government must prove each of the [four] following ele-
ments beyond a reasonable doubt:
1. The defendant knowingly [produced; distrib-
uted; received; possessed with intent to distribute], a
visual depiction; and
2. The visual depiction is of an image [that is; ap-
pears to be] a minor engaging in [graphic bestiality;
sadistic abuse; masochistic abuse; sexual intercourse];
and
3. The visual depiction lacks serious literary,
artistic, political or scientific value; and
4. [A communication involved in or made in
furtherance of this offense was communicated or
transported by [mail; in interstate or foreign commerce,
including by computer]]
[A communication involved in or made in further-
ance of the offense contemplated the transmission or
transportation of a visual depiction by the [mail; in in-
terstate or foreign commerce, including by computer]]
[Any person traveled or was transported in inter-
state or foreign commerce in the course of or in further-
ance of the commission of this offense]
1466A(a)(2)
CRIMINAL INSTRUCTIONS
685
[Any visual depiction involved in the offense was
produced using materials that were [mailed; shipped or
transported in interstate or foreign commerce, includ-
ing by computer]]
[The offense was committed in the special mari-
time or territorial jurisdiction of the United States].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
“Sexually explicit conduct” is defined in Pattern Instruction 18
U.S.C. § 2256(2)(A).
“Producing” is defined in Pattern Instruction 18 U.S.C.
§ 2256(3).
“Computer” is defined in Pattern Instruction 18 U.S.C.
§ 1030(e)(1).
The definitions of “interstate commerce” and “foreign com-
merce” are found at 18 U.S.C. § 10 and are set forth in Pattern
Instruction on Definition of Interstate or Foreign Commerce, above,
which consolidates and harmonizes various definitions of those
terms.
1466A(a)(2)
STATUTORY INSTRUCTIONS
686
18 U.S.C. § 1466A(b)(1) POSSESSION OF
OBSCENE VISUAL REPRESENTATIONS OF
SEXUAL ABUSE OF CHILDREN—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] possession of an obscene visual depiction. In or-
der for you to find [the; a] defendant guilty of this
charge, the government must prove each of the [four]
following elements beyond a reasonable doubt:
1. The defendant knowingly possessed a visual
depiction; and
2. The visual depiction is of a minor engaging in
sexually explicit conduct; and
3. The visual depiction is obscene; and
4. [A communication involved in or made in
furtherance of this offense was communicated or
transported by [mail; in interstate or foreign commerce,
including by computer]]
[A communication involved in or made in further-
ance of the offense contemplated the transmission or
transportation of a visual depiction by the [mail; in in-
terstate or foreign commerce, including by computer]]
[Any person traveled or was transported in inter-
state or foreign commerce in the course of or in further-
ance of the commission of this offense]
[Any visual depiction involved in the offense was
produced using materials that were [mailed; shipped or
transported in interstate or foreign commerce, includ-
ing by computer]]
[The offense was committed in the special mari-
time or territorial jurisdiction of the United States].
1466A(b)(1)
CRIMINAL INSTRUCTIONS
687
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
“Sexually explicit conduct” is defined in Pattern Instruction 18
U.S.C. § 2256(2)(A).
“Minor” is defined in Pattern Instruction 18 U.S.C. § 2256(1).
“Computer” is defined in Pattern Instruction 18 U.S.C.
§ 1030(e)(1).
The definitions of “interstate commerce” and “foreign com-
merce” are found at 18 U.S.C. § 10 and are set forth in Pattern
Instruction on Definition of Interstate or Foreign Commerce, above,
which consolidates and harmonizes various definitions of those
terms.
“Obscene” is defined in Pattern Instruction 18 U.S.C. § 1470.
1466A(b)(1)
STATUTORY INSTRUCTIONS
688
18 U.S.C. § 1466A(b)(2) POSSESSION OF
OBSCENE VISUAL REPRESENTATIONS OF
SEXUAL ABUSE OF CHILDREN—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] possession of an obscene visual depiction. In or-
der for you to find [the; a] defendant guilty of this
charge, the government must prove each of the [four]
following elements beyond a reasonable doubt:
1. The defendant knowingly possessed a visual
depiction; and
2. The visual depiction is of an image [that is; ap-
pears to be] a minor engaging in [graphic bestiality;
sadistic abuse; masochistic abuse; sexual intercourse];
and
3. The visual depiction lacks serious literary,
artistic, political or scientific value; and
4. [A communication involved in or made in
furtherance of this offense was communicated or
transported by [mail; in interstate or foreign commerce,
including by computer]]
[A communication involved in or made in further-
ance of the offense contemplated the transmission or
transportation of a visual depiction by the [mail; in in-
terstate or foreign commerce, including by computer]]
[Any person traveled or was transported in inter-
state or foreign commerce in the course of or in further-
ance of the commission of this offense]
[Any visual depiction involved in the offense was
produced using materials that were [mailed; shipped or
transported in interstate or foreign commerce, includ-
ing by computer]]
1466A(b)(2)
CRIMINAL INSTRUCTIONS
689
[The offense was committed in the special mari-
time or territorial jurisdiction of the United States].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
“Sexually explicit conduct” is defined in Pattern Instruction 18
U.S.C. § 2256(2)(A).
“Computer” is defined in Pattern Instruction 18 U.S.C.
§ 1030(e)(1).
The definitions of “interstate commerce” and “foreign com-
merce” are found at 18 U.S.C. § 10 and are set forth in Pattern
Instruction on Definition of Interstate or Foreign Commerce, above,
which consolidates and harmonizes various definitions of those
terms.
1466A(b)(2)
STATUTORY INSTRUCTIONS
690
18 U.S.C. § 1466A(f)(1) DEFINITION OF “VISUAL
DEPICTION”
“Visual depiction” includes undeveloped film and
videotape, and data stored on a computer disk or by
electronic means which is capable of conversion into a
visual image, and also includes any photograph, film,
video, picture, digital image or picture, computer image
or picture, or computer generated image or picture,
whether made or produced by electronic, mechanical, or
other means.
Committee Comment
Only the applicable terms within this definition should be
used.
1466A(f)(1)
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691
18 U.S.C. § 1466A(f)(3) DEFINITION OF
“GRAPHIC”
A depiction of sexually explicit conduct is “graphic”
if a viewer can observe any part of the genitals or pubic
area of any depicted person [or animal] during any part
of the time that the sexually explicit conduct is being
depicted.
1466A(f)(3)
STATUTORY INSTRUCTIONS
692
18 U.S.C. § 1470 TRANSFER OF OBSCENE
MATERIAL TO A MINOR—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
———
of the indictment charge[s] the defen-
dant[s] with] transfer of obscene material to an individ-
ual who has not attained the age of sixteen years. In or-
der for you to find [the; a] defendant guilty of this
charge, the government must prove each of the six fol-
lowing elements beyond a reasonable doubt:
1. The defendant knowingly transferred [name
the material charged in the indictment]; and
2. The defendant transferred [name the material
charged in the indictment] to an individual less than
sixteen years old; and
3. The defendant knew the other individual was
less than sixteen years-old; and
4. The defendant knew at the time of the transfer
the content, character and nature of the material; and
5. [Name the material charged in the indictment]
is obscene; and
6. The defendant knowingly used the [mail; any
means or facility of interstate commerce] to transfer
[name the material charged in the indictment].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
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doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The definitions of “interstate commerce” and “foreign com-
merce” are found at 18 U.S.C. § 10 and are set forth in Pattern
Instruction on Definition of Interstate or Foreign Commerce, above,
which consolidates and harmonizes various definitions of those
terms.
With regard to the requisite level of knowledge, the Supreme
Court has held that the prosecution need only show that the
defendant had knowledge of the content, character and nature of
the materials, not of the law. Hamling v. United States, 418 U.S.
87, 123 (1974) (the defendant must have knowledge of the contents
and the “character and nature” of the materials); see also Elonis v.
United States, 575 U.S. 723, 135 S. Ct. 2001, 2012 (2015) (knowl-
edge of substance of material is required); United States v. Wellman,
663 F.3d 224, 230–31 (4th Cir. 2011) (knowledge of content of ma-
terial required, but a defendant’s knowledge of the law “is not a
relevant consideration” and a jury need not find that a defendant
“knew that the images at issue were obscene”); United States v.
Little, 365 F. App’x 159, 166 (11th Cir. 2010) (no requirement that
the defendant have knowledge of the illegality of the materials in
question); United States v. Johnson, 855 F.2d 299, 306 (6th Cir.
1988) (in affirming a conviction under 18 U.S.C. § 1461, stating
that defendant must know the nature and character of the
materials).
1470
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18 U.S.C. § 1470 DEFINITION OF “OBSCENE”
No evidence of what constitutes obscene material
has been or needs to be presented. It is up to you to
determine whether the material is obscene using the
standard in this instruction.
Material is obscene when it meets all three of the
following requirements:
1. The average person, applying contemporary
adult community standards, would find that the mate-
rial, taken as a whole, appeals to the prurient interest.
Material appeals to “prurient interest” when it is
directed to an unhealthy or abnormally lustful or erotic
interest, or to a lascivious or degrading interest, or to a
shameful or morbid interest, in [sex].
2. The average person, applying contemporary
adult community standards, would find that the mate-
rial depicts or describes sexual conduct in an obviously
offensive way.
3. A reasonable person would find that the mate-
rial, taken as a whole, lacks serious literary, artistic,
political, or scientific value.
Before you can find material to be obscene, you
must find that it meets all three of these requirements.
You are to apply these requirements from the
standpoint of an average adult in the community,
namely, the counties in the
———
District of
———
in
which you reside.
You are not to apply these standards from the
standpoint of the sender, the recipient, or the intended
recipient of the material.
You must also avoid applying subjective personal
1470
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and privately held views regarding what is obscene.
Rather, the standard is that of an average adult apply-
ing the collective view of the community as a whole.
Committee Comment
The three-part test for determining whether material is
obscene is taken from Miller v. California, 413 U.S. 15, 24 (1973)
and Pope v. Illinois, 481 U.S. 497, 500–01 (1987). See also Smith v.
United States, 431 U.S. 291, 302 (1977) (“community standards
. . . provide the measure against which the jury decides the ques-
tions of appeal to prurient interest and patent offensiveness”);
United States v. Rogers, 474 F. App’x 463, 467–68 (7th Cir. 2012)
(in a prosecution under 18 U.S.C. § 1470, applying the Miller test
and concluding that, under the facts presented, an image defendant
sent to a minor of defendant holding his erect penis met the defini-
tion of obscene); see also United States v. Little, 365 Fed. App’x
159, 163–64 (11th Cir. 2010).
The definition of “prurient interest” comes from a number of
decisions, including Brockett v. Spokane Arcades, Inc., 472 U.S.
491, 504–07 (1985); Roth v. United States, 354 U.S. 476, 487 n.20
(1957); and Mishkin v. New York, 383 U.S. 502, 508–09 (1966); see
also Rogers, 474 F. App’x at 468–69 (defining “prurient interest” as
“shameful or morbid”).
The definition of the relevant “community” is taken from
Hamling v. United States, 418 U.S. 87, 104–05 (1974) (“A juror is
entitled to draw on his own knowledge of the views of the average
person in the community or vicinage from which he comes for mak-
ing the required determination . . ..”). Accord Smith, 431 U.S. at
302; see also United States v. Langford, 688 F.2d 1088, 1092 (7th
Cir. 1982) (“the community whose standards the jury must apply
need not be precisely defined”).
The admonition to apply the standard of an average person
and not particular persons (e.g. the sender and recipient, or the
juror himself or herself) comes from several Supreme Court
decisions. See, e.g., Miller, 413 U.S. at 33 (“the primary concern in
requiring a jury to apply the standard of the average person, ap-
plying contemporary community standards is to be certain that, so
far as material is not aimed at a deviant group, it will be judged
by its impact on an average person, rather than a particularly
susceptible or sensitive person—or indeed a totally insensitive
one”) (internal quotation marks omitted). See also Pinkus v. United
States, 436 U.S. 293, 300–01 (1978) (“Cautionary instructions to
avoid substantive personal and private views in determining com-
1470
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696
munity standards can do no more than tell the individual juror
that in evaluating the hypothetical ‘average’ person he is to
determine the collective view of the community, as best as it can
be done.”); Hamling, 418 U.S. at 107 (material is not to be judged
“on the basis of each juror’s personal opinion”).
1470
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697
18 U.S.C. § 1503 OBSTRUCTION OF JUSTICE
GENERALLY—ELEMENTS
The defendant has been charged in [Count[s]
—
of]
the indictment with obstruction of justice. In order for
you to find the defendant guilty of this charge, the
government must prove each of the following elements
beyond a reasonable doubt:
1. There was a pending proceeding before a
federal [court; grand jury];
2. The defendant knew of that proceeding;
3. The defendant [intentionally influenced, ob-
structed or impeded] [endeavored to influence, obstruct
or impede] the due administration of that proceeding;
and
4. The defendant acted [corruptly, that is, with
the purpose of wrongfully impeding the due administra-
tion of justice] [by threat; by force; by threatening letter
or communication].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt, then you should
find the defendant guilty.
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any of these elements beyond a reasonable
doubt, then you should find the defendant not guilty.
Committee Comment
This instruction is for use when the omnibus, or catch-all,
“due administration of justice” provision of § 1503 is used. United
States v. Macari, 453 F.3d 926, 939 (7th Cir. 2006); United States
v. Aguilar, 515 U.S. 593, 599 (1995); United States v. Fassnacht,
332 F.3d 440, 448–49 (7th Cir. 2003).
1503
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In defining “corruptly,” the word “wrongfully” is used to limit
the statute only to those acts where a defendant has no legal right
to impede the proceeding. See United States v. Matthews, 505 F.3d
698 (7th Cir. 2007) (citing Arthur Andersen LLP v. United States,
544 U.S. 696 (2005)); United States v. Fassnacht, 332 F.3d 440
(7th Cir. 2003); United States v. Ashqar, 582 F.3d 819 (2d Cir.
2009) (approving Matthews definition of corruptly in context of
§ 1503 prosecution).
1503
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699
18 U.S.C. § 1503 OBSTRUCTION OF JUSTICE—
CLAUSE 2—INJURING JURORS OR THEIR
PROPERTY—ELEMENTS
The defendant has been charged in [Count[s]
—
of]
the indictment with obstruction of justice. In order for
you to find the defendant guilty of this charge, the
government must prove each of the following elements
beyond a reasonable doubt:
1. (Name) was a [grand; petit; prospective] juror;
2. The defendant intentionally injured (name)’s
[person; property];
3. The defendant did so because [name] [[was; had
been] a juror].
1503
STATUTORY INSTRUCTIONS
700
18 U.S.C. § 1503 OBSTRUCTION OF JUSTICE—
CLAUSE 3—INJURING COURT OFFICIALS—
ELEMENTS
The defendant has been charged in [Count[s]
—
of]
the indictment with obstruction of justice. In order for
you to find the defendant guilty of this charge, the
government must prove each of the following elements
beyond a reasonable doubt:
1. [Name] was a [court officer; magistrate judge];
2. The defendant intentionally injured [name]’s
[person; property];
3. The defendant did so because of [name]’s per-
formance of their official duties.
1503
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701
18 U.S.C. § 1503 DEFINITION OF “ENDEAVOR”
A defendant endeavors to influence, obstruct or
impede [the due administration of a proceeding] [a
[juror; witness; court officer]] if the defendant acts
purposefully, with the knowledge or notice that his ac-
tions would have the natural and probable effect of
wrongfully [obstructing, impeding or interfering with
the due administration of the proceeding][obstructing,
influencing, intimidating or impeding the [juror; wit-
ness; court officer] in the discharge of their duties]. The
endeavor need not be successful.
Committee Comment
See United States v. Aguilar, 515 U.S. 593, 599 (1995) (“the
endeavor must have the natural and probable effect of interfering
with the due administration of justice”) (internal quotation marks
omitted); United States v. Cueto, 151 F.3d 620, 634 (7th Cir. 1998)
(“acted in a manner that had natural and probable effect of
interfering with the lawful function of . . . governmental enti-
ties”); United States v. Buckley, 192 F.3d 708, 710 (7th Cir. 1999)
(discussing U.S.S.G. § 3C1.1, not 18 U.S.C. § 1503).
The term “purposefully,” which this instruction adopts from
the 1999 version, appears to come from United States v. Machi,
811 F.2d 991, 998 (7th Cir. 1987), which refers to “knowingly and
purposefully undertaking an act, the natural and probable conse-
quence of which is to influence, obstruct, or impede the due
administration of justice.” Based on a Westlaw search, however,
the term “purposefully” does not appear in the same sentence as
the term “endeavor!” or the term “obstruct!” in any other Seventh
Circuit criminal case. Careful consideration should be given
regarding whether to include this term.
The term “reasonable tendency,” which appeared in the 1999
version of this instruction, appears to have come from two Seventh
Circuit cases: United States v. Arnold, 773 F.2d 823, 834 (7th Cir.
1985), and United States v. Harris, 558 F.3d 366, 369 (7th Cir.
1977), which Arnold quotes. It may originally come from Nye v.
United States, 313 U.S. 33, 49 (1941), a criminal case involving an
almost identically-worded phrase in a predecessor statute. This
language, however, does not appear in any post-Aguilar obstruc-
tion case in the Seventh Circuit. United States v. Palivos, 486 F.3d
250, 258 (7th Cir. 2007), quotes a jury instruction using this same
phrase (likely derived from the 1999 Pattern Instruction) but does
1503
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702
not address its appropriateness. The Committee has eliminated it.
1503
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703
18 U.S.C. § 1503 INFLUENCING COURT
OFFICER—ELEMENTS
The defendant has been charged in [Count[s]
—
of]
the indictment with obstruction of justice. In order for
you to find the defendant guilty of this charge, the
government must prove each of the following elements
beyond a reasonable doubt:
1. [Name] was an officer of any court of the United
States;
2. The defendant endeavored to [influence; intimi-
date; impede] [name] by here insert [act as described in
the indictment] on account of [name] being an officer in
or of any court of the United States;
3. The defendant acted knowingly; and
4. The defendant acted [corruptly, that is, with
the purpose of wrongfully impeding the due administra-
tion of justice] by [threats; force; threatening letter or
communication].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt, then you should
find the defendant guilty.
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any of these elements beyond a reasonable
doubt, then you should find the defendant not guilty.
Committee Comment
In defining “corruptly,” the word “wrongfully” is used to limit
the statute only to those acts where a defendant has no legal right
to impede the proceeding. See United States v. Matthews, 505 F.3d
698 (7th Cir. 2007) (citing Arthur Andersen LLP v. United States,
544 U.S. 696 (2005)); United States v. Fassnacht, 332 F.3d 440
1503
STATUTORY INSTRUCTIONS
704
(7th Cir. 2003); United States v. Ashqar, 582 F.3d 819 (2d Cir.
2009) (approving Matthews definition of corruptly in context of
§ 1503 prosecution).
1503
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705
18 U.S.C. § 1503 INFLUENCING JUROR—
ELEMENTS
The defendant has been charged in [Count[s]
—
of]
the indictment with obstruction of justice. In order for
you to find the defendant guilty of this charge, the
government must prove each of the following elements
beyond a reasonable doubt:
1. [Name] was a [prospective] juror;
2. The defendant endeavored to [influence; intimi-
date; impede] [name] by [here insert act as described in
the indictment] on account of [name] being a [prospec-
tive] juror;
3. The defendant acted knowingly; and
4. The defendant acted [corruptly, that is, with
the purpose of wrongfully impeding the due administra-
tion of justice] by [threats; force; threatening letter or
communication].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt, then you should
find the defendant guilty.
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any of these elements beyond a reasonable
doubt, then you should find the defendant not guilty.
Committee Comment
This statute also applies to venire members who have not
been sworn or selected as jurors and are prospective jurors. United
States v. Russell, 255 U.S. 138 (1921); United States v. Jackson,
607 F.2d 1219 (8th Cir. 1979), cert. denied, 444 U.S. 1080 (1980).
In defining “corruptly,” the word “wrongfully” is used to limit
the statute only to those acts where a defendant has no legal right
1503
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706
to impede the proceeding. See United States v. Matthews, 505 F.3d
698 (7th Cir. 2007) (citing Arthur Andersen LLP v. United States,
544 U.S. 696 (2005)); United States v. Fassnacht, 332 F.3d 440
(7th Cir. 2003); United States v. Ashqar, 582 F.3d 819 (2d Cir.
2009) (approving Matthews definition of corruptly in context of
§ 1503 prosecution).
1503
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707
18 U.S.C. § 1503 INFLUENCING WITNESS—
ELEMENTS
The defendant has been charged in Count[s]
—
of
the indictment with obstruction of justice. In order for
you to find the defendant guilty of this charge, the
government must prove each of the following elements
beyond a reasonable doubt:
1. [Name] was a witness;
2. The defendant endeavored to [influence; intimi-
date; impede] [name] by here insert [act as described in
the indictment] on account of [name] being a witness;
3. The defendant acted knowingly; and
4. The defendant acted [corruptly, that is, with
the purpose of wrongfully impeding the due administra-
tion of justice] by [threats; force; threatening letter or
communication].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt, then you should
find the defendant guilty.
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any of these elements beyond a reasonable
doubt, then you should find the defendant not guilty.
Committee Comment
In 1982, as part of an amendment to § 1503, Congress
eliminated any explicit reference to “witnesses” in the statute, and
enacted the witness tampering statute, 18 U.S.C. § 1512. Nonethe-
less, the Seventh Circuit has held that the omnibus “due adminis-
tration of justice” clause of § 1503 continues to cover witness
tampering. United States v. Maloney, 71 F.3d 645, 659 (7th Cir.
1995).
In defining “corruptly,” the word “wrongfully” is used to limit
1503
STATUTORY INSTRUCTIONS
708
the statute only to those acts where a defendant has no legal right
to impede the proceeding. See United States v. Matthews, 505 F.3d
698 (7th Cir. 2007) (citing Arthur Andersen LLP v. United States,
544 U.S. 696 (2005)); United States v. Fassnacht, 332 F.3d 440
(7th Cir. 2003); United States v. Ashqar, 582 F.3d 819 (2d Cir.
2009) (approving Matthews definition of corruptly in context of
§ 1503 prosecution).
1503
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709
SPECIAL VERDICT INSTRUCTIONS ON § 1503
OFFENSES ALLEGED TO HAVE INVOLVED
PHYSICAL FORCE OR THE THREAT OF
PHYSICAL FORCE
You will see on the verdict form a question concern-
ing whether the offense charged [in Count
———
]
involved [physical force] [the threat of physical force].
You should consider this question only if you have found
that the government has proven the defendant guilty of
the offense charged [in Count
———
of] the indictment.
If you find that the government has proven beyond
a reasonable doubt that the offense charged [in Count
———
] involved [physical force] [the threat of physical
force] then you should answer the question “Yes.”
If you find that the government has not proven be-
yond a reasonable doubt that the offense involved [phys-
ical force] [the threat of physical force], then you should
answer the question “No.”
If, but only if, you answered “Yes” to the above
question, then you should consider the following
question(s):
1. If the physical force is alleged to have resulted
in a death and the facts support it, then the court should
give the § 1111 and/or § 1112 instructions, and ask the
jury to render a verdict on whether the offense involved
a murder or manslaughter.
2. If the alleged physical force did not result in a
death and the facts support it, then the jury should be
instructed to answer the question of whether the physi-
cal force involved an attempt to kill.
In using physical force, did the defendant attempt
to kill [name alleged victim]? A person “attempts” to
kill if he knowingly takes a substantial step toward
1503
STATUTORY INSTRUCTIONS
710
committing a killing, with the intent to kill. The
substantial step must be an act that strongly cor-
roborates that the defendant intended to kill the victim.
If you find that the government has proven beyond
a reasonable doubt that the defendant attempted to kill
[name the alleged victim], then you should answer this
question “Yes.” If you find that the government has not
proven beyond a reasonable doubt that the defendant
attempted to kill [name the alleged victim], then you
should answer this question “No.”
3. Finally, if the obstruction offense was alleged to
have been committed against a juror in a criminal case,
then the jury should be asked specifically whether that
was the case, and whether the case on which the juror
was sitting was a Class A or Class B felony.
Was [name of alleged victim] chosen and sitting as
a juror in a criminal case involving a Class A or Class
B felony? If so, you should answer this question “Yes.”
If not, you should answer this question “No.” You are
instructed that [name the felony in the case on which
the victim was sitting as a juror] is a Class [A][B]
felony.
Committee Comment
The italicized language is not part of the instruction but rather
serves as a direction regarding usage.
1503
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711
18 U.S.C. § 1512 DEFINITION OF “CORRUPTLY”
A person acts “corruptly” if he or she acts with the
purpose of wrongfully impeding the due administration
of justice.
Committee Comment
See United States v. Matthews, 505 F.3d 698 (7th Cir. 2007).
This instruction defines “corruptly” under § 1512(c) as it is defined
in 18 U.S.C. § 1503 which prohibits similar conduct.
1512
STATUTORY INSTRUCTIONS
712
18 U.S.C. §§ 1512 & 1515(a)(1) DEFINITION OF
OFFICIAL PROCEEDING
The term “official proceeding” as used in Count[s]
———
means [name official proceeding].
An official proceeding need not be pending or about
to be instituted at the time of the offense. However, the
government must prove beyond a reasonable doubt that
the defendant[s] foresaw the particular official
proceeding.
[There are [number] official proceedings identified
in Count[s]
———
. The government need not prove be-
yond a reasonable doubt that the defendant intended to
obstruct all of these proceedings. Instead, the govern-
ment must prove beyond a reasonable doubt that the
defendant intended to obstruct at least one of these of-
ficial proceedings. You must unanimously agree as to
which official proceeding the defendant intended to
obstruct.]
Committee Comment
The term “official proceeding” means a proceeding before a
judge or court of the United States, a United States magistrate
judge, a bankruptcy judge, a judge of the United States Tax Court,
a special trial judge of the Tax Court, a judge of the United States
Court of Federal Claims, a Federal grand jury, Congress, a Federal
Government agency which is authorized by law, or any proceeding
involving the business of insurance whose activities affect inter-
state commerce before any insurance regulatory official or agency
or any agent or examiner appointed by such official or agency to
examine the affairs of any person engaged in the business of insur-
ance whose activities affect interstate commerce. 18 U.S.C.
§ 1515(a).
“Obstructive conduct need not ‘occur in or during the official
proceeding before a judge or court’ in order to come within the
scope of the statute. United States v. Burge, 711 F.3d 803, 809 (7th
Cir. 2013). “[T]he phrase “before a judge or court” in § 1515(a)(1)(A)
only describes which types of proceedings can be considered “of-
ficial,” not where the criminal obstruction must occur. Obstruction
1512 & 1515(a)(1)
CRIMINAL INSTRUCTIONS
713
of justice occurs when a defendant acts to impede the types of
proceedings that take place before judges or grand juries.” Id.
Although there is no requirement that the official proceeding
is pending or about to be instituted at the time of the offense, 18
U.S.C. § 1512(f)(1), the official proceeding must be foreseeable to
the defendant. Arthur Andersen v. United States, 544 U.S. 696,
707–08 (2005) (“It is . . . one thing to say that a proceeding ‘need
not be pending or about to be instituted at the time of the offense’
and quite another to say a proceeding need not even be foreseen. A
‘knowingly . . . corrupt persuader’ cannot be someone who
persuades others to shred documents under a document retention
policy when he does not have in contemplation any particular of-
ficial proceeding in which those documents might be material.”);
United States v. Matthews, 505 F.3d 698, 708–09 (7th Cir. 2007)
(finding that the nexus requirement had been met when district
court instructed jury that defendant acted with intent to impair
objects availability for use “in an official proceeding,” specifically
identified the proceeding as the federal grand jury for the Southern
District of Illinois and also instructed the jury that “for the
purposes of these instructions an official proceeding need not be
pending or about to be instituted at the time of the offense.”);
United States v. Kaplan, 490 F.3d 110, 125–27 (2nd Cir. 2007)
(“[A] ‘knowingly corrupt persuader’ must believe that his actions
are likely to affect a particular, existing or foreseeable official
proceeding” and “it would surely have been more prudent, even
where the evidence only points to one federal proceeding, for the
district judge to identify the ‘particular’ federal proceeding that
the defendant intended to obstruct.”).
The bracketed language in the third paragraph should be used
where the defendant is charged in the indictment with obstructing
more than one official proceeding.
Not every section of § 1512(b) requires a nexus to a federal
proceeding. For example, § 1512(b)(3) does not connect the federal
interest to a federal proceeding, instead the federal interest derives
from the transmission of certain information to a federal officer or
judge. United States v. Ronda, 455 F.3d 1273 (11th Cir. 2006);
United States v. Veal, 153 F.3d 1233 (11th Cir. 1998).
1512 & 1515(a)(1)
STATUTORY INSTRUCTIONS
714
18 U.S.C. §§ 1512 & 1515(a)(3) DEFINITION OF
“MISLEADING CONDUCT”
The term “misleading conduct” means [knowingly
making a false statement; intentionally omitting [mate-
rial] information from a statement and thereby causing
a portion of such a statement to be misleading, or
intentionally concealing a material fact, and thereby
creating a false impression by such statement; with
intent to mislead, knowingly submitting or inviting reli-
ance on a writing or recording that is false, forged,
altered or otherwise lacking in authenticity; with intent
to mislead, knowingly submitting or inviting reliance
on a sample, specimen, map, photograph, boundary
mark, or other object that is misleading in a material
respect; knowingly using a trick, scheme, or device with
intent to mislead].
Committee Comment
Section 1515 of Title 18 does not specify that omitted informa-
tion needs to be “material.” However, the district court may wish
to include a materiality requirement, as materiality is included
with regard to the other clauses in the definition of misleading
conduct.
1512 & 1515(a)(3)
CRIMINAL INSTRUCTIONS
715
18 U.S.C. § 1512(b)(1) WITNESS TAMPERING—
INFLUENCING OR PREVENTING TESTIMONY—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] obstruction of justice. In order for you to find [the;
a] defendant guilty of this charge, the government must
prove each of the [three] following elements beyond a
reasonable doubt:
1. The defendant [intimidated; threatened; cor-
ruptly persuaded; engaged in misleading conduct to-
ward] another person [or attempted to do so]; and
2. The defendant acted knowingly; and
3. The defendant acted with the intent to influ-
ence, delay or prevent the testimony of any person in
an official proceeding.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The court should define “official proceeding” for the jury. The
court should define “corruptly” and “official proceeding” using the
pattern instructions set forth below. The court may substitute the
name of the individual for “another person” and “any person” in
the instruction.
1512(b)(1)
STATUTORY INSTRUCTIONS
716
18 U.S.C. § 1512(b)(2)(A) WITNESS
TAMPERING—WITHHOLDING EVIDENCE—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] obstruction of justice. In order for you to find [the;
a] defendant guilty of this charge, the government must
prove each of the [three] following elements beyond a
reasonable doubt:
1. The defendant [intimidated; threatened; cor-
ruptly persuaded; engaged in misleading conduct to-
ward] another person [or attempted to do so]; and
2. The defendant acted knowingly; and
3. The defendant acted with the intent to cause or
induce any person to withhold [testimony; a record; a
document; another object] from an official proceeding.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The court should define “official proceeding” for the jury. The
court should define “corruptly” and “official proceeding” using the
pattern instructions set forth below. The court may substitute the
name of the individual for “another person” and “any person” in
the instruction.
1512(b)(2)(A)
CRIMINAL INSTRUCTIONS
717
18 U.S.C. § 1512(b)(2)(B) WITNESS
TAMPERING—ALTERING OR DESTROYING
EVIDENCE—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] obstruction of justice. In order for you to find [the;
a] defendant guilty of this charge, the government must
prove each of the [three] following elements beyond a
reasonable doubt:
1. The defendant [intimidated; threatened; cor-
ruptly persuaded; engaged in misleading conduct to-
ward] another person [or attempted to do so]; and
2. The defendant acted knowingly; and
3. The defendant acted with the intent to cause or
induce any person to [alter; destroy; mutilate; conceal]
an object with the intent to impair the object’s integrity
or availability for use in an official proceeding.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The court should define “official proceeding” for the jury. The
court should define “corruptly” and “official proceeding” using the
pattern instructions set forth below. The court may substitute the
name of the individual for “another person” and “any person” in
the instruction.
1512(b)(2)(B)
STATUTORY INSTRUCTIONS
718
18 U.S.C. § 1512(b)(2)(C) WITNESS
TAMPERING—EVADING LEGAL PROCESS—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] obstruction of justice. In order for you to find [the;
a] defendant guilty of this charge, the government must
prove each of the [three] following elements beyond a
reasonable doubt:
1. The defendant [intimidated; threatened; cor-
ruptly persuaded; engaged in misleading conduct to-
ward] another person [or attempted to do so]; and
2. The defendant acted knowingly; and
3. The defendant acted with the intent to cause or
induce any person to evade legal process summoning
that person [to appear as a witness] [or] [to produce a
record; document; other object]], in an official
proceeding.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The court should define “official proceeding” for the jury. The
court should define “corruptly” and “official proceeding” using the
pattern instructions set forth below. The court may substitute the
name of the individual for “another person” and “any person” in
1512(b)(2)(C)
CRIMINAL INSTRUCTIONS
719
the instruction.
1512(b)(2)(C)
STATUTORY INSTRUCTIONS
720
18 U.S.C. § 1512(b)(2)(D) WITNESS
TAMPERING—ABSENCE FROM LEGAL
PROCEEDING—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] obstruction of justice. In order for you to find [the;
a] defendant guilty of this charge, the government must
prove each of the [three] following elements beyond a
reasonable doubt:
1. The defendant [intimidated; threatened; cor-
ruptly persuaded; engaged in misleading conduct to-
ward] another person [or attempted to do so]; and
2. The defendant acted knowingly; and
3. The defendant acted with the intent to cause or
induce any person to be absent from an official proceed-
ing to which such person has been summoned by legal
process.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The court should define “official proceeding,” “corruptly” and
“misleading” when these terms are used in these instructions, us-
ing the pattern instructions set forth below. The court may
substitute the name of the individual for “another person” and
“any person” in the instruction.
1512(b)(2)(D)
CRIMINAL INSTRUCTIONS
721
18 U.S.C. § 1512(b)(3) WITNESS TAMPERING—
HINDER, DELAY OR PREVENT
COMMUNICATION RELATING TO COMMISSION
OF OFFENSE—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] obstruction of justice. In order for you to find [the;
a] defendant guilty of this charge, the government must
prove each of the [four] following elements beyond a
reasonable doubt:
1. The defendant [intimidated; threatened; cor-
ruptly persuaded; engaged in misleading conduct to-
ward] another person [or attempted to do so]; and
2. The defendant acted knowingly; and
3. The defendant acted with the intent to hinder,
delay or prevent the communication of information to
[a law enforcement officer of the United States; judge of
the United States]; and
4. Such information related to the commission or
possible commission of a [federal offense; violation of
conditions of [probation; supervised release; release
pending judicial proceedings].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
1512(b)(3)
STATUTORY INSTRUCTIONS
722
Committee Comment
The court should define “corruptly” and “misleading” when
these terms are used in these instructions, using the pattern
instructions set forth below. The court may substitute the name of
the individual for “another person” and “any person” in the
instruction.
In United States v. Fowler, 563 U.S. 668 (2011), the Supreme
Court interpreted “intent to prevent the communication . . . to a
law enforcement officer . . . of information relating to the commis-
sion or possible commission of a Federal offense” under 18 U.S.C.
§ 1512(a)(1)(C). Section 1512(b)(3) contains almost identical
language. In Fowler, the Court held that a defendant need not
have a particular federal law enforcement officer, nor even a “gen-
eral thought about federal officers” in mind. Fowler, 563 U.S. at
673. The Court further held that the government was not required
to prove that a communication “would have been federal.” Id. at
678. However, the government must prove “a reasonable likelihood
. . . that . . . at least one of the relevant communications would
have been made to a federal law enforcement officer.” Id. at 677–78
(government need not show that such communication would have
been federal “beyond a reasonable doubt, nor even that it is more
likely than not ....ButtheGovernment must show that the
likelihood of communication to a federal office was more than
remote, outlandish, or simply hypothetical.”).
1512(b)(3)
CRIMINAL INSTRUCTIONS
723
18 U.S.C. § 1512(c)(1) DESTROY, ALTER OR
CONCEAL DOCUMENT OR OBJECT—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] obstruction of justice. In order for you to find [the;
a] defendant guilty of this charge, the government must
prove each of the [four] following elements beyond a
reasonable doubt:
1. The defendant [attempted to] [alter[ed]; de-
stroy[ed]; mutilate[d]; conceal[ed]] a [record; document;
other object]; and
2. The defendant acted knowingly; and
3. The defendant acted corruptly; and
4. The defendant acted with the intent to impair
the object’s integrity or availability for use in an official
proceeding.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
See United States v. Matthews, 505 F.3d 698 (7th Cir. 2007).
The court should define “corruptly” and “official proceeding” using
the pattern instructions set forth below.
Section 1512(b) requires that the defendant act “knowingly”
1512(c)(1)
STATUTORY INSTRUCTIONS
724
with regard to each offense listed in § 1512(b). The § 1512(c) offen-
ses require that defendant act “corruptly.” Thus, the Committee
has not included “knowingly” as an element for the two § 1512(c)
offenses. The Committee notes, though, that § 1503 requires the
defendant act “corruptly” and does not include “knowingly” in the
statute. Nonetheless, the 1999 Committee included both “cor-
ruptly” and “knowingly” in Pattern Instruction § 1503. In Mat-
thews, although in a different context, the Court of Appeals
analogized § 1503 and § 1512 conduct. Matthews, 505 F.3d at 706
(“because both sections prohibit similar types of conduct, it was
proper for the district court to refer to § 1503 in arriving at a defi-
nition for ‘corruptly’ under § 1512”).
In United States v. Johnson, 655 F.3d 594 (7th Cir. 2011), the
court confirmed that “other object” in the first element is not
limited to items in the nature of records or documents of the sort
that are characteristic of white-collar criminal investigations, but
rather “criminalizes the alteration, destruction, mutilation, or
concealment of any object, including contraband.” Id. at 605. The
defendant in that case flushed cocaine down the toilet while law
enforcement officers were executing a search warrant; see also
Yates v. United States, 574 U.S. 528, 544–45 (2015) (interpreting
“tangible object” in 18 U.S.C. 1519 as narrower in scope than “other
object” in 18 U.S.C. 1512(c)(1)).
1512(c)(1)
CRIMINAL INSTRUCTIONS
725
18 U.S.C. § 1512(c)(2) OTHERWISE OBSTRUCT
OFFICIAL PROCEEDING—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] obstruction of justice. In order for you to find [the;
a] defendant guilty of this charge, the government must
prove both of the following elements beyond a reason-
able doubt:
1. The defendant [attempted to] [obstruct[ed];
influence[d]; impede[d]] any official proceeding; and
2. The defendant acted corruptly.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
See United States v. Matthews, 505 F.3d 698 (7th Cir. 2007).
The court should define “corruptly” and “official proceeding” using
the pattern instructions set forth below.
1512(c)(2)
STATUTORY INSTRUCTIONS
726
18 U.S.C. § 1512(e) AFFIRMATIVE DEFENSE
If the defendant proves that it is more likely than
not that the defendant’s conduct consisted solely of law-
ful conduct and the defendant’s sole intention was to
encourage, induce or cause the other person to testify
truthfully, then you must find the defendant not guilty
as charged in Count[s]
—————
.
Committee Comment
18 U.S.C. § 1512(e) provides for this affirmative defense, which
is applicable to all prosecutions for offenses under § 1512. The
burden is on the defendant to prove the affirmative defense by a
preponderance of the evidence.
1512(e)
CRIMINAL INSTRUCTIONS
727
18 U.S.C. §§ 1512 & 1515(a)(4) DEFINITION OF
“LAW ENFORCEMENT OFFICER”
The term “law enforcement officer” means [an of-
ficer or employee of the Federal Government; a person
authorized to act for or on behalf of the Federal Govern-
ment; a person serving the Federal Government as an
adviser or consultant] who is [authorized under law to
engage in or supervise the prevention, detection,
investigation, or prosecution of an offense; serving as a
probation or pretrial services officer under federal law].
1512 & 1515(a)(4)
STATUTORY INSTRUCTIONS
728
18 U.S.C. § 1519 OBSTRUCTION OF JUSTICE—
DESTRUCTION, ALTERATION, OR
FALSIFICATION OF RECORDS IN FEDERAL
INVESTIGATIONS AND BANKRUPTCY—
ELEMENTS
The defendant is charged in [Count—of] the indict-
ment with obstructing [an investigation] [an agency of
the United States]. In order for you to find the defendant
guilty of this charge, the government must prove the
following elements beyond a reasonable doubt:
1. The defendant knowingly [altered] [destroyed]
[mutilated] [concealed] [covered up] [falsified] [made a
false entry into] a [record] [document] [tangible object,
in other words, an object used to record or preserve in-
formation];
2. The defendant acted with intent to impede,
obstruct or influence [an investigation] [the proper
administration of any [contemplated] matter]. [The
government is not required to prove that the matter or
investigation was pending or imminent at the time of
the obstruction, only that the acts were taken in rela-
tion to or in contemplation of any such matter or
investigation.]; and
3. The [investigation][matter] was within the
jurisdiction of (name the federal department or agency),
which is [an agency] [a department] of the United
States] [any case filed under Title 11]. The government
is not required to prove that the defendant specifically
knew the matter or investigation was within the juris-
diction of a department or agency of the United States.
Notes on Elements of § 1519
We have not included “in relation to” or “in contemplation of”
in the elements, but instead included these concepts in the second
paragraph following the elements. If they were to be inserted into
1519
CRIMINAL INSTRUCTIONS
729
the elements, they should go in the first element, as connected to
the acts of the defendant, rather than connected to intent in second
element.
The defendant, [in relation to a matter; in contemplation of a
matter], knowingly [altered; destroyed; mutilated; concealed;
covered up; falsified; made a false entry into] any [record; doc-
ument; tangible object]
See United States v. Gray, 642 F.3d 371, 379 (2d Cir. 2011)
(section 1519 does not require the existence or likelihood of a
federal investigation); United States v. Moyer, 674 F.3d 192 (3d
Cir. 2012); United States v. Yielding, 657 F.3d 688 (8th Cir. 2011)
(three scenarios under which § 1519 applies: (1) when a defendant
acts directly with respect to a pending matter; (2) when he acts in
contemplation of any such matter; or (3) when he acts in relation
to such matter. While matter doesn’t have to be pending, the
defendant must have an intent to obstruct for all three scenarios);
United States v. Kernell, 667 F.3d 746 (6th Cir. 2012); United
States v. McQueen, 727 F.3d 1144 (11th Cir. 2013) (statute requires
proof that defendant knowingly altered or destroyed, but does not
require knowledge of any possible investigation is federal in
nature. The term “any matter within the jurisdiction. . .” is merely
a jurisdictional element for which no mens rea is required).
On the “tangible object” element, see Yates v. United States,
574 U.S. 528, 536 (2015).
1519
STATUTORY INSTRUCTIONS
730
18 U.S.C. § 1543 FORGERY OF PASSPORT—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] forgery of a passport. In order for you to find [the;
a] defendant guilty of this charge, the government must
prove both of the following elements beyond a reason-
able doubt:
1. The defendant [falsely made; forged; counter-
feited; mutilated; altered] a [passport; instrument
purporting to be a passport]; and
2. The defendant intended that the [passport;
instrument purporting to be a passport] be used.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
1543
CRIMINAL INSTRUCTIONS
731
18 U.S.C. § 1543 FALSE USE OF PASSPORT—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] false use of a passport. In order for you to find
[the; a] defendant guilty of this charge, the government
must prove each of the [three] following elements be-
yond a reasonable doubt:
1. The defendant knowingly [used; attempted to
use; furnished to another for use] a passport; and
2. The defendant [acted willfully, that is, he]
deliberately and voluntarily [used; attempted to use;
furnished to another for use] a passport;
3. The passport:
(a) was [false; forged; counterfeited; muti-
lated; altered]; or
(b) was void.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
Willfulness is defined within the instruction. “Willfully” as
used in the statute means “that the misrepresentation was delib-
erate and voluntary.” See Chow Bing Kew v. United States, 248
1543
STATUTORY INSTRUCTIONS
732
F.2d 466, 469 (9th Cir. 1957); see also Hernandez-Robledo v. INS,
777 F.2d 536, 539 (9th Cir. 1985) (determining that willfully, as
used in 8 U.S.C. § 1182(a)(19), false representation of citizenship,
requires proof that the misrepresentation was deliberate and vol-
untary); Espinoza-Espinoza v. INS, 554 F.2d 921, 925 (9th Cir.
1977) (finding that willfully, as used in 8 U.S.C. § 1182(a)(19),
requires proof that “the misrepresentation was voluntarily and
deliberately made”) (quoting Chow Bing Kew, 248 F.2d at 469);
Anderson v. Cornejo, 284 F. Supp. 2d 1008, 1035 (N.D. Ill. 2003)
(willful and wanton conduct described as “a course of action which
shows an actual or deliberate intention to cause harm or which, if
not intentional, shows an utter indifference to or conscious disre-
gard for the safety of others or their property”).
1543
CRIMINAL INSTRUCTIONS
733
18 U.S.C. § 1544 MISUSE OF A PASSPORT—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] misuse of any passport. In order for you to find
[the; a] defendant guilty of this charge, the government
must prove each of the [three] following elements be-
yond a reasonable doubt:
1. The defendant knowingly [used; attempted to
use] any passport; and
2. The defendant [acted willfully, that is, he]
deliberately and voluntarily [used; attempted to use]
any passport; and
3. The passport was:
(a) [[issued; designed] for the use of another
person]; or
(b) [[used; attempted to be used] in violation
of [conditions; restrictions] placed on the passport];
or
(c) [[used; attempted to be used] in violation
of [the rules pursuant to the laws regulating the is-
suance of passports]].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
1544
STATUTORY INSTRUCTIONS
734
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
Use this instruction in connection with crimes charged under
18 U.S.C. § 1544, first and second paragraphs.
Willfulness is defined within the instruction. “Willfully” as
used in the statute means “that the misrepresentation was delib-
erate and voluntary.” See Chow Bing Kew v. United States, 248
F.2d 466, 469 (9th Cir. 1957); see also Hernandez-Robledo v. INS,
777 F.2d 536, 539 (9th Cir. 1985) (determining that willfully, as
used in 8 U.S.C. § 1182(a)(19), false representation of citizenship,
requires proof that the misrepresentation was deliberate and vol-
untary); Espinoza-Espinoza v. INS, 554 F.2d 921, 925 (9th Cir.
1977) (finding that willfully, as used in 8 U.S.C. § 1182(a)(19),
requires proof that “the misrepresentation was voluntarily and
deliberately made”) (quoting Chow Bing Kew, 248 F.2d at 469);
Anderson v. Cornejo, 284 F. Supp. 2d 1008, 1035 (N.D. Ill. 2003)
(willful and wanton conduct described as “a course of action which
shows an actual or deliberate intention to cause harm or which, if
not intentional, shows an utter indifference to or conscious disre-
gard for the safety of others or their property”).
1544
CRIMINAL INSTRUCTIONS
735
18 U.S.C. § 1544 FURNISHING A FALSE
PASSPORT—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] furnishing a false passport to another. In order
for you to find [the; a] defendant guilty of this charge,
the government must prove each of the [four] following
elements beyond a reasonable doubt:
1. The defendant knowingly [furnished a passport;
disposed of a passport; delivered a passport]; and
2. The defendant [acted willfully, that is, he]
deliberately and voluntarily [furnished a passport;
disposed of a passport; delivered a passport]; and
3. The defendant intended another person to use
the passport as his own; and
4. The passport was originally issued and de-
signed for a person different from [person named in the
indictment].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
Use this instruction in connection with crimes charged under
18 U.S.C. § 1544, third paragraph.
Willfulness is defined within the instruction. “Willfully” as
1544
STATUTORY INSTRUCTIONS
736
used in the statute means “that the misrepresentation was delib-
erate and voluntary.” See Chow Bing Kew v. United States, 248
F.2d 466, 469 (9th Cir. 1957); see also Hernandez-Robledo v. INS,
777 F.2d 536, 539 (9th Cir. 1985) (determining that willfully, as
used in 8 U.S.C. § 1182(a)(19), false representation of citizenship,
requires proof that the misrepresentation was deliberate and vol-
untary); Espinoza-Espinoza v. INS, 554 F.2d 921, 925 (9th Cir.
1977) (finding that willfully, as used in 8 U.S.C. § 1182(a)(19),
requires proof that “the misrepresentation was voluntarily and
deliberately made”) (quoting Chow Bing Kew, 248 F.2d at 469);
Anderson v. Cornejo, 284 F. Supp. 2d 1008, 1035 (N.D. Ill. 2003)
(willful and wanton conduct described as “a course of action which
shows an actual or deliberate intention to cause harm or which, if
not intentional, shows an utter indifference to or conscious disre-
gard for the safety of others or their property”).
1544
CRIMINAL INSTRUCTIONS
737
18 U.S.C. § 1546(a) FRAUDULENT
IMMIGRATION DOCUMENT—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] making a fraudulent immigration document. In
order for you to find [the; a] defendant guilty of this
charge, the government must prove both of the follow-
ing elements beyond a reasonable doubt:
1. The defendant knowingly [forged; counterfeited;
altered; falsely made] [name document described in the
indictment]; and
2. [Name document described in the indictment]
is an [immigrant; non-immigrant] [visa; permit; border
crossing card; alien registration receipt card; other doc-
ument prescribed by statute or regulation for entry into
or as evidence of authorized stay or employment in the
United States].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
This instruction is intended to apply to allegations under the
first paragraph of § 1546, specifically:
Whoever knowingly forges, counterfeits, alters or falsely makes
an immigrant or non-immigrant visa, permit, border crossing card,
alien registration receipt card, or other document prescribed by
1546(a)
STATUTORY INSTRUCTIONS
738
statute or regulation for entry into or as evidence of authorized
stay or employment in the United States. . .knowing it to be
forged, counterfeited, altered, or falsely made, or to have been
procured by means of any false claim or statement, or go have
been otherwise procured by fraud or unlawfully obtained.
If the charge in the indictment relies on a document that falls
into the category of “other document prescribed by statute or
regulation for entry into or as evidence of authorized stay or
employment in the United States,” noted as “other identified docu-
ment” in the second element, the document should be specifically
described to the jury in the instruction.
1546(a)
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739
18 U.S.C. § 1546(a) MAKING A FALSE
STATEMENT ON IMMIGRATION DOCUMENT—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] making a false statement on an immigration
document. In order for you to find [the; a] defendant
guilty of this charge, the government must prove each
of the [three] following elements beyond a reasonable
doubt:
1. The defendant knowingly made a false state-
ment on an [application; affidavit; other] required by
immigration laws or regulations; and
2. The statement was material; and
3. The statement was made under oath.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
Use this instruction in connection with crimes charged under
18 U.S.C. § 1546(a), in the first part of the fourth paragraph.
The term “oath” as used in Section 1546 should be construed
the same as “oath” as used in 18 U.S.C. § 1621 and 28 U.S.C.
§ 1746.
The statute does not define “material.” The Committee recom-
1546(a)
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740
mends that “material” be defined according to Pattern Instruction
18 U.S.C. § 1546(A).
1546(a)
CRIMINAL INSTRUCTIONS
741
18 U.S.C. § 1546(a) PRESENTATION OF FALSE
STATEMENT ON IMMIGRATION DOCUMENT—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] presenting a false statement on an immigration
document. In order for you to find [the; a] defendant
guilty of this charge, the government must prove each
of the [three] following elements beyond a reasonable
doubt:
1. The defendant knowingly presented an [ap-
plication; affidavit; other document] required by im-
migration laws or regulations containing a false state-
ment; and
2. The statement was material; and
3. The statement was made under oath.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
Use this instruction in connection with crimes charged under
18 U.S.C. § 1546(a), in the second part of the fourth paragraph.
The term “oath” as used in Section 1546 should be construed
the same as “oath” as used in 18 U.S.C. § 1621 and 28 U.S.C.
§ 1746.
1546(a)
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742
18 U.S.C. § 1546(a) DEFINITION OF MATERIAL
A statement or fact is material if it has a natural
tendency to influence agency action.
Committee Comment
See United States v. Garcia-Ochoa, 607 F.3d 371 (4th Cir.
2010) (“The test of materiality is whether the false statement has
a natural tendency to influence agency action or is capable of
influencing agency action.”)(citations omitted). See also Kungys v.
United States, 485 U.S. 759, 771 (1988) (“[A] statement is material
if it is capable of affecting or influencing a governmental decision
through the use of clear, unequivocal, and convincing evidence.”)
To be material, the false statement “need not have actually
influenced the agency decision.” U.S. v. Green, 745 F.2d 1205, 1208
(9th Cir. 1984).
1546(a)
CRIMINAL INSTRUCTIONS
743
18 U.S.C. § 1591 SEX TRAFFICKING OF A
MINOR—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] sex trafficking of a minor. In order for you to find
[the; a] defendant guilty of this charge, the government
must prove each of the [three] following elements be-
yond a reasonable doubt:
1. The defendant knowingly [recruited; enticed;
harbored; transported; provided; obtained; maintained]
[the person identified in the indictment]; and
2. [The defendant [knew; recklessly disregarded
the fact]:
(a) [force; threats of force; fraud; coercion]
would be used to cause [the person identified in the
indictment] to engage in a commercial sex act; or
(b) [the person identified in the indictment]
was under eighteen years of age and would be
caused to engage in a commercial sex act; and
3. The offense was in or affecting interstate
commerce.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
1591
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744
Committee Comment
Acts that fall within the meaning of “commercial sex act” are
listed in 18 U.S.C. § 1591(e)(3).
A person “recklessly disregards” a fact within the meaning of
this offense when he is aware of, but consciously or carelessly
ignores facts and circumstances that would reveal the fact that
[force][threats of force][fraud][coercion] would be used to cause, or
the minor status of the person identified in the indictment being
caused to engage in a commercial sex act. See United States v.
Pina-Suarez, 280 F. App’x 813 (11th Cir. 2008); United States v.
Wilson, 2010 WL 2991561 (S.D. Fl. 2010).
The definitions of “interstate commerce” and “foreign com-
merce” are found at 18 U.S.C. § 10 and are set forth in Pattern
Instruction on Definition of Interstate or Foreign Commerce, above,
which consolidates and harmonizes various definitions of those
terms.
1591
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745
18 U.S.C. § 1591 BENEFITTING FROM SEX
TRAFFICKING OF A MINOR—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] benefiting from the sex trafficking of a minor. In
order for you to find [the; a] defendant guilty of this
charge, the government must prove each of the [three]
following elements beyond a reasonable doubt:
1. The defendant knowingly benefitted, financially
or by receiving a thing of value, from participation in a
venture which has engaged in an act of [recruiting;
enticing; harboring; transporting; providing; obtaining;
maintaining] [the person identified in the indictment];
2. The defendant [knew; recklessly disregarded
the fact]:
(a) force, fraud, or coercion would be used to
cause [the person identified in the indictment] to
engage in a commercial sex act; or
(b) [the person identified in the indictment]
was under eighteen years of age and would be
caused to engage in a commercial sex act; and
3. The offense was in or affecting interstate
commerce.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
1591
STATUTORY INSTRUCTIONS
746
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
Acts that fall within the meaning of “commercial sex act” are
listed in 18 U.S.C. § 1591(e)(3).
A person “recklessly disregards” a fact within the meaning of
this offense when he is aware of, but consciously or carelessly
ignores facts and circumstances that would reveal the fact that
[force; threats of force; fraud; coercion] would be used to cause, or
the minor status of the person identified in the indictment being
caused to engage in a commercial sex act. See United States v.
Pina-Suarez, 280 F. App’x 813 (11th Cir. 2008); United States v.
Wilson, 2010 WL 2991561 (S.D.Fl. 2010).
The definitions of “interstate commerce” and “foreign com-
merce” are found at 18 U.S.C. § 10 and are modified in Pattern
Instruction on Definition of Interstate or Foreign Commerce, above,
which consolidates and harmonizes various definitions of those
terms.
1591
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747
18 U.S.C. § 1591(a)(1) SEX TRAFFICKING OF A
MINOR OR BY FORCE, FRAUD, OR
COERCION—ELEMENTS
[The indictment charges the defendant[s] with]
[Count[s]
—
of the indictment charge[s] the defendant[s]
with] sex trafficking [of a minor] [by force, fraud, and
coercion].
In order for you to find [the; a] defendant guilty of
this count, the government must prove each of the
[three] following elements beyond a reasonable doubt:
1. The defendant knowingly [recruited; enticed;
harbored; transported; provided; obtained; advertised;
maintained; patronized; solicited] by any means [the
person identified in the indictment]; and
2. The defendant:
(a) [knew; recklessly disregarded] the fact
that [force; threats of force; fraud; coercion] would
be used to cause [the person identified in the indict-
ment] to engage in a commercial sex act; or
(b) [knew; recklessly disregarded] the fact
that [the person identified in the indictment] was
under eighteen years of age and would be caused to
engage in a commercial sex act; or
(c) had a reasonable opportunity to observe
[the person identified in the indictment] who had
not yet attained the age of 18, and knew or reck-
lessly disregarded the fact that [the person identi-
fied in the indictment] would be caused to engage
in a commercial sex act; and
3. The offense was in or affecting interstate
commerce.
1591(a)(1)
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748
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the count
you are considering], then you should find the defendant
guilty of [that count].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the count you are considering], then you
should find the defendant not guilty of [that count].
Committee Comment
The Committee provides the following guidance regarding the
inclusion of applicable subsections under section (2) of the
instruction. For cases in which the defendant has been charged
with sex trafficking of a non-minor using force, fraud, or coercion,
the court should use only subsection (2)(a). For cases in which the
defendant has been charged with sex trafficking of a minor that
does not use force, fraud, or coercion, the court should not use
subsection (2)(a) and only use subsections (2)(b) and (2)(c) as
applicable. For cases in which the defendant has been charged
with sex trafficking of a minor in which the government is pursu-
ing multiple theories, the court should use those subsections of
(2)(a)(b) and (c) that are applicable.
On or about May 29, 2015, Congress amended § 1591(a) to
include the terms “advertises,” “patronizes” and “solicits” in the
list of conduct that was criminalized under the statute, thereby
making clear that, at least as of May 29, 2015, the statute applied
to conduct committed by consumers and advertisers of commercial
sex acts, as well as suppliers. See United States v. Jungers, 702
F.3d 1066 (8th Cir. 2013) (prior to the May 29, 2015 amendment,
holding that 18 U.S.C. § 1591 applies to both suppliers and
purchasers of commercial sex acts); See Justice for Victims of Traf-
ficking Act of 2015, Pub.L. No. 114-22, 129 Stat. 227 (May 29,
2015).
As amended on May 29, 2015, § 1591(c) states: “In a prosecu-
tion under subsection (a)(1) in which the defendant had a reason-
able opportunity to observe the person so recruited, enticed
harbored, transported, provided, obtained, maintained, patronized,
or solicited, the government need not prove that the defendant
1591(a)(1)
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749
knew, or recklessly disregarded the fact, that the person had not
attained the age of 18 years.” Thus, § 1591(c) provides that, in
cases other than those alleged under the “advertised” prong of
§ 1591(a), in lieu of proving knowledge of the minor’s age or reck-
less disregard, the government can satisfy its burden by showing
that the defendant had the reasonable opportunity to observe the
minor-aged victim. See United States v. Robinson, 702 F.3d 22, 26
(2d Cir. 2012) (government “need not prove any mens rea with
regard to the defendant’s awareness of the victim’s age if the
defendant had a reasonable opportunity to observe the victim.”);
United States v. Copeland, 820 F.3d 809, 813 (5th Cir. 2016) (adopt-
ing Robinson and holding that 1591(c) “supplies an alternative to
proving any mens rea with regard to the victim’s age”).
In a case that involves advertising, neither the “reckless disre-
gard” nor the reasonable opportunity to observe aspect of the jury
instruction should be included. Under § 1591(a) and § 1591(c), if
the government charges “advertising”, the mens rea element is
knowingly.
Certain courts have held that providing a jury instruction as
to “reasonable opportunity to observe” is a constructive amend-
ment of the indictment if not specifically alleged as a theory of li-
ability in the indictment. See United States v. Bolds, 620 F. App’x
592 (9th Cir. 2015); United States v. Lockhart, 844 F.3d 501 (5th
Cir. 2016). To date, the Seventh Circuit has not addressed this
issue.
Acts that fall within the meaning of “commercial sex act” are
listed in 18 U.S.C. § 1591(e)(3). A completed “commercial sex act”
is not an essential element of the offense. United States v. Wearing,
865 F.3d 553, 555–57 (7th Cir. 2017).
Although the Seventh Circuit has not explicitly approved a
particular jury instruction for “recklessly disregards” in the context
of § 1591, the Committee recommends defining it. In United States
v. Carson, 870 F.3d 584, 601 (7th Cir. 2017), however, the Seventh
Circuit found the following instruction erroneous:
A person “recklessly disregards” a fact within the meaning of
this offense when he is aware of, but consciously or carelessly
ignores facts and circumstances that would reveal the fact
that either: (1) force, threats of force, or coercion would be
used to cause the person identified in the indictment to engage
in a commercial sex act, or (2) the person identified in the
indictment was under eighteen years of age and would be
caused to engage in a commercial sex act.
The “or carelessly ignores” language lowered the requisite
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750
standard. See also United States v. Groce, 891 F.3d 260, 269 (7th
Cir. 2018) (wrong to instruct the jury that recklessly disregards
can be satisfied by where the person “consciously or carelessly
ignores facts and circumstances”) (emphasis added). Other Circuits
have associated “recklessly disregards” with consciously ignoring
facts and circumstances. See United States v. O’Neal, 742 F. App’x
836, 842–43 (5th Cir. 2018) (“We have not had many cases that
discuss a defendant’s reckless disregard of a victim’s age under
§ 1591. But the common definition of reckless disregard is “[c]on-
scious indifference to the consequences of an act”); United States v.
Roy, 630 F. App’x 169 (4th Cir. 2015) (jury instruction provided “A
person ‘recklessly disregards’ a fact within the meaning of this of-
fense when he is aware of, but consciously ignores, facts and cir-
cumstances that would reveal that force, threats of force, fraud, or
coercion, or any combination of such means, could be used to cause
a victim to engage in a commercial sex act.”).
The definitions of “interstate commerce” and “foreign com-
merce” are found at 18 U.S.C. § 10 and are set forth in Pattern
Instruction on Definition of Interstate or Foreign Commerce, above,
which consolidates and harmonizes various definitions of those
terms. The defendant need not have known or intended that his
conduct would have any effect on interstate or foreign commerce.
United States v. Sawyer, 733 F.3d 228, 230 (7th Cir. 2013). More-
over, while the offense conduct must have affected interstate or
foreign commerce, the statute does not require that the specific
acts listed in 18 U.S.C. § 1591(a)(1) affect interstate or foreign
commerce. Wearing, 865 F.3d at 557–58.
1591(a)(1)
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751
18 U.S.C. § 1591(e)(1) DEFINITION OF “ABUSE
OR THREATENED ABUSE OF LAW OR LEGAL
PROCESS”
“Abuse or threatened abuse of law or legal process”
means the use or threatened use of a law or legal pro-
cess, in any manner or for any purpose for which the
law was not designed, in order to exert pressure on an-
other person to take or refrain from taking some action.
1591(e)(1)
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752
18 U.S.C. § 1591(e)(2) DEFINITION OF
“COERCION”
“Coercion” means:
(1) threats of serious harm to or physical restraint
against any person;
(2) any scheme, plan, or pattern intended to cause
a person to believe that failure to perform an act would
result in serious harm to or physical restraint against
any person; or
(3) the abuse or threatened abuse of law or the
legal process.
Committee Comment
This instruction should be accompanied by the pattern instruc-
tions defining “serious harm” and/or “abuse or threatened abuse of
law or legal process” set forth below.
1591(e)(2)
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753
18 U.S.C. § 1591(e)(3) DEFINITION OF
“COMMERCIAL SEX ACT”
“Commercial sex act” means any sex act for which
anything of value is given to or received by any person.
1591(e)(3)
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754
18 U.S.C. § 1591(e)(4) DEFINITION OF
“SERIOUS HARM”
“Serious harm” means any harm, whether physical
or non-physical, including psychological, financial, or
reputational harm, that is sufficiently serious, under
the circumstances, to compel a reasonable person of the
same background and in the same circumstances to
perform or to continue performing commercial sexual
activity in order to avoid incurring that harm.
1591(e)(4)
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755
18 U.S.C. § 1591(e)(5) DEFINITION OF
“VENTURE”
“Venture” means any group of two or more individu-
als associated in fact, whether or not a legal entity.
1591(e)(5)
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756
18 U.S.C. § 1623 FALSE DECLARATIONS
BEFORE GRAND JURY OR COURT—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] making a false declaration before a grand jury or
in a court. In order for you to find [the; a] defendant
guilty of this charge, the government must prove each
of the [three] following elements beyond a reasonable
doubt:
1. The defendant, while under oath, testified
falsely before a [United States grand jury; Court of the
United States] as charged in the indictment; and
2. The defendant’s testimony concerned a mate-
rial matter; and
3. The defendant knew the testimony was false.
[Mistake; Confusion; Faulty memory] does not consti-
tute knowledge that the testimony was false.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The Seventh Circuit has defined perjury under 18 U.S.C.
§ 1623 as requiring “the willful intent to provide false testimony.”
United States v. Dumeisi, 424 F.3d 566, 582 (7th Cir. 2005); see
also United States v. Fawley, 137 F.3d 458, 463 (7th Cir. 1998).
The definition of “willful” in this context appears to be the equiva-
1623
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757
lent of “knowing” conduct. The language in the proposed instruc-
tion that distinguishes knowing conduct from confusion, mistake,
or faulty memory comes from the same sentence of Dumeisi that
requires “willful intent.” It is included to draw the distinction the
court drew in that case. The general instruction defining “know-
ing” conduct may be used in conjunction with this instruction.
If recantation is raised by the defendant, see Pattern Instruc-
tion § 1623 Recantation. As noted in the comment to that instruc-
tion, there is no Seventh Circuit authority on which side bears the
burden of persuasion if recantation is raised. If the burden is
placed on the government, a fourth element should be added to
this instruction, e.g., “4. The defendant did not recant the false
[testimony; declaration].” If the burden is placed on the defendant,
the form of instruction for affirmative defenses should be used. See
Pattern Instruction 4.03. In that event, the court must make a de-
termination regarding the nature of the defense burden, e.g.,
preponderance of the evidence.
If the charge alleges multiple false statements, the jury must
agree unanimously on the statement that constitutes perjury. See
United States v. Griggs, 569 F.3d 341, 344 (7th Cir. 2009). In such
a case, the court should give the unanimity instruction contained
in Pattern Instruction 4.04.
1623
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18 U.S.C. § 1623 DEFINITION OF
“MATERIALITY”
Testimony concerns a material matter if it is
capable of impeding, interfering with or influencing the
[court; jury; grand jury]. [The government is not
required to prove that the testimony actually impeded,
interfered with, or influenced the [court; jury; grand
jury]].
Committee Comment
See, e.g., United States v. Burke, 425 F.3d 400, 414 (7th Cir.
2005); United States v. Waldemer , 50 F.3d 1379, 1382 (7th Cir.
1995). Materiality is an element of the offense and is an issue for
the jury, not the court. See, e.g., United States v. Gellene, 182 F.3d
578, 590 (7th Cir. 1999).
1623
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18 U.S.C. § 1623 RECORDS OR DOCUMENTS
Making or using a record or document knowing it
to be false or to contain a false declaration constitutes
making or using a false declaration.
1623
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760
18 U.S.C. § 1623 SEQUENCE OF QUESTIONS
In determining whether an answer to a question is
false, you should consider the sequence of questions in
which the question and answer occurred as an aid to
understanding the defendant’s intent when giving the
answer.
Committee Comment
See United States v. Bonacorsa, 528 F.2d 1218, 1221 (2d Cir.
1976).
1623
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18 U.S.C. § 1623 INCONSISTENT STATEMENTS
If you find that the defendant under oath has know-
ingly made two or more declarations which are so in-
consistent that one of them is necessarily false, you
need not find which of the two declarations is false. If
you find that the defendant believed each declaration to
be true when made, then you must find the defendant
not guilty.
Committee Comment
See 18 U.S.C. § 1623(c); United States v. Bacani, 236 F.3d 857,
859 (7th Cir. 2001); United States v. Bomski, 125 F.3d 1115, 1119
(7th Cir. 1997).
1623
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18 U.S.C. § 1623 RECANTATION
A person recants [false testimony; a false declara-
tion] when, in the same continuous proceeding, he
admits to the [grand jury; court] that his earlier decla-
rations were false. The defendant must admit the
falsity: (1) before the proceeding has been substantially
affected by the false [testimony; declaration], and (2)
before it has become apparent to the defendant that the
false [testimony; declaration] has been or will be ex-
posed to the [grand jury; court].
Committee Comment
1. General authority. See 18 U.S.C. § 1623(d); United States v.
DeLeon, 603 F.3d 397, 404–05 (7th Cir. 2010).
2. Conjunctive vs. disjunctive. Section 1623(d) states that
[w]here, in the same continuous court or grand jury
proceeding in which a declaration is made, the person making
the declaration admits such declaration to be false, such
admission shall bar prosecution under this section if, at the
time the admission is made, the declaration has not substan-
tially affected the proceeding, or it has not become manifest
that such falsity has been or will be exposed.
Although the statute uses the word “or,” the weight of appel-
late authority is that both of its conditions must be fulfilled before
a defendant’s admission of falsity bars prosecution. See, e.g., United
States v. Moore, 613 F.2d 1029, 1039–45 (D.C. Cir. 1979); United
States v. Scrimgeour, 636 F.2d 1019, 1024 (5th Cir. 1981); United
States v. Fornaro, 894 F.2d 508, 511 (2d Cir. 1990). There is,
however, contrary appellate authority. See United States v. Smith,
35 F.3d 344, 345–47 (8th Cir. 1994). The Seventh Circuit has not
addressed the point. The pattern instruction adopts the majority
rule.
3. Burden of proof. There is a split of appellate authority
regarding which side bears the burden of proof when the defendant
claims recantation. Compare United States v. Tobias, 863 F.2d
685, 688 (9th Cir. 1988) (defendant must raise defense of recanta-
tion, but if raised, the government must disprove recantation be-
yond a reasonable doubt) with United States v. Moore, 613 F.2d
1029, 1044 (D.C. Cir. 1979) (defendant bears burden of proof on
1623
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recantation). The Committee does not take a position on this point.
There is also authority suggesting that the viability of the defense
may be an issue that the court can address prior to trial. See United
States v. Denison, 663 F.2d 611, 618 (5th Cir. 1981).
4. “Has become manifest.” United States v. Denison, 663 F.2d
611, 615–16 (5th Cir. 1981), construed the “has become manifest”
clause as referring to whether it was manifest to the witness at
the time of recantation that the grand jury or trial court knew or
would come to learn of the declaration’s falsity. Moore, 613 F.2d at
1043, implicitly accepts the Denison view. In the Seventh Circuit,
both Judges Swygert and Pell, in separate statements following a
per curiam en banc opinion in United States v. Clavey, 578 F.2d
1219 (7th Cir. 1978), adopted the view that the term “manifest”
concerns whether the likelihood of exposure had become apparent
to the witness, not to the court or grand jury to which the false
testimony had been given. The use of the term “apparent” in the
instruction as the equivalent of the statutory term “manifest” is
taken from United States v. Fornaro, 894 F.2d 508, 511 (2d Cir.
1990).
5. “Substantially affected.” The only circuit-level decision that
addresses the phrase “substantially affected” does so by reviewing
the standards for materiality in perjury prosecutions. That court
concluded that false testimony that did not have a substantial ef-
fect for purposes of Section 1623(d) may still be material in the
Section 1623(d) sense. See Moore, 613 F.2d at 1038. The court in
United States v. Krogh, 366 F.Supp. 1255 (D.D.C. 1973), concluded
as a matter of law that the grand jury had been substantially af-
fected when it “acted” on issues that encompassed the given mat-
ter of the testimony which had been falsely given. The court in
United States v. Tucker, 495 F. Supp. 607 (E.D.N.Y. 1980), citing
Krogh’s approach, found that a grand jury had been substantially
affected when it was unable to indict a suspect due to the
defendant’s false declaration.
1623
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18 U.S.C. § 1701 OBSTRUCTION OF MAILS
Committee Comment
Because there is no present statutory or constitutional right to
a jury trial under this section, the Committee has not drafted a
jury instruction to cover this section.
1701
CRIMINAL INSTRUCTIONS
765
18 U.S.C. § 1708 THEFT OF MAIL FROM
AUTHORIZED DEPOSITORY—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] theft of mail. In order for you to find [the; a]
defendant guilty of this charge, the government must
prove each of the following three elements beyond a
reasonable doubt:
1. The defendant [stole; attempted to steal] a[n]
[identify mail item charged in the indictment];
2. The [identify mail item charged in the indict-
ment] was [in; on] a [mailbox; post office; letter box;
mail receptacle; authorized depository for mail; mail
route; mail carrier]; and
3. At the time the defendant [stole; attempted to
steal] the [identify mail item charged in the indictment],
the defendant intended to deprive the owner of the
rights and benefits of ownership.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
In the 1999 pattern instructions, the definition of “stolen” was
set forth in a separate definitional instruction. This instruction
incorporates it directly into the elements instruction (as element 3)
because the definition is simple and succinct. The definition is
1708
STATUTORY INSTRUCTIONS
766
taken from United States v. Lampson, 627 F.2d 62, 66 (7th Cir.
1980).
In addition to theft and attempted theft, 18 U.S.C. § 1708 also
prohibits obtaining or attempting to obtain mail by fraud. In a
case charging that sort of offense, the instruction must be modified
accordingly.
Besides prohibiting what might be considered a run-of-the-
mill theft by one person of mail from someone else’s mailbox or
from a letter carrier, § 1708 also prohibits the conversion of
“misdelivered” mail, that is, mail that is delivered to someone
other than the addressee. See United States v. Palmer, 864 F.2d
524, 526–27 (7th Cir. 1988). The Seventh Circuit has held that the
statute also applies to “misaddressed” mail, that is, mail intended
for Person A that mistakenly addressed to Person B. In Palmer,
the court considered a case in which the defendant “found in her
mailbox three envelopes addressed to Clifton Powell, Jr., the for-
mer occupant” of her home. Id. at 525. The envelopes contained
checks, which the defendant converted. The court held that the
defendant had violated section 1708, stating:
From the perspectives of senders, addressees, (unintended)
recipients, and the postal system, misdelivered and misad-
dressed mail are the same. The sender wants mail to go to the
right person at the right address; an out-of-date address and
an incorrect address (perhaps because of a typographical er-
ror) have the same consequences for the sender as a goof by
the postal system. The intended addressee does not care
whether the sender’s use of an outdated address or an error by
a letter carrier thwarts delivery. The unintended recipient
learns in either case—from the name of the addressee, the ad-
dress on the envelope, or both—that the item was meant for
someone else. The recipient must return to the postal system
an envelope sent to another, no matter the address written on
it. . . . If misaddressed and misdelivered mail are identical
from the perspectives of senders, addressees, accidental
recipients, and postal system, on what account would they be
different for purposes of § 1708? None that we can see. The
statute protects the interests of sender and intended recipient
in the privacy and integrity of their communication; these
interests are identical whether the problem be misdelivery or
misaddress.
Id. at 527.
Section 1708 does not cover cases in which mail is correctly
addressed but is constructively delivered to a third person. In
United States v. Logwood, 360 F.2d 905 (7th Cir. 1966), for
1708
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767
example, mail for tenants in a rooming house was always delivered
to the landlord, who in turn delivered it to her tenants. The
landlord’s son stole a letter from the landlord. The court held that
the letter was not stolen from an authorized mail receptacle and
that the theft was therefore outside the purview of § 1708. Accord
United States v. Patterson, 664 F.2d 1346 (9th Cir. 1982) (mail
delivered to front desk of YMCA and held there in boxes for guests
not in authorized mail receptacle under § 1708).
1708
STATUTORY INSTRUCTIONS
768
18 U.S.C. § 1708 MAIL THEFT ON OR NEXT TO
A DEPOSITORY—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] theft of mail that had been left on or next to an
authorized mail depository. In order for you to find [the;
a] defendant guilty of this charge, the government must
prove each of the following three elements beyond a
reasonable doubt:
1. The defendant stole [identify specific mail item
charged in the indictment];
2. At the time defendant stole [identify specific
mail item charged in the indictment], it had been left
for collection on or next to an authorized depository for
mail; and
3. At the time the defendant stole the [identify
mail item charged in the indictment], the defendant
intended to deprive the owner of the rights and benefits
of ownership.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
In the 1999 pattern instructions, the definition of “stolen” was
set forth in a separate definitional instruction. This instruction
incorporates it directly into the elements instruction (as element 3)
1708
CRIMINAL INSTRUCTIONS
769
because the definition is simple and succinct. The definition is
taken from United States v. Lampson, 627 F.2d 62, 66 (7th Cir.
1980).
1708
STATUTORY INSTRUCTIONS
770
18 U.S.C. § 1708 BUYING, RECEIVING,
CONCEALING, OR UNLAWFULLY POSSESSING
STOLEN MAIL—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [buying; receiving; concealing; unlawfully pos-
sessing] stolen mail. In order for you to find [the; a]
defendant guilty of this charge, the government must
prove each of the following three elements beyond a
reasonable doubt:
1. The defendant knowingly [bought; received;
concealed; possessed] [identify specific mail item as
charged in the indictment];
2. The [identify specific mail item as charged in
the indictment] previously had been [stolen; taken;
embezzled] from [the mail; a post office; a letter box; a
mail receptacle; a mail route; an authorized depository
for mail; a mail carrier]; and
3. The defendant knew that [identify specific mail
item as charged in the indictment] previously had been
[stolen; taken; embezzled].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
This instruction is unchanged from the 1999 version. The
1708
CRIMINAL INSTRUCTIONS
771
wording of the second paragraph is intended to make clear to the
jury, without burdening it with an additional instruction, that the
defendant need not have stolen the mail himself.
1708
STATUTORY INSTRUCTIONS
772
18 U.S.C. § 1708 REMOVING CONTENTS OF/
SECRETING/ EMBEZZLING/DESTROYING MAIL
Committee Comment
Because the second and third sections of the first paragraph of
18 U.S.C. § 1708, which proscribe removing the contents of a piece
of mail or secreting, embezzling or destroying mail or its contents,
are unclear, little-used, and apparently repetitive of other sections
of Title 18, the Committee has not drafted pattern instructions for
them.
1708
CRIMINAL INSTRUCTIONS
773
18 U.S.C. § 1709 THEFT OF MAIL BY OFFICER
OR EMPLOYEE—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [embezzlement; theft] of mail. In order for you to
find [the; a] defendant guilty of this charge, the govern-
ment must prove each of the following three elements
beyond a reasonable doubt:
1. The defendant was a Postal Service [employee;
officer];
2. The [identify specific mail item involved], an
article or thing contained within [identify specific mail
item involved], [was entrusted to the defendant; came
into the defendant’s possession] for the purpose of be-
ing [conveyed by mail; carried or delivered by a person
employed in any department of the Postal Service;
forwarded through or delivered from a post office or
postal station established by authority of the Postmas-
ter General or of the Postal Service]; and
[3. The defendant embezzled the [identify specific
mail item involved], an article or thing contained within
the [identify specific mail item involved]. A person
embezzles an item if he wrongfully takes it after it law-
fully comes into his possession.]
[3. The defendant [stole; removed] with intent to
convert to his own use an article or thing contained
within the [identify specific mail item involved].]
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
1709
STATUTORY INSTRUCTIONS
774
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
Section 1709 covers two crimes. The first clause of the statute
makes it a crime for a Postal Service employee to “embezzle” an
item of mail “or any article or thing therein” that has been
entrusted to him. In other words, it is a crime under the first clause
to embezzle either an item of mail or something contained within
an item of mail. The second clause of the statute makes it a crime
to “steal[ ], abstract[ ], or remove[ ] from any item of mail that
has been entrusted to him “any article or thing contained therein.”
In other words, it is a crime under the second clause only to steal
or remove something that is contained within an item of mail. See
United States v. Trevino, 491 F.2d 74, 75 (5th Cir. 1974).
The pattern instruction covers both crimes. The third element
will differ depending on whether the charge is made under the
first clause or the second clause of the statute. If the defendant is
charged under both clauses, separate instructions should be used.
The 1999 version of this instruction did not include a defini-
tion of the term “embezzle.” This instruction does so. The defini-
tion is derived from United States v. Alexander, 415 F.2d 1352,
1356 (7th Cir. 1969) (“Embezzlement is the fraudulent appropria-
tion of property by a person to whom such property has been
entrusted or into whose hands it has lawfully”) (citing United
States v. Jannsen, 339 F.2d 916, 918 (7th Cir. 1965)). See also
Tenth Circuit Pattern Criminal Instruction 2.69 (2011); Eleventh
Circuit Pattern Criminal Instruction O67 (2020).
For cases under the second clause of § 1709, which makes it a
crime to “steal” or “remove” an article contained within an item of
mail, the 1999 instruction and the current instruction require the
government to prove that the Postal Service employee intended to
convert the item stolen or removed to his own use. For this propo-
sition, the 1999 Committee Comment cited a Fifth Circuit case,
United States v. Coleman, 449 F.2d 772, 773 (5th Cir. 1971), and a
district court case, United States v. Rush, 551 F. Supp. 148, 151
(S.D. Iowa 1982), while noting contrary authority, see United
States v, Greene, 349 F. Supp. 1112, 1114 (D. Md. 1971), aff’d, 468
F.2d 920 (4th Cir. 1972). More recently, however, two other circuits
have held that a prosecution under the “remove” provision of the
1709
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775
second clause of § 1709 does not require such intent—in other
words, that a Postal Service employee’s simple removal of an article
from an item of mail is sufficient. See United States v. Monday,
614 F.3d 983, 985 (9th Cir. 2010); United States v. Toomey, 456
F.3d 1178, 1181–83 (10th Cir. 2006).
There is no Seventh Circuit authority on this issue. The cur-
rent pattern instruction adheres to the Committee’s 1999 formula-
tion, but the Committee takes no position regarding the merits of
these competing authorities.
1709
STATUTORY INSTRUCTIONS
776
18 U.S.C. § 1831 ECONOMIC ESPIONAGE
(INCLUDING FEDERAL NEXUS AND
KNOWLEDGE)
[The indictment charges the defendant[s] with; Count[s]
———
of the indictment charge[s] the defendant[s] with]
economic espionage. It is against federal law to commit
economic espionage. For you to find [defendant] guilty
of this crime, the government must prove the following
four elements beyond a reasonable doubt:
1. The [information] was a trade secret;
2. [[Defendant] knew that the [information] pos-
sessed was a trade secret;]
3. [Defendant] knowingly [stole; took without
permission; obtained by fraud; copied without
permission; downloaded without permission;
duplicated without permission; conveyed with-
out permission; received while knowing it was
stolen or taken without permission] a trade se-
cret; or [attempted to do so;] [conspired to do so
and takes an act in furtherance to do so;]; and
4. [Defendant] intended or knew that the offense
would benefit a foreign government, foreign
instrumentality, or foreign agent.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
1831
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Committee Comment
The term “trade secret” means all forms and types of financial,
business, scientific, technical, economic or engineering informa-
tion, including program devices, designs, prototypes, methods,
techniques, processes, procedures, programs or codes, whether
tangible or intangible, and however stored if the owner has taken
reasonable measures to keep the information secret and if the in-
formation derives independent economic value, actual or potential,
from not being generally known to or readily ascertainable through
proper means, by another person who can obtain economic value
from the disclosure or use of such information. 18 U.S.C. § 1839(3).
The second element is bracketed because the Seventh Circuit
has not yet addressed whether the government must prove that
the defendant knew that the information possessed was a trade
secret. Both the Supreme Court and the Seventh Circuit have
interpreted similarly structured statutes but reached different
results. For example, in Flores-Figueroa v. United States, the
Supreme Court interpreted 18 U.S.C. § 1028A, which prohibits
“knowingly transfer[ring], possess[ing], or us[ing], without lawful
authority, a means of identification of another person.” 556 U.S.
646 (2009). The Supreme Court held that the word “knowingly” ap-
plied to all elements that followed it in the statute, such that the
government must prove that the defendant knew that the “means
of identification” he or she unlawfully transferred, possessed, or
used did, in fact, belong to another person. Id. By contrast, in
United States v. Cox, which was decided after Flores-Figueroa, the
Seventh Circuit interpreted the prohibition in 18 U.S.C. § 2423 on
“knowingly transport[ing] an individual who has not attained the
age of 18 years” with intent that the individual engage in prostitu-
tion or a criminal sexual act. 577 F.3d 833, 834 (7th Cir. 2009).
The Seventh Circuit held that § 2423 does not require the govern-
ment to prove that the defendant knew the victim was a minor. Id.
at 836. The Committee takes no position on whether the govern-
ment needs to prove the defendant knew that the information
described in the indictment was a “trade secret.”
If the defendant is charged with conspiracy, the government
must prove that the defendant committed an overt act to affect the
object of the conspiracy. 18 U.S.C. § 1831(a)(5). For a pattern
instruction regarding a conspiracy, see the Seventh Circuit’s Pat-
tern Instruction 5.08.
1831
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778
18 U.S.C. § 1832 THEFT OF TRADE SECRETS
(INCLUDING FEDERAL NEXUS AND
KNOWLEDGE)
[The indictment charges the defendant[s] with; Count[s]
———
of the indictment charge[s] the defendant[s] with]
stealing trade secrets. It is against federal law to steal
trade secrets. For you to find [defendant] guilty of this
crime, the government must prove each of the six fol-
lowing elements beyond a reasonable doubt:
1. The [information] contained a trade secret;
2. [Defendant] intended to convert the trade se-
cret to the economic benefit of anyone other
than the trade secret’s owner;
3. [Defendant]
OPTION 1: knew or believed that such infor-
mation was a trade secret;
OPTION 2: knew or believed that such infor-
mation was proprietary information, meaning
belonging to someone else who had an exclusive
right to it;]
4. [Defendant] knowingly [stole; took without
permission; obtained by fraud; copied without
permission; downloaded without permission;
duplicated without permission; conveyed with-
out permission; received while knowing it was
stolen or taken without permission] a trade se-
cret or [attempted to do so;] [conspired to do so
and committed any act to effect the object of
the conspiracy;];
5. The trade secret was related to or included in a
[product or service used in or intended for use
in] interstate or foreign commerce; and
1832
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779
6. [Defendant] intended or knew that this action
would injure any owner of the trade secret.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The term “trade secret” means all forms and types of financial,
business, scientific, technical, economic or engineering informa-
tion, including program devices, designs, prototypes, methods,
techniques, processes, procedures, programs or codes, whether
tangible or intangible, and however stored if the owner has taken
reasonable measures to keep the information secret and if the in-
formation derives independent economic value, actual or potential,
from not being generally known to or readily ascertainable through
proper means, by another person who can obtain economic value
from the disclosure or use of such information. 18 U.S.C. § 1839(3).
The second element is bracketed because the Seventh Circuit
has not yet addressed whether the government must prove that
the defendant knew that the information possessed was a trade
secret. Both the Supreme Court and the Seventh Circuit have
interpreted similarly structured statutes but reached different
results. For example, in Flores-Figueroa v. United States, the
Supreme Court interpreted 18 U.S.C. § 1028A, which prohibits
“knowingly transfer[ring], possess[ing], or us[ing], without lawful
authority, a means of identification of another person.” 556 U.S.
646 (2009). The Supreme Court held that the word “knowingly” ap-
plied to all elements that followed it in the statute, such that the
government must prove that the defendant knew that the “means
of identification” he or she unlawfully transferred, possessed, or
used did, in fact, belong to another person. Id. By contrast, in
United States v. Cox, which was decided after Flores-Figueroa, the
Seventh Circuit interpreted the prohibition in 18 U.S.C. § 2423 on
1832
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780
“knowingly transport[ing] an individual who has not attained the
age of 18 years” with intent that the individual engage in prostitu-
tion or a criminal sexual act. 577 F.3d 833, 834 (7th Cir. 2009).
The Seventh Circuit held that § 2423 does not require the govern-
ment to prove that the defendant knew the victim was a minor. Id.
at 836. In United States v. Nosal, the Ninth Circuit affirmed a
formulation of the jury instruction for the third element of § 1832
that required the government to prove that the defendant “knew”
the information “was a trade secret.” 844 F.3d 1024 (9th Cir. 2016).
The Committee takes no position on whether the government needs
to prove the defendant knew that the information described in the
indictment was a “trade secret.”
The government does not need to prove that the owner of the
secret suffered an actual economic loss as a result of the theft.
United States v. Yihao Pu, 814 F.3d 818, 828 (7th Cir. 2016). The
“independent economic value” attributable to the information
remaining secret, see 18 U.S.C. § 1839(3)(B), need only be potential
value, as distinct from actual value. United States v. Hanjuan Jin,
733 F.3d 718, 722 (7th Cir. 2013).
The Seventh Circuit has not yet decided whether to prove at-
tempted theft of a trade secret the government must prove that
the information was, in fact, a trade secret or whether it is suf-
ficient that the government prove the defendant reasonably
believed that the information was a trade secret. See United States
v. Lange, 312 F.3d 263, 268–69 (7th Cir. 2002) (discussing this is-
sue in dicta). Two circuits have decided this issue, and both held
that the government need not prove that the information was actu-
ally a trade secret. See United States v. Yang, 281 F.3d 534 (6th
Cir. 2002); United States v. Hsu, 155 F.3d 189, 203 (3d Cir. 1998).
If the defendant is charged with conspiracy, the government
must prove that the defendant committed an overt act to affect the
object of the conspiracy. 18 U.S.C. § 1832(a)(5). For a pattern
instruction regarding a conspiracy, see the Seventh Circuit’s
Pattern Instruction 5.08.
1832
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781
18 U.S.C. § 1951 EXTORTION—NON-ROBBERY—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] extortion. In order for you to find [the; a] defen-
dant guilty of this charge, the government must prove
each of the [five] following elements beyond a reason-
able doubt:
1. That the defendant knowingly obtained money
or property from [name of victim]; and
2. That the defendant did so by means of extor-
tion [by] [threatened [force; violence]; fear; under color
of official right], as that term is defined in these instruc-
tions; and
3. That [name of victim] consented to part with
the money or property because of the extortion; and
4. That the defendant believed that [name of
victim] parted with the money or property because of
the extortion; and
5. That the conduct of the defendant affected in-
terstate commerce.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
1951
STATUTORY INSTRUCTIONS
782
Committee Comment
In United States v. Jett, 908 F.3d 252, 264–65 (7th Cir. 2018),
the Seventh Circuit explicitly held that an overt act is not a
required element of a Hobbs Act conspiracy charge. Jett explained
that, like the antitrust and drug conspiracy statutes, the Hobbs
Act’s text contains no reference to an overt act. Id. at 265 (citing
Nash v. United States, 229 U.S. 373, 378 (1913) (antitrust, 15
U.S.C. § 1), and United States v. Shabani, 513 U.S. 10, 13–14
(1994) (drugs, 21 U.S.C. § 846)). On that reasoning, the Seventh
Circuit concluded: “We therefore hold that an overt act is not an
element of a Hobbs Act conspiracy.” Id. So the Pattern Instruction
omits any mention of an overt-act element.
1951
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18 U.S.C. § 1951 ATTEMPTED EXTORTION—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] attempted extortion. In order for you to find [the;
a] defendant guilty of this charge, the government must
prove each of the [four] following elements beyond a
reasonable doubt:
1. That the defendant knowingly [obtained or] at-
tempted to obtain money or property from [name the
victim]; and
2. That the defendant did so by means of extor-
tion [by] [threatened [force; violence]; fear; under color
of official right], as that term is defined in these instruc-
tions; and
3. That the defendant believed that [name the
victim] [would have] parted with the money or property
because of the extortion; and
4. That the conduct of the defendant affected,
would have affected or had the potential to affect inter-
state commerce.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
1951
STATUTORY INSTRUCTIONS
784
18 U.S.C. § 1951 EXTORTION—ROBBERY—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] extortion by robbery. In order for you to find [the;
a] defendant guilty of this charge, the government must
prove each of the [four] following elements beyond a
reasonable doubt:
1. That the defendant knowingly obtained money
or property from or in the presence of [name of victim];
and
2. That the defendant did so by means of robbery,
as that term is defined in these instructions; and
3. That the defendant believed that [name of
victim] parted with the money or property because of
the robbery; and
4. That the robbery affected interstate commerce.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
In United States v. Jett, 908 F.3d 252, 264–65 (7th Cir. 2018),
the Seventh Circuit explicitly held that an overt act is not a
required element of a Hobbs Act conspiracy charge. Jett explained
that, like the antitrust and drug conspiracy statutes, the Hobbs
1951
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Act’s text contains no reference to an overt act. Id. at 265 (citing
Nash v. United States, 229 U.S. 373, 378 (1913) (antitrust, 15
U.S.C. § 1), and United States v. Shabani, 513 U.S. 10, 13–14
(1994) (drugs, 21 U.S.C. 846)). On that reasoning, the Seventh
Circuit concluded: “We therefore hold that an overt act is not an
element of a Hobbs Act conspiracy.” Id. So the Pattern Instruction
omits any mention of an overt-act element.
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18 U.S.C. § 1951 DEFINITION OF “ROBBERY”
“Robbery” means the unlawful taking or obtaining
of personal property from the person or in the presence
of another, against his will, by means of actual or
threatened force, or violence [or fear of injury, immedi-
ate or future, to his person or property, or property in
his custody or possession, or the person or property of a
relative or member of his family or of anyone in his
company at the time of the taking or obtaining].
Committee Comment
Use material in brackets when appropriate.
1951
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18 U.S.C. § 1951 DEFINITION OF “COLOR OF
OFFICIAL RIGHT”
[Attempted] Extortion under “color of official right”
occurs when a public official receives [or attempts to
obtain] money or property to which he is not entitled,
[knowing; believing] that the money or property is [be-
ing; would be] given to him in return for taking, with-
holding or influencing official action. [Although the of-
ficial must receive [or attempt to obtain] the money or
property, the government does not have to prove that
the public official first suggested giving money or prop-
erty, or that the official asked for or solicited it.] [While
the official must receive [or attempt to obtain] the
money or property in return for the official action, the
government does not have to prove [that the official
actually took or intended to take that action; that the
official could have actually taken the action in return
for which payment was made; that the official would
not have taken the same action even without payment].]
[Acceptance by an elected official of a campaign
contribution, by itself, does not constitute extortion
under color of official right, even if the person making
the contribution has business pending before the
official. However, if a public official receives [or at-
tempts to obtain] money or property, [knowing; believ-
ing] that [it is; would be] given in exchange for a specific
requested exercise of his official power, he has commit-
ted extortion under color of official right, even if the
money or property [is; to be] given to the official in the
form of a campaign contribution.]
Committee Comment
See Evans v. United States, 504 U.S. 255 (1992); McCormick v.
United States, 500 U.S. 257 (1991); United States v. Giles, 246
F.3d 966 (7th Cir. 2001); United States v. Abbas, 560 F.3d 660 (7th
Cir. 2009).
An extortion conviction “under color of official right” requires
1951
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the government to prove a quid pro quo. In McCormick, 500 U.S.
at 273, the Court held that the jury should have been instructed
that the receipt of campaign contributions constitutes extortion
under color of official right, 18 U.S.C. § 1951, “only if the payments
are made in return for an explicit promise or undertaking by the
official to perform or not perform an official act.” In Evans, 504
U.S. 255, another Hobbs Act case involving campaign contribu-
tions, the Court elaborated on the quid pro quo requirement from
McCormick, holding that “the Government need only show that a
public official has obtained a payment to which he was not entitled,
knowing that the payment was made in return for official acts.” Id.
at 268. The Court in Evans held that the following jury instruction
satisfied McCormick:
[I]f a public official demands or accepts money in exchange
for [a] specific requested exercise of his or her official power,
such a demand or acceptance does constitute a violation of the
Hobbs Act regardless of whether the payment is made in the
form of a campaign contribution. Id. at 258, 268 (second
brackets in original).
In United States v. Giles, the Court extended the quid pro quo
requirement beyond campaign contributions and held that any
extortion “under color of official right” conviction under the Hobbs
Act requires the government to prove that a payment was made in
exchange for a specific promise to perform an official act. 246 F.2d
at 971–73 (approving the language of this instruction as sufficient
to instruct jury on quid pro quo requirement).
The quid pro quo can be implied. Id. at 972 (“The official and
the payor need not state the quid pro quo in express terms, for
otherwise the law’s effect could be frustrated by knowing winks
and nods. The inducement from the official is criminal if it is
express or if it is implied from his works and actions, so long as he
intends it to be so and the payor so interprets it.”)
For the definition of an “official action,” see the Pattern
Instruction for the term “official act” in 18 U.S.C. § 201, which
discusses McDonnell v. United States, 136 S. Ct. 2355, 2371–72
(2016).
In Abbas, the Seventh Circuit held that “under color of official
right” liability applies only to public officials who misuse their of-
ficial office. 560 F.3d at 664. Thus, a defendant who impersonated
an FBI agent could not commit a crime against the public trust
and was not subject to this “special brand of criminal liability.” Id.
1951
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18 U.S.C. § 1951 DEFINITION OF “EXTORTION”
[Attempted] “Extortion” by [threatened [force;
violence]; fear] means the wrongful use of [threatened
[force; violence]; fear] to obtain [or attempt to obtain]
money or property. “Wrongful” means that the defen-
dant had no lawful right to obtain [money; property] in
that way. [“Fear” includes fear of economic loss. This
includes fear of a direct loss of money, fear of harm to
future business operations or a fear of some loss of abil-
ity to compete in the marketplace in the future if the
victim did not pay the defendant.] The government
must prove that the victim’s fear [was; would have
been] reasonable under the circumstances. [However,
the government need not prove that the defendant actu-
ally intended to cause the harm threatened.]
Committee Comment
See United States v. Mitov, 460 F.3d 901, 907–09 (7th Cir.
2006); see also United States v. Capo, 791 F.2d 1054, 1062 (2d Cir.
1986); United States v. Beeler, 587 F.2d 340, 344 (6th Cir. 1978);
United States v. Brecht, 540 F.2d 45, 51–52 (2d Cir. 1976); United
States v. Crowley, 504 F.2d 992, 997 (7th Cir. 1974); United States
v. DeMet, 486 F.2d 816, 819–20 (7th Cir. 1973); United States v.
Biondo, 483 F.2d 635, 640 (8th Cir. 1973); United States v. Varlack,
225 F.2d 665, 668–69 (2d Cir. 1955).
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18 U.S.C. § 1951 DEFINITION OF “PROPERTY”
“Property” includes [name that the property that
was extorted as charged in the indictment].
Committee Comment
In cases where there is no dispute that the item at issue is
property (such as in cases in which the “property” is money), the
Committee suggests that the appropriate term be incorporated
into the elements instruction rather than using a separate
definitional instruction.
1951
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18 U.S.C. § 1951 DEFINITION OF “INTERSTATE
COMMERCE”
With respect to Count[s]
———
, the government
must prove that the defendant’s actions [affected; had
the potential to affect] interstate commerce in any way
or degree. This occurs if the natural consequences of
the defendant’s actions [were; would have been] some
effect on interstate commerce, however minimal. [This
would include reducing the assets of a [person who;
business that] customarily purchased goods from
outside the state of [name the state] or actually engaged
in business outside the state of [name the state], and if
those assets would have been available to the [person;
business] for the purchase of such goods or the conduct-
ing of such business if not for defendant’s conduct.] It is
not necessary for you to find that the defendant knew
or intended that his actions would affect interstate com-
merce [or that there have been an actual effect on in-
terstate commerce].
[Even though money was provided by a law enforce-
ment agency as part of an investigation, a potential ef-
fect on interstate commerce can be established by proof
that the money, if it had come from
—————
, would
have affected interstate commerce as I have described
above.]
Committee Comment
Under the Hobbs Act the government need only show a de
minimus actual effect on interstate commerce, or where there is no
actual effect, a realistic probability of or potential for an effect on
interstate commerce. United States v. Re, 401 F.3d 828, 835 (7th
Cir. 2005) (given that the Hobbs Act criminalizes attempted as
well as completed crimes, the impact on commerce need not be
actual, it is enough that the conduct had the potential to impact
commerce); United States v. Moore, 363 F.3d 631 (7th Cir. 2004)
(extortion case); United States v. Sutton, 337 F.3d 792 (7th Cir.
2003) (robbery case); United States v. Peterson, 236 F.3d 848,
851–52 (7th Cir. 2001) (holding that Supreme Court decisions in
United States v. Morrison, 529 U.S. 598 (2000) and United States
1951
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v. Lopez, 514 U.S. 549 (1995), do not undermine prior holdings
that a de minimus effect on interstate commerce is constitutionally
satisfactory in a Hobbs Act prosecution). See also United States v.
Carter, 530 F.3d 565, 572 (7th Cir. 2008) (when the government
uses a depletion of assets theory to prove the interstate commerce
element, there is no requirement that the business directly
purchase its items through interstate commerce, it is enough that
the business purchase such items through a wholesaler or other
intermediary, and the money used can be the FBI’s and not the
money of the business itself); United States v. Watson, 525 F.3d
583, 589 (7th Cir. 2008) (government’s theory that the money that
defendants stole traveled in interstate commerce was legally insuf-
ficient as cash itself cannot serve as the jurisdictional hook or any
robbery would be a federal crime); United States v. Mitov, 460 F.3d
901, 908 (7th Cir. 2006) (government could prove effect on inter-
state commerce through temporary depletion of assets); United
States v. McCarter, 406 F.3d 460, 462 (7th Cir. 2005) (in a case
charging attempted robbery in violation of the Hobbs Act, “the
question is merely whether commerce would have been affected
had the attempt succeeded”); United States v. Marrero, 299 F.3d
653, 655 (7th Cir. 2002) (case charging multiple robberies of drug
dealers, each individual criminal act need not have a measurable
impact on commerce, it is enough if a class of acts has such an
impact).
Much of the language in brackets is designed for undercover
cases charged as attempted extortion. Courts should feel free to
customize the bracketed sentence in the first paragraph regarding
the “asset depletion” theory to fit the allegations in particular
cases.
1951
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18 U.S.C. § 1952 INTERSTATE AND FOREIGN
TRAVEL OR TRANSPORTATION IN AID OF
RACKETEERING ENTERPRISES—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] interstate or foreign [travel; transportation] in
aid of racketeering enterprises. In order for you to find
[the; a] defendant guilty of this charge, the government
must prove each of the [three] following elements be-
yond a reasonable doubt:
1. The defendant traveled or caused another to
travel in interstate or foreign commerce, or used or
caused to be used a facility in interstate or foreign com-
merce, including the mail; and
2. The defendant did so with the intent to [dis-
tribute the proceeds of an unlawful activity; commit a
crime of violence to further unlawful activity; promote,
manage, establish, carry on an unlawful activity; facili-
tate the promotion, management, establishment or car-
rying on of an unlawful activity]; and
3. Thereafter the defendant did [distribute or at-
tempt to distribute the proceeds of an unlawful activity;
commit or attempt to commit a crime of violence to fur-
ther unlawful activity;
1
promote, manage, establish,
carry on an unlawful activity; attempt to promote, man-
age, establish, carry on an unlawful activity; facilitate
the promotion, management, establishment, or carrying
on of an unlawful activity; attempt to facilitate the
promotion, management, or carrying on of an unlawful
activity].
If you find from your consideration of all the evi-
1952
1
Where this is the predicate act, the elements of the crime of violence
must be submitted to the jury. See Committee Comment.
1952
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794
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
Facility is a broad term that can have many meanings. The
most common ‘facilities’ are telephone systems, highways, banking
systems, and the postal service. United States v. Peskin, 527 F.2d
71 (1975) (interstate transmission, deposit and clearance of checks
of land development company considered use of interstate facili-
ties); United States v. Campione, 942 F.2d 429 (7th Cir. 1991)
(credit card charges authorized through interstate telephone calls
considered ‘interstate facility’); United States v. Miller, 379 F.2d
483 (7th Cir. 1967) (tickertape displaying baseball scores was
transmitted from Illinois to Indiana on Western Union tickertape
so that customers could check winning tickets in illegal baseball
pool; this was sufficient use of interstate facility to satisfy the
statute).
In Haynes v. United States, 936 F.3d 683, 692 (7th Cir. 2019),
the Seventh Circuit held that a conviction under § 1952(a)(2)(B)
requires proof beyond a reasonable doubt that the defendant com-
mitted or attempted to commit a specific crime of violence on which
the jury must unanimously agree. Because the elements of the
underlying crime of violence are incorporated as elements of the
§ 1952(a)(2)(B) charge, the jury must be instructed on the ele-
ments of the crime of violence. Haynes, 936 F.3d at 692–94. What
constitutes a crime of violence under § 1952 remains a question of
law for the judge to determine. Id. at 693.
For example, if the alleged underlying crime of violence is
First-degree Homicide in violation of Wisconsin Stats. § 940.01,
the jury should be instructed as follows:
The indictment charges the defendant with interstate travel
in aid of racketeering enterprises. In order for you to find the
defendant guilty of this charge, the government must prove each of
the following elements beyond a reasonable doubt:
1952
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795
1. The defendant traveled in interstate commerce; and
2. The defendant did so with the intent to commit a crime
of violence, namely First Degree Intentional Homicide,
to further another unlawful activity; and
3. Thereafter the defendant did commit First Degree
Intentional Homicide to further another unlawful
activity. In order to satisfy its burden of proof as to this
element, the government must prove beyond a reason-
able doubt that:
a. The defendant caused or attempted to cause the
death of another human being; and
b. The defendant acted with intent to kill that person
or another.
1952
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18 U.S.C. § 1952 DEFINITION OF “INTERSTATE
COMMERCE”
The term “interstate commerce” means travel be-
tween one state and another state or use of an inter-
state facility, including the mail.
The [interstate travel; use of an interstate facility]
must relate significantly to the illegal activity charged
in the indictment; that is, the relationship must be more
than minimal or incidental. The [interstate travel; use
of an interstate facility], however, need not be essential
to the success of such illegal activity.
The defendant need not have contemplated or
knowingly caused the [interstate travel; use of an inter-
state facility].
Committee Comment
To support a conviction under 18 U.S.C. § 1952, interstate
travel need not be indispensable to illegal activity, it is necessary
only that such use facilitates illegal activity. United States v.
McNeal, 77 F.3d 938, 944 (7th Cir. 1996). The defendants need not
cross state lines personally to be liable under § 1952. United States
v. Shields, 793 F.Supp. 768, 774–75 (N.D.Ill. 1991) (finding
defendants guilty where FBI agents had to travel and engage in
interstate commerce to attempt bribe of defendant judge), aff’d,
999 F.2d 1090 (7th Cir. 1993). For additional cases discussing
§ 1952, see United States v. Altobella, 442 F.2d 310,315 (7th Cir.
1971); see United States v. Raineri, 670 F.2d 702, 717 (7th Cir.
1982); and United States v. McCormick, 442 F.2d 316, 318 (7th
Cir. 1971). For cases discussing § 2314, see United States v. Beil,
577 F.2d 1313, 1316, 1319–20 (5th Cir. 1978); United States v.
Kelly, 569 F.2d 928, 934–35 (5th Cir. 1978). The requirements of a
significant relationship between the interstate commerce and the
illegal activity apparently may not apply to statutes other than the
Travel Act.
1952
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18 U.S.C. § 1952 DEFINITION OF “UNLAWFUL
ACTIVITY”—BUSINESS ENTERPRISE
[“Unlawful activity” means any business enterprise
involving [gambling; liquor on which the federal excise
tax has not been paid; narcotics or controlled substance;
prostitution], in violation of the laws of the state in
which they are committed or of the United States.]
[“Unlawful activity” means [extortion; bribery;
arson], in violation of the laws of the state in which it is
committed or of the United States.]
Committee Comment
The first paragraph refers to a business enterprise involving
the offenses listed, while the second paragraph refers to offenses
that are not referred to in the statute as part of a business
enterprise.
1952
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18 U.S.C. § 1952 DEFINITION OF UNLAWFUL
BUSINESS ACTIVITY—CONTROLLED
SUBSTANCES
I instruct you that [specify] is a controlled
substance.
Committee Comment
The controlled substances within the purview of 18 U.S.C.
§ 1952 are those drugs, other substances or immediate precursors
included in Schedule I, II, III, IV, or V, of 21 U.S.C. § 812(b). See
18 U.S.C. § 1952(b)(1) (1986).
1952
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799
18 U.S.C. § 1956 DEFINITION OF “PROCEEDS”
(For offenses alleged to have occurred before
May 20, 2009)
The term “proceeds” is defined as the net proceeds,
or profits, remaining after deducting all of the direct
ordinary and necessary expenses, if any, incurred in
acquiring the proceeds.
(For offenses alleged to have occurred on or af-
ter May 20, 2009)
The term “proceeds” is defined as any property
derived from or obtained or retained, directly or
indirectly, through some form of unlawful activity,
including the gross receipts of such activity.
Committee Comment
For offenses alleged to have occurred before May 20, 2009, the
term “proceeds” as it is used in 18 U.S.C. § 1956 means profits, not
gross receipts. United States v. Santos, 553 U.S. 507 (2008) (plural-
ity opinion). Justice Stevens’ concurring opinion was not as broad
as the plurality opinion; however, independent of the Santos
opinion, the law of this Circuit is consistent with the plurality
opinion. United States v. Scialabba, 282 F. 3d 475, 478 (7th Cir.
2002) (in an illegal gambling prosecution: “We now hold that the
word ‘proceeds’ in § 1956(a)(1) denotes net rather than gross
income of an unlawful venture.”); United States v. Malone, 484
F.3d 916 (7th Cir. 2007) (cash receipts from narcotics business
used to purchase more narcotics are not considered “proceeds”).
Scialabba and Malone explained that “the act of paying a criminal
operation’s expenses out of gross income is not punishable as a
transaction in proceeds under § 1956(a)(A)(i).” Malone, 484 F.3d at
921 (citing Scialabba). If Scialabba remains the governing law—
that is, if Scialabba survived Santos—then all “ordinary and nec-
essary expenses,” including capital expenditures, do not constitute
proceeds. United States v. Hodge, 558 F.3d 630, 633–34 (7th Cir.
2009); United States v. Lee, 558 F.3d 638, 644 (7th Cir. 2009). The
Seventh Circuit has not definitively decided whether certain capital
expenditures, such as advertising expenses, that would not
duplicate the underlying crime fall within Justice Stevens’s—and
thus perhaps a majority of the Supreme Court’s—view of net
proceeds. Hodge, 558 F.3d at 634 (refraining from deciding the
1956
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800
question because the government conceded the issue in that ap-
peal and the jury verdict did not distinguish between advertising
and other expenses).
It is unsettled whether “proceeds” means net profits for
concealment money laundering offenses, 18 U.S.C. § 1956(a)(1)(B),
(a)(2)(B), (a)(3)(B), as distinct from promotional money laundering.
In United States v. Aslan, 644 F.3d 526, 541–549 (7th Cir. 2011),
the Seventh Circuit explained the difference between the two forms
of money laundering, and concluded that neither the Supreme
Court nor the Seventh Circuit had held that “proceeds” means net
profits for concealment money laundering. In Aslan, the Seventh
Circuit did not definitively decide the issue because the only ques-
tion on appeal was whether it was plain error not to use the net-
profits interpretation, and the court held that it was not plain
error.
For offenses alleged to have occurred after May 20, 2009, the
Fraud Enforcement and Recovery Act of 2009 (FERA), Pub. L. No.
111-21, overruled Santos by inserting an explicit definition of
proceeds: “the term ‘proceeds’ means any property derived from or
obtained or retained, directly or indirectly, through some form of
unlawful activity, including the gross receipts of such activity.” 18
U.S.C. § 1956(c)(9).
1956
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18 U.S.C. § 1956 DEFINITION OF KNOWLEDGE
REQUIREMENT
The government must prove that the defendant
knew that the property involved in the financial trans-
action represented the proceeds of some form, though
not necessarily which form, of activity that constitutes
a felony under State, Federal, or foreign law. The
government is not required to prove that the defendant
knew that the property involved in the transaction
represented the proceeds of [name specified unlawful
activity].
Committee Comment
This definition is set forth in 18 U.S.C. § 1956(c)(1).
1956
STATUTORY INSTRUCTIONS
802
18 U.S.C. § 1956 DEFINITION OF
“TRANSACTION”
The term “transaction” includes a purchase, sale,
loan, pledge, gift, transfer, delivery, or other disposi-
tion, and with respect to a financial institution includes
a deposit, withdrawal, transfer between accounts,
exchange of currency, loan, extension of credit, purchase
or sale of any stock, bond, certificate of deposit, or other
monetary instrument, use of a safe deposit box, or any
other payment, transfer, or delivery by, through, or to a
financial institution, by whatever means effected.
Committee Comment
This definition is set forth in 18 U.S.C. § 1956(c)(3), and should
be modified to conform to the alleged facts in the particular case.
Usually the transaction at issue does not include all the examples
set forth above. The court should include only those applicable to
the facts of the case.
1956
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803
18 U.S.C. § 1956 DEFINITIONS
The term “financial transaction” means [a purchase,
sale, transfer, delivery, or other disposition involving
one or more monetary instruments, which in any way
or degree affects interstate [or foreign] commerce] [or]
[a deposit, withdrawal, transfer between accounts,
exchange of currency, loan, extension of credit, purchase
or sale of any stock, bond, certificate of deposit, or use
of a safe deposit box involving the use of a financial
institution which is engaged in or the activities of which
affect interstate [or foreign] commerce.]
The term “monetary instruments” includes coin or
currency of the United States, personal checks, bank
checks, and money orders.
The term “financial institution” includes, for
example, commercial banks, trust companies, busi-
nesses engaged in vehicle sales including automobile
sales, and businesses and persons engaged in real
estate closings and settlements.
“Interstate commerce” means trade, transactions,
transportation or communication between any point in
a state and any place outside that state, or between two
points within a state through a place outside the state.
“Foreign commerce” means trade, transactions, trans-
portation, or communication between a point in one
country and a place outside that country, or between
two points within a country through a place outside
that country.
When [a financial institution; a business; an indi-
vidual] in [name the state] is engaged in commerce
outside of that state, or when [a financial institution; a
business; an individual] in [name of state] purchases
goods or services which come from outside that state,
then the activities of that [financial institution; a busi-
ness; an individual] affect interstate commerce.
1956
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The government must prove that it was foreseeable
that defendant’s acts would affect interstate or foreign
commerce. The government need not prove that the
defendant knew or intended that his actions would af-
fect interstate or foreign commerce.
Committee Comment
The definition of “financial transaction” is set forth at 18
U.S.C. § 1956(c)(4).
This instruction includes the transactions most commonly
prosecuted under this statute. Other types of transactions—for
example a transaction involving the transfer of title to real estate
or an automobile—may be included where appropriate.
1956
CRIMINAL INSTRUCTIONS
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18 U.S.C. § 1956 DEFINITION OF “CONCEAL OR
DISGUISE”
The term “conceal or disguise” means to hide the
nature, the location, the source, the ownership, or the
control of the proceeds of specified unlawful activity.
Committee Comment
See United States v. Esterman, 324 F.3d 565, 570 (7th Cir.
2003) (quoting United States v. Jackson, 935 F.2d 832, 843 (7th
Cir. 1991)), overruled on other grounds, Cuellar v. United States,
553 U.S. 550 (2008) (overruling Esterman to the extent that it held
that creating the appearance of legitimate wealth was the only
means to prove concealment or disguise).
1956
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18 U.S.C. § 1956(a)(1)(A)(i) MONEY
LAUNDERING—PROMOTING UNLAWFUL
ACTIVITY—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] money laundering. In order for you to find [the; a]
defendant guilty of this charge, the government must
prove each of the [four] following elements beyond a
reasonable doubt:
1. The defendant knowingly conducted or at-
tempted to conduct a financial transaction; and
2. Some or all of the property involved in the
financial transaction was proceeds of [name of specified
unlawful activity]; and
3. The defendant knew that the property involved
in the financial transaction represented proceeds of
some form of unlawful activity; and
4. The defendant engaged in the financial trans-
action with the intent to [further the unlawful activity;
promote the continued success of] the [name of specified
unlawful activity].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
1956(a)(1)(A)(i)
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Committee Comment
The financial transaction need not involve “all” illegal
proceeds, only “some” illegal proceeds. See United States v. Jackson,
983 F.2d 757, 765 (7th Cir. 1993) (interpreting the term “involves
the proceeds” in § 1956(a)(1)). An instruction to this effect is
provided in Pattern Instruction 18 U.S.C. § 1956 Definition of
Transaction.
See United States v. Santos, 553 U.S. 507, 517–18 (2008)
(plurality opinion) (“promote the carrying on” means “[t]o contrib-
ute to the prosperity of something, or to further something”)
(internal quotations omitted); United States v. Krasinski, 545 F.3d
546, 551 (7th Cir. 2008) (transporting money to buy drugs
“promoted the carrying on” of the drug conspiracy, even though
the drug sales were part and parcel of the conspiracy, because the
transportation “contributed to the drug conspiracy’s prosperity and
furthered it along”) (citing United States v. Malone, 484 F.3d 916,
921 (7th Cir. 2007)) (delivery of cash for drugs satisfied the promo-
tion element because it promoted “the continued prosperity of the
underlying offense”) (quoting United States v. Febus, 218 F.3d 784,
790 (7th Cir. 2000)).
1956(a)(1)(A)(i)
STATUTORY INSTRUCTIONS
808
18 U.S.C. § 1956(a)(1)(A)(ii) MONEY
LAUNDERING—TAX VIOLATIONS—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] money laundering. In order for you to find [the; a]
defendant guilty of this charge, the government must
prove each of the [four] following elements beyond a
reasonable doubt:
1. The defendant knowingly conducted or at-
tempted to conduct a financial transaction; and
2. Some or all of the property involved in the
financial transaction was proceeds of [name of specified
unlawful activity]; and
3. The defendant knew that the property involved
in the financial transaction represented proceeds of
some form of unlawful activity; and
4. The defendant engaged in the financial trans-
action with the intent to engage in [tax evasion; will-
fully making or subscribing false statements on a tax,
return, document or statement made under penalty of
perjury].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
1956(a)(1)(A)(ii)
CRIMINAL INSTRUCTIONS
809
Committee Comment
The financial transaction need not involve “all” illegal
proceeds, only “some” illegal proceeds. See United States v. Jackson,
983 F.2d 757, 765 (7th Cir. 1993) (interpreting the term “involves
the proceeds” in § 1956(a)(1)). An instruction to this effect is
provided in Pattern Instruction 18 U.S.C. § 1956 Definition of
Transaction.
Modify as necessary if the fourth element constitutes a viola-
tion of Title 26, U.S.C., §§ 7206(2), 7206(3), 7206(4), or 7206(5).
1956(a)(1)(A)(ii)
STATUTORY INSTRUCTIONS
810
18 U.S.C. § 1956(a)(1)(B)(i) MONEY
LAUNDERING—CONCEALING OR
DISGUISING—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] money laundering. In order for you to find [the; a]
defendant guilty of this charge, the government must
prove each of the [four] following elements beyond a
reasonable doubt:
1. The defendant knowingly conducted or at-
tempted to conduct a financial transaction; and
2. Some or all of the property involved in the
financial transaction was proceeds of [name of specified
unlawful activity]; and
3. The defendant knew that the property involved
in the financial transaction represented proceeds of
some form of unlawful activity; and
4. The defendant knew that the transaction was
designed in whole or in part to [conceal; disguise] [the
nature; the location; the source; the ownership; the
control] of the proceeds of [name of specified unlawful
activity].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
1956(a)(1)(B)(i)
CRIMINAL INSTRUCTIONS
811
Committee Comment
The financial transaction need not involve “all” illegal
proceeds, only “some” illegal proceeds. See United States v. Jackson,
983 F.2d 757, 765 (7th Cir. 1993) (interpreting the term “involves
the proceeds” in § 1956(a)(1)). An instruction to this effect is
provided in Pattern Instruction 18 U.S.C. § 1956 Definition of
Transaction.
In light of Cuellar v. United States, 553 U.S. 550 (2008), which
interpreted a similar conceal/disguise provision in 18 U.S.C.
§ 1956(a)(2)(B)(i), the word “designed” in § 1956(a)(1)(b)(i) likely
also means that the purpose or intent of the transaction must be
to conceal or disguise one of the listed attributes. Cuellar is
discussed further in the comment on the instruction for
§ 1956(a)(2)(B)(i).
1956(a)(1)(B)(i)
STATUTORY INSTRUCTIONS
812
18 U.S.C. § 1956(a)(1)(B)(ii) MONEY
LAUNDERING—AVOIDING REPORTING—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] money laundering. In order for you to find [the; a]
defendant guilty of this charge, the government must
prove each of the [four] following elements beyond a
reasonable doubt:
1. The defendant knowingly conducted or at-
tempted to conduct a financial transaction; and
2. Some or all of the property involved in the
financial transaction was proceeds of [name of specified
unlawful activity]; and
3. The defendant knew that the property involved
in the financial transaction represented proceeds of
some form of unlawful activity; and
4. The defendant knew that the transaction was
designed in whole or in part to avoid [a transaction
reporting requirement under state or federal law; the
filing of a Currency Transaction Report].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
1956(a)(1)(B)(ii)
CRIMINAL INSTRUCTIONS
813
Committee Comment
In appropriate cases the court may define the underlying
transaction reporting requirement.
The financial transaction need not involve “all” illegal
proceeds, only “some” illegal proceeds. See United States v. Jackson,
983 F.2d 757, 765 (7th Cir. 1993) (interpreting the term “involves
the proceeds” in § 1956(a)(1)). An instruction to this effect is
provided in Pattern Instruction 18 U.S.C. § 1956 Definition of
Transaction.
1956(a)(1)(B)(ii)
STATUTORY INSTRUCTIONS
814
18 U.S.C. § 1956(a)(2)(A) MONEY
LAUNDERING—INTERNATIONAL
PROMOTION—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] money laundering. In order for you to find [the; a]
defendant guilty of this charge, the government must
prove each of the [three] following elements beyond a
reasonable doubt:
1. The defendant knowingly [transported, trans-
mitted, or transferred; attempted to transport, trans-
mit, or transfer] a monetary instrument or funds; and
2. The [transportation, transmittal, or transfer;
attempted transportation, transmittal, or transfer] was
[from a place in the United States to or through a place
outside the United States; to a place in the United
States from or through a place outside the United
States]; and
3. The defendant did so with the intent to [fur-
ther the; promote the continued success of] [name of
specified unlawful activity].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
Because 18, U.S.C. § 1956(a)(2)(A) contains no reference to
1956(a)(2)(A)
CRIMINAL INSTRUCTIONS
815
“proceeds,” United States v. Santos, 553 U.S. 507 (2008), is inap-
plicable in this context. United States v. Krasinski, 545 F. 3d 546,
551 (7th Cir. 2008) (“The absence of a ‘proceeds’ requirement in
section 1956(a)(2)(A) reflects that Congress decided to prohibit any
funds transfer out of the country that promotes the carrying on of
certain unlawful activity.”)
1956(a)(2)(A)
STATUTORY INSTRUCTIONS
816
18 U.S.C. § 1956(a)(2)(B)(i) MONEY
LAUNDERING—INTERNATIONAL
CONCEALING OR DISGUISING—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] money laundering. In order for you to find [the; a]
defendant guilty of this charge, the government must
prove each of the [four] following elements beyond a
reasonable doubt:
1. The defendant knowingly [transported, trans-
mitted, or transferred; attempted to transport, transmit
or transfer] a [monetary instrument; funds]; and
2. The [transportation, transmittal, or transfer;
attempted transportation, transmittal, or transfer] was
[from a place in the United States to or through a place
outside the United States; to a place in the United
States from or through a place outside the United
States]; and
3. The defendant did so knowing that the mon-
etary instrument or funds involved in the transporta-
tion, transmission, or transfer represented the proceeds
of some form of unlawful activity; and
4. The defendant knew that the transportation,
transmission, or transfer was designed, in whole or in
part, to [conceal; disguise] [the nature; the location; the
source; the ownership; the control of the proceeds] of
[name of specified unlawful activity].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
1956(a)(2)(B)(i)
CRIMINAL INSTRUCTIONS
817
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
Cuellar v. United States, 553 U.S. 550 (2008), held that the
transportation contemplated in 18 U.S.C. § 1956(a)(2)(B)(i) must
itself be intended to avoid the detection of the funds. It is not suf-
ficient that the funds be hidden or concealed during the
transportation. As the Supreme Court explained in Cuellar, the
word “designed” in this statute refers not to the manner in which
the funds are concealed, but to the purpose or intent accompany-
ing the transportation.
1956(a)(2)(B)(i)
STATUTORY INSTRUCTIONS
818
18 U.S.C. § 1957 UNLAWFUL MONETARY
TRANSACTIONS IN CRIMINALLY DERIVED
PROPERTY—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] money laundering. In order for you to find [the; a]
defendant guilty of this charge, the government must
prove each of the [five] following elements beyond a
reasonable doubt:
1. The defendant engaged or attempted to engage
in a monetary transaction; and
2. That defendant knew the transaction involved
criminally derived property; and
3. The property had a value greater than $10,000;
and
4. The property was derived from [name of speci-
fied unlawful activity]; and
5. The transaction occurred in the [United States].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The statute also allows for prosecution where the offense oc-
curs within the special maritime and territorial jurisdiction of the
1957
CRIMINAL INSTRUCTIONS
819
United States, and where the offense occurs outside the United
States but by qualifying persons as defined in 31 U.S.C. § 3077.
Section 1957(c) clearly states that the government need not
prove that the defendant knew the offense from which the
criminally derived property was derived was specified unlawful
activity.
1957
STATUTORY INSTRUCTIONS
820
18 U.S.C. § 1957 DEFINITIONS
The term “monetary transaction” means the de-
posit, withdrawal, transfer or exchange, in or affecting
interstate commerce, of funds or a monetary instru-
ment, by, through, or to a financial institution.
[The alleged monetary transaction need not involve
“all” criminally derived property, only over $10,000 in
criminally derived property.]
“Interstate commerce” means trade, transactions,
transportation or communication between any point in
a state and any place outside that state or between two
points within a state through a place outside the state.
The term “financial institution” includes [com-
mercial banks; trust companies; businesses engaged in
vehicle sales including automobile sales; businesses
and persons engaged in real estate closings or
settlements].
The term “criminally derived property” means any
property constituting, or derived from, proceeds ob-
tained from a criminal offense.
Committee Comment
Financial institutions are defined in 31 U.S.C. § 5312 (a)(2),
and specific cases may require giving the statutory language to the
jury.
Although the monetary transaction must involve criminally
derived property valued at over $10,000, there is no requirement
that all of the money involved in the transaction was criminally
derived. United States v. Haddad, 462 F.3d 783, 791–92 (7th Cir.
2006) (although transactions of $16,000 and $15,000 were drawn
from bank account where legitimate and illegitimate funds were
commingled, evidence was sufficient because the “vast majority” of
funds in the account were illegitimate and money is fungible). In a
case where the transaction might include both legitimate funds
and criminally derived property, the bracketed language instructs
the jury that the transaction need not involve “all” criminally
derived property, only over $10,000.
1957
CRIMINAL INSTRUCTIONS
821
The transaction that created the criminally-derived property
must be distinct from the charged money laundering transaction,
because § 1957 criminalizes transactions in criminally-derived
property, not the transactions that create the property—the latter
transactions comprise the underlying specified activity itself. United
States v. Seward, 272 F. 3d 831, 836 (7th Cir. 2001) (citing United
States v. Mankarious, 151 F. 3d 694, 705 (7th Cir. 1998)). In the
context of ongoing criminal activity, however, such as a fraud
scheme, “there is no requirement that the entire fraudulent scheme
be complete before the defendant starts laundering the proceeds
from the early portions of the scheme.” Seward, 272F3dat837.
In appropriate cases further clarification may be appropriate to
address this merger issue.
Furthermore, the only transaction that is chargeable and may
be presented to the jury is the “initial” transaction involving the
criminally derived property. Unites States v. Wright, 651 F.3d 764,
771–72 (7th Cir. 2011) (if a “person used $1,000 in proceeds from
marijuana to buy Apple stock in 2004, would he violate § 1957 if
he sold that stock in 2011 for more than $31,000? We think not.”)
1957
STATUTORY INSTRUCTIONS
822
18 U.S.C. § 1959(a) VIOLENT CRIMES IN AID OF
RACKETEERING ACTIVITY
[The indictment charges the defendant[s] with;
Count
—
of the indictment charges the defendant[s]
with] [committing; conspiring to commit; attempting to
commit] [name the crime of violence] in aid of
racketeering. In order for you to find [the; a] defendant
guilty of this count, the government must prove the fol-
lowing five elements beyond a reasonable doubt:
1. The [name of charged enterprise] was an
enterprise;
2. The enterprise was engaged in racketeering
activity;
3. The activities of the enterprise affected inter-
state or foreign commerce;
4. The defendant committed the [name the crime
of violence] [as charged in Count
—
of the indictment];
and
5. The defendant committed the [name the crime
of violence] to gain entrance to or maintain or increase
his position in the enterprise. [The government does
not have to prove this was the defendant’s sole or
principal purpose in committing the [name the crime of
violence].]
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the count
you are considering], then you should find the defendant
guilty [of that count].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
1959(a)
CRIMINAL INSTRUCTIONS
823
doubt [as to the count you are considering], then you
should find the defendant not guilty [of that count].
Committee Comment
For the terms in elements one through three, the pattern
instructions provided in § 1961 should be used or referenced. See
18 U.S.C. § 1959(b)(1) and (2); see also United States v. Rogers,89
F.3d 1326, 1332 (7th Cir. 1996) (the definition of “enterprise” as
used in § 1959 is the same as that in § 1961(4); § 1959 was enacted
to complement the RICO); United States v. Carson, 455 F.3d 336,
371 (D.C. Cir. 2006) (the term “racketeering activity” as used in
§ 1959 is defined in § 1961).
With regard to element four, the court should instruct the jury
on the substantive law applicable to the charged predicate offense.
The bracketed language in element four should be used if the pred-
icate offense is specifically charged in a count in the indictment.
In addition to a crime of violence committed for the purpose of
gaining entrance to or maintaining or increasing a position in the
enterprise, Section 1959 also applies to a crime of violence commit-
ted as “consideration for the receipt of, or as consideration for a
promise or agreement to pay, anything of pecuniary value from an
enterprise engaged in racketeering activities.” If that is the basis
of the charged crime, the language of element five should be modi-
fied accordingly. See United States v. Concepcion, 983 F.2d 369,
384 (2d Cir. 1992) (“[W]e note that Section 1959 as a whole is suf-
ficiently inclusive to encompass the actions of a so-called indepen-
dent contractor, for it reaches not only those who seek to maintain
or increase their positions within a RICO enterprise, but also those
who perform violent crimes ‘as consideration for the receipt of . . .
anything of pecuniary value’ from such an enterprise.”) (citation
omitted).
The jury need not find that a defendant’s “sole or principal
motive” in committing the crime of violence was to gain entrance
to, increase, or maintain the defendant’s position in the enterprise.
See United States v. Garcia, 754 F.3d 460, 472–73 (7th Cir. 2014)
(the jury instruction “correctly states that the jury did not need to
find that Zambrano’s sole or principal motive was to maintain his
position in the gang.”) (citing United States v. DeSilva, 505 F.3d
711, 715–16 (7th Cir. 2007) (“The motive requirement . . . is met
if the jury could properly infer that the defendant committed his
violent crime because he knew it was expected of him by reason of
his membership in the enterprise or that he committed it in
furtherance of that membership.”); United States v. Concepcion,
1959(a)
STATUTORY INSTRUCTIONS
824
983 F.2d 369, 381 (2d Cir. 1992); United States v. Carson, 455 F.3d
336, 371 (D.C. Cir. 2006); United States v. Tse, 135 F.3d 200, 206
(1st Cir. 1998).
1959(a)
CRIMINAL INSTRUCTIONS
825
18 U.S.C. § 1961(4) ENTERPRISE—LEGAL
ENTITY
The term “enterprise” includes a[n] [type of entity].
Committee Comment
Where there is no dispute as to whether the “enterprise”
charged in the indictment falls within the statutory definition,
that enterprise should be inserted in the bracketed portion of this
instruction. Where there is a dispute, all potential forms of
enterprise listed in the statute should be included.
1961(4)
STATUTORY INSTRUCTIONS
826
18 U.S.C. § 1961(4) ENTERPRISE—
ASSOCIATION IN FACT
The term “enterprise” can include a group of people
[or legal entities] associated together for a common
purpose of engaging in a course of conduct. This group
may be associated together for purposes that are both
legal and illegal.
In considering whether a group is an “enterprise,”
you may consider whether it has an ongoing organiza-
tion or structure, either formal or informal, and
whether the various members of the group functioned
as a continuing unit. [A group may continue to be an
“enterprise” even if it changes membership by gaining
or losing members over time.]
The government must prove that the group de-
scribed in the indictment was the “enterprise” charged,
but need not prove each and every allegation in the
indictment about the enterprise or the manner in which
the enterprise operated. The government need not prove
the association had any form or structure beyond the
minimum necessary to conduct the charged pattern of
racketeering.
Committee Comment
In appropriate cases, the court should include language
indicating that an “association in fact” may include legal entities.
See United States v. Masters, 924 F.2d 1362 (7th Cir. 1991).
An association-in-fact includes any “group of persons associ-
ated together for a common purpose of engaging in a course of
conduct.” Boyle v. United States, 556 U.S. 938, 946 (2009). The
Supreme Court reads this definition broadly. An association-in-fact
under RICO need not have any structural features beyond “a
purpose, relationships among those associated with the enterprise,
and longevity sufficient to permit these associates to pursue the
enterprise’s purpose.” Id.; see also United States v. Brown, 973
F.3d 667, 682 (7th Cir. 2020).
1961(4)
CRIMINAL INSTRUCTIONS
827
18 U.S.C. § 1962 DEFINITION OF “INTERSTATE
COMMERCE”
“Interstate commerce” includes the movement of
money, goods, services or persons from one state to an-
other [or between another country and the United
States]. This would include the purchase or sale of
goods or supplies from outside [name the state[s] in
which the enterprise was located], the use of interstate
mail or wire facilities, or the causing of any of those
things. If you find that beyond a reasonable doubt ei-
ther (a) that [name the enterprise] made, purchased,
sold or moved goods or services that had their origin or
destination outside [name the state[s] in which the
enterprise was located], or (b) that the actions of [name
the enterprise] affected in any degree the movement of
money, goods or services across state lines, then inter-
state commerce was engaged in or affected.
The government need only prove that [name the
enterprise] as a whole engaged in interstate commerce
or that its activity affected interstate commerce to any
degree, although proof that racketeering acts did affect
interstate commerce meets that requirement. The
government need not prove that [the; a] defendant
engaged in interstate commerce, or that the acts of [the;
a] defendant affected interstate commerce.
1962
STATUTORY INSTRUCTIONS
828
18 U.S.C. § 1962(c) SUBSTANTIVE
RACKETEERING—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] racketeering. In order for you to find [the; a]
defendant guilty of this charge, the government must
prove each of the [four; five] following elements beyond
a reasonable doubt:
1. That [name] was an enterprise; and
2. That the defendant was associated with [or
employed by] the enterprise; and
3. That the defendant knowingly conducted or
participated in the conduct of the affairs of [name]
through a pattern of racketeering activity as described
in Count
—
; and
4. That the activities of [name] affected interstate
commerce[.] [; and]
[5. That the commission of at least one of the
racketeering acts described in Count
—
occurred on or
after (five years prior to the return of the indictment).]
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
1962(c)
CRIMINAL INSTRUCTIONS
829
18 U.S.C. § 1962(c) PATTERN REQUIREMENT—
SUBSTANTIVE RACKETEERING
In order to find a “pattern of racketeering activity”
for purposes of Count
—
, you must find beyond a rea-
sonable doubt that the defendant committed [or caused
another person to commit] at least two racketeering
acts described in Count
—
, and that those acts were in
some way related to each other and that there was con-
tinuity between them[, and that they were separate
acts].
Although a pattern of racketeering activity must
consist of two or more acts, deciding that two such acts
were committed, by itself, may not be enough for you to
find that a pattern exists.
Acts are related to each other if they are not
isolated events, that is, if they have similar purposes,
or results, or participants, or victims, or are committed
a similar way[, or have other similar distinguishing
characteristics; or are part of the affairs of the same
enterprise].
There is continuity between acts if, for example,
they are ongoing over a substantial period, or if they
are part of the regular way some entity does business
or conducts its affairs.
The government need not prove that all the acts
described in Count
—
were committed, but you must
unanimously agree as to which two or more racketeer-
ing acts the defendant committed [or caused to be com-
mitted] in order to find the defendant guilty of that
count.
1962(c)
STATUTORY INSTRUCTIONS
830
18 U.S.C. § 1962(c) SUBPARTS OF
RACKETEERING ACTS
Each of the racketeering acts described in [the
substantive RICO count] is numbered and [some]
consist[s] of multiple offenses set out in separate, let-
tered sub-paragraphs [(a), (b), (c), (d), etc]. To prove
that a defendant committed a particular “racketeering
act” that is made up of multiple offenses, it is sufficient
if the government proves beyond a reasonable doubt
that the defendant committed at least one of the offen-
ses identified in the sub-paragraphs of that racketeer-
ing act. However, you must unanimously agree upon
which of the different offenses alleged within a rack-
eteering act the defendant committed.
Committee Comment
This instruction is provided for use in cases in which the
indictment breaks up specified racketeering acts into alternative
subparts.
1962(c)
CRIMINAL INSTRUCTIONS
831
18 U.S.C. § 1962(d) RACKETEERING
CONSPIRACY—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] conspiracy to commit racketeering. In order for
you to find [the; a] defendant guilty of this charge, the
government must prove each of the [three] following
elements beyond a reasonable doubt:
1. That the defendant knowingly conspired to
conduct or participate in the conduct of the affairs of
[name of enterprise], an enterprise, through a pattern
of racketeering activity as described in Count
—
; and
2. That [name of enterprise] [was; would be] an
enterprise; and
3. That the activities of [name of enterprise]
would affect interstate commerce.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The “Conspiracy” elements instruction, without the overt act
requirement, should be given in conjunction with this instruction.
There are other conspiracy charges under 1962(a), (b) and (c). This
pattern instruction covers the most commonly charged offense,
1962(d).
In United States v. Schiro, 679 F.3d 521, 533–34 (7th Cir.
1962(d)
STATUTORY INSTRUCTIONS
832
2012), the Court observed that cases from other Circuits have
required that the jury be instructed that it must agree unanimously
on the types of racketeering activity that the conspirators agreed
to commit, but indicated that it had “doubts” about this proposition.
The Committee expresses no opinion on whether such an instruc-
tion would be required.
1962(d)
CRIMINAL INSTRUCTIONS
833
18 U.S.C. § 1962(d) PATTERN REQUIREMENT—
RACKETEERING CONSPIRACY
In order to find a “pattern of racketeering activity”
for purposes of Count
—
, you must find beyond a rea-
sonable doubt that the defendant agreed that some
member[s] of the conspiracy would commit at least two
acts of racketeering as described in Count
—
, [and that
they were separate acts]. You must also find that those
acts were in some way related to each other and that
there was continuity between them.
Acts are related to each other if they are not
isolated events, that is, if they have similar purposes,
or results, or participants, or victims, or are committed
a similar way[, or have other similar distinguishing
characteristics; or are part of the affairs of the same
enterprise].
There is continuity between acts if, for example,
they are ongoing over a substantial period of time, or
had the potential to continue over a substantial period,
or if they are part of the regular way some entity does
business or conducts its affairs.
For purposes of Count
—
, the government does not
have to prove that any racketeering acts were actually
committed at all, or that the defendant agreed to
personally commit any such acts, or that the defendant
agreed that two or more specific acts would be
committed.
Committee Comment
See Salinas v. United States, 522 U.S. 52 (1997); United States
v. Glecier, 923 F.2d 496 (7th Cir. 1991); H.J. Inc. v. Northwestern
Bell Telephone Co., 492 U.S. 229, 237 (1989); United States v.
Neapolitan, 791 F.2d 489 (7th Cir. 1986) (as modified by Brouwer
v. Raffensperger, Hughes & Co., 199 F.3d 961, 967 (7th Cir. 2000))
(when analyzing a conspiracy to violate RICO pursuant to
§ 1962(d), to “participate in the affairs of an enterprise,” “[o]ne
must knowingly agree to perform services of a kind which facili-
1962(d)
STATUTORY INSTRUCTIONS
834
tate the activities of those who are operating the enterprise in an
illegal manner.”); United States v. Delatorre, 581 F.Supp.2d 968,
992 (N.D. Ill. 2008).
1962(d)
CRIMINAL INSTRUCTIONS
835
18 U.S.C. § 1962(c) & (d) DEFINITION OF
“CONDUCT OR PARTICIPATE IN THE
CONDUCT OF”
A person “conducts or participates in the conduct
of” the affairs of an enterprise if that person uses his
position in, or association with, the enterprise to
perform acts which are involved in some way in the
operation or management of the enterprise, directly or
indirectly, or if the person causes another to do so. In
order to have conducted or participated in the conduct
of the affairs of an enterprise, a person need not have
participated in all of the activity alleged in [list the
RICO count(s)].
[A person conspires to conduct or participate in the
conduct of the affairs of an enterprise if that person
agrees to knowingly facilitate the activities of the opera-
tors or managers who conduct or participate in the
conduct of its affairs.]
Committee Comment
To “conduct” or “participate” in the substantive offense, subsec-
tion (c), one must participate in the “operation or management” of
the enterprise. An enterprise is “operated” not just by upper
management, but also by lower rung participants in the enterprise
who are under the direction of upper management. An enterprise
also might be “operated” or “managed” by others “associated with”
the enterprise who exert control over it. See Reves v. Ernst & Young,
507 U.S. 170, 184 (1993).
The bracketed second paragraph should be used only when a
defendant is charged with conspiracy.
1962(c) & (d)
STATUTORY INSTRUCTIONS
836
18 U.S.C. § 1962(c) & (d) DEFINITION OF
“ASSOCIATE”
To be associated with an enterprise, a person must
be involved with the enterprise in a way that is related
to its affairs [or common purpose] [, although the person
[need not have a stake in the goals of the enterprise
[and] [may even act in a way that subverts those
goals]]]. A person may be associated with an enterprise
without being so throughout its existence.
1962(c) & (d)
CRIMINAL INSTRUCTIONS
837
18 U.S.C. § 1963(a)(1) FORFEITURE—
ELEMENTS
As a result of the [defendant’s; defendants’] convic-
tion for [racketeering; racketeering conspiracy], the
government seeks forfeiture of the following interest[s]:
[LIST INTEREST[S]]
In order for you to find that an interest is subject
to forfeiture, the government must prove both of the
following elements by a preponderance of the evidence:
1. That the defendant acquired or maintained an
interest in violation of the law as charged in Count[s]
—
; and
2. That there is a nexus between that interest
and the offense charged in Count[s]
—
.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements by a preponderance of the evidence [as to the
interest[s] you are considering and as to the defendant
you are considering], then you should check the “Yes”
line on the Special Forfeiture Verdict Form [as to the
interest[s] and [the; that] defendant].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements by a preponderance
of the evidence [as to the interest[s] you are considering
and as to the defendant you are considering], then you
should check the “No” line on the Special Forfeiture
Verdict Form [as to the interest[s] and [the; that]
defendant].
Committee Comment
Under Fed. R. Crim. P. 32.2(a), as effective December 1, 2009,
“[t]he indictment or information need not identify the property
1963(a)(1)
STATUTORY INSTRUCTIONS
838
subject to forfeiture or specify the amount of any forfeiture money
judgment the government seeks.” If a party makes a timely request
for a jury determination on the issue of forfeiture, “the government
must submit a Special Verdict Form listing each property subject
to forfeiture and asking the jury to determine whether the govern-
ment has established the requisite nexus between the property
and the offense committed by the defendant.” Rule 32.2(b)(5)(B).
The Committee recognizes that there may be some overlap be-
tween the RICO statutory requirement for forfeiture and the nexus
requirement of Rule 32.2(b)(5)(B). The Committee has included
both requirements in this instruction. See the Pattern Instruction
defining the word “nexus.”
1963(a)(1)
CRIMINAL INSTRUCTIONS
839
18 U.S.C. § 1963(a)(1) DEFINITION OF
“INTEREST”
The word “interest” includes every property inter-
est [including [profits; proceeds; income; an employ-
ment position]].
A defendant acquires or maintains an “interest”
only to the extent racketeering activities were the cause
of the defendant’s acquisition or maintenance of the
interest. If the defendant would not have acquired or
maintained his interest but for the racketeering activ-
ity, the interest is subject to forfeiture. If, on the other
hand, the defendant acquired or maintained the inter-
est regardless of any racketeering activities, then the
interest under consideration is not subject to forfeiture.
Committee Comment
United States v. Russello, 464 U.S. 16, 22 (1983); United States
v. Horak, 833 F.2d 1235, 1243 (7th Cir. 1987); United States v.
Ginsburg, 773 F.2d 798 (7th Cir. 1985) (en banc).
1963(a)(1)
STATUTORY INSTRUCTIONS
840
18 U.S.C. § 1963(a)(2) FORFEITURE—
ELEMENTS
As a result of the [defendant’s; defendants’] convic-
tion for [racketeering; racketeering conspiracy], the
government seeks forfeiture of the following [interest;
security; claim; property or contractual right]:
[LIST PROPERTY]
In order for you to find that an [interest; security;
claim; property or contractual right] is subject to forfei-
ture, the government must prove both of the following
propositions:
1. That the defendant has [an interest in; a secu-
rity of; a claim against; a property or contractual right
of any kind affording a source of influence over] the
enterprise that defendant established, operated, con-
trolled, conducted or participated in the conduct of, in
violation of the law as charged in Count[s]
—
; and
2. That there is a nexus between the [interest; se-
curity; claim; property or contractual right] and the of-
fense charged in Count[s]
—
.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements by a preponderance of the evidence [as to the
[interest; security; claim; property or contractual right]
you are considering and as to the defendant you are
considering], then you should check the “Yes” line on
the Special Forfeiture Verdict Form [as to that [inter-
est; security; claim; property or contractual right] and
[the; that] defendant].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements by a preponderance
of the evidence [as to the [interest; security; claim; prop-
1963(a)(2)
CRIMINAL INSTRUCTIONS
841
erty or contractual right] you are considering and as to
the defendant you are considering], then you should
check the “No” line on the Special Forfeiture Verdict
Form [as to that [interest; security; claim; property or
contractual right] and [the; that] defendant].
Committee Comment
Under Fed. R. Crim. P. 32.2(a), as effective December 1, 2009,
“The indictment or information need not identify the property
subject to forfeiture or specify the amount of any forfeiture money
judgment the government seeks.” If a party makes a timely request
for a jury determination on the issue of forfeiture, “the government
must submit a Special Verdict Form listing each property subject
to forfeiture and asking the jury to determine whether the govern-
ment has established the requisite nexus between the property
and the offense committed by the defendant.” Rule 32.2(b)(5)(B).
The Committee recognizes that there may be some overlap be-
tween the RICO statutory requirement for forfeiture and the nexus
requirement of Rule 32.2(b)(5)(B). The Committee has included
both requirements in this instruction. See the Pattern Instruction
defining the word “nexus.”
When forfeiture is sought under 18 U.S.C. § 1963(a)(2), the
jury should only be asked whether the interest is subject to forfei-
ture and should not be asked to determine what percentage of any
interest subject to forfeiture. United States v. Segal, 495 F.3d 826,
838 (7th Cir. 2007).
1963(a)(2)
STATUTORY INSTRUCTIONS
842
18 U.S.C. § 1963(a)(3) FORFEITURE—
ELEMENTS
As a result of the defendant’s conviction for [rack-
eteering; racketeering conspiracy], the government
seeks forfeiture of the following proceeds:
[LIST PROCEEDS/PROPERTY]
In order for you to find that proceeds are subject to
forfeiture, the government must prove both of the fol-
lowing elements by a preponderance of the evidence:
1. That the defendant, directly or indirectly,
obtained property that constitutes, or was derived from,
proceeds of [racketeering activity; unlawful debt collec-
tion] in violation of the law as charged in Count[s]
—
;
and
2. That there is a nexus between the proceeds and
the offense charged in Count[s]
—
.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements by a preponderance of the evidence [as to the
proceeds you are considering and as to the defendant
you are considering], then you should check the “Yes”
line on the Special Forfeiture Verdict Form [as to those
proceeds and [the; that] defendant].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements by a preponderance
of the evidence [as to the proceeds you are considering
and as to the defendant you are considering], then you
should check the “No” line on the Special Forfeiture
Verdict Form [as to those proceeds and [the; that]
defendant].
1963(a)(3)
CRIMINAL INSTRUCTIONS
843
Committee Comment
Under Fed. R. Crim. P. Rule 32.2(a), as effective December 1,
2009, “The indictment or information need not identify the prop-
erty subject to forfeiture or specify the amount of any forfeiture
money judgment the government seeks.” If a party makes a timely
request for a jury determination on the issue of forfeiture, “the
government must submit a Special Verdict Form listing each prop-
erty subject to forfeiture and asking the jury to determine whether
the government has established the requisite nexus between the
property and the offense committed by the defendant.” Rule
32.2(b)(5)(B).
The Committee recognizes that there may be some overlap be-
tween the RICO statutory requirement for forfeiture and the nexus
requirement of Rule 32.2(b)(5)(B). The Committee has included
both requirements in this instruction. See the Pattern Instruction
defining the word “nexus.”
1963(a)(3)
STATUTORY INSTRUCTIONS
844
18 U.S.C. § 1963(a)(3) DEFINITION OF
“PROCEEDS”
The term “proceeds” means the net proceeds, or
profits, remaining after deducting all of the direct
ordinary and necessary expenses, if any, incurred in
acquiring the proceeds.
Proceeds from a racketeering offense includes any
property later purchased with proceeds.
[Value added independently by the defendant is
not subject to forfeiture. Therefore, if you find that
proceeds obtained by the defendant were obtained
through lawful income, then the value of those proceeds
is not subject to forfeiture.]
Committee Comment
The Seventh Circuit has held that the word “proceeds” in the
RICO forfeiture statute means net proceeds, as opposed to gross
receipts. United States v. Genova, 333 F.3d 750, 761 (7th Cir. 2003);
United States v. Masters, 924 F.2d 1362, 1369–70 (7th Cir. 1991).
The definition of “net proceeds” is the same as recommended
for certain money laundering offenses committed before May 20,
2009. See the Pattern Instruction defining “net proceeds.”
United States v. Santos, 553 U.S. 507 (2008) (plurality
opinion), found that the word “proceeds,” as used in the criminal
money laundering statute, 18 U.S.C. § 1956, means profits, not
gross receipts. The Seventh Circuit has not ruled on whether
Santos applies in the forfeiture context. The Committee takes no
position on this issue. For money laundering offenses alleged to
have occurred after May 20, 2009, however, the Fraud Enforce-
ment and Recovery Act of 2009 (FERA), Pub. L. No. 111-21, over-
ruled Santos by inserting an explicit definition of proceeds: “the
term ‘proceeds’ means any property derived from or obtained or
retained, directly or indirectly, through some form of unlawful
activity, including the gross receipts of such activity.” 18 U.S.C.
§ 1956(c)(9). FERA, however, did not define “proceeds” for purposes
of the RICO forfeiture statute.
1963(a)(3)
CRIMINAL INSTRUCTIONS
845
18 U.S.C. § 1963(b) DEFINITION OF
“PROPERTY”
The word “property” includes [real property[,
including things growing on, affixed to and found in
land]; tangible things and intangible personal prop-
erty[, including [rights; privileges; interests; claims;
securities]].
1963(b)
STATUTORY INSTRUCTIONS
846
FORFEITURE VERDICT FORM
[A] Special Forfeiture Verdict Form[s] [has; have]
been prepared for you. [Judge reads verdict form.] Once
you have unanimously agreed on the matters in the
Special Forfeiture Verdict Form[s], please sign [it;
them] and return [it; them] to me through the Court
Security Officer.
Committee Comment
If a party makes a timely request for a jury determination on
the issue of forfeiture, “the government must submit a Special
Verdict Form listing each property subject to forfeiture and asking
the jury to determine whether the government has established the
requisite nexus between the property and the offense committed
by the defendant.” Fed. R. Crim. P. 32.2(b)(5)(B).
United States v. Tedder, 403 F.3d 836, 841 (7th Cir. 2005),
suggests that a jury in a forfeiture proceeding need not make find-
ings as to the amount subject to forfeiture:
Although Fed. R. Crim. P. 32.2 offers the defendant a jury
trial, this provision (unlike the sixth amendment) is limited to
the nexus between the funds and the crime; Rule 32.2 does not
entitle the accused to a jury’s decision on the amount of the
forfeiture. Even if it did, the rule would not foreclose what
amounts to summary judgment or remittitur; as those
procedures are compatible with the Seventh Amendment’s
jury-trial right in civil cases.
1963(b)
CRIMINAL INSTRUCTIONS
847
18 U.S.C. § 2113(a) BANK ROBBERY—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] bank robbery. In order for you to find [the; a]
defendant guilty of this charge, the government must
prove each of the [three] following elements beyond a
reasonable doubt:
1. The defendant [took; attempted to take] from
the person or presence of another [money; property;
specific thing of value] belonging to or in the care,
custody, control, management or possession of [name
bank, savings and loan, or credit union named in the
indictment]; and
2. At the time the defendant [took; attempted to
take] the [money; property; specific thing of value], the
deposits of the [bank; savings and loan; credit union]
were insured by the [Federal Deposit Insurance Corpo-
ration; Federal Savings and Loan Insurance Corpora-
tion; National Credit Union Administration]; and
3. The defendant acted to take such [money; prop-
erty; specific thing of value] by force and violence, or by
intimidation.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
2113(a)
STATUTORY INSTRUCTIONS
848
Committee Comment
The bank robbery statute covers “any bank operating under
the law of the United States” regardless of the status of insurance.
There are such banks, and the instruction should be tailored to the
situation, if appropriate.
A conviction under 2113(a), ¶ 1, requires proof that the
defendant actually used force and violence or intimidation; an at-
tempt to use force and violence or intimidation will not suffice.
United States v. Thornton, 539 F.3d 741, 747 (7th Cir. 2008)
(concluding that “the ‘attempt’ language relates only to the taking
and not to the intimidation”); see also United States v. Bellew, 369
F.3d 450 (5th Cir. 2004).
The statute, at § 2113(a), ¶ 1, includes a means of violation for
whoever “obtains or attempts to obtain by extortion.” If a defendant
is charged with this means of violating the statute, the instruction
should be adapted accordingly.
2113(a)
CRIMINAL INSTRUCTIONS
849
18 U.S.C. § 2113(a) DEFINITION OF
“INTIMIDATION”
“Intimidation” means to say or do something that
would make an ordinary person feel threatened, by giv-
ing rise to a reasonable fear that resistance or defiance
will be met with force. [The government is not required
to prove that the target of the intimidation actually felt
threatened.]
Committee Comment
United States v. Williams, 864 F.3d 826, 827 (7th Cir. 2017)
(“Intimidation means threatened force capable of causing bodily
harm and therefore constitutes violent force. Intimidation exists
when a bank robber’s words and actions would cause an ordinary
person to feel threatened by giving rise to a reasonable fear that
resistance or defiance will be met with force.”) (internal citations
omitted).
The jury need not find that the target of intimidation was
actually afraid; rather, the element is satisfied if an ordinary
person would reasonably feel threatened under the circumstances.
United States v. Hill, 187 F.3d 698, 702 (7th Cir. 1999); see also
United States v. Gordon, 642 F.3d 596, 598 (7th Cir. 2011); United
States v. Thornton, 539 F.3d 741, 748 (7th Cir. 2008); United States
v. Burnley, 533 F.3d 901, 903 (7th Cir. 2008). Accordingly, the
bracketed language is recommended for use only in cases in which
an issue is raised regarding whether the target of the intimidation
was actually put in fear.
A defendant need not brandish a weapon or make express
threats of injury. See United States v. Clark, 227 F.3d 771, 774–75
(7th Cir. 2000); Hill, 187 F.3d at 701–02.
The jury need not agree unanimously as to the means
employed to place such a reasonable person in fear. See Richardson
v. United States, 526 U.S. 813, 817 (1999). For example, some
jurors may conclude that the defendant intimidated by brandish-
ing a weapon while others conclude that intimidation was
established without traditional overt gestures.
2113(a)
STATUTORY INSTRUCTIONS
850
18 U.S.C. § 2113(a) ENTERING TO COMMIT
BANK ROBBERY OR ANOTHER FELONY—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] entering to commit bank robbery or another
felony. In order for you to find [the; a] defendant guilty
of this charge, the government must prove each of the
[three] following elements beyond a reasonable doubt:
1. The defendant [entered; attempted to enter]
[name bank, savings and loan, credit union, or building
used in whole or in part as a bank, savings and loan, or
credit union named in the indictment]; and
2. The defendant [entered; attempted to enter]
the [bank; savings and loan; credit union; building] with
the intent to commit a felony or larceny affecting such
[bank; savings and loan; credit union; building]; and
3. At the time the defendant [entered; attempted
to enter] the [bank; savings and loan; credit union;
building], the deposits of the [bank; savings and loan;
credit union; building] were insured by the [Federal De-
posit Insurance Corporation; Federal Savings and Loan
Insurance Corporation; National Credit Union
Administration].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
2113(a)
CRIMINAL INSTRUCTIONS
851
Committee Comment
The intended felony or larceny need not be accomplished. See
Brunjes v. United States, 329 F.2d 339, 341 (7th Cir. 1964); United
States v. Goudy, 792 F.2d 664, 677 (7th Cir. 1986).
Larceny is defined for purposes of § 2113(a) as the conduct
proscribed in § 2113(b). See Jerome v. United States, 318 U.S. 101,
105–06 (1943). In cases charging the defendant with entering with
intent to commit a larceny under § 2113(a), the jury should be
instructed as to larceny in accordance with Pattern Instruction 18
U.S.C. § 2113(b), Bank Theft.
The statute includes “any bank operating under the laws of
the United States” regardless of the status of insurance. There are
such banks, and the instruction should be tailored to the situation,
if appropriate.
2113(a)
STATUTORY INSTRUCTIONS
852
18 U.S.C. § 2113(b) BANK THEFT—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] bank theft. In order for you to find [the; a]
defendant guilty of this charge, the government must
prove each of the [four] following elements beyond a
reasonable doubt:
1. The defendant took and carried away [prop-
erty; money; something of value] belonging to or in the
[care; custody; control; management] of [name bank,
credit union, or savings and loan named in the indict-
ment]; and
2. At the time the defendant took and carried
away such [property; money; something of value], the
deposits of the [bank; credit union; savings and loan]
were insured by the [Federal Deposit Insurance Corpo-
ration; Federal Savings and Loan Insurance Corpora-
tion; National Credit Union Administration]; and
3. The defendant took and carried away such
[property; money; thing of value] with the intent to
steal; and
4. Such [money; property; thing of value] exceeded
$1,000 in value.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
2113(b)
CRIMINAL INSTRUCTIONS
853
Committee Comment
Section 2113(b) contains a lesser included misdemeanor where
the value of the money or property does not exceed $1,000. The
Committee has drafted this instruction to be used in felony cases.
Where the crime charged is a misdemeanor, the fourth element of
the instruction should read: “Fourth, such [money; property; thing
of value] did not exceed $1,000 in value.” If there is a real dispute
as to whether the value of the money or property exceeded $1,000,
the Committee recommends that two separate instructions be
given as opposed to use of a special interrogatory.
The scope of 18 U.S.C. § 2113(b) is not limited to common law
larceny. It also proscribes the crime of taking under false
pretenses. Bell v. United States, 462 U.S. 356, 362 (1983); see also
United States v. Kucik, 844 F.2d 493, 494 (7th Cir. 1988).
The Supreme Court has held that § 2113(b) is not a lesser
included offense of § 2113(a). Carter v. United States, 530 U.S. 255,
274 (2000).
The statute includes “any bank operating under the laws of
the United States” regardless of the status of insurance. There are
such banks, and the instruction should be tailored to the situation,
if appropriate.
2113(b)
STATUTORY INSTRUCTIONS
854
18 U.S.C. § 2113(b) DEFINITION OF “STEAL”
“Steal” means to take with the intent to deprive
the owner of the rights and benefits of ownership.
Committee Comment
“Steal” for the purposes of § 2113(b) means “felonious takings
with intent to deprive the owner of rights and benefits of
ownership.” United States v. Kucik, 909 F.2d 206, 212 (7th Cir.
1990); United States v. Goudy, 792 F.2d 664, 677 (7th Cir. 1986);
see also United States v. Guiffre, 576 F.2d 126, 128 (7th Cir. 1978).
2113(b)
CRIMINAL INSTRUCTIONS
855
18 U.S.C. § 2113(c) POSSESSION OF STOLEN
BANK MONEY OR PROPERTY—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] possession of stolen bank money or property. In
order for you to find [the; a] defendant guilty of this
charge, the government must prove each of the [four]
following elements beyond a reasonable doubt:
1. The defendant [received; possessed; concealed;
stored; bartered; sold; disposed of] any [property;
money; thing of value] having a value in excess of
$1,000; and
2. The [property; money; thing of value] was taken
from [name bank, savings and loan, or credit union
described in the indictment]; and
3. At the time the property was taken, the deposits
of the [bank; savings and loan; credit union] were
insured by the [Federal Deposit Insurance Corporation;
Federal Savings and Loan Insurance Corporation;
National Credit Union Administration]; and
4. The defendant knew that the [money; property;
thing of value] was stolen when he [possessed; received;
concealed; stored; bartered; sold; disposed of] it.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
2113(c)
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Committee Comment
Section 2113(c) contains a lesser included misdemeanor of-
fense where the value of the money or property does not exceed
$1,000. The Committee has drafted this instruction to be used in
felony cases. Where the crime charged is a misdemeanor, the first
element of the instruction should read: “First, the defendant
[received; possessed; concealed; stored; bartered; sold; disposed of;
property; money; a thing of value] having a value of $1,000 or
less.” If there is a real dispute as to whether the value of the money
or property exceeds $1,000, the Committee recommends that two
separate instructions be given as opposed to use of a special
interrogatory.
The statute includes “any bank operating under the laws of
the United States” regardless of the status of insurance. There are
such banks, and the instruction should be tailored to the situation,
if appropriate.
The defendant need not know the exact bank robbed or that
the bank was FDIC insured in order to satisfy the knowledge
element. It is sufficient that the defendant knew he was possess-
ing, concealing, or disposing of money stolen from a banking
institution. United States v. Kaplan, 586 F.2d 980, 982 (2d Cir.
1978); United States v. Whitney, 425 F.2d 169, 171 (8th Cir. 1970);
United States v. Bolin, 423 F.2d 834, 836 (9th Cir. 1970); Nelson v.
United States, 415 F.2d 483, 486 (5th Cir. 1969).
There is a conflict between the circuits as to whether punish-
ment under Section 2113(c) is measured by the value of the prop-
erty received by the defendant or by the value of the property
taken by the thief. In one circuit, the degree of punishment is
determined by the value of the stolen property received or pos-
sessed by the defendant. United States v. Evans, 446 F.2d 998,
1001 (8th Cir. 1971). The predominant view allocates punishment
according to the amount stolen from the bank. See United States v.
Ross, 286 F.3d 1307 (11th Cir. 2002); United States v. Bolin, 423
F.2d 834, 835 (9th Cir. 1970); United States v. Wright, 540 F.2d
1247, 1248 (4th Cir. 1976); United States v. McKenzie, 441 F. Supp.
244, 247 (E.D. Pa. 1977), aff’d without opinion, 557 F.2d 729 (3d
Cir. 1978). Under this majority view, the defendant possessing
under $100 of the stolen money need not have knowledge that over
$100 was stolen in order to be punished as a felon under Section
2113(b). The Seventh Circuit apparently agrees with the majority
view. It cited Bolin, supra, with approval, stating: “The purpose
behind statutes penalizing the knowing receipt of stolen goods is
not only to discourage the actual receipt, but also to discourage the
2113(c)
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857
initial taking that the receipt encourages.” United States v. Gardner,
516 F.2d 334, 349 (7th Cir. 1975).
2113(c)
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858
18 U.S.C. § 2113(d) ARMED BANK ROBBERY—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] armed bank robbery. In order for you to find [the;
a] defendant guilty of this charge, the government must
prove each of the [four] following elements beyond a
reasonable doubt:
1. The defendant took or attempted to take, from
the person or presence of another [money; property; a
thing of value] belonging to or in the [care; custody;
control; management; possession] of [name bank, sav-
ings and loan, or credit union named in the indictment];
and
2. At the time the defendant [took; attempted to
take] the [money; property; thing of value], the deposits
of the [bank; savings and loan; credit union] were
insured by the [Federal Deposit Insurance Corporation;
Federal Savings and Loan Insurance Corporation;
National Credit Union Administration]; and
3. The defendant took or attempted to take such
[money; property; thing of value] by means of force and
violence, or by means of intimidation; and
4. The defendant assaulted or put in jeopardy the
life of [name person(s) named in the indictment] by the
use of a dangerous weapon or device, while committing
or attempting to commit the robbery.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
2113(d)
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859
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The statute includes “any bank operating under the laws of
the United States” regardless of the status of insurance. There are
such banks, and the instruction should be tailored to the situation,
if appropriate.
The phrase, “use of a dangerous weapon or device” modifies
both the “assault” and the “jeopardy” portions of § 2113(d). Simpson
v. United States, 435 U.S. 6, 11 n.6 (1978). If only the latter was
modified, the “assault” would be equated with the “force or
violence” aspect of § 2113(a) so as to justify the additional five year
penalty of § 2113(d). When considering whether the defendant “as-
saulted” someone by the use of a dangerous weapon or device, the
jury should consider the reasonable fears of the victims. United
States v. Simmons, 581 F.3d 582, 586 (7th Cir. 2009); United States
v. Smith, 103 F.3d 600, 605 (7th Cir. 1996).
For a definition of “intimidation” see Pattern Instruction 18
U.S.C. § 2113(a).
A defendant may be sentenced to a consecutive term pursuant
to § 924(c) for using a firearm in a bank robbery in addition to the
extra five years authorized under § 2113(d). United States v.
Gonzales, 520 U.S. 1, 10 11 (1997); United States v. Loniello, 610
F.3d 488, 495 (7th Cir. 2010); United State v. Harris, 832 F.2d 88
(7th Cir. 1987).
2113(d)
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860
18 U.S.C. § 2113(d) DEFINITION OF “ASSAULT”
“Assault” means to intentionally attempt or
threaten to inflict bodily injury upon another person
with the apparent and present ability to cause such
injury that creates in the victim a reasonable fear or
apprehension of bodily harm. An assault may be com-
mitted without actually touching, striking, or injuring
the other person.
Committee Comment
See, e.g., United States v. Vallery, 437 F.3d 626, 631 (7th Cir.
2006); United States v. Smith, 103 F.3d 600, 605 (7th Cir. 1996);
United States v. Rizzo, 409 F.2d 400, 402–03 (7th Cir. 1969).
2113(d)
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861
18 U.S.C. § 2113(d) DEFINITION OF “PUT IN
JEOPARDY THE LIFE OF” A PERSON
“Put in jeopardy the life of” a person means to
knowingly do an act which exposes another person to
risk of death. In considering this element, you must
focus on the actual risk of death created by the use of
the dangerous weapon or device. This risk might
include direct risk to bank employees and indirect risk
through a violent response by a customer or the police.
Committee Comment
In United States v. Smith, 103 F.3d 600, 605 (7th Cir. 1996),
the Seventh Circuit reviewed the “put in jeopardy” language and
concluded that the focus of the analysis should be on the actual
risk created by the robber’s use of a dangerous weapon. See also
United States v. Simmons, 581 F.3d 582, 586 (7th Cir. 2009).
2113(d)
STATUTORY INSTRUCTIONS
862
18 U.S.C. § 2113(d) DEFINITION OF
“DANGEROUS WEAPON OR DEVICE”
A “dangerous weapon or device” means any object
that can be used to inflict severe bodily harm or injury.
The object need not actually be capable of inflicting
harm or injury. Rather, an object is a dangerous weapon
or device if it, or the manner in which it is used, would
cause fear in the average person.
Committee Comment
See McLaughlin v. United States, 476 U.S. 16, 17–18 (1986)
(holding that an unloaded handgun is a “dangerous weapon” within
the meaning of § 2113(d) because “a gun is typically and character-
istically dangerous;” “the display of a gun instills fear in the aver-
age citizen,” consequently “it creates an immediate danger that a
violent response will ensue”; and “a gun can cause harm when
used as a bludgeon”); United States v. Beckett, 208 F.3d 140, 152
(3d Cir. 2000) (holding hoax bombs qualified as dangerous weapons
under § 2113(d)); see also United States v. Woods, 556 F.3d 616,
623 (7th Cir. 2009) (relying on McLaughlin and concluding that
BB guns qualify as dangerous weapons under U.S.S.G.
§ 2B3.1(b)(2)(E)).
2113(d)
CRIMINAL INSTRUCTIONS
863
18 U.S.C. § 2113(e) KIDNAPPING OR MURDER
DURING A BANK ROBBERY—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [kidnapping; murder] during a bank robbery. In
order for you to find [the; a] defendant guilty of this
charge, the government must prove each of the [three]
following elements beyond a reasonable doubt:
1. The defendant [killed [specify person[s] named
in the indictment]; forced [specify person[s] named in
the indictment] to accompany the defendant without
the consent of [specify person[s] named in the indict-
ment]]; and
2. The defendant performed such act or acts dur-
ing the course of [committing any offense defined in 18
U.S.C. § 2113; avoiding or attempting to avoid ap-
prehension for the commission of such offense; freeing
himself or attempting to free himself from arrest or
confinement for such offense]; and
3. At the time the defendant acted, the deposits of
[name bank, credit union, or savings and loan, named
in the indictment] were insured by the [Federal Deposit
Insurance Corporation; Federal Savings and Loan In-
surance Corporation; National Credit Union
Administration].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
2113(e)
STATUTORY INSTRUCTIONS
864
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The statute includes “any bank operating under the laws of
the United States” regardless of the status of insurance. There are
such banks, and the instruction should be tailored to the situation,
if appropriate.
To satisfy the “forced accompaniment” aspect, a defendant
need not make a victim travel a substantial distance, Whitfield v.
United States, 574 U.S. 265, 270 (2015) (defendant forced victim to
accompany him four to nine feet; “a bank robber ‘forces a person to
accompany him’ for purposes of § 2113(e) when he forces that
person to go somewhere with him, even if the movement occurs
entirely within a single building or over a short distance.”).
2113(e)
CRIMINAL INSTRUCTIONS
865
18 U.S.C. § 2114(a) ASSAULT WITH INTENT TO
ROB MAIL MATTER, MONEY, OR OTHER
PROPERTY OF THE UNITED STATES—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] assault with intent to rob [mail matter; money of
the United States; property of the United States]. In or-
der for you to find [the; a] defendant guilty of this
charge, the government must prove both of the follow-
ing elements beyond a reasonable doubt:
1. The defendant assaulted the person of another
having lawful [charge; control; custody] of [mail matter;
money of the United States; property of the United
States]; and
2. While committing the assault the defendant
intended to rob or steal such property.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
In United States v. Smithen, 213 F.3d 1342, 1344 (11th Cir.
2000), the court held that a conviction under the statute does not
require proof that defendant knew that the property belonged to
the United States; the property ownership provision was merely a
jurisdictional requirement. See also United States v. Roundtree,
527 F.2d 16, 18–19 (8th Cir. 1975) (holding that a conviction under
2114(a)
STATUTORY INSTRUCTIONS
866
18 U.S.C. § 2112 does not require proof that the defendant knew
that the money he had stolen belonged to the United States); United
States v. Boyd, 446 F.2d 1267, 1274 (5th Cir. 1971) (18 U.S.C.
§ 641, which punishes theft, embezzlement, or knowing conversion
of personal property belonging to the United States, does not
require proof of knowledge that the property belongs to the United
States to sustain a conviction).
For a definition of “assault” see Pattern Instruction 18 U.S.C.
§ 2113(d).
2114(a)
CRIMINAL INSTRUCTIONS
867
18 U.S.C. § 2114(a) ROBBERY OR ATTEMPTED
ROBBERY OF MAIL MATTER, MONEY, OR
OTHER PROPERTY OF THE UNITED STATES—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [robbery; attempted robbery] of [mail matter;
money of the United States; property of the United
States]. In order for you to find [the; a] defendant guilty
of this charge, the government must prove both of the
following elements beyond a reasonable doubt:
1. The defendant took [mail matter; money of the
United States; property of the United States] from the
person or presence of another having lawful [charge;
control; custody] of such property; and
2. The defendant took such property by means of
force and violence, or by means of intimidation.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The Committee has drafted this instruction for cases where
the defendant took mail matter, money or other property of the
United States. The statute applies to attempts to rob as well.
Where the charge is that the defendant attempted to rob, “at-
tempted to take” should be substituted for “take” in the first and
second elements.
2114(a)
STATUTORY INSTRUCTIONS
868
In United States v. Smithen, 213 F.3d 1342, 1344 (11th Cir.
2000), the court held that a conviction under the statute does not
require proof that defendant knew that the property belonged to
the United States; the property ownership provision was merely a
jurisdictional requirement. See also United States v. Roundtree,
527 F.2d 16, 18–19 (8th Cir. 1975) (holding that a conviction under
18 U.S.C. § 2112 does not require proof that the defendant knew
that the money he had stolen belonged to the United States); United
States v. Boyd, 446 F.2d 1267, 1274 (5th Cir. 1971) (holding that
an analogous provision, 18 U.S.C. § 641, which punishes theft,
embezzlement, or knowing conversion of personal property belong-
ing to the United States, does not require proof of knowledge that
the property belongs to the United States to sustain a conviction).
The possession of mail matter or any money or other property
of the United States by the person whom the defendant attempts
to rob is an essential element of § 2114(a). See United States v.
Salgado, 519 F.3d 411, 413–14 (7th Cir. 2008). See also United
States v. Thornton, 539 F.3d 741, 747 (7th Cir. 2008) (conviction
for attempted bank robbery under 18 U.S.C. § 2113 requires proof
of actual force and violence or intimidation).
For a definition of “intimidation,” see Pattern Instruction 18
U.S.C. § 2113(a).
2114(a)
CRIMINAL INSTRUCTIONS
869
18 U.S.C. § 2114(a) WOUNDING OR PUTTING A
LIFE IN JEOPARDY DURING A ROBBERY OR
ATTEMPTED ROBBERY OF MAIL MATTER,
MONEY, OR OTHER PROPERTY OF THE
UNITED STATES—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [wounding; putting a life in jeopardy] during a
[robbery; attempted robbery] of [mail matter; money of
the United States; property of the United States]. In or-
der for you to find [the; a] defendant guilty of this
charge, the government must prove each of the [three]
following elements beyond a reasonable doubt:
1. The defendant took [mail matter; money of the
United States; property of the United States] from the
person or presence of [name of person having lawful
[charge; control; custody] of such property]; and
2. The defendant took such property by means of
force and violence, or by means of intimidation; and
3. The defendant [wounded [name person having
[charge; control; custody] of such [mail matter; money
of the United States; property of the United States]];
put the life of [name of person who had [charge; control;
custody] of such [mail matter; money of the United
States; property of the United States]] in jeopardy by
use of a dangerous weapon].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
2114(a)
STATUTORY INSTRUCTIONS
870
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The Committee has drafted this instruction for cases where
the defendant took mail matter, money or other property of the
United States, and in doing so, wounded a person who had charge,
control or custody of the mail matter, etc. or put the life of that
person in jeopardy by the use of a dangerous weapon. The statute
applies to attempts to rob as well. Where the charge is that the
defendant attempted to rob, “attempted to take” should be
substituted for “took” in the first and second elements. Violations
of this portion of § 2114(a) in an enhanced penalty, that is,
imprisonment for up to 25 years.
In United States v. Smithen, 213 F.3d 1342, 1344 (11th Cir.
2000), the court held that a conviction under the statute does not
require proof that defendant knew that the property belonged to
the United States; the property ownership provision was merely a
jurisdictional requirement. See also United States v. Roundtree,
527 F.2d 16, 18–19 (8th Cir. 1975) (holding that a conviction under
18 U.S.C. § 2112 does not require proof that the defendant knew
that the money he had stolen belonged to the United States); United
States v. Boyd, 446 F.2d 1267, 1274 (5th Cir. 1971) (holding that
an analogous provision, 18 U.S.C. § 641, which punishes theft,
embezzlement, or knowing conversion of personal property belong-
ing to the United States, does not require proof of knowledge that
the property belongs to the United States to sustain a conviction).
The possession of mail matter or any money or other property
of the United States by the person whom the defendant attempts
to rob is an essential element of § 2114(a). See United States v.
Salgado, 519 F.3d 411, 413–14 (7th Cir. 2008); see also United
States v. Thornton, 539 F.3d 741, 747 (7th Cir. 2008) (conviction
for attempted bank robbery under § 2113 requires proof of actual
force and violence or intimidation).
For a definition of “intimidation,” see Pattern Instruction 18
U.S.C. § 2113(a).
2114(a)
CRIMINAL INSTRUCTIONS
871
18 U.S.C. § 2114(b) RECEIPT, POSSESSION,
CONCEALMENT, OR DISPOSAL OF STOLEN
MAIL MATTER, MONEY, OR OTHER PROPERTY
OF THE UNITED STATES—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [receipt; possession; concealment; disposal] of
stolen [mail matter; money of the United States; prop-
erty of the United States]. In order for you to find [the;
a] defendant guilty of this charge, the government must
prove each of the [three] following elements beyond a
reasonable doubt:
1. The defendant [received; possessed; concealed;
disposed of] any [mail matter; money of the United
States; property of the United States]; and
2. Such property was obtained by [assault; rob-
bery]; and
3. The defendant had knowledge that the [mail
matter; money of the United States; property of the
United States] had been obtained unlawfully.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
2114(b)
STATUTORY INSTRUCTIONS
872
18 U.S.C. § 2241(a) AGGRAVATED SEXUAL
ABUSE—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] aggravated sexual abuse. In order for you to find
[the; a] defendant guilty of this charge, the government
must prove both of the following elements beyond a
reasonable doubt:
1. The defendant knowingly caused [the person
named in the indictment] to engage in a sexual act:
(a) by using force against [the person named
in the indictment]; or
(b) by [threatening [the person named in the
indictment] that some person would be subject to
death, serious bodily injury or kidnapping; placing
[the person named in the indictment] in fear that
some person would be subject to death, serious
bodily injury or kidnapping]; and
2. The offense was committed at [location stated
in indictment, e.g., federal prison].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
2241(a)
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873
Committee Comment
Acts that fall within the meaning of “sexual act” are listed in
18 U.S.C. § 2246(2).
“Sexual act” is defined in a Pattern Instruction related to 18
U.S.C. § 2246(2).
2241(a)
STATUTORY INSTRUCTIONS
874
18 U.S.C. § 2241(b)(1) AGGRAVATED SEXUAL
ABUSE—RENDERING VICTIM UNCONSCIOUS—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] aggravated sexual abuse. In order for you to find
[the; a] defendant guilty of this charge, the government
must prove each of the [three] following elements be-
yond a reasonable doubt:
1. The defendant knowingly rendered [the person
identified in the indictment] unconscious; and
2. The defendant then engaged in a sexual act
with [the person identified in the indictment]; and
3. The offense was committed at [location stated
in indictment, e.g., federal prison].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
Acts that fall within the meaning of “sexual act” are listed in
18 U.S.C. § 2246(2).
“Sexual act” is defined in a Pattern Instruction related to 18
U.S.C. § 2246(2).
2241(b)(1)
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875
18 U.S.C. § 2241(b)(2) AGGRAVATED SEXUAL
ABUSE—ADMINISTRATION OF DRUG,
INTOXICANT OR OTHER SUBSTANCE—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] aggravated sexual abuse. In order for you to find
[the; a] defendant guilty of this charge, the government
must prove each of the [four] following elements beyond
a reasonable doubt:
1. The defendant knowingly administered a drug,
intoxicant or other similar substance to [the person
named in the indictment] by [force; threat of force;
without the knowledge or permission of [the person
named in the indictment]]; and
2. As a result, [the person named in the indict-
ment]’s ability to evaluate or control his own conduct
was substantially impaired; and
3. The defendant then engaged in a sexual act
with [the person named in the indictment]; and
4. The offense was committed at [location stated
in indictment, e.g., federal prison].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
2241(b)(2)
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876
Committee Comment
Acts that fall within the meaning of “sexual act” are listed in
18 U.S.C. § 2246(2).
“Sexual act” is defined in a Pattern Instruction related to 18
U.S.C. § 2246(2).
If the charged offense is an attempt, the Court should modify
the elements instruction accordingly, and provide the general
instructions regarding the definition of attempt.
2241(b)(2)
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877
18 U.S.C. § 2241(c) AGGRAVATED SEXUAL
ABUSE OF CHILD—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
———
of the indictment charge[s] the defen-
dant[s] with] aggravated sexual abuse of a child. In or-
der for you to find [the; a] defendant guilty of this
charge, the government must prove both of the follow-
ing elements beyond a reasonable doubt:
1. The defendant traveled across a state line; and
2. The defendant did so with intent to engage in a
sexual act with a person who had not attained the age
of twelve years.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
Subsection 2241(d) states that “[i]n a prosecution under
subsection (c) of this section, the Government need not prove that
the defendant knew that the other person engaging in the sexual
act had not attained the age of 12 years.” At least one court,
however, has held that this limitation does not apply in cases in
which the government charges the defendant with crossing state
lines with the intent to engage in a sexual act with a person under
the age of twelve. See Report, United States v. Vogel, No. 3:16-cr-
00045-wmc (W.D. Wis. Nov. 14, 2016), ECF No. 47. No court of ap-
peals, including the Seventh Circuit, has squarely addressed the
issue, and the Committee takes no view. But the parties and courts
should consider whether the government must prove that the
2241(c)
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878
defendant knew the age of the victim at the time the defendant
crossed state lines and, if not, how to instruct the jury accordingly.
Acts that fall within the meaning of “sexual act” are listed in
18 U.S.C. § 2246(2).
“Sexual act” is defined in a Pattern Instruction related to 18
U.S.C. § 2246(2).
2241(c)
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879
18 U.S.C. § 2241(c) AGGRAVATED SEXUAL
ABUSE OF A MINOR TWELVE TO SIXTEEN—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
———
of the indictment charge[s] the defen-
dant[s] with] aggravated sexual abuse. In order for you
to find [the; a] defendant guilty of this charge, the
government must prove each of the [four] following ele-
ments beyond a reasonable doubt:
1. The defendant knowingly engaged in a sexual
act with [the person named in the indictment]:
(a) by using force against [the person named
in the indictment]; or
(b) by [threatening [the person named in the
indictment]; placing [the person named in the
indictment] in fear that any person would be
subject to death, serious bodily injury, or kidnap-
ping]; and
2. The offense was committed [location stated in
indictment, e.g., in the special maritime or territorial
jurisdiction of the United States]; and
3. [The person identified in the indictment] was
at least twelve years old but less than sixteen years
old; and
4. The defendant was at least four years older
than [the person identified in the indictment].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
2241(c)
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880
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
Acts that fall within the meaning of “sexual act” are listed in
18 U.S.C. § 2246(2).
“Sexual act” is defined in a Pattern Instruction related to 18
U.S.C. § 2246(2).
2241(c)
CRIMINAL INSTRUCTIONS
881
18 U.S.C. § 2241(c) AGGRAVATED SEXUAL
ABUSE—RENDERING VICTIM UNCONSCIOUS,
MINOR TWELVE TO SIXTEEN—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] aggravated sexual abuse. In order for you to find
[the; a] defendant guilty of this charge, the government
must prove each of the [five] following elements beyond
a reasonable doubt:
1. The defendant knowingly rendered [the person
identified in the indictment] unconscious; and
2. The defendant then engaged in a sexual act
with [the person identified in the indictment]; and
3. The offense was committed at [location stated
in indictment, e.g., in the special maritime or territorial
jurisdiction of the United States]; and
4. [The person identified in the indictment] was
at least twelve years old but less than sixteen years
old; and
5. The defendant was at least four years older
than [the person identified in the indictment].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
2241(c)
STATUTORY INSTRUCTIONS
882
Committee Comment
Acts that fall within the meaning of “sexual act” are listed in
18 U.S.C. § 2246(2).
“Sexual act” is defined in a Pattern Instruction related to 18
U.S.C. § 2246(2).
2241(c)
CRIMINAL INSTRUCTIONS
883
18 U.S.C. § 2241(c) AGGRAVATED SEXUAL
ABUSE—ADMINISTRATION OF DRUG,
INTOXICANT OR OTHER SUBSTANCE, MINOR
TWELVE TO SIXTEEN—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] aggravated sexual abuse. In order for you to find
[the; a] defendant guilty of this charge, the government
must prove each of the [six] following elements beyond
a reasonable doubt:
1. The defendant knowingly administered a drug,
intoxicant or other similar substance to [the person
named in the indictment] by [force; threat of force]
[without the knowledge or permission of [the person
named in the indictment]]; and
2. As a result, [the person named in the indict-
ment]’s ability to evaluate or control conduct was
substantially impaired; and
3. The defendant then engaged in a sexual act
with [the person named in the indictment]; and
4. The offense was committed at [location stated
in indictment, e.g., in the special maritime or territorial
jurisdiction of the United States]; and
5. [The person identified in the indictment] was
at least twelve years old but less than sixteen years
old; and
6. The defendant was at least four years older
than [the person identified in the indictment].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
2241(c)
STATUTORY INSTRUCTIONS
884
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
Acts that fall within the meaning of “sexual act” are listed in
18 U.S.C. § 2246(2).
“Sexual act” is defined in a Pattern Instruction related to 18
U.S.C. § 2246(2).
2241(c)
CRIMINAL INSTRUCTIONS
885
18 U.S.C. § 2243(a) SEXUAL ABUSE OF MINOR—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] sexual abuse of a minor. In order for you to find
[the; a] defendant guilty of this charge, the government
must prove each of the [four] following elements beyond
a reasonable doubt:
1. That the defendant knowingly engaged in a
sexual act with [insert name of victim]; and
2. [Name of victim] had reached the age of twelve
years but had not yet reached the age of sixteen years;
and
3. [Name of victim] was at least four years youn-
ger than the defendant; and
4. That the defendant’s actions took place [within
the special maritime jurisdiction of the United States;
within the territorial jurisdiction of the United States;
in a Federal prison].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
2243(a)
STATUTORY INSTRUCTIONS
886
18 U.S.C. §§ 2243(a), 2423(b) & 2241(c)
CROSSING STATE LINE WITH INTENT TO
ENGAGE IN SEXUAL ACT WITH MINOR—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] interstate travel to sexually abuse a minor. In or-
der for you to find [the; a] defendant guilty of this
charge, the government must prove each of the [three]
following elements beyond a reasonable doubt:
1. That the defendant crossed a state line with
intent to engage in a sexual act with [name of victim];
and
2. [Name of victim] had reached the age of twelve
years but had not yet reached the age of sixteen years;
and
3. [Name of victim] was at least four years youn-
ger than the defendant.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
It is not necessary for the government to prove that a criminal
sexual act was the sole purpose for a defendant traveling from one
state to another. A person may have more than one dominant
purpose for traveling across a state line. Compare United States v.
2243(a), 2423(b) & 2241(c)
CRIMINAL INSTRUCTIONS
887
Vang, 128 F.3d 1065, 1070–72 (7th Cir. 1997) (interpreting 18
U.S.C. § 2423(b), the sex act must be a dominant, but need not be
the singular, purpose for travel), with United States v. McGuire ,
627 F.3d 622 (7th Cir. 2010) (one purpose, among others, for travel
must be to engage in the criminal sex act.); see also United States
v. Bonty, 383 F.3d 575, 578 (7th Cir. 2005) (“a defendant may have
more than one purpose” in engaging in the interstate travel).
2243(a), 2423(b) & 2241(c)
STATUTORY INSTRUCTIONS
888
18 U.S.C. § 2243(b) SEXUAL ABUSE OF PERSON
IN OFFICIAL DETENTION—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] sexual abuse of a ward. In order for you to find
[the; a] defendant guilty of this charge, the government
must prove each of the [three] following elements be-
yond a reasonable doubt:
1. The defendant knowingly engaged in a sexual
act with [name of victim]; and
2. At the time, [name of victim] was in official
detention at the [insert name of institution];
3. At the time, [name of victim] was under the
custodial, supervisory or disciplinary authority of the
defendant.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
2243(b)
CRIMINAL INSTRUCTIONS
889
18 U.S.C. § 2243(b) DEFINITION OF “OFFICIAL
DETENTION”
“Official detention” means detention [custody] by
[under the direction of] a Federal officer or employee,
following [arrest; surrender in lieu of arrest; a charge
or conviction of an offense].
Committee Comment
The Committee has selected the most frequently charged types
of “official detention.” The statute contains a more exhaustive list
which should be consulted in particular cases.
2243(b)
STATUTORY INSTRUCTIONS
890
18 U.S.C. § 2243(c)(1) DEFENSE OF
REASONABLE BELIEF OF MINOR’S AGE
It is a defense to the charge of sexual abuse of a
minor that the defendant reasonably believed that
[name of victim] had attained the age of 16 years. The
defendant has the burden of proving that it is more
probably true than not true that he reasonably believed
that [name of victim] had attained the age of 16 years.
If you find that the defendant reasonably believed
that [name of victim] had attained the age of 16 years,
you must find the defendant not guilty.
2243(c)(1)
CRIMINAL INSTRUCTIONS
891
18 U.S.C. §§ 2242 & 2244(a) ABUSIVE SEXUAL
CONTACT—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] abusive sexual contact. In order for you to find
[the; a] defendant guilty of this charge, the government
must prove each of the [three] following elements be-
yond a reasonable doubt:
1. That the defendant knowingly [engaged in;
caused] sexual contact with [name of victim]; and
2. That the defendant did so by [force; threaten-
ing [name of victim]; placing [name of victim] in fear];
and
3. That the defendant’s actions took place [within
the special maritime jurisdiction of the United States;
within the territorial jurisdiction of the United States;
in a Federal prison].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
2242 & 2244(a)
STATUTORY INSTRUCTIONS
892
18 U.S.C. §§ 2244(a)(2) ABUSIVE SEXUAL
CONTACT—INCAPACITATED VICTIM—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] abusive sexual contact. In order for you to find
[the; a] defendant guilty of this charge, the government
must prove each of the [three] following elements be-
yond a reasonable doubt:
1. That the defendant knowingly [engaged in;
caused] sexual contact with [name of victim]; and
2. [Name of victim] was [incapable of recognizing
the nature of the conduct; physically incapable of declin-
ing participation in that sexual contact; physically
incapable of communicating unwillingness to engage in
that sexual act]; and
3. That the defendant’s actions took place [within
the special maritime jurisdiction of the United States;
within the territorial jurisdiction of the United States;
in a Federal prison].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
2244(a)(2)
CRIMINAL INSTRUCTIONS
893
18 U.S.C. § 2244(b) ABUSIVE SEXUAL CONTACT
WITHOUT PERMISSION—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] abusive sexual contact. In order for you to find
[the; a] defendant guilty of this charge, the government
must prove each of the [three] following elements be-
yond a reasonable doubt:
1. The defendant knowingly had sexual contact
with [name of victim] at [name of institution], and
2. The sexual contact was without [name of
victim]’s permission.
3. The defendant’s actions took place [within the
special maritime jurisdiction of the United States;
within the territorial jurisdiction of the United States;
in a Federal prison].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
2244(b)
STATUTORY INSTRUCTIONS
894
18 U.S.C. § 2246(2) DEFINITION OF “SEXUAL
ACT”
As used in these instructions, the term “sexual act”
means
- [penetration, however slight, of the [vulva; anus]
by the penis]
- [contact between the mouth and the [penis;
vulva; anus]]
- [penetration, however slight, of the [anal;
genital] opening of another by [a hand; a finger; any
object] with an intent to abuse, humiliate, harass, or
degrade, arouse or gratify the sexual desire of any
person]
- [the intentional touching, not through the cloth-
ing, of the genitalia of another person who has not at-
tained the age of 16 years with an intent to abuse,
humiliate, harass, or degrade, or arouse or gratify the
sexual desire of any person].
2246(2)
CRIMINAL INSTRUCTIONS
895
18 U.S.C. § 2246(3) DEFINITION OF “SEXUAL
CONTACT”
As used in these instructions, the term “sexual
contact” means the intentional touching, either directly
or through the clothing, of the genitalia, anus, groin,
breast, inner thigh, or buttocks of any person with an
intent to abuse, humiliate, harass, or degrade, or to
arouse or gratify the sexual desire of any person.
2246(3)
STATUTORY INSTRUCTIONS
896
18 U.S.C. § 2250(a) FAILURE TO REGISTER/
UPDATE AS SEX OFFENDER—ELEMENTS
[The indictment charges the defendant[s] with]
[Count[s]
—
of the indictment charge[s] the defendant[s]
with] failing to register or update registration as a sex
offender. In order for you to find [the; a] defendant
guilty of this count, the government must prove each of
the [three] following elements beyond a reasonable
doubt:
1. The defendant was required to register under
the Sex Offender Registration and Notification Act; and
2. The defendant traveled in interstate or foreign
commerce; and
3. The defendant then knowingly failed to [regis-
ter; update his registration] as required by the Sex Of-
fender Registration and Notification Act.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the count
you are considering], then you should find the defendant
guilty [of that count].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the count you are considering], then you
should find the defendant not guilty [of that count].
Committee Comment
18 U.S.C. § 2250(a) provides an affirmative defense where un-
controllable circumstances prevented the individual from comply-
ing, the individual did not contribute to the creation of those cir-
cumstances, and the individual complied as soon as the
circumstances ceased to exist.
The Supreme Court addressed Section 2250(a) in Nichols v.
2250(a)
CRIMINAL INSTRUCTIONS
897
United States, 136 S. Ct. 1113 (2016), where it found that the fail-
ure to register as a sex offender under the Sex Offender Registra-
tion and Notification Act after traveling was the focus of the
offense. See also United States v. Haslage, 853 F.3d 331, 332 (7th
Cir. 2017) (“the failure to register after traveling” is the focus of
the crime). In Haslage, the court also addressed the question of the
proper venue for charges under this statute. Id. at 335 (venue is
proper “in the place of the new residence”).
“Interstate/foreign commerce” is defined in a pattern instruc-
tion that follows the instructions related to 18 U.S.C. § 1465.
The interstate or foreign commerce travel element is satisfied
by proof that the defendant has traveled from one state to another
state or to a foreign country after having been convicted of a
qualifying “sex offense.” See 42 U.S.C. § 16911(5). The interstate
or foreign travel may not precede the registration requirement.
See Carr v. United States, 560 U.S. 438 (2010).
The court should instruct regarding requirements of the Sex
Offender Registration and Notification Act. See 42 U.S.C. § 16901
et seq.
2250(a)
STATUTORY INSTRUCTIONS
898
18 U.S.C. § 2251(a) SEXUAL EXPLOITATION OF
CHILD—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] sexual exploitation of a child. In order for you to
find [the; a] defendant guilty of this charge, the govern-
ment must prove each of the [three] following elements
beyond a reasonable doubt:
1. At the time, [the person identified in the indict-
ment] was under the age of eighteen years; and
2. The defendant, for the purpose of [producing a
visual depiction; transmitting a live visual depiction] of
sexually explicit conduct:
(a) [employed; used; persuaded; induced;
enticed; coerced] [the person identified in the indict-
ment] to cause [the person identified in the indict-
ment] to engage in sexually explicit conduct; or
(b) had [the person identified in the indict-
ment] assist any other person to engage in sexually
explicit conduct; or
(c) transported [the person identified in the
indictment] [across state lines; in foreign commerce;
in any Territory or Possession of the United States]
with the intent that [the person identified in the
indictment] engage in sexually explicit conduct;
and
3.
(a) The defendant knew or had reason to
know that such visual depiction would be mailed or
transported across state lines or in foreign com-
merce; or
2251(a)
CRIMINAL INSTRUCTIONS
899
(b) The visual depiction was [produced; trans-
mitted] using materials that had been mailed,
shipped, transported across state lines or in foreign
commerce by any means, including by computer; or
(c) The visual depiction was mailed or actu-
ally transported across state lines or in foreign
commerce.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
It is not intended that this entire instruction would be given
to the jury. The options set forth as subparts (a), (b) and (c) in each
of the second and third elements are alternative means of setting
forth the elements of the offense.
Acts that fall within the meaning of “sexually explicit conduct”
are listed in 18 U.S.C. § 2256(2)(B).
“Sexually explicit conduct” is defined in Pattern Instruction 18
U.S.C. § 2256(2)(A).
“Producing” is defined in Pattern Instruction 18 U.S.C.
§ 2256(3).
“Visual depiction” is defined in Pattern Instruction 18 U.S.C.
§ 1466A(f)(1).
“Interstate/foreign commerce” is defined in a pattern instruc-
tion that follows the instructions related to 18 U.S.C. § 1465.
Knowledge of the age of the minor victim is not an element of
2251(a)
STATUTORY INSTRUCTIONS
900
the offense. United States v. Fletcher, 634 F.3d 395 (7th Cir. 2011);
United States v. United States District Court, 858 F.2d 534 (9th
Cir. 1988); see also United States v. X-Citement Video, Inc., 513
U.S. 64, 76 n.5 (1994) (“[P]roducers may be convicted under 2251(a)
without proof they had knowledge of age. . .”) (dicta).
A defendant who simply possesses, transports, reproduces, or
distributes child pornography does not sexually exploit a minor in
violation of 18 U.S.C. 2251, even though the materials possessed,
transported, reproduced, or distributed “involve” such sexual
exploitation by the producer. See United States v. Kemmish, 120
F.3d 937, 942 (9th Cir. 1997).
In United States v. Howard, 968 F.3d 717 (7th Cir. 2020), the
Seventh Circuit held that the word “use” in § 2251(a) does not
cover productions in which the minor is the “object of sexual inter-
est” of—but not engaged in—the sexually explicit conduct. As the
court wrote: “The most natural and contextual reading of the statu-
tory language requires the government to prove that the offender
took one of the listed actions to cause the minor to engage in sexu-
ally explicit conduct for the purpose of creating a visual image of
that conduct.” Id. at 721. Cases involving Part 2(a) of this instruc-
tion therefore require that the government prove that the employ-
ment, use, persuasion, inducement or coercion was done “to cause”
the minor to “engage in” the sexually explicit conduct.
2251(a)
CRIMINAL INSTRUCTIONS
901
18 U.S.C. § 2251(b) SEXUAL EXPLOITATION OF
CHILD—PERMITTING OR ASSISTING BY
PARENT OR GUARDIAN—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] sexual exploitation of a child. In order for you to
find [the; a] defendant guilty of this charge, the govern-
ment must prove each of the [four] following elements
beyond a reasonable doubt:
1. At the time, [the person identified in the indict-
ment] was under the age of eighteen years; and
2. The defendant was a [parent; legal guardian;
person having custody or control] of [the person identi-
fied in the indictment]; and
3. For the purpose of producing a visual depiction
of such conduct, the defendant knowingly permitted
[the person identified in the indictment] to:
(a) engage in sexually explicit conduct; or
(b) assist any other person to engage in sexu-
ally explicit conduct; and
4.
(a) the defendant knew or had reason to know
that the visual depiction would be mailed or
transported across state lines or in foreign com-
merce; or
(b) The visual depiction was [produced; trans-
mitted] using materials that had been mailed,
shipped, transported across state lines or in foreign
commerce; or
(c) The visual depiction was actually mailed
2251(b)
STATUTORY INSTRUCTIONS
902
or transported across state lines or in foreign
commerce.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
It is not intended that this entire instruction would be given
to the jury. The options set forth as subparts (a), (b) and (c) in each
of the third and fourth elements are alternative means of setting
forth the elements of the offense.
Acts that fall within the meaning of “sexually explicit conduct”
are listed in 18 U.S.C. § 2256(2)(B).
“Sexually explicit conduct” is defined in Pattern Instruction 18
U.S.C. § 2256(2)(A).
“Visual depiction” is defined in Pattern Instruction 18 U.S.C.
§ 1466A(f)(1).
“Custody or control” is defined in Pattern Instruction 18 U.S.C.
§ 2256(7).
“Interstate/foreign commerce” is defined in a pattern instruc-
tion that follows the instructions related to 18 U.S.C. § 1465.
2251(b)
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903
18 U.S.C. § 2251(c) SEXUAL EXPLOITATION OF
CHILD—CONDUCT OUTSIDE OF THE UNITED
STATES—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] sexual exploitation of a child. In order for you to
find [the; a] defendant guilty of this charge, the govern-
ment must prove each of the [four] following elements
beyond a reasonable doubt:
1. At the time, [the person identified in the indict-
ment] was under the age of eighteen years; and
2. The defendant knowingly [[employed; used;
persuaded; induced; enticed; coerced] [the person identi-
fied in the indictment] to engage in] [had [the person
identified in the indictment] assist any other person to
engage in] sexually explicit conduct outside of the
United States; and
3. The defendant did so for the purpose of produc-
ing a visual depiction of such conduct; and
4.
(a) the defendant intended the visual depic-
tion to be transported to the United States; or
(b) the defendant transported the visual
depiction to the United States.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
2251(c)
STATUTORY INSTRUCTIONS
904
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
“Sexually explicit conduct” is defined in Pattern Instruction 18
U.S.C. § 2256(2)(A).
“Visual depiction” is defined in Pattern Instruction 18 U.S.C.
§ 1466A(f)(1).
“Coercion” is defined in Pattern Instruction 18 U.S.C.
§ 1591(e)(2).
2251(c)
CRIMINAL INSTRUCTIONS
905
18 U.S.C. § 2251(d) PUBLISHING OF CHILD
PORNOGRAPHY—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] publishing of child pornography. In order for you
to find [the; a] defendant guilty of this charge, the
government must prove each of the [five] following ele-
ments beyond a reasonable doubt:
1. The defendant knowingly [made; printed;
published; caused to be [made; printed; published]] a
notice or advertisement; and
2. The notice or advertisement [sought; offered] to
[receive; exchange; buy; produce; display; distribute;
reproduce] a visual depiction; and
3.
(a) the production of the visual depiction
involved the use of [the person identified in the
indictment] engaging in sexually explicit conduct,
and the visual depiction is of the sexually explicit
conduct; or
(b) the defendant participated in any act of
sexually explicit conduct by or with [the person
identified in the indictment] for the purpose of pro-
ducing a visual depiction of the conduct; and
4. The defendant knew that [the person identified
in the indictment] was under the age of eighteen years;
and
5.
(a) the defendant knew or had reason to know
that the notice or advertisement would be trans-
ported using any means or facility of interstate or
2251(d)
STATUTORY INSTRUCTIONS
906
foreign commerce, including by computer or by
mail; or
(b) the notice or advertisement was trans-
ported using any means or facility of interstate or
foreign commerce, including by computer or by
mail.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
It is not intended that this entire instruction would be given
to the jury. The options set forth as subparts (a) and (b) in each of
the third and fifth elements are alternative means of setting forth
the elements of the offense.
Acts that fall within the meaning of “sexually explicit conduct”
are listed in 18 U.S.C. § 2256(2)(B).
“Sexually explicit conduct” is defined in Pattern Instruction 18
U.S.C. § 2256(2)(A).
“Visual depiction” is defined in Pattern Instruction 18 U.S.C.
§ 1466A(f)(1).
“Interstate/foreign commerce” is defined in a pattern instruc-
tion that follows the instructions related to 18 U.S.C. § 1465.
“Child pornography” is defined in Pattern Instruction 18
U.S.C. § 2256(8).
2251(d)
CRIMINAL INSTRUCTIONS
907
18 U.S.C. § 2251A(a) SELLING OF CHILDREN—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] selling [a child; children]. In order for you to find
[the; a] defendant guilty of this charge, the government
must prove each of the [four] following elements beyond
a reasonable doubt:
1. The defendant is the [parent; legal guardian; a
person having custody or control] of [the person identi-
fied in the indictment] and
(a) sold [the person identified in the indict-
ment]; or
(b) transferred custody or control of [the
person identified in the indictment]; or
(c) offered to sell [the person identified in the
indictment]; or
(d) offered to transfer custody of [the person
identified in the indictment]; and
2.
(a) the defendant knew that [the person
identified in the indictment] would be portrayed in
a visual depiction [engaging in; assisting another
person to engage in] sexually explicit conduct; or
(b) the defendant [sold; transferred; offered to
sell; offered to transfer custody]
(i) intending to promote having [the
person identified in the indictment] engage in
sexually explicit conduct; and
2251A(a)
STATUTORY INSTRUCTIONS
908
(ii) the defendant did so for the purpose
of producing a visual depiction of that conduct;
3. In the course of such conduct [[the person
identified in the indictment; the defendant] traveled in
interstate commerce; the offer to sell or transfer custody
or control of the minor was communicated or trans-
ported in interstate commerce or by mail]; and
4. [The person identified in the indictment] at the
time of the [sale; transfer; offer to sell; offer to transfer
custody] was under the age of eighteen years.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
Acts that fall within the meaning of “sexually explicit conduct”
are listed in 18 U.S.C. § 2256(2)(B).
“Sexually explicit conduct” is defined in Pattern Instruction 18
U.S.C. § 2256(2)(A).
“Producing” is defined in Pattern Instruction 18 U.S.C.
§ 2256(3).
“Custody or control” is defined in Pattern Instruction 18 U.S.C.
§ 2256(7).
“Interstate/foreign commerce” is defined in a pattern instruc-
tion that follows the instructions related to 18 U.S.C. § 1465.
“Visual depiction” is defined in Pattern Instruction 18 U.S.C.
§ 1466A(f)(1).
2251A(a)
CRIMINAL INSTRUCTIONS
909
A defendant who simply possesses, transports, reproduces, or
distributes child pornography does not sexually exploit a minor in
violation of 18 U.S.C. § 2251, even though the materials possessed,
transported, reproduced, or distributed “involve” such sexual
exploitation by the producer. See United States v. Kemmish, 120
F.3d 937, 942 (9th Cir. 1997); see also United States v. Angle, 598
F.3d 352, 358 (7th Cir. 2010) (sexual exploitation does not include
only possessing, accessing, receiving, or trafficking material).
2251A(a)
STATUTORY INSTRUCTIONS
910
18 U.S.C. § 2251A(b) PURCHASING OR
OBTAINING CHILDREN
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] purchasing or obtaining [a child; children]. In or-
der for you to find [the; a] defendant guilty of this
charge, the government must prove each of the [four]
following elements beyond a reasonable doubt:
1. The defendant:
(a) purchased [the person identified in the
indictment]; or
(b) obtained custody or control of [the person
identified in the indictment]; or
(c) offered to purchase [the person identified
in the indictment]; or
(d) offered to obtain custody or control of [the
person identified in the indictment];
2.
(a) the defendant knew that [the person
identified in the indictment] would be portrayed in
a visual depiction [engaging in; assisting another
person to engage in] sexually explicit conduct; or
(b) the defendant [purchased; obtained cus-
tody or control; offered to purchase; offered to
obtain custody or control] [the person identified in
the indictment]
(i) intending to promote having [the
person identified in the indictment] engage in
sexually explicit conduct; and
(ii) the defendant did so for the purpose
2251A(b)
CRIMINAL INSTRUCTIONS
911
of producing a visual depiction of that conduct;
and
3. In the course of such conduct [[the person
identified in the indictment]; the defendant] traveled in
interstate commerce; the offer to sell or transfer custody
or control of the minor was communicated or trans-
ported in interstate commerce or by mail]; and
4. [The person identified in the indictment] at the
time of the [purchase; obtaining custody or control; of-
fer to purchase; offer to obtain custody or control] was
under the age of eighteen years.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
Acts that fall within the meaning of “sexually explicit conduct”
are listed in 18 U.S.C. § 2256(2)(B).
“Sexually explicit conduct” is defined in Pattern Instruction 18
U.S.C. § 2256(2)(A).
“Producing” is defined in Pattern Instruction 18 U.S.C.
§ 2256(3).
“Visual depiction” is defined in Pattern Instruction 18 U.S.C.
§ 1466A(f)(1).
“Custody or control” is defined in Pattern Instruction 18 U.S.C.
§ 2256(7).
“Interstate/foreign commerce” is defined in a pattern instruc-
tion that follows the instructions related to 18 U.S.C. § 1465.
2251A(b)
STATUTORY INSTRUCTIONS
912
A defendant who simply possesses, transports, reproduces, or
distributes child pornography does not sexually exploit a minor in
violation of 18 U.S.C. § 2251, even though the materials possessed,
transported, reproduced, or distributed “involve” such sexual
exploitation by the producer. See United States v. Kemmish, 120
F.3d 937, 942 (9th Cir. 1997).
2251A(b)
CRIMINAL INSTRUCTIONS
913
18 U.S.C. § 2252A(a)(1) MAILING,
TRANSPORTING OR SHIPPING MATERIAL
CONTAINING CHILD PORNOGRAPHY—
ELEMENTS
[The indictment charges the defendant[s] with]
[Count[s]
—
of the indictment charge[s] the defendant[s]
with] [mailing; transporting; shipping] of material
containing child pornography. In order for you to find
[the; a] defendant guilty of this count, the government
must prove each of the [three] following elements be-
yond a reasonable doubt:
1. The defendant knowingly [mailed; transported
or shipped using any means or facility of interstate or
foreign commerce; transported or shipped in or affect-
ing interstate or foreign commerce by any means,
including by computer] the material identified in the
indictment;
2. [The material identified in the indictment] is
child pornography; and
3. The defendant knew both that the material
depicted one or more minor[s] and that the minor[s]
were engaged in sexually explicit conduct.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the count
you are considering], then you should find the defendant
guilty [of that count].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the count you are considering], then you
should find the defendant not guilty [of that count].
2252A(a)(1)
STATUTORY INSTRUCTIONS
914
Committee Comment
18 U.S.C. § 2252A encompasses the primary theories of prose-
cution under 18 U.S.C. § 2252. Accordingly, the committee has not
prepared pattern instructions for Section 2252.
“Child pornography” is defined in Pattern Instruction 18
U.S.C. § 2256(8).
“Interstate/foreign commerce” is defined in the pattern instruc-
tion that follows the instructions related to 18 U.S.C. § 1465.
“Minor” is defined in Pattern Instruction 18 U.S.C. § 2256(1).
“Sexually explicit conduct” is defined in Pattern Instruction 18
U.S.C. § 2256(2)(B).
In United States v. X-Citement Video, 513 U.S. 64, 77–78
(1994), the United States Supreme Court held that the “know-
ingly” requirement in Section 2252 extends to the minority status
of the person depicted in the image and the fact that the image
depicted sexually explicit conduct. See also United States v. Malik,
385 F.3d 758, 760 (7th Cir. 2004) (§§ 2252A and 2252 are “materi-
ally identical” and therefore the Supreme Court’s holding in
X-Citement Video applies to § 2252A); United States v. Rogers, 474
F. App’x 463, 476–77 (7th Cir. 2012).
2252A(a)(1)
CRIMINAL INSTRUCTIONS
915
18 U.S.C. § 2252A(a)(2)(A) RECEIPT OR
DISTRIBUTION OF CHILD PORNOGRAPHY—
ELEMENTS
[The indictment charges the defendant[s] with]
[Count[s]
—
of the indictment charge[s] the defendant[s]
with] [receipt; distribution] of child pornography. In or-
der for you to find [the; a] defendant guilty of this count,
the government must prove each of the [four] following
elements beyond a reasonable doubt:
1. The defendant knowingly [received; distributed]
[the material identified in the indictment]; and
2. [The material identified in the indictment] is
child pornography; and
3. The defendant knew both that the material
depicted one or more minors and that the minors were
engaged in sexually explicit conduct.
4. [The material identified in the indictment] was
[mailed; shipped or transported using a means or facil-
ity of interstate or foreign commerce; shipped or
transported in or affecting interstate or foreign com-
merce by any means, including by computer].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the count
you are considering], then you should find the defendant
guilty [of that count].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the count you are considering], then you
should find the defendant not guilty [of that count].
2252A(a)(2)(A)
STATUTORY INSTRUCTIONS
916
Committee Comment
“Child pornography” is defined in Pattern Instruction 18
U.S.C. § 2256(8).
“Interstate/foreign commerce” is defined in a pattern instruc-
tion that follows the instructions related to 18 U.S.C. § 1465.
“Minor” is defined in Pattern Instruction 18 U.S.C. § 2256(1).
“Sexually explicit conduct” is defined in Pattern Instruction 18
U.S.C. § 2256(2)(B).
In United States v. X-Citement Video, 513 U.S. 64, 77–78
(1994), the United States Supreme Court held that the “know-
ingly” requirement in Section 2252A extends to the minority status
of the person depicted in the image and the fact that the image
depicted sexually explicit conduct. See also United States v. Malik,
385 F.3d 758, 760 (7th Cir. 2004); United States v. Rogers, 474 F.
App’x 463, 476–77 (7th Cir. 2012).
2252A(a)(2)(A)
CRIMINAL INSTRUCTIONS
917
18 U.S.C. § 2252A(a)(2)(B) RECEIPT OR
DISTRIBUTION OF MATERIAL CONTAINING
CHILD PORNOGRAPHY—ELEMENTS
[The indictment charges the defendant[s] with]
[Count[s]
—
of the indictment charge[s] the defendant[s]
with] [receipt; distribution] of material containing child
pornography. In order for you to find [the; a] defendant
guilty of this count, the government must prove each of
the [four] following elements beyond a reasonable
doubt:
1. The defendant knowingly [received; distributed]
[the material identified in the indictment];
2. [The material identified in the indictment]
contained child pornography;
3. The defendant knew both that the material
depicted one or more minors and that the minor[s] were
engaged in sexually explicit conduct; and
4. [The material identified in the indictment] was
[mailed; shipped or transported using a means or facil-
ity of interstate or foreign commerce; shipped or
transported in or affecting interstate or foreign com-
merce by any means, including by computer].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the count
you are considering], then you should find the defendant
guilty [of that count].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the count you are considering], then you
should find the defendant not guilty [of that count].
2252A(a)(2)(B)
STATUTORY INSTRUCTIONS
918
Committee Comment
“Child pornography” is defined in Pattern Instruction 18
U.S.C. § 2256(8).
“Interstate/foreign commerce” is defined in a pattern instruc-
tion that follows the instructions related to 18 U.S.C. § 1465.
“Minor” is defined in Pattern Instruction 18 U.S.C. § 2256(1).
“Sexually explicit conduct” is defined in Pattern Instruction 18
U.S.C. § 2256(2)(B).
In United States v. X-Citement Video, 513 U.S. 64, 77–78
(1994), the United States Supreme Court held that the “know-
ingly” requirement in Section 2252A extends to the minority status
of the person depicted in the image and the fact that the image
depicted sexually explicit conduct. See also United States v. Malik,
385 F.3d 758, 760 (7th Cir. 2004); United States v. Rogers, 474 F.
App’x 463, 476–77 (7th Cir. 2012).
2252A(a)(2)(B)
CRIMINAL INSTRUCTIONS
919
18 U.S.C. § 2252A(a)(3)(A) REPRODUCTION OF
CHILD PORNOGRAPHY FOR DISTRIBUTION—
ELEMENTS
[The indictment charges the defendant[s] with]
[Count[s]
—
of the indictment charge[s] the defendant[s]
with] reproduction of child pornography for distribution.
In order for you to find [the; a] defendant guilty of this
count, the government must prove each of the [four] fol-
lowing elements beyond a reasonable doubt:
1. The defendant knowingly reproduced [the ma-
terial identified in the indictment];
2. [The material identified in the indictment] is
child pornography;
3. The defendant knew both that the material
depicted one or more minors and that the minor[s] were
engaged in sexually explicit conduct; and
4. The defendant intended to distribute [the ma-
terial identified in the indictment] [through the mail;
using a means or facility of interstate or foreign com-
merce; in or affecting interstate or foreign commerce by
any means, including by computer].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the count
you are considering], then you should find the defendant
guilty [of that count].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the count you are considering], then you
should find the defendant not guilty [of that count].
2252A(a)(3)(A)
STATUTORY INSTRUCTIONS
920
Committee Comment
“Child pornography” is defined in Pattern Instruction 18
U.S.C. § 2256(8).
“Interstate/foreign commerce” is defined in a pattern instruc-
tion that follows the instructions related to 18 U.S.C. § 1465.
“Minor” is defined in Pattern Instruction 18 U.S.C. § 2256(1).
“Sexually explicit conduct” is defined in Pattern Instruction 18
U.S.C. § 2256(2)(B).
In United States v. X-Citement Video, 513 U.S. 64, 77–78
(1994), the United States Supreme Court held that the “know-
ingly” requirement in Section 2252A extends to the minority status
of the person depicted in the image and the fact that the image
depicted sexually explicit conduct. See also United States v. Malik,
385 F.3d 758, 760 (7th Cir. 2004); United States v. Rogers, 474 F.
App’x 463, 476–77 (7th Cir. 2012).
2252A(a)(3)(A)
CRIMINAL INSTRUCTIONS
921
18 U.S.C. § 2252A(a)(4)(A) SALE OR
POSSESSION WITH INTENT TO SELL OF
CHILD PORNOGRAPHY IN U.S. TERRITORY—
ELEMENTS
[The indictment charges the defendant[s] with]
[Count[s]
—
of the indictment charge[s] the defendant[s]
with] [sale of; possession with intent to sell] child
pornography. In order for you to find [the; a] defendant
guilty of this count, the government must prove each of
the [four] following elements beyond a reasonable
doubt:
1. The defendant knowingly [sold; possessed with
intent to sell] [the material identified in the indict-
ment];
2. [The material identified in the indictment] is
child pornography;
3. The defendant knew both that the material
depicted one or more minors and that the minor[s] were
engaged in sexually explicit conduct; and
4. The [sale] [possession with intent to sell] oc-
curred [in the special maritime and territorial jurisdic-
tion of the United States; on land or in a building owned
by, leased to or under the control of the United States
government; in Indian country].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the count
you are considering], then you should find the defendant
guilty [of that count].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
2252A(a)(4)(A)
STATUTORY INSTRUCTIONS
922
doubt [as to the count you are considering], then you
should find the defendant not guilty [of that count].
Committee Comment
“Child pornography” is defined in Pattern Instruction 18
U.S.C. § 2256(8).
“Minor” is defined in Pattern Instruction 18 U.S.C. § 2256(1).
“Sexually explicit conduct” is defined in Pattern Instruction 18
U.S.C. § 2256(2)(B).
In United States v. X-Citement Video, 513 U.S. 64, 77–78
(1994), the United States Supreme Court held that the “know-
ingly” requirement in Section 2252A extends to the minority status
of the person depicted in the image and the fact that the image
depicted sexually explicit conduct. See also United States v. Malik,
385 F.3d 758, 760 (7th Cir. 2004); United States v. Rogers, 474 F.
App’x 463, 476–77 (7th Cir. 2012).
2252A(a)(4)(A)
CRIMINAL INSTRUCTIONS
923
18 U.S.C. § 2252A(a)(4)(B) SALE OR
POSSESSION WITH INTENT TO SELL OF
CHILD PORNOGRAPHY IN INTERSTATE OR
FOREIGN COMMERCE—ELEMENTS
[The indictment charges the defendant[s] with]
[Count[s]
—
of the indictment charge[s] the defendant[s]
with] [sale of; possession with intent to sell] child
pornography. In order for you to find [the; a] defendant
guilty of this count, the government must prove each of
the [four] following elements beyond a reasonable
doubt:
1. The defendant knowingly [sold; possessed with
intent to sell] [the material identified in the indict-
ment]; and
2. [The material identified in the indictment] is
child pornography; and
3. The defendant knew both that the material
depicted one or more minors and that the minor[s] were
engaged in sexually explicit conduct; and
4. The [material identified in the indictment] has
been [mailed; shipped or transported using a means or
facility of interstate or foreign commerce; shipped or
transported in or affecting interstate or foreign com-
merce by any means, including by computer; produced
using materials that have been mailed, or using materi-
als that have been shipped or transported in or affect-
ing interstate or foreign commerce by any means,
including by computer].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the count
you are considering], then you should find the defendant
guilty [of that count].
2252A(a)(4)(B)
STATUTORY INSTRUCTIONS
924
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the count you are considering], then you
should find the defendant not guilty [of that count].
Committee Comment
“Child pornography” is defined in Pattern Instruction 18
U.S.C. § 2256(8).
“Interstate/foreign commerce” is defined in a pattern instruc-
tion that follows the instructions related to 18 U.S.C. § 1465.
“Minor” is defined in Pattern Instruction 18 U.S.C. § 2256(1).
“Sexually explicit conduct” is defined in Pattern Instruction 18
U.S.C. § 2256(2)(B).
In United States v. X-Citement Video, 513 U.S. 64, 77–78
(1994), the United States Supreme Court held that the “know-
ingly” requirement in Section 2252A extends to the minority status
of the person depicted in the image and the fact that the image
depicted sexually explicit conduct. See also United States v. Malik,
385 F.3d 758, 760 (7th Cir. 2004); United States v. Rogers, 474 F.
App’x 463, 476–77 (7th Cir. 2012).
2252A(a)(4)(B)
CRIMINAL INSTRUCTIONS
925
18 U.S.C. § 2252A(a)(5)(A) POSSESSION OF OR
ACCESS WITH INTENT TO VIEW CHILD
PORNOGRAPHY IN U.S. TERRITORY—
ELEMENTS
[The indictment charges the defendant[s] with]
[Count[s]
—
of the indictment charge[s] the defendant[s]
with] [possession of; accessing with intent to view] child
pornography. In order for you to find [the; a] defendant
guilty of this count, the government must prove each of
the [four] following elements beyond a reasonable
doubt:
1. The defendant knowingly [possessed; accessed
with intent to view] [the material identified in the
indictment]; and
2. [The material identified in the indictment]
contained child pornography; and
3. The defendant knew both that the material
depicted one or more minors and that the minor[s] were
engaged in sexually explicit conduct; and
4. The [sale; possession with intent to sell] oc-
curred [in the special maritime and territorial jurisdic-
tion of the United States; on land or in a building owned
by, leased to or under the control of the United States
government; in Indian country].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the count
you are considering], then you should find the defendant
guilty [of that count].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
2252A(a)(5)(A)
STATUTORY INSTRUCTIONS
926
doubt [as to the count you are considering], then you
should find the defendant not guilty [of that count].
Committee Comment
“Child pornography” is defined in Pattern Instruction 18
U.S.C. § 2256(8).
“Minor” is defined in Pattern Instruction 18 U.S.C. § 2256(1).
“Sexually explicit conduct” is defined in Pattern Instruction 18
U.S.C. § 2256(2)(B).
In United States v. X-Citement Video, 513 U.S. 64, 77–78
(1994), the United States Supreme Court held that the “know-
ingly” requirement in Section 2252A extends to the minority status
of the person depicted in the image and the fact that the image
depicted sexually explicit conduct. See also United States v. Malik,
385 F.3d 758, 760 (7th Cir. 2004); United States v. Rogers, 474 F.
App’x 463, 476–77 (7th Cir. 2012).
Pursuant to 18 U.S.C. § 2252A(b)(2), if the offense involved
any image of child pornography involving a prepubescent minor or
a minor who had not attained 12 years of age, the defendant faces
a maximum sentence of 20 years’ imprisonment, rather than 10
years’ imprisonment. If this is alleged in a count charged under 18
U.S.C. § 2252A(a)(5)(A), the parties should modify the elements
instruction accordingly or provide the jury with a special verdict
form. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
2252A(a)(5)(A)
CRIMINAL INSTRUCTIONS
927
18 U.S.C. § 2252A(a)(5)(B) POSSESSION OF OR
ACCESS WITH INTENT TO VIEW CHILD
PORNOGRAPHY IN INTERSTATE COMMERCE—
ELEMENTS
[The indictment charges the defendant[s] with]
[Count[s]
—
of the indictment charge[s] the defendant[s]
with] [possession of; accessing with intent to view] child
pornography. In order for you to find [the; a] defendant
guilty of this count, the government must prove each of
the [four] following elements beyond a reasonable
doubt:
1. The defendant knowingly [possessed; accessed
with intent to view] [the material identified in the
indictment]; and
2. [The material identified in the indictment]
contained child pornography; and
3. The defendant knew both that the material
depicted one or more minors and that the minor[s] were
engaged in sexually explicit conduct; and
4. [The material identified in the indictment] has
been [mailed; shipped or transported using a means or
facility of interstate or foreign commerce; shipped or
transported in or affecting interstate or foreign com-
merce by any means, including by computer; produced
using materials that have been mailed, or using materi-
als that have been shipped or transported in or affect-
ing interstate or foreign commerce by any means,
including by computer].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the count
you are considering], then you should find the defendant
guilty [of that count].
2252A(a)(5)(B)
STATUTORY INSTRUCTIONS
928
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the count you are considering], then you
should find the defendant not guilty [of that count].
Committee Comment
“Child pornography” is defined in Pattern Instruction 18
U.S.C. § 2256(8).
“Interstate/foreign commerce” is defined in a pattern instruc-
tion that follows the instructions related to 18 U.S.C. § 1465.
“Minor” is defined in Pattern Instruction 18 U.S.C. § 2256(1).
“Sexually explicit conduct” is defined in Pattern Instruction 18
U.S.C. § 2256(2)(B).
In United States v. X-Citement Video, 513 U.S. 64, 77–78
(1994), the United States Supreme Court held that the “know-
ingly” requirement in Section 2252A extends to the minority status
of the person depicted in the image and the fact that the image
depicted sexually explicit conduct. See also United States v. Malik,
385 F.3d 758, 760 (7th Cir. 2004); United States v. Rogers, 474 F.
App’x 463, 476–77 (7th Cir. 2012).
Pursuant to 18 U.S.C. § 2252A(b)(2), if the offense involved
any image of child pornography involving a prepubescent minor or
a minor who had not attained 12 years of age, the defendant faces
a maximum sentence of 20 years’ imprisonment, rather than 10
years’ imprisonment. If this is alleged in a count charged under 18
U.S.C. § 2252A(a)(5)(B), the parties should modify the elements
instruction accordingly or provide the jury with a special verdict
form. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
2252A(a)(5)(B)
CRIMINAL INSTRUCTIONS
929
18 U.S.C. §§ 2252A(a)(6)(A), (B) & (C)
PROVIDING CHILD PORNOGRAPHY TO A
MINOR—ELEMENTS
[The indictment charges the defendant[s] with]
[Count[s]
—
of the indictment charge[s] the defendant[s]
with] [distributing; offering; sending; providing] child
pornography to a minor. In order for you to find [the; a]
defendant guilty of this count, the government must
prove each of the [five] following elements beyond a
reasonable doubt:
1. The defendant knowingly [distributed; offered;
sent; provided] [the material identified in the indict-
ment] to [the person identified in the indictment] for
purposes of inducing or persuading a minor to partici-
pate in any activity that is illegal; and
2. [The material identified in the indictment] is
child pornography; and
3. The defendant knew both that the material
depicted one or more minors and that the minor[s] were
engaged in sexually explicit conduct; and
4. [The person identified in the indictment] had
not attained the age of eighteen years; and
5. [The material identified in the indictment] has
been:
a. [mailed; shipped; transported] using any means
or facility of interstate or foreign commerce or
in or affecting interstate or foreign commerce
by any means[, including by computer]; or
b. produced using materials that have been
[mailed; shipped; transported] in or affecting
interstate or foreign commerce by any means[,
including by computer]; or
2252A(a)(6)(A), (B) & (C)
STATUTORY INSTRUCTIONS
930
c. [distributed; offered; sent; provided] using [the
mails] [any means or facility of interstate or
foreign commerce].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the count
you are considering], then you should find the defendant
guilty [of that count].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the count you are considering], then you
should find the defendant not guilty [of that count].
Committee Comment
In giving this instruction the court should choose which of the
alternatives presented under element 5 are applicable to the case.
“Child pornography” is defined in Pattern Instruction 18
U.S.C. § 2256(8).
“Interstate/foreign commerce” is defined in a pattern instruc-
tion that follows the instructions related to 18 U.S.C. § 1465.
“Minor” is defined in Pattern Instruction 18 U.S.C. § 2256(1).
“Sexually explicit conduct” is defined in Pattern Instruction 18
U.S.C. § 2256(2)(B).
In United States v. X-Citement Video, 513 U.S. 64, 77–78
(1994), the United States Supreme Court held that the “know-
ingly” requirement in Section 2252A extends to the minority status
of the person depicted in the image and the fact that the image
depicted sexually explicit conduct. See also United States v. Malik,
385 F.3d 758, 760 (7th Cir. 2004); United States v. Rogers, 474 F.
App’x 463, 476–77 (7th Cir. 2012).
2252A(a)(6)(A), (B) & (C)
CRIMINAL INSTRUCTIONS
931
18 U.S.C. § 2252A(a)(7) PRODUCTION WITH
INTENT TO DISTRIBUTE AND DISTRIBUTION
OF ADAPTED CHILD PORNOGRAPHY—
ELEMENTS
[The indictment charges the defendant[s] with]
[Count[s]
—
of the indictment charge[s] the defendant[s]
with] [production with the intent to distribute; distribu-
tion] of adapted child pornography. In order for you to
find [the; a] defendant guilty of this count, the govern-
ment must prove each of the [four] following elements
beyond a reasonable doubt:
1. The defendant knowingly [produced with the
intent to distribute; distributed] [the material identified
in the indictment]; and
2. [The material identified in the indictment] is
child pornography [consisting of; including] an adapted
or modified depiction of an identifiable minor; and
3. The defendant knew both that the material
depicted one or more minors and that the minor[s] were
engaged in sexually explicit conduct; and
4. [The material identified in the indictment] has
been [produced; distributed] by any means, including a
computer, in or affecting interstate or foreign commerce.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the count
you are considering], then you should find the defendant
guilty [of that count].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the count you are considering], then you
should find the defendant not guilty [of that count].
2252A(a)(7)
STATUTORY INSTRUCTIONS
932
Committee Comment
“Child pornography” is defined in Pattern Instruction 18
U.S.C. § 2256(8).
“Interstate/foreign commerce” is defined in a pattern instruc-
tion that follows the instructions related to 18 U.S.C. § 1465.
“Identifiable minor” is defined in Pattern Instruction 18 U.S.C.
§ 2256(9).
“Minor” is defined in Pattern Instruction 18 U.S.C. § 2256(1).
“Sexually explicit conduct” is defined in Pattern Instruction 18
U.S.C. § 2256(2)(B).
In United States v. X-Citement Video, 513 U.S. 64, 77–78
(1994), the United States Supreme Court held that the “know-
ingly” requirement in Section 2252A extends to the minority status
of the person depicted in the image and the fact that the image
depicted sexually explicit conduct. See also United States v. Malik,
385 F.3d 758, 760 (7th Cir. 2004); United States v. Rogers, 474 F.
App’x 463, 476–77 (7th Cir. 2012).
2252A(a)(7)
CRIMINAL INSTRUCTIONS
933
18 U.S.C. § 2252A(c) AFFIRMATIVE DEFENSE
TO CHARGES UNDER 18 U.S.C. §§ 2252A(a)(1),
(a)(2), (a)(3)(A), (a)(4) or (a)(5)
If the defendant proves that either of the following
is more likely true than not true, then you should find
the defendant not guilty of [Count
—
].
1. The [alleged child pornography] was produced
using [an actual person; actual persons] engaging in
sexually explicit conduct and [that person; each such
person] was an adult at the time the material was
produced; or
2. The [alleged child pornography] was not pro-
duced using any actual [minor; minors].
Committee Comment
“Child pornography” is defined broadly in 18 U.S.C. § 2256(8)
to include visual depictions that are “indistinguishable from” that
of a minor engaging in sexually explicit conduct and visual depic-
tions adapted or modified “to appear” that an “identifiable minor”
is engaging in sexually explicit conduct. It may therefore be an af-
firmative defense that the visual depictions were produced using
only actual adults and/or no minors. As § 2252A(c) is an affirma-
tive defense, the instruction is intended for cases in which the
defendant presents evidence that does not exclusively challenge an
element of the offense—namely, whether the depictions constitute
“child pornography” as defined in § 2256(8). See United States v.
Jumah, 493 F.3d 868, 873–75 (7th Cir. 2007) (explaining that a
defendant bears the burden of proving an affirmative defense when
the challenge does not negate an element of the offense) (citing
Dixon v. United States, 126 S. Ct. 2437 (2006)).
In prosecutions involving child pornography that depicts an
apparent “identifiable minor,” the second, alternative § 2252A(c)
defense, 18 U.S.C. § 2252A(c)(2), is not available. Id. § 2252A(c).
Section 2252A(c) contains a pretrial notice provision for
defendants who intend to put on this affirmative defense.
The alternative defenses under § 2252A(c) are somewhat
“redundant,” in that the “second includes the first.” United States
v. Peel, 595 F.3d 763, 770 (7th Cir. 2010). But as Peel explained:
2252A(c)
STATUTORY INSTRUCTIONS
934
“[T]he second [clause] is broader because it includes the case in
which no person was used in the creation of the pornographic depic-
tion; it might be a painting of an imaginary person or a computer
simulation.” Id. See Peel for a discussion of the defense’s history,
potential applications, and the effect of Ashcroft v. Free Speech
Coal., 535 U.S. 234 (2002).
“Minor” is defined in 18 U.S.C. § 2256(1) and the related Pat-
tern Instruction.
“Identifiable minor” is defined in 18 U.S.C. § 2256(9) and the
related Pattern Instruction.
2252A(c)
CRIMINAL INSTRUCTIONS
935
18 U.S.C. § 2252A(d) AFFIRMATIVE DEFENSE
TO CHARGE UNDER 18 U.S.C. § 2252A(a)(5)
If the defendant proves that it is more likely than
not that
(a) he possessed fewer than three images of child
pornography;
(b) he promptly and in good faith [took reasonable
steps to destroy each image; reported the matter to a
law enforcement agency and afforded the agency access
to the image[s]];
(c) he did not retain any image; and
(d) he did not allow any person other than law
enforcement to access or copy any image, then you
should find him not guilty of possessing child
pornography.
Committee Comment
The defendant has the burden of proof with respect to this af-
firmative defense because it does not negate an element of the of-
fense; instead it requires proof of additional facts that mitigate the
circumstances of the offense. United States v. Davenport, 519 F.3d
940, 945 (9th Cir. 2008).
The language in this instruction should be added to the ele-
ments instruction for 18 U.S.C. § 2252A(a)(5) in appropriate cases.
“Child pornography” is defined in Pattern Instruction 18
U.S.C. § 2256(8).
2252A(d)
STATUTORY INSTRUCTIONS
936
18 U.S.C. § 2256(1) DEFINITION OF “MINOR”
“Minor” means any person under the age of eigh-
teen (18) years.
2256(1)
CRIMINAL INSTRUCTIONS
937
18 U.S.C. § 2256(2)(A) DEFINITION OF
“SEXUALLY EXPLICIT CONDUCT”
“Sexually explicit conduct” includes actual or
simulated –
1. sexual intercourse, including genital-genital,
oral-genital, anal-genital, or oral anal, whether between
persons of the same or opposite sex;
2. bestiality;
3. masturbation;
4. sadistic or masochistic abuse; or
5. lascivious exhibit of the anus, genitals, or pubic
area of any person.
Committee Comment
Only the applicable terms within this definition should be
used.
In some cases charging violations of 18 U.S.C. § 2252A involv-
ing allegations of the use of computer-generated images that are,
or are indistinguishable from, that of a minor engaging in sexually
explicit conduct, this definition should be modified as set forth in
18 U.S.C. § 2256(2)(B).
In 2018, Congress passed the Amy, Vicky, and Andy Child
Pornography Victim Assistance Act of 2018, which added the term
“anus,” to 18 U.S.C. § 2256(2)(A)(v).
2256(2)(A)
STATUTORY INSTRUCTIONS
938
18 U.S.C. § 2256(3) DEFINITION OF
“PRODUCING”
The term “producing” includes producing, direct-
ing, manufacturing, issuing, publishing, or advertising.
2256(3)
CRIMINAL INSTRUCTIONS
939
18 U.S.C. § 2256(6) DEFINITION OF
“COMPUTER”
“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 re-
lated 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 Comment
“Computer” in connection with this range of offenses has the
same meaning as provided in 18 U.S.C. § 1030. This instruction
should only be given in cases where there is an issue regarding
whether a particular device is a computer.
2256(6)
STATUTORY INSTRUCTIONS
940
18 U.S.C. § 2256(7) DEFINITION OF “CUSTODY
OR CONTROL”
“Custody or control” includes temporary supervi-
sion over or responsibility for a minor whether legally
or illegally obtained.
2256(7)
CRIMINAL INSTRUCTIONS
941
18 U.S.C. § 2256(8) DEFINITION OF “CHILD
PORNOGRAPHY”
“Child pornography” means a visual depiction of
sexually explicit conduct, including any photograph,
film, video, picture, or computer or computer-generated
image or picture, whether made or produced by elec-
tronic, mechanical, or other means, if:
1. The production of the visual depiction involves
the use of a minor engaged in sexually explicit conduct;
and
2. The visual depiction is a digital image, com-
puter image, or computer-generated image that is, or is
indistinguishable from, that of a minor engaging in
sexually explicit conduct; or
3. Such visual depiction has been created,
adapted, or modified to appear that an identifiable
minor is engaging in sexually explicit conduct.
2256(8)
STATUTORY INSTRUCTIONS
942
18 U.S.C. § 2256(9) DEFINITION OF
“IDENTIFIABLE MINOR”
“Identifiable minor” means a person who is recog-
nizable as an actual person by the person’s face, like-
ness, or other distinguishing characteristic, such as a
unique birthmark or other recognizable feature, and
1. who was a minor at the time the visual depic-
tion was created, adapted, or modified; or
2. whose image as a minor was used in creating,
adapting, or modifying the visual depiction.
The Government is not required to prove the actual
identity of the identifiable minor.
2256(9)
CRIMINAL INSTRUCTIONS
943
18 U.S.C. § 2256(11) DEFINITION OF
“INDISTINGUISHABLE”
“Indistinguishable” used with respect to a depic-
tion, means virtually indistinguishable such that an
ordinary person viewing the depiction would conclude
that the depiction is of an actual minor engaged in sexu-
ally explicit conduct. This definition does not apply to
depictions that are drawings, cartoons, sculptures, or
paintings depicting minors or adults.
2256(11)
STATUTORY INSTRUCTIONS
944
18 U.S.C. § 2260(a) PRODUCTION OF
SEXUALLY EXPLICIT DEPICTIONS OF A
MINOR—IMPORTATION—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] producing sexually explicit depictions of a minor
for importation into the United States. In order for you
to find [the; a] defendant guilty of this charge, the
government must prove each of the [three] following
elements beyond a reasonable doubt:
1. At the time, [the person identified in the indict-
ment] was under the age of eighteen years;
2. The defendant, outside the United States, for
the purpose of [producing a visual depiction of such
conduct; transmitting a live visual depiction of such
conduct]:
(a) [employed; used; persuaded; induced;
enticed; coerced] [the person identified in the indict-
ment] to take part in sexually explicit conduct; or
(b) caused [the person identified in the indict-
ment] to assist another person to engage in sexu-
ally explicit conduct; or
(c) transported [the person identified in the
indictment] with the intent that [the person identi-
fied in the indictment] engage in sexually explicit
conduct; and
3. The defendant intended that such visual depic-
tion be [imported; transmitted] into the [United States;
waters within a distance of twelve miles of the coast of
the United States].
If you find from your consideration of all the evi-
dence that the government has proved each of these
2260(a)
CRIMINAL INSTRUCTIONS
945
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
“Sexually explicit conduct” is defined in Pattern Instruction 18
U.S.C. § 2256(2)(A).
“Producing” is defined in Pattern Instruction 18 U.S.C.
§ 2256(3).
“Visual depiction” is defined in Pattern Instruction 18 U.S.C.
§ 1466A(f)(1).
2260(a)
STATUTORY INSTRUCTIONS
946
18 U.S.C. § 2260(b) USE OF A VISUAL
DEPICTION—IMPORTATION—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [receiving; transporting; shipping; distributing;
selling; possession with intent to [transport; ship; sell;
distribute]] visual depictions of a minor engaged in
sexually explicit conduct for importation into the United
States. In order for you to find [the; a] defendant guilty
of this charge, the government must prove each of the
[four] following elements beyond a reasonable doubt:
1. At the time, [the person identified in the indict-
ment] was under the age of eighteen years; and
2. The defendant, while outside the United States,
knowingly [received; transported; shipped; distributed;
sold; possessed with intent to [transport; ship; sell; dis-
tribute]] a visual depiction of [the person identified in
the indictment]; and
3. The production of the visual depiction involved
[the person identified in the indictment] engaging in
sexually explicit conduct; and
4. The defendant intended that the visual depic-
tion be [imported] into the [United States; waters
within a distance of twelve miles of the coast of the
United States].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
2260(b)
CRIMINAL INSTRUCTIONS
947
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
“Sexually explicit conduct” is defined in Pattern Instruction 18
U.S.C. § 2256(2)(A).
“Producing” is defined in Pattern Instruction 18 U.S.C.
§ 2256(3).
“Visual depiction” is defined in Pattern Instruction 18 U.S.C.
§ 1466A(f)(1).
“Minor” is defined in Pattern Instruction 18 U.S.C. § 2256(1).
2260(b)
STATUTORY INSTRUCTIONS
948
18 U.S.C. § 2312 TRANSPORTATION OF
STOLEN VEHICLE—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] transporting a stolen [car; truck; motorcycle;
airplane; helicopter] in [interstate; foreign] commerce.
In order for you to find [the; a] defendant guilty of this
charge, the government must prove each of the [three]
following elements beyond a reasonable doubt:
1. The [name vehicle charged in the indictment]
was stolen; and
2. The defendant transported the [name vehicle
charged in the indictment] in [interstate; foreign] com-
merce; and
3. The defendant knew at the time the defendant
transported the [name vehicle charged in the indict-
ment] that it was stolen.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The statute uses the terms “motor vehicle,” “vessel,” and
“aircraft” in describing the articles to which the transportation
prohibition pertains. Rather than using the statutory terms, we
suggest using a generic description of the vehicle which is the
subject of the prosecution.
2312
CRIMINAL INSTRUCTIONS
949
To constitute a “motor vehicle,” the vehicle must be self-
propelled. 18 U.S.C. § 2311. Thus, a trailer, without the capability
of self-propulsion and absent a tractor to pull it, would not fall
within the proscription of the transportation prohibition. In this
instance, however, the trailer could constitute a “good” for purposes
of 18 U.S.C. § 2315. On the other hand, if the trailer were con-
nected to a tractor or other vehicle capable of self-propulsion, both
vehicles would be subject to a single charge of unlawful
transportation. United States v. Kidding, 560 F.2d 1303, 1308 (7th
Cir. 1977).
To fall within the meaning of the term “aircraft,” the vehicle
must be capable of air navigation. 18 U.S.C. § 2311.
The statute also uses the phrase “transports in interstate or
foreign commerce” and the term “stolen.” For a definition of inter-
state or foreign commerce see Pattern Instruction 18 U.S.C. § 2315.
For a definition of “stolen” see Pattern Instruction 18 U.S.C.
§ 2312.
2312
STATUTORY INSTRUCTIONS
950
18 U.S.C. § 2312 DEFINITION OF “STOLEN”
An object is “stolen” if it was taken with the intent
to deprive the owner of his rights and benefits of
ownership. [The taking may be accomplished through
the seizure of the [name vehicle] or through the use of
false pretenses, trickery, or misrepresentation in
obtaining possession.] [It is not necessary, however,
that the taking be initially unlawful. Even if possession
is first acquired lawfully, the taking falls within the
meaning of “stolen” if the defendant thereafter forms
the intent to deprive the owner of his ownership
interests.]
Committee Comment
The meaning of the word “stolen” was, in part, resolved by the
United States Supreme Court in United States v. Turley, 352 U.S.
407, 417 (1957). There, the Court found that the term included all
takings performed with the intent to deprive the owner of the
rights and benefits of ownership regardless of whether the initial
taking was authorized. Thus, the statute proscribes the transporta-
tion of a vehicle in interstate or foreign commerce which initially
was obtained by lawful means, such as through a rental contract,
and thereafter converted entirely to the defendant’s use without
the permission of the owner, United States v. Baker, 429 F.2d
1344, 1346 (7th Cir. 1970), or which was obtained unlawfully
through the use of a bogus check or stolen credit card in purport-
edly purchasing or renting the vehicle, United States v. Ellis, 428
F.2d 818, 820 (8th Cir. 1970).
The taking does not need to be done with the intent to
permanently deprive the owner of the vehicle. United States v.
Bruton, 414 F.2d 905, 908 (8th Cir. 1969). It is enough that the
defendant intends to use the vehicle as long as it serves his conve-
nience and thereafter intends to abandon it or dispose of it. United
States v. Dillinger, 341 F.2d 696, 697–98 (4th Cir. 1965); see also
United States v. Epperson, 451 F.2d 178, 179 (9th Cir. 1971) (intent
to permanently deprive owner of ownership interest not an ele-
ment of the offense); United States v. Berlin, 472 F.2d 13, 14 n.2
(9th Cir. 1973) (defendant must have intent to permanently or
temporarily deprive the owner of the rights and benefits of
ownership).
The Seventh Circuit has found that Pattern Instruction 4.14
(Possession of Recently Stolen Property), which discusses inferring
2312
CRIMINAL INSTRUCTIONS
951
knowledge that property was stolen when it had recently been
stolen, may be appropriate to use in conjunction with this pattern
instruction. United States v. Tantchev, 916 F.3d 645, 655 (7th Cir.
2019). The jury can then decide “whether the surrounding circum-
stances supported the inference of knowledge.” Id.
2312
STATUTORY INSTRUCTIONS
952
18 U.S.C. § 2313 SALE OR RECEIPT OF STOLEN
VEHICLES—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [selling; possessing; receiving; concealing; dispos-
ing of] a stolen [car; truck; motorcycle; airplane;
helicopter] in [interstate; foreign] commerce. In order
for you to find [the; a] defendant guilty of this charge,
the government must prove each of the [four] following
elements beyond a reasonable doubt:
1. The [name vehicle charged in the indictment]
was stolen; and
2. After the [name vehicle charged in the indict-
ment] was stolen, it was moved across a [state line;
United States border]; and
3. The defendant [sold; possessed; received; con-
cealed; disposed of] the [name vehicle charged in the
indictment]; and
4. At the time the defendant [sold; possessed;
received; concealed; disposed of] the [name vehicle
charged in the indictment], the defendant knew that it
had been stolen.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
2313
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Committee Comment
See Committee Comment to 18 U.S.C. § 2312—Elements,
above.
2313
STATUTORY INSTRUCTIONS
954
18 U.S.C. § 2314 TRANSPORTATION OF
STOLEN OR CONVERTED GOODS OR GOODS
TAKEN BY FRAUD—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] transportation of goods [stolen; converted; taken
by fraud]. In order for you to find [the; a] defendant
guilty of this charge, the government must prove each
of the [four] following elements beyond a reasonable
doubt:
1. The defendant [[caused to be] transported;
transmitted; transferred] [name goods, wares, merchan-
dise, securities, or money charged in the indictment] in
[interstate; foreign] commerce; and
2. The [name goods, wares, merchandise, securi-
ties, or money charged in the indictment] had a value
of at least $5,000; and
3. The [name goods, wares, merchandise, securi-
ties, or money charged in the indictment] had been
[stolen; converted; taken by fraud]; and
4. At the time the defendant [[caused to be];
transported; transmitted; transferred] [name goods,
wares, merchandise, securities, or money charged in
the indictment], the defendant knew they had been
[stolen; converted; taken by fraud].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
2314
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955
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
This instruction is for use when the defendant has been
charged with the offense set out in the first paragraph of 18 U.S.C.
§ 2314.
For a definition of interstate or foreign commerce see Pattern
Instruction 18 U.S.C. § 2315.
2314
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956
18 U.S.C. § 2314 INTERSTATE TRAVEL TO
EXECUTE OR CONCEAL FRAUD—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [transporting a person; causing a person to be
transported; inducing a person to travel or be trans-
ported] in interstate commerce in the execution or
concealment of a scheme or artifice to defraud. In order
for you to find [the; a] defendant guilty of this charge,
the government must prove each of the [four] following
elements beyond a reasonable doubt:
1. The defendant devised or intended to devise a
scheme to [defraud; obtain money by false or fraudu-
lent pretenses, representations, or promises] as charged
in the indictment; and
2. The defendant [transported a person; caused a
person to be transported; induced a person to travel or
be transported] in [interstate; foreign] commerce; and
3. The defendant acted in the execution or conceal-
ment of the scheme or artifice to defraud that person of
money or property; and
4. The money or property had a value of $5,000 or
more.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
2314
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957
Committee Comment
This instruction is for use when the defendant has been
charged with the offense set out in the second paragraph of 18
U.S.C. § 2314.
It is suggested that the name of the person or persons
transported, caused to be transported or induced to travel or be
transported referred to in the indictment and proved at trial be
listed in the second element. The second paragraph of § 2314
requires that the person traveling (or being transported) be the
fraud victim referred to in the third element.
For a definition of interstate or foreign commerce see Pattern
Instruction 18 U.S.C. § 2315.
2314
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958
18 U.S.C. § 2314 INTERSTATE
TRANSPORTATION OF FALSELY MADE,
FORGED, ALTERED OR COUNTERFEITED
SECURITIES OR TAX STAMPS—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] interstate transportation of [falsely made; forged;
altered; counterfeited] securities or tax stamps. In or-
der for you to find [the; a] defendant guilty of this
charge, the government must prove each of the [four]
following elements beyond a reasonable doubt:
1. The defendant [transported; caused to be
transported], in [interstate; foreign] commerce, the [se-
curities; tax stamps] described in the indictment; and
2. The [securities; tax stamps] were [falsely made;
forged; altered; counterfeited]; and
3. At the time the defendant [transported; caused
to be transported] the [securities; tax stamps], the
defendant knew they were [falsely made; forged;
altered; counterfeited]; and
4. The defendant acted with unlawful or fraudu-
lent intent.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
2314
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959
Committee Comment
This instruction is for use when the defendant has been
charged with the offense set out in the third paragraph of 18 U.S.C.
§ 2314.
In McElroy v. United States, 455 U.S. 642 (1982), the Supreme
Court held that this statute does not require proof that the forgery
occurred before the securities were transported across state lines.
The Court’s holding was based on a reading of the statutory phrase
“interstate commerce” to include transportation within the state or
destination if such transportation is part of a movement that began
out of state. Accordingly, in some cases, an instruction incorporat-
ing the Court’s holding in McElroy will be appropriate.
The elements of this offense do not require proof that the
defendant knew the securities moved in interstate commerce. See,
e.g., United States v. Squires, 581 F.2d 408, 410 (4th Cir. 1978).
Nor does the statute require proof that the interstate transporta-
tion was for the purpose of executing the scheme to defraud. See,
e.g., United States v. Gundersen, 518 F.2d 960, 961 (9th Cir. 1975);
United States v. Vaccaro, 816 F.2d 443, 455 (9th Cir. 1987).
For a definition of interstate or foreign commerce see Pattern
Instruction 18 U.S.C. § 2315.
The statute does not define the word “unlawful” in the fourth
element. Nor have appellate cases interpreted the meaning of it or
set forth a context in which it would be properly used in the
instruction.
2314
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960
18 U.S.C. § 2314 INTERSTATE
TRANSPORTATION OF A TRAVELER’S CHECK
BEARING A FORGED COUNTERSIGNATURE—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] interstate transportation of a traveler’s check
bearing a forged countersignature. In order for you to
find [the; a] defendant guilty of this charge, the govern-
ment must prove each of the [four] following elements
beyond a reasonable doubt:
1. The defendant [transported; caused to be
transported], in [interstate; foreign] commerce, the trav-
eler’s check described in the indictment; and
2. The traveler’s check bore a forged countersigna-
ture; and
3. At the time the defendant [transported; caused
to be transported], the traveler’s check, the defendant
knew it bore a forged countersignature; and
4. The defendant acted with unlawful or fraudu-
lent intent.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
2314
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Committee Comment
This instruction is for use when the defendant has been
charged with the offense set out in the fourth paragraph of 18
U.S.C. § 2314.
For a definition of interstate or foreign commerce see Pattern
Instruction 18 U.S.C. § 2315.
In the fourth element, the Committee has been unable to
ascertain the meaning of the statutory term “unlawful” or a context
in which it would be properly used in the instruction.
2314
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962
18 U.S.C. § 2314 INTERSTATE
TRANSPORTATION OF TOOLS USED IN
MAKING, FORGING, ALTERING, OR
COUNTERFEITING ANY SECURITY OR TAX
STAMPS—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] transportation of any [tool; implement; item
described in the indictment] in [falsely making; forging;
altering; counterfeiting] any security. In order for you
to find [the; a] defendant guilty of this charge, the
government must prove each of the [four] following ele-
ments beyond a reasonable doubt:
1. The defendant [transported; caused to be
transported] the [tool; implement; item described in the
indictment] in [interstate; foreign] commerce; and
2. At the time the defendant transported the [tool;
implement; item described in the indictment], it could
be [used; fitted for use] in [falsely making; forging;
altering; counterfeiting] any security or tax stamps, or
any part thereof; and
3. At the time the defendant transported the [tool;
implement; item described in the indictment], the
defendant knew that it could be [used; fitted for use] in
[falsely making; forging; altering; counterfeiting] any
security or tax stamps or any part thereof; and
4. The defendant acted with unlawful or fraudu-
lent intent.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
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963
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
This instruction is for use when the defendant has been
charged with the offense set out in the fifth paragraph of 18 U.S.C.
§ 2314.
For a definition of interstate or foreign commerce see Pattern
Instruction 18 U.S.C. § 2315.
2314
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964
18 U.S.C. § 2315 RECEIPT OF STOLEN
PROPERTY—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [receiving; possessing; concealing; storing; barter-
ing; selling; disposing of] stolen property. In order for
you to find [the; a] defendant guilty of this charge, the
government must prove each of the [four] following ele-
ments beyond a reasonable doubt:
1. The defendant [received; possessed; concealed;
stored; bartered; sold; disposed of] the property de-
scribed in the indictment; and
2. The property had been [stolen; unlawfully
converted; unlawfully taken] and the defendant knew
the property had been [stolen; unlawfully converted;
unlawfully taken]; and
3. After the property was [stolen; unlawfully
converted; unlawfully taken] it was moved across the
boundary line of [a state; the United States]; and
4. The property had a value of $5,000 or more.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
This instruction is for use when the defendant has been
2315
CRIMINAL INSTRUCTIONS
965
charged with the offense set out in the first part of the first
paragraph of 18 U.S.C. § 2315.
The third element, that the property “moved across the bound-
ary line of the United States or a State” is found only in the first
paragraph of 18 U.S.C. § 2315.
2315
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966
18 U.S.C. § 2315 RECEIPT OF COUNTERFEIT
SECURITIES OR TAX STAMPS—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [receiving; possessing; concealing; storing; barter-
ing; selling; disposing of; pledging as security for a loan;
accepting as security for a loan], in [interstate; foreign]
commerce, any [falsely made; forged; altered; counter-
feited] [securities; tax stamps]. In order for you to find
[the; a] defendant guilty of this charge, the government
must prove each of the [four] following elements beyond
a reasonable doubt:
1. The defendant [received; possessed; concealed;
stored; bartered; sold; disposed of; pledged as security
for a loan; accepted as security for a loan] [securities;
tax stamps]; and
2. The [securities; tax stamps] had been [falsely
made; forged; altered; counterfeited]; and
3. At the time the [securities; tax stamps] were
[received; possessed; concealed; stored; bartered; sold;
disposed of; pledged as security for a loan; accepted as
security for a loan], the defendant knew the [securities;
tax stamps] had been [falsely made; forged; altered;
counterfeited]; and
4. At the time the [securities; tax stamps] were
[received; concealed; stored; bartered; sold; disposed of;
pledged as security for a loan; accepted as security for a
loan], they were moving in, were a part of, or consti-
tuted [interstate; foreign] commerce.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
2315
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967
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
This instruction is for use when the defendant has been
charged with the offense set out in the second paragraph of 18
U.S.C. § 2315.
For a definition of interstate or foreign commerce see the fol-
lowing instruction.
2315
STATUTORY INSTRUCTIONS
968
18 U.S.C. § 2315 DEFINITION OF INTERSTATE
OR FOREIGN COMMERCE
The term “[interstate; foreign] commerce” means
the movement across [state; territorial] lines, including
any movement before or after the crossing of [state; ter-
ritorial] lines which constitutes a part of the [inter-
state; foreign] travel. [Property that was [received; con-
cealed; stored; bartered; sold; disposed of] some period
of time after it crossed state lines still may constitute
interstate commerce if the [receipt; concealment; stor-
age; barter; sale; disposition] is a continuation of the
movement that began out of state.]
2315
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969
18 U.S.C. § 2325 DEFINITION OF
“TELEMARKETING” APPLICABLE TO
ENHANCED PENALTIES UNDER 18 U.S.C. § 2326
In order to find that the offense involved “telemar-
keting,” you must find that the offense involved a plan,
program, promotion, or campaign that was conducted
to induce 1) purchases of goods or services, 2) participa-
tion in a contest or sweepstakes, or 3) a charitable con-
tribution, donation, or gift of value or any other thing of
value. Either the person conducting the plan, program,
promotion or campaign or a prospective purchaser, par-
ticipant, or contributor must have initial at least one
interstate telephone call during the offense.
Telemarketing does not include the solicitation of
sales through the mailing of a catalog that contains a
written description or illustration of the goods or ser-
vices offered for sales, includes the business address of
the seller, includes multiple pages of written material
or illustrations, and has been issued not less frequently
than once a year, as long as the person making the so-
licitation does not solicit customers by telephone. The
person making the solicitation can only receive calls
initiated by customers in response to the catalog and
during those calls take orders without further
solicitation.
Committee Comment
This definition of “telemarketing” comes from 18 U.S.C. § 2325.
Section 2326 provides for enhanced penalties for violations of 18
U.S.C. §§ 1028, 1029, 1341, 1342, 1343 or 1344, or conspiracies to
commit any of those offenses, that occur “in connection with the
conduct of telemarketing.”
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970
18 U.S.C. § 2339A DEFINITION OF “MATERIAL
SUPPORT OR RESOURCES”
“Material support or resources” means any prop-
erty, tangible or intangible, or service, including: cur-
rency or monetary instruments or financial securities;
financial services; lodging; training; expert advice or as-
sistance; safehouses; false documentation or identifica-
tion; communications equipment; facilities; weapons; le-
thal substances; explosives; personnel (one or more
individuals who may be or include oneself); and
transportation.
As used in this definition, the term “training”
means instruction or teaching designed to impart a
specific skill, as opposed to general knowledge.
As used in this definition, the term “expert advice
or assistance” means advice or assistance derived from
scientific, technical, or other specialized knowledge.
Medicine and religious materials are not “material
support or resources.”
Committee Comment
See 18 U.S.C. § 2339A(b)(1) to (3). This instruction applies to
offenses under 18 U.S.C. §§ 2339A and 2339B.
In Holder v. Humanitarian Law Project, two United States
citizens and six domestic non-profit organizations challenged Sec-
tion 2339B as unconstitutional under the First and Fifth Amend-
ments, arguing that they “wished to provide support for the hu-
manitarian and political activities” of the Kurdistan Workers’
Party (PKK) and the Liberation Tigers of Tamil Eelam (LTTE),
both designated foreign terrorist organizations, “in the form of
money contributions other tangible aid, legal training, and politi-
cal advocacy.” See 561 U.S. 1, 10 (2010). The Supreme Court up-
held the constitutionality of Section 2339B and specifically the
inclusion of “training,” “expert advice or assistance,” “service” and
“personnel” in the definition of “material support or resources”
against the plaintiffs’ as-applied challenge based on vagueness.
See id. at 20–21.
2339A
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971
18 U.S.C. § 2339A PROVIDING MATERIAL
SUPPORT TO TERRORISTS—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
———
of the indictment charge[s] the defen-
dant[s] with] providing material support to terrorists.
In order for you to find [the; a] defendant guilty of this
charge, the government must prove the following two
elements beyond a reasonable doubt:
1. The defendant [provided; attempted to provide;
conspired to provide] material support or resources
and/or [concealed or disguised; attempted to conceal or
disguise; conspired to conceal or disguise] the nature,
location, source, or ownership of material support or re-
sources in the manner described in the indictment; and
2. The defendant knew or intended that the mate-
rial support or resources were to be used to prepare for
or carry out [a violation of [describe applicable federal
terrorism offense listed in 18 U.S.C. § 2339A(a)]] [the
concealment of an escape after violating [describe ap-
plicable federal terrorism offense listed in 18 U.S.C.
§ 2339A(a)]].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
If the indictment alleges that a death resulted, the jury must
separately find this fact because the finding has the effect of rais-
2339A
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972
ing the statutory maximum penalty to life imprisonment. See
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (“Other than the
fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submit-
ted to a jury, and proved beyond a reasonable doubt.”). Where rel-
evant, provide an additional instruction to this effect:
The government has alleged that the death of a person
resulted from this offense, a fact that it must prove beyond a
reasonable doubt. If you conclude beyond a reasonable doubt
that a death resulted, you should separately note this finding
on the verdict form. If you find the elements of the crime be-
yond a reasonable doubt but not the resulting death, you
should also note that finding on the verdict form.
Section 2339A(a) lists the following federal terrorism offenses
that a defendant is prohibited from providing material support or
resources to further:
E 18 U.S.C. § 32 (sabotaging aircraft or aircraft facilities),
§ 37 (violence at international airports), § 1992 (attacks
on mass transportation systems), § 2280 (violence
against maritime navigation), § 2281 (violence against
maritime fixed platforms), and 49 U.S.C. § 46502
(aircraft piracy);
E 18 U.S.C. § 81 (arson of structures, vessels, machinery
or supplies), § 844(f), (i) (damage by fire or explosives to
federal property or property used in interstate or
foreign commerce), § 930(c) (death in the course of at-
tack on federal facility), § 1361 (damage to government
property or contracts), § 1362 (injury to communication
lines), § 1363 (malicious injury to structures or prop-
erty), § 1366 (destruction of energy facilities), § 2155
(destruction of national defense property), § 2156
(obstruction of national defense), and 49 U.S.C.
§ 60123(b) (damaging interstate pipelines);
E 18 U.S.C. § 175 (biological weapons), § 229 (chemical
weapons), § 831 (unlawful transactions of nuclear ma-
terial), § 842(m), (n) (unlawful transactions of plastic
explosives), § 2332a (use of weapons of mass destruc-
tion), and 42 U.S.C. § 2284 (sabotaging nuclear facili-
ties);
E 18 U.S.C. § 351 (assassination, kidnapping or assault of
government officials), § 1114 (killing of federal officers
and employees), § 1116 (killing of foreign officials or
internationally protected persons), and § 1751 (assas-
sination, kidnapping or assault of Presidential staff);
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E 18 U.S.C. § 956 (conspiracy to kidnap or injure persons
or damage property in foreign country), § 1091 (geno-
cide), § 1203 (taking hostages), § 2332 (homicide of a
national outside of the United States), § 2340A (tor-
ture), § 2332b (international acts of terrorism), § 2332f
(bombings), and § 2442 (recruiting child soldiers); and
E Any offense listed in 42 U.S.C. § 2332b(g)(5)(B) (federal
crimes of terrorism), except offenses under Sections
2339A and 2339B.
In Holder v. Humanitarian Law Project, the Supreme Court
contrasted the mental state requirement in Section 2339A with
Section 2339B. See 561 U.S. 1, 16–17 (2010). To be convicted under
Section 2339A, a defendant must have possessed the specific intent
that the material support or resources provided would be used to
further unlawful terrorist activity. See id. at 16–17 (“Congress
plainly spoke to the necessary mental state for a violation of
§ 2339B, and it chose knowledge about the organization’s connec-
tion to terrorism, not specific intent to further the organization’s
terrorist activities.”). Note the difference between Section 2339A
and Section 2339B: in Section 2339A, the object of the intent or
knowledge requirement is the terrorist activity itself; in contrast,
the mental state for a conviction under Section 2339B requires
only that the defendant seek to further the terrorist organization,
not necessarily its specific acts.
2339A
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974
18 U.S.C. § 2339B PROVIDING MATERIAL
SUPPORT OR RESOURCES TO DESIGNATED
FOREIGN TERRORIST ORGANIZATIONS—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
———
of the indictment charge[s] the defen-
dant[s] with] providing material support or resources to
a foreign terrorist organization. In order for you to find
[the; a] defendant guilty of this charge, the government
must prove each of the three following elements beyond
a reasonable doubt:
1. The defendant knowingly [provided; attempted
to provide; conspired to provide] material support or re-
sources to [the organization described in the indict-
ment]; and
2. The defendant knew that [the organization
described in the indictment] [is a designated terrorist
organization; has engaged or engages in terrorist activ-
ity; has engaged or engages in terrorism]; and
3. One of the following additional requirements is
satisfied:
(a) The defendant is a national or permanent
resident alien of United States; or
(b) The defendant is a stateless person with
habitual residence in the United States; or
(c) After the charged conduct occurred, the
defendant was brought into or found in the United
States; or
(d) The offense occurred in whole or in part
in the United States; or
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975
(e) The offense occurred in or affected inter-
state or foreign commerce; or
(f) The defendant aided or abetted or con-
spired with any person over whom jurisdiction
exists.
[The term “designated terrorist organization”
means an organization designated by the Secretary of
State as a foreign terrorist organization pursuant to
Section 219 of the Immigration and Nationality Act, 8
U.S.C. § 1189. I hereby instruct you as a matter of law
that [organization described in the indictment which
has been listed as a Foreign Terrorist Organization]
was designated as a “foreign terrorist organization”
during the alleged conduct.]
[An organization is “engaged in terrorist activity” if it:
(a) Commits or incites to commit, under cir-
cumstances indicating an intent to cause death or
serious bodily injury, a terrorist activity; or
(b) Prepares or plans a terrorist activity; or
(c) Gathers information on potential targets
for terrorist activity; or
(d) Solicits funds or things of value for a ter-
rorist activity or a terrorist organization; or
(e) Solicits any individual to engage in terror-
ist activity or for membership in a terrorist organi-
zation; or
(f) Commits an act that the actor knows, or
reasonably should know, affords material support
[for the commission of a terrorist activity; to any
individual the actor knows, or reasonably should
know, has committed or plans to commit a terrorist
2339B
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976
activity; to a terrorist organization or any member
of such organization].]
[The term “terrorist activity” means any activity
that is unlawful under the laws of the United States or
the place it was committed, and which involves any of
the following actions:
(a) Hijacking or sabotaging an aircraft, ves-
sel, vehicle, or other conveyance; or
(b) Seizing or detaining and threatening to
kill, injure, or further detain a person to compel a
third party (including a government entity) to take
or abstain from taking a specific action as a condi-
tion for releasing the seized or detained person; or
(c) A violent attack on an internationally
protected person, including employees and officials
of governments and international organizations; or
(d) An assassination; or
(e) Using biological or chemical agents, nu-
clear weapons or devices, explosives, firearms, or
other weapons or dangerous devices with intent to
endanger the safety of one or more individuals or
to cause substantial property damage; or
(f) Threatening, attempting, or conspiring to
take any of the preceding actions.]
[The term “terrorism” means premeditated,
politically-motivated violence perpetrated against non-
combatant targets by subnational groups or clandestine
agents.]
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
2339B
CRIMINAL INSTRUCTIONS
977
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
Section 2339B does not prohibit mere association or member-
ship with a foreign terrorist organization; it only prohibits the pro-
vision of material support or resources. See Holder v. Humanitar-
ian Law Project, 561 U.S. 1, 39 (2010). Likewise, Section 2339B
does not prohibit mere praise, independent advocacy, or voicing
support for a foreign terrorist organization. See Boim v. Quranic
Literacy Inst. & Holy Land Found. for Relief and Dev., 291 F.3d
1000, 1026 (7th Cir. 2002); see also Holder, 561 U.S. at 25–26.
If the alleged material support or resources is the provision of
personnel, provide an additional instruction:
You may only find the defendant guilty for providing sup-
port in the form of “personnel” if the defendant knowingly
[provided; attempted to provide; conspired to provide] the
foreign terrorist organization [identified in Count
———
] with
one or more individuals (who may be or include the defendant
[himself; herself]) to work under the organization’s direction
or control, or to organize, manage, supervise or otherwise
direct the operation of the organization.
You may not find the defendant guilty for providing
“personnel” that act entirely independently of the foreign ter-
rorist organization to advance the organization’s goals or
objectives. For example, if the defendant worked to advance
the goals and objectives of the terrorist organization but did so
entirely independently, the defendant cannot be found guilty
[of Count
———
].
See 18 U.S.C. § 2339B(h). The prohibition of support in the form of
“personnel” does not include independent advocacy entirely discon-
nected from the foreign terrorist organization. See Holder v.
Humanitarian Law Project, 561 U.S. 1, 23 (2010).
If the indictment alleges that a death resulted, the jury must
2339B
STATUTORY INSTRUCTIONS
978
separately find this fact because the finding has the effect of rais-
ing the statutory maximum penalty to life imprisonment. See
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (“Other than the
fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submit-
ted to a jury, and proved beyond a reasonable doubt.”). Where rel-
evant, provide an additional instruction to this effect:
The government has alleged that the death of a person
resulted from this offense, a fact that it must prove beyond a
reasonable doubt. If you conclude beyond a reasonable doubt
that a death resulted, you should separately note this finding
on the verdict form. If you find the elements of the crime be-
yond a reasonable doubt but not the resulting death, you
should also note that finding on the verdict form.
The term “material support or resource” has the same mean-
ing in Section 2339B as the term is accorded in 18 U.S.C. § 2339A.
See 18 U.S.C. §§ 2339A(b)(1), 2339B(g)(4). For a definition of “ma-
terial support or resource,” see the pattern instruction regarding
that term as used in Section 2339A.
The terms “terrorist activity” and “engage in terrorist activity”
are defined in 8 U.S.C. § 1182(a)(3)(B)(iii) to (iv).
The definition of “terrorism” comes from Section 140(d)(2) of
the Foreign Relations Authorization Act, 22 U.S.C. § 2656f(d)(2).
In Holder v. Humanitarian Law Project, the Supreme Court
clarified the mental state requirement in Section 2339B that a
defendant “knowingly” provided material support. 561 U.S. 1,
16–17 (2010). A conviction under Section 2339B does not require
the defendant to have the specific intent to further the organiza-
tion’s terrorist activities; rather, Section 2339B only requires a
defendant’s knowledge of the organization’s connection to
terrorism. See id.
In Holder, the Supreme Court also rejected an as-applied
constitutional challenge to Section 2339B. See id. at 7–8. Two
United States citizens and six domestic non-profit organizations
claimed they “wished to provide support for the humanitarian and
political activities” of two designated foreign terrorist organiza-
tions “in the form of monetary contributions, other tangible aid,
legal training, and political advocacy, but that they could not do so
for fear of prosecution under § 2339B.” Id. at 10. The Court ruled
that Section 2339B, as applied to these plaintiffs’ intended actions,
did not violate their freedom of speech or association under the
2339B
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979
First Amendment. See id. at 39–40.
2339B
STATUTORY INSTRUCTIONS
980
18 U.S.C. § 2421 TRANSPORTATION FOR
PROSTITUTION/SEXUAL ACTIVITY—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] transportation for [prostitution; sexual activity].
In order for you to find [the; a] defendant guilty of this
charge, the government must prove both of the follow-
ing elements beyond a reasonable doubt:
1. The defendant knowingly [transported; at-
tempted to transport] [the person identified in the
indictment] in interstate commerce; and
2. At the time of [transportation; the attempted
transportation], the defendant intended that [the
person identified in the indictment] would engage in
[prostitution; sexual activity for which [the defendant;
any other person identified in the indictment] could
have been charged with a criminal offense [as charged
in the indictment]].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
“Sexual activity” is not fully defined by the statute. See 18
U.S.C. § 2427. There is no current authority addressing whether
“sexual activity” includes conduct other than conduct included
within “sexually explicit conduct” (see 18 U.S.C. § 2256(2)(A)), “il-
2421
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981
licit sexual conduct” (see 18 U.S.C. § 2423(f)), and “sexual act” (see
18 U.S.C. § 2246(2)), such as misdemeanor offenses involving flash-
ing or masturbation.
In appropriate cases, “prostitution” may need to be defined.
“Prostitution” means knowingly engaging in or offering to engage
in a sexual act in exchange for money or other valuable
consideration.
If the charged offense is an attempt, the court should also give
the instruction defining attempt. See Pattern Instruction 4.09.
For a definition of interstate or foreign commerce see Pattern
Instruction 18 U.S.C. § 2315.
2421
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982
18 U.S.C. § 2422(a) ENTICEMENT—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] enticement. In order for you to find [the; a]
defendant guilty of this charge, the government must
prove both of the following elements beyond a reason-
able doubt:
1. The defendant knowingly [persuaded; induced;
enticed; coerced] [the person identified in the indict-
ment] to travel in interstate commerce to engage in
[prostitution; sexual activity]; and
2. [The defendant; any other person identified in
the indictment] could have been charged with a crimi-
nal offense [as charged in the indictment] for the sexual
activity.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
“Sexual activity” is not fully defined by statute. See 18 U.S.C.
§ 2427. There is no current authority addressing whether the term
includes conduct other than conduct included within “sexually ex-
plicit conduct” (see 18 U.S.C. § 2256(2)(A)), “illicit sexual conduct”
(see 18 U.S.C. § 2423(f)), and “sexual act” (see 18 U.S.C. § 2246(2)),
such as misdemeanor offenses involving flashing or masturbation.
In appropriate cases, “prostitution” may need to be defined.
“Prostitution” means knowingly engaging in or offering to engage
2422(a)
CRIMINAL INSTRUCTIONS
983
in a sexual act in exchange for money or other valuable
consideration. If the charged offense is an attempt, the court should
also define attempt, see Pattern Instruction 4.09. “Coercion” is
defined at Pattern Instruction for 18 U.S.C. § 1581(E)(2). For a
definition of interstate or foreign commerce see Pattern Instruc-
tion 18 U.S.C. § 2315.
The Seventh Circuit has not decided whether unanimity
regarding the manner of enticement is required, and the Commit-
tee takes no position. See United States v. Hofus, 598 F.3d 1171,
1177 (9th Cir. 2010) (unanimity not required). If it is required, see
Pattern Instruction 4.04.
2422(a)
STATUTORY INSTRUCTIONS
984
18 U.S.C. § 2422(b) ENTICEMENT OF A
MINOR—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] enticement of a minor. In order for you to find
[the; a] defendant guilty of this count, the government
must prove each of the [four] following elements beyond
a reasonable doubt:
1. The defendant used a facility or means of inter-
state commerce to knowingly [persuade; induce; entice;
coerce] [the person identified in the indictment] to
engage in [prostitution; sexual activity]; and
2. [The person identified in the indictment] was
less than 18 years of age; and
3. The defendant believed [the person identified
in the indictment was less than 18 years of age]; and
4. If the sexual activity had occurred, [the defen-
dant; any other person identified in the indictment]
would have committed the criminal offense of [name
criminal offense].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the count
you are considering], then you should find the defendant
guilty [of that count].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the count you are considering], then you
should find the defendant not guilty [of that count].
Committee Comment
United States v. Berg, 640 F.3d 239 (7th Cir. 2011), held that
2422(b)
CRIMINAL INSTRUCTIONS
985
the intent required under Section 2422(b) is the intent to persuade,
induce or entice someone believed to be a minor to engage in sexual
activity. It is not required for the government to prove that the
defendant intended to engage in sexual activity with the minor.
The term “sexual activity” is not defined in the state. However,
in United States v. Taylor, 640 F.3d 255 (7th Cir. 2011), the Court
held that the rule on lenity requires sexual activity to be
interpreted as synonymous with “sexual act” insofar as it requires
physical contact between two people. Acts that are sexual in
nature, but that do not involve that physical contact between two
people (e.g., flashing, masturbation) are not covered by the statute.
In United States v. McMillan, 744 F.3d 1033 (7th Cir. 2014), the
Court held that a state statute making it a crime to knowingly
persuade, induce, entice, or coerce person under age of 18 to engage
in criminal sexual activity extended to adult-to-adult communica-
tions that were designed to persuade minor to commit forbidden
acts.
In appropriate cases, “prostitution” may need to be defined.
“Prostitution” means knowingly engaging in or offering to engage
in a sexual act in exchange for money or other valuable
consideration.
If the charged offense is an attempt, the court should also give
the instruction defining attempt. See Pattern Instruction 4.09. In
U.S. v. Cote, 504 F.3d 682 (7th Cir. 2007), the Court held that a
Defendant could be found guilty of using a facility or means of in-
terstate commerce knowingly to attempt to persuade, induce or
entice a minor to engage in a sexual act if he believed, albeit
mistakenly, that the victim was a minor.
“Minor” is defined in Pattern Instruction 18 U.S.C. § 2256(1).
For a definition of interstate or foreign commerce see Pattern
Instruction 18 U.S.C. § 2315.
It is well-established that a jury in a federal criminal case
may not convict unless it unanimously finds that the government
has proved each element of the offense beyond a reasonable doubt.
Richardson v. United States, 526 U.S. 813, 817 (1999). A federal
jury need not always decide unanimously the means the defendant
used to commit an element of the crime. Id. The Seventh Circuit
has not yet decided whether, in the context of 18 U.S.C. § 2422(b),
unanimity regarding the manner of persuasion, inducement,
enticement, or coercion is required, and the Committee takes no
position.
2422(b)
STATUTORY INSTRUCTIONS
986
18 U.S.C. § 2423(a) TRANSPORTATION OF
MINORS WITH INTENT TO ENGAGE IN
CRIMINAL SEXUAL ACTIVITY—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] transportation of [a] minor[s] with the intent to
engage in criminal sexual activity. In order for you to
find [the; a] defendant guilty of this charge, the govern-
ment must prove each of the [three] following elements
beyond a reasonable doubt:
1. The defendant knowingly transported [the
person identified in the indictment] in [interstate com-
merce; foreign commerce]; and
2. [The person identified in the indictment] was
less than eighteen years of age at the time; and
3. The defendant intended that [the person identi-
fied in the indictment] engage in [prostitution; sexual
activity] which if it had occurred [the defendant; any
other person identified in the indictment] would have
committed the criminal offense of [name criminal
offense].
The government does not have to prove that the
defendant believed or knew [the person identified in
the indictment] was less than 18 years of age.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
2423(a)
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987
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The government need not prove the defendant knew or
believed of the minor status of the person transported. United
States v. Cox, 577 F.3d 833 (7th Cir. 2009).
“Sexual activity” is not fully defined by the statute. See 18
U.S.C. § 2427. There is no current authority addressing whether
“sexual activity” includes conduct other than conduct included
within “sexually explicit conduct” (see 18 U.S.C. § 2256(2)(A)), “il-
licit sexual conduct” (see 18 U.S.C. § 2423(f)), and “sexual act” (see
18 U.S.C. § 2246(2)), such as misdemeanor offenses involving flash-
ing or masturbation.
In appropriate cases, “prostitution” may need to be defined.
“Prostitution” means knowingly engaging in or offering to engage
in a sexual act in exchange for money or other valuable
consideration.
If the charged offense is an attempt, the court should also give
the instruction defining attempt. See Pattern Instruction 4.09
“Sexual activity” is not fully defined by the statute. See 18
U.S.C. § 2427.
For a definition of interstate or foreign commerce see Pattern
Instruction 18 U.S.C. § 2315.
2423(a)
STATUTORY INSTRUCTIONS
988
18 U.S.C. § 2423(b) INTERSTATE TRAVEL WITH
INTENT TO ENGAGE IN A SEXUAL ACT WITH A
MINOR—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
———
of the indictment charge[s] the defen-
dant[s] with] traveling in [interstate commerce; foreign
commerce] to engage in illicit sexual conduct with a
minor. In order for you to find [the; a] defendant guilty
of this charge, the government must prove each of the
following elements beyond a reasonable doubt:
1. The defendant traveled in [interstate com-
merce; foreign commerce]; and
2. The defendant’s purpose in traveling in [inter-
state commerce; foreign commerce] was to engage in il-
licit sexual conduct with a minor.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
“Illicit Sexual Conduct” is defined in Pattern Instruction 18
U.S.C. § 2423(f).
“Minor” is defined in Pattern Instruction 18 U.S.C. § 2256(1).
For a definition of interstate or foreign commerce see Pattern
Instruction 18 U.S.C. § 2315.
2423(b)
CRIMINAL INSTRUCTIONS
989
18 U.S.C. § 2423(c) FOREIGN TRAVEL WITH
INTENT TO ENGAGE IN A SEXUAL ACT WITH A
MINOR—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] traveling in foreign commerce to engage in illicit
sexual conduct with a minor. In order for you to find
[the; a] defendant guilty of this charge, the government
must prove each of the [three] following elements be-
yond a reasonable doubt:
1. The defendant is a [United States citizen; alien
admitted for permanent residence]; and
2. The defendant traveled in foreign commerce;
and
3. The defendant engaged in illicit sexual conduct
with a minor.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
“Illicit Sexual Conduct” is defined in Pattern Instruction 18
U.S.C. § 2423(f).
“Minor” is defined in Pattern Instruction 18 U.S.C. § 2256(1).
For a definition of interstate or foreign commerce see Pattern
Instruction 18 U.S.C. § 2315.
2423(c)
STATUTORY INSTRUCTIONS
990
18 U.S.C. § 2423(f) DEFINITION OF “ILLICIT
SEXUAL CONDUCT”
“Illicit sexual conduct” means:
1. a sexual act with a person under eighteen years
of age; or
2. any commercial sex act with a person under
eighteen years of age; or
3. production of child pornography
Committee Comment
“Sexual act” is defined in Pattern Instruction 18 U.S.C.
§ 2246(2).
“Commercial sex act” is defined in Pattern Instruction 18
U.S.C. § 1591(e)(3).
“Child pornography” is defined in Pattern Instruction 18
U.S.C. 2256(8).
2423(f)
CRIMINAL INSTRUCTIONS
991
18 U.S.C. § 2423(g) DEFENSE
If the defendant establishes with clear and convinc-
ing evidence that the defendant reasonably believed
[the person identified in the indictment with whom the
defendant engaged in a commercial sex act] was at least
eighteen years of age at the time of the charged offense,
then you should find the defendant not guilty of [Count
—
].
Committee Comment
This defense applies to defendants accused of “engag[ing] in
[a] . . . commercial sex act” as defined in 18 U.S.C. § 2423(f)(2).
Id. § 2423(g). Because (b) and (c) are the subsections of § 2423 that
prohibit the defendant from engaging in such acts (as opposed to
transportation acts, § 2423(a), or ancillary offenses, § 2423(d)), the
Committee suggests that this instruction should only be given in
cases charging violations of § 2423(b) or (c) in which the illicit
sexual conduct involves a commercial sex act under § 2423(f)(2).
“Commercial sex act” is defined in 18 U.S.C. § 1591(e)(3) and
the related Pattern Instruction.
2423(g)
STATUTORY INSTRUCTIONS
992
18 U.S.C. § 2425 USE OF INTERSTATE
FACILITIES TO TRANSMIT INFORMATION
ABOUT A MINOR—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] use of interstate facilities to transmit information
about a minor. In order for you to find [the; a] defendant
guilty of this charge, the government must prove each
of the [three] following elements beyond a reasonable
doubt:
1. The defendant knowingly initiated the trans-
mission of the [name; address; telephone number; social
security number; electronic mail address] of [the person
identified in the indictment] [by [mail; a facility or
means of interstate or foreign commerce]] [within the
special maritime or territorial jurisdiction of the United
States]; and
2. The defendant knew that [the person identified
in the indictment] was less than sixteen years of age at
the time; and
3. The defendant intended to [entice; encourage;
offer; solicit] [the person identified in the indictment] to
engage in any sexual activity for which [the defendant;
any other person identified in the indictment] could
have been charged with a criminal offense [as charged
in the indictment].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
2425
CRIMINAL INSTRUCTIONS
993
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
“Sexual activity” is not fully defined by the statute. See 18
U.S.C. § 2427. There is no current authority addressing whether
“sexual activity” includes conduct other than conduct included
within “sexually explicit conduct” (see 18 U.S.C. § 2256(2)(A)), “il-
licit sexual conduct” (see 18 U.S.C. § 2423(f)), and “sexual act” (see
18 U.S.C. § 2246(2)), such as misdemeanor offenses involving flash-
ing or masturbation.
“Minor” is defined in Pattern Instruction 18 U.S.C. § 2256(1).
“Sexual activity” is not fully defined by the statute. See 18
U.S.C. § 2427.
2425
STATUTORY INSTRUCTIONS
994
21 U.S.C. § 841(a)(1) DISTRIBUTION OF A
CONTROLLED SUBSTANCE—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] distribution of [identify controlled substance al-
leged in charge]. In order for you to find [the; a]
defendant guilty of this charge, the government must
prove both of the following elements beyond a reason-
able doubt:
1. The defendant knowingly distributed [identify
controlled substance alleged in charge]; and
2. The defendant knew the substance [was; con-
tained] some kind of a controlled substance. The govern-
ment is not required to prove that the defendant knew
the substance was [identify the controlled substance al-
leged in charge.]
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
Section 841 of Title 21 U.S.C. prohibits knowing or intentional
distribution of a controlled substance. Knowing distribution is
sufficient. See, e.g., United States v. Graham, 315 F.3d 777, 781
(7th Cir. 2003).
The second element explains both what the government must
prove and what it need not prove. Because the concept is simple,
there is no need for a separate instruction what the government
841(a)(1)
CRIMINAL INSTRUCTIONS
995
need not prove, as in the former pattern instructions. If there is no
evidence that might suggest the defendant could have thought the
substance something other than what the government alleges, it
may be prudent to omit the sentence concerning what the govern-
ment need not prove.
In every case the government must prove that “the defendant
knew that he was dealing with a ‘controlled substance.’ ’’ McFad-
den v. United States, 576 U.S. 186, 188–89 (2015). If the charge
involves a controlled substances analogue, see 21 U.S.C.
§ 802(32)(A), then this knowledge requirement is met if the
defendant knew that the substance was controlled under the Con-
trolled Substances Act or the Analogue Act, even if he did not
know its identity. The knowledge requirement is also met if the
defendant knew the specific features of the substance that make it
a ‘controlled substance analogue.’ Id. See also United States v.
Hamdan, 910 F.3d 351, 356 (7th Cir. 2018). Therefore, in an
analogue prosecution, the second sentence of the second element
should be deleted, and the court should instruct the jury that:
the government can satisfy this knowledge requirement in one
of two ways: first, knowledge can be established by evidence
that the defendant knew that the substance charged in count
[n] was some controlled substance—that is, one actually listed
on the federal drug schedules or treated as such by operation
of the Analogue Act—regardless whether he knew the particu-
lar identity of the substance. Second, knowledge can be
established by evidence that the defendant knew the specific
analogue he was dealing with, even if he did not know its
legal status as an analogue. To prove knowledge the second
way, the government must show that the defendant knew that
the substance he is charged with distributing had (1) a chemi-
cal structure substantially similar to that of an already-
scheduled controlled substance and (2) a physiological effect
substantially similar to or greater than the effect of an
already-scheduled controlled substance.
United States v. Novak, 841 F.3d 721, 728–29 (7th Cir. 2016) (quot-
ing McFadden, 576 U.S. at 194).
The government may prove such knowledge circumstantially.
United States v. Hamdan, 910 F.3d at 356. However, what became
known as “the Turcotte inference,” which allowed an inference of
chemical similarities from awareness of similar physiological ef-
fects, see United States v. Turcotte, 405 F.3d 515, 527 (7th Cir.
2005), no longer is good law. See Novak, 841 F.3d at 728.
841(a)(1)
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996
21 U.S.C. § 841(a)(1) DEFINITION OF
“DISTRIBUTION”
A person “distributes” a controlled substance if he
[delivers or transfers possession of the controlled
substance to someone else; causes a person to deliver or
transfer possession of the controlled substance to an-
other person].
841(a)(1)
CRIMINAL INSTRUCTIONS
997
21 U.S.C. § 841(a)(1) POSSESSION WITH
INTENT TO DISTRIBUTE—ELEMENTS
[The indictment charges defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] possession of [identify controlled substance al-
leged in charge] with intent to distribute. In order for
you to find [the; a] defendant guilty of this charge, the
government must prove each of the [three] following
elements beyond a reasonable doubt:
1. The defendant knowingly possessed [identify
controlled substance alleged in charge]; and
2. The defendant intended to distribute the
substance to another person; and
3. The defendant knew the substance [was; con-
tained] some kind of a controlled substance. The govern-
ment is not required to prove that the defendant knew
the substance was [identify the controlled substance al-
leged in charge.]
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The Committee modified this instruction to track the instruc-
tion for distribution of a controlled substance under 21 U.S.C.
§ 841(a)(1). See United States v. Irby, 558 F.3d 651, 654 (7th Cir.
2009).
841(a)(1)
STATUTORY INSTRUCTIONS
998
If the charge involves a controlled substance analogue, then
the third element must be modified in the same manner as the
second element of the instructions for distribution.
841(a)(1)
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999
21 U.S.C. § 841(a)(1) DEFINITION OF
“CONTROLLED SUBSTANCE”
[Identify the controlled substance] is a “controlled
substance.”
Committee Comment
See 21 U.S.C. §§ 802(6) & 812.
841(a)(1)
STATUTORY INSTRUCTIONS
1000
21 U.S.C. §§ 841(b)(1)(A), (B) or (C) DEFINITION
OF “SERIOUS BODILY INJURY”
The term “serious bodily injury” means bodily
injury that involves—
(a) A substantial risk of death;
(b) Extreme physical pain;
(c) Long-lasting and obvious disfigurement; or
(d) Long-lasting loss or impairment of the function of
a bodily member, organ, or mental faculty.
Committee Comment
See 18 U.S.C. §§ 113(b)(2) and 1365(h)(3).
841(b)(1)(A), (B) or (C)
CRIMINAL INSTRUCTIONS
1001
21 U.S.C. §§ 841(b)(1)(A), (B) or (C) WHERE
DEATH OR SERIOUS BODILY INJURY
RESULTS—SPECIAL VERDICT FORM
If you find the defendant guilty of the offense
charged in [Count[s]
———
of] the indictment, you must
then determine whether the government has proven
that the defendant’s distribution of [identify the
charged controlled substance] resulted in the [death of;
serious bodily injury to] [name of victim].
To prove that [name of victim] died as a result of
the defendant’s distribution of [identify the controlled
substance], the government must prove beyond a rea-
sonable doubt that [name of victim] would not have
[died; been seriously injured] if [he; she] had not used
the [identify the controlled substance] distributed by
defendant. It is not enough to prove that the defendant’s
conduct merely contributed to [name of victim’s] death.
[This does not require the government to prove that
the [identify the controlled substance] was present in
an amount sufficient to [kill; cause serious bodily injury]
on its own.]
[The government is not required to prove that the
defendant intended to cause [name of victim]’s death.]
You will see on the verdict form a question concern-
ing this issue. You should consider that question only if
you have found that the government has proven the
defendant guilty as charged in [Count[s]
———
of] the
indictment.
If you find that the government has proven beyond
a reasonable doubt that the defendant’s distribution of
[identify the charged controlled substance] resulted in
the [death of; serious bodily injury to] [name of victim],
then you should answer that question “Yes.”
841(b)(1)(A), (B) or (C)
STATUTORY INSTRUCTIONS
1002
If you find that the government has not proven be-
yond a reasonable doubt that the defendant’s distribu-
tion of [identify the charged controlled substance]
resulted in the [death of; serious bodily injury to] [name
of victim], then you should answer that question “No.”
Committee Comment
See Burrage v. United States, 571 U.S. 204, 210-11 (2014);
Krieger v. United States, 842 F.3d 490, 499-500 (7th Cir. 2016). In
Burrage, the Court held that the “death results” enhancement in
drug cases ordinarily requires the government to prove that the
victim would have lived but for the unlawfully distributed drugs.
In adopting the “but-for” causation standard, the Court emphasized
that the “language Congress enacted requires death to ‘result from’
use of the unlawfully distributed drug, not from a combination of
factors to which drug use merely contributed.” Burrage, 571 U.S.
at 216. Thus, “at least where use of the drug distributed by the
defendant is not an independently sufficient cause of the victim’s
death or serious bodily injury, a defendant cannot be liable under
the penalty enhancement provision of 21 U.S.C. s. 841(b)(1)(C) un-
less such use is a but-for cause of the death or injury.” Id. at 218-
19.
In Perrone v. United States, 889 F.3d 898 (7th Cir. 2018), the
Seventh Circuit elaborated on the meaning of “but for” causation
in the context of an overdose death:
This dispute is about causation, so we will begin by clearly
stating what “but for” causation requires. It does not require
proof that the distributed drug was present in an amount suf-
ficient to kill on its own. The Court explained in Burrage that
death can “result[ ] from” a particular drug when it is the
proverbial “straw that broke the camel’s back.” 134 S. Ct. at
888. As the Court put it: “if poison is administered to a man
debilitated by multiple diseases, it is a but-for cause of his
death even if those diseases played a part in his demise, so
long as, without the incremental effect of the poison, he would
have lived.” Id. Here, then, the fact that other substances in
[the victim’s] bloodstream played a part in her death does not
defeat the government’s claim that her death resulted from
the cocaine Perrone gave her. A jury could have found him
guilty of causing her death if it concluded beyond a reasonable
doubt that Perrone’s cocaine pushed her over the edge.
Id. at 906.
It is an open question in this Circuit whether strict “but-for”
841(b)(1)(A), (B) or (C)
CRIMINAL INSTRUCTIONS
1003
causation is required if the government proves that the defendant’s
conduct was an independently sufficient cause of the victim’s death.
See Perrone, 889 F.3d at 906. In Perrone, the Seventh Circuit
indicated that “strict ‘but-for’ causation might not be required
when ‘‘ ‘multiple sufficient causes independently, but concurrently,
produce a result,’ ’’ but declined to decide the issue. Id.
The Seventh Circuit has held that the government does not
have to prove proximate causation—i.e., that the death was a rea-
sonably foreseeable result of the drug offense—to establish the
“death results” enhancement for drug distribution. United States
v. Harden, 893 F.3d 434, 447-49 (7th Cir. 2018). The other eight
circuits to address this issue in the drug offense context are in
agreement. See, e.g., United States v. Jeffries, 958 F.3d 517, 520
(6th Cir. 2020) (citing cases). Burrage granted certiorari on
whether the jury must find that the victim’s death by drug overdose
was a foreseeable result of the defendant’s drug-trafficking offense,
but declined to reach that issue.
In cases where the death may have resulted from the actions
of co-conspirators rather than the defendant himself, the court
may need to tailor the instructions to ensure that the jury makes
the findings necessary to hold the defendant liable for the death.
See United States v. Walker, 721 F.3d 828, 833–36 (7th Cir. 2013),
vacated on other grounds, 572 U.S. 1111 (2014) (recognizing that
“the scope of a defendant’s relevant conduct for determining
sentencing liability may be narrower than the scope of criminal li-
ability”); United States v. Hamm, 952 F.3d 728 (6th Cir. 2020)
(holding that the death-or-injury enhancement “applies only to
defendants who were part of the distribution chain that placed the
drugs into the hands of the overdose victim” and that “Pinkerton
liability could only apply to the substantive offense, not the
sentencing enhancement”).
The optional sentence in the third paragraph of the instruc-
tion comes from Perrone, 889 F.3d at 906, which refers to situa-
tions where the drug was the “straw that broke the camel’s back.
“It will not be appropriate in every case.
841(b)(1)(A), (B) or (C)
STATUTORY INSTRUCTIONS
1004
21 U.S.C. § 841(c)(1) POSSESSION OF LISTED
CHEMICAL WITH INTENT TO
MANUFACTURE—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] possession of [identify chemical alleged in charge]
with intent to manufacture a controlled substance. In
order for you to find [the; a] defendant guilty of this
charge, the government must prove each of the [three]
following elements beyond a reasonable doubt:
1. The defendant knowingly possessed [identify
the chemical alleged in charge]; and
2. The defendant intended to use [identify the
chemical] to manufacture a controlled substance; and
3. [Identify the chemical] is a listed chemical.
4. The defendant knew [identify the chemical] was
a listed chemical.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The previous version of this instruction included in the third
element the following sentence: “The government is not required to
prove that the defendant knew [identify the chemical] was a listed
chemical.” In United States v. Estrada, 453 F.3d 1208 (9th Cir.
841(c)(1)
CRIMINAL INSTRUCTIONS
1005
2006), the Ninth Circuit held that the government is not required
to prove that the defendant knew the chemical was a listed
chemical. The Seventh Circuit has not yet addressed this argu-
ment in any reported case. However, in light of McFadden v.
United States, 576 U.S. 186, 188–89 (2015), it is likely that the
government must prove that the defendant knew the charged
substance was a listed chemical within the meaning of 21 U.S.C.
§ 802(33). See Committee Comment to Distribution of a Controlled
Substance, supra at
———
. See also United States v. Turcotte, 405
F.3d 515, 527 (7th Cir. 2005) (requiring proof that defendant knew
the substance he possessed was a controlled substance analogue as
defined by statute), overruled on other grounds, United States v.
Novak, 841 F.3d 721, 729 (7th Cir. 2016). The Committee has mod-
ified the instruction accordingly.
841(c)(1)
STATUTORY INSTRUCTIONS
1006
21 U.S.C. § 841(c)(2) POSSESSION/
DISTRIBUTION OF LISTED CHEMICAL FOR
USE IN MANUFACTURE—ELEMENTS
[The indictment charges defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] possess of [identify chemical alleged in charge] for
use in the manufacture of a prohibited drug. In order
for you to find [the; a] defendant guilty of this charge,
the government must prove each of the [three] follow-
ing elements beyond a reasonable doubt:
1. The defendant knowingly [possessed; distrib-
uted] [identify the chemical alleged in charge]; and
2. The defendant knew or had reasonable cause to
believe the [identify the chemical] would be used to
manufacture a prohibited drug; and
3. [Identify the chemical] is a listed chemical.
4. The defendant knew [identify the chemical] was
a listed chemical.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
In United States v. Khattab, 536 F.3d 765, 769 (7th Cir. 2008),
the court noted a circuit split on what level of mens rea the govern-
ment is required to prove as to the second element, with some
841(c)(2)
CRIMINAL INSTRUCTIONS
1007
courts concluding that “reasonable cause to believe” to be “akin to
actual knowledge,” United States v. Truong, 425 F.3d 1282, 1289
(10th Cir. 2005), while other courts require the government only to
prove objective knowledge, See, e.g., United States v. Kaur, 382
F.3d 1155, 1157 (9th Cir. 2004). The Seventh Circuit has not had
occasion since then to revisit this issue. In light of McFadden v.
United States, 576 U.S. 186, 188–89 (2015), it would seem more
prudent to require the government to prove a defendant’s subjec-
tive knowledge (which was the case in United States v. Khattab),
but none of the courts that have approved the lower objective stan-
dard has reversed its position.
As for the third element, the Court’s holding in McFadden
indicates that the government must prove that the defendant knew
the charged substance was a listed chemical within the meaning of
21 U.S.C. § 802(33). See the Committee Comment to Distribution
of a Controlled Substance, supra at
———
.
841(c)(2)
STATUTORY INSTRUCTIONS
1008
21 U.S.C. § 841(a)(1) & (c) DEFINITION OF
“POSSESSION”
Committee Comment
Pattern Instruction 4.13 should be used in narcotics cases in
which a definition of possession is required.
841(a)(1) & (c)
CRIMINAL INSTRUCTIONS
1009
INTRODUCTORY FORFEITURE INSTRUCTION
Members of the Jury, you have one more task to
perform before you are discharged.
In this case, a portion of the Indictment not previ-
ously discussed seeks to forfeit [certain] money or
property. The law provides that when a defendant is
convicted of
—————
, he may be required to forfeit to
the United States certain property. I will explain the
specific property that may be subject to forfeiture in a
moment. But first, I will give you some general instruc-
tions that apply to your consideration of the forfeiture
allegations. [Each of you will be given a copy of these
instructions for your deliberations.]
“Forfeiture” means to give up ownership or interest
in property, as a penalty for committing [a] violation[s]
of certain federal laws.
The instructions previously given to you concerning
your consideration of the evidence, the credibility of the
witnesses, [separate consideration of each defendant],
your duty to deliberate together, and the necessity of a
unanimous verdict apply during your forfeiture
deliberations. The burden of proof, however, is differ-
ent, as I will describe more fully below.
In your forfeiture deliberations, you may consider
any evidence admitted before [or after your previous]
deliberations, including witness testimony, exhibits,
and stipulations [and anything I took judicial notice of].
I remind you that the lawyers’ statements to you are
not evidence.
You should not reconsider whether [a] defendant[s]
[is; are] guilty or not guilty. Your previous verdict[s] [is;
are] final and conclusive.
841(a)(1) & (c)
STATUTORY INSTRUCTIONS
1010
Committee Comment
Fed. R. Crim. P. 32.2(b)(5) provides that upon a party’s
request, “a jury must determine whether the government has
established the requisite nexus between the property and the of-
fense committed by the defendant. Because forfeiture is an ele-
ment of sentencing, United States v. Libretti, 516 U.S. 29, 38–39
(1995), the forfeiture proceedings take place only if the jury has
found the defendant guilty of an offense that gives rise to forfeiture.
Rule 32.2(a), modified as of December 1, 2009, provides that
the government does not have to identify in the indictment the
property subject to forfeiture or specify the amount of any forfei-
ture money judgment that it seeks. The government need only
provide notice in the indictment or information that it intends to
seek the forfeiture of property. Accordingly, the draft instructions
have included language in brackets for those cases where the no-
tice in the indictment identifies specific property.
841(a)(1) & (c)
CRIMINAL INSTRUCTIONS
1011
FORFEITURE ALLEGATIONS INSTRUCTION
The Indictment contains [
———
] Forfeiture
Allegations. The Forfeiture Allegation[s] [is; are] not
evidence and [do; does] not create any inference that
the property is subject to forfeiture. The Defendant has
denied that the property is subject to forfeiture.
Committee Comment
Because forfeiture is an element of sentencing, United States
v. Libretti, 516 U.S. 29, 38–39 (1995), and the jury has already
found the defendant guilty, the Committee concluded that the
presumption of innocence instruction is not appropriate. The Com-
mittee has included as part of this instruction the statement that
the defendant denies that the property is subject to forfeiture.
841(a)(1) & (c)
STATUTORY INSTRUCTIONS
1012
FORFEITURE BURDEN OF PROOF
INSTRUCTION
In this phase of the trial, the government has the
burden of proving that the property it seeks to forfeit is
subject to forfeiture. The government must establish its
forfeiture allegation[s] by a preponderance of the evi-
dence, that is, it must be more probably true than not
true.
The burden of proof stays with the government
throughout this phase of the trial. The defendant[s]
[does; do] not have the burden of proof, and [is; are] not
required to produce any evidence.
Committee Comment
Because forfeiture is an element of sentencing, United States
v. Libretti, 516 U.S. 29, 38–39 (1995), “the government need only
establish its right to forfeiture by a preponderance of the evidence.”
United States v. Patel, 131 F.3d 1195, 1200 (7th Cir. 1997); see
also United States v. Melendez, 401 F.3d 851, 856 (7th Cir. 2005);
United States v. Swanson, 394 F.3d 520, 526 (7th Cir. 2005); United
States v. Messino, 382 F.3d 704, 713–14 (7th Cir. 2004); United
States v. Vera, 278 F.3d 672, 673 (7th Cir. 2002); United States
Messino, 122 F.3d 427, 428 (7th Cir. 1997); United States v. Ben-Hur,
20 F.3d 313, 317 (7th Cir. 1994); United States v. Simone, 931 F.2d
1186, 1199 (7th Cir. 1991). The Seventh Circuit has held that
Apprendi v. New Jersey, 530 U.S. 466 (2000), “does not disturb the
rule that forfeiture is constitutional when supported by the
preponderance of the evidence.” Vera, 278 F.3d at 672; see also
Messino, 382 F.3d at 713–14.
841(a)(1) & (c)
CRIMINAL INSTRUCTIONS
1013
FORFEITURE—THIRD PARTY INTERESTS
You are to determine only if a defendant’s rights,
title and interests, if any, in the specified property
should be forfeited. You are not called upon to determine
whether or not any other person has any right, title or
interest in this money or property, or whether or not
their interest should be forfeited. This is a matter to be
determined by the court in further proceedings, if
necessary. You need only determine whether or not the
government has proved by a preponderance of the evi-
dence that the defendant’s interest in this property, if
any, is forfeitable.
841(a)(1) & (c)
STATUTORY INSTRUCTIONS
1014
SEPARATE CONSIDERATION—FORFEITURE
ALLEGATIONS
You must give separate consideration to each [prop-
erty; interest; forfeiture allegation], and return a sepa-
rate finding as to each. Your finding as to one [prop-
erty; interest; forfeiture allegation] should not control
your decision as to any other.
841(a)(1) & (c)
CRIMINAL INSTRUCTIONS
1015
SEPARATE CONSIDERATION—MULTIPLE
DEFENDANTS
The Forfeiture Allegation[s] allege[s] that the same
property is subject to forfeiture as to more than one
defendant. You must consider the question of forfeiture
separately for each defendant. The fact that property is
forfeited as to one defendant does not necessarily mean
that the property should be forfeited as to another
defendant.
Committee Comment
In Honeycutt v. United States,
—
U.S.
—
, 137 S. Ct. 1626,
1635 (2017), the Court held that “[f]orfeiture pursuant to § 853 is
limited to property the defendant himself actually acquired as the
result of the crime.” In other words, “a defendant cannot be held
jointly and severally liable for property that a co-conspirator
derived from a crime, if the defendant himself did not acquire it.”
United States v. Bogdanov, 863 F.3d 630, 635 (7th Cir. 2017).
The Committee takes no position on whether this instruction
is necessary where no property is involved and where the govern-
ment only seeks a money judgment order of forfeiture.
841(a)(1) & (c)
STATUTORY INSTRUCTIONS
1016
21 U.S.C. § 843(b) USE OF COMMUNICATION
FACILITY IN AID OF NARCOTICS OFFENSE—
ELEMENTS
[The indictment charges defendant[s] with; Count
—
of the indictment charges the defendant[s] with] [us-
ing; causing the use of] a [telephone; other communica-
tion facility] to facilitate a narcotics crime. In order for
you to find [the; a] defendant guilty of this charge, the
government must prove both of the [two] following ele-
ments beyond a reasonable doubt:
1. [The offense of [insert predicate drug offense,
e.g, possession of a controlled substance with intent to
distribute] was committed, as charged in Count
—
of
the indictment.] [Alternatively, insert all elements of
predicate offense.]
2. The defendant used a [telephone; other type of
communication facility] to facilitate or cause the com-
mission of, [insert predicate drug offense, e.g., posses-
sion with intent to distribute, and, if applicable, the
Count number].
3. The defendant did so knowingly.
If you find from your consideration of all the evi-
dence that the government has proved both of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
A defendant violates Section 843 if he knowingly and intention-
843(b)
CRIMINAL INSTRUCTIONS
1017
ally uses a communications facility, such as a telephone, to facili-
tate the commission of a narcotics offense. United States v. Campbell,
534 F.3d 599, 605 (7th Cir. 2008). Proof of a predicate drug offense
is an element of a Section 843(b) conviction. See United States v.
Alvarez, 860 F.2d 801, 813 (7th Cir. 1988) (cited with approval in
Campbell, 534 F.3d at 605). A defendant cannot be convicted of us-
ing a telephone to facilitate a drug offense unless he commits the
drug offense, attempts to commit the drug offense, or aids and
abets another’s commission of the drug offense. Id.
For this reason, the instruction for a charged offense under
§ 843(b) must require proof of the predicate drug offense. In cases
in which the predicate drug offense is also one of the charges at is-
sue during the trial, the instruction for the § 843(b) count may
meet this requirement by making reference to the count in which
the predicate drug offense is charged. In cases in which the predi-
cate drug offense is not one of the charges at issue during the trial,
the instruction for the § 843(b) count must itself require proof of
the elements of the predicate drug offense, in order to satisfy the
requirements of Campbell.
A sample instruction of the latter type is as follows:
1. [The defendant; insert name of alleged offender] know-
ingly distributed [identify controlled substance alleged in
charge].
2. [The defendant; insert name of alleged offender ] knew
the substance [was; contained] some kind of a controlled
substance. The government is not required to prove that the
defendant knew the substance was [identify the controlled
substance alleged in charge.]
3. The defendant used a [telephone; other type of com-
munication facility] to facilitate or cause the commission of
the distribution of the controlled substance.
4. The defendant did so knowingly.
843(b)
STATUTORY INSTRUCTIONS
1018
21 U.S.C. § 843(b) DEFINITION OF
“FACILITATE”
A [call; transmission] “facilitates” an offense if it
makes the offense easier, or if it assists in committing
the offense.
Committee Comment
See United States v. Mojica, 984 F.2d 1426, 1440 (7th Cir.
1993); United States v. Aquilla, 976 F.2d 1044, 1049 (7th Cir. 1992).
843(b)
CRIMINAL INSTRUCTIONS
1019
21 U.S.C. § 844 SIMPLE POSSESSION—
ELEMENTS
[The indictment charges defendant[s] with; Count
—
of the indictment charges the defendant[s] with] pos-
session of a controlled substance. In order for you to
find [the; a] defendant guilty of this charge, the govern-
ment must prove both of the following elements beyond
a reasonable doubt:
1. The defendant knowingly possessed [at least
(specify amount) of] [identify the controlled substance];
and
2. The defendant knew the substance was some
kind of a controlled substance. The government is not
required to prove that the defendant knew the sub-
stance was [identify the controlled substance in charge].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
In some cases a conviction for possession may require a
quantity threshold. In such a case, an element incorporating that
requirement should be added to the first element of the instruction.
844
STATUTORY INSTRUCTIONS
1020
21 U.S.C. § 846 ATTEMPTED DISTRIBUTION OF
CONTROLLED SUBSTANCE—ELEMENTS
[The indictment charges defendant[s] with; Count
—
of the indictment charges the defendant[s] with] at-
tempted distribution of [identify the controlled
substance]. In order for you to find [the; a] defendant
guilty of this charge, the government must prove each
of the [three] following elements beyond a reasonable
doubt:
1. The defendant intended to distribute a con-
trolled substance to another person; and
2. The defendant believed that the substance was
some kind of a controlled substance. [The government
is not required to prove that the substance was actually
a controlled substance.]; and
3. The defendant knowingly took a substantial
step toward distributing [a substance that he believed
to be] a controlled substance, intending to distribute it.
The substantial step must be an act that strongly cor-
roborates that the defendant intended to distribute a
controlled substance.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
See United States v. Lopez, 907 F.3d 537, 543–44 (7th Cir.
846
CRIMINAL INSTRUCTIONS
1021
2018) (to sustain a conviction for attempted possession with intent
to distribute a controlled substance, the government must prove
beyond a reasonable doubt that the defendant acted with the
specific intent to commit the underlying offense and took a
substantial step toward completion of that offense). The definition
of “attempt” is taken from Pattern Instruction 4.09.
The sale of a non-controlled substance that the defendant
subjectively believes to be a controlled substance can constitute an
attempt to distribute. See United States v. Stallworth, 656 F.3d
721, 728–29 (7th Cir. 2011). In a case that does not involve an
actual controlled substance—such as a case in which government
agents supply “sham” narcotics for use in a transaction—it may be
appropriate to use the bracketed language in the second and third
elements.
846
STATUTORY INSTRUCTIONS
1022
21 U.S.C. § 846 ATTEMPTED POSSESSION
WITH INTENT TO DISTRIBUTE—ELEMENTS
[The indictment charges defendant[s] with; Count
—
of the indictment charges the defendant[s] with] at-
tempted possession of [identify the controlled substance]
with intent to distribute. In order for you to find [the;
a] defendant guilty of this charge, the government must
prove each of the [three] following elements beyond a
reasonable doubt:
1. The defendant intended to possess a controlled
substance and intended to distribute it to another
person; and
2. The defendant believed that the substance was
some kind of a controlled substance. [The government
is not required to prove that the defendant knew the
substance was actually a controlled substance.]; and
3. The defendant knowingly took a substantial
step toward possessing [a substance he believed to be] a
controlled substance, intending to possess it. The
substantial step must be an act that strongly cor-
roborates that the defendant intended to distribute a
controlled substance.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
846
CRIMINAL INSTRUCTIONS
1023
Committee Comment
See United States v. Lopez, 907 F.3d 537, 543–44 (7th Cir.
2018) (to sustain a conviction for attempted possession with intent
to distribute a controlled substance, the government must prove
beyond a reasonable doubt that the defendant acted with the
specific intent to commit the underlying offense and took a
substantial step toward completion of that offense). The definition
of “attempt” is taken from Instruction 4.09.
The sale of a non-controlled substance that the defendant
subjectively believes to be a controlled substance can constitute an
attempt to distribute. See United States v. Dominguez, 992 F.2d
678, 682 (7th Cir. 1992). In a case that does not involve an actual
controlled substance—such as a case in which government agents
supply “sham” narcotics for use in a transaction—it may be ap-
propriate to use the bracketed language in the second and third
elements.
846
STATUTORY INSTRUCTIONS
1024
DRUG QUANTITY/SPECIAL VERDICT
INSTRUCTIONS
If you find the defendant guilty of the offense
charged in [Count
———
of] the indictment, you must
then determine the amount of [identify the controlled
substance] the government has proven was involved in
the offense.
In making this determination, you are to consider
any type and amount of controlled substances for which
the government has proven beyond a reasonable doubt
that [: (1)] the defendant [possessed with intent to dis-
tribute; distributed; conspired to possess with intent to
distribute; conspired to distribute; etc.] [while the
defendant was a member of the conspiracy charged in
Count
—
] [; plus (2) the defendant’s co-conspirators
[distributed; possessed with intent to distribute;
conspired to possess with intent to distribute; conspired
to possess with intent to distribute; etc.] in furtherance
of the conspiracy during the defendant’s membership in
the conspiracy and reasonably foreseeable to the
defendant.]
You will see on the verdict form a question concern-
ing the amount of narcotics involved in the offense
charged in [Count
—
of] the indictment. You should
consider this question only if you have found that the
government has proven the defendant guilty of the of-
fense charged in [Count
———
of] the indictment.
If you find that the government has proven beyond
a reasonable doubt that the offense involved [insert
quantity as alleged in indictment; e.g., 5 kilograms or
more of a substance containing cocaine; 50 grams or
more of methamphetamine], then you should answer
the [first] question “Yes.” [If you answer “Yes,” then you
need not answer the remaining question[s] regarding
drug quantity for that count.]
846
CRIMINAL INSTRUCTIONS
1025
If you find that the government has not proven be-
yond a reasonable doubt that the offense involved
[insert quantity as alleged in indictment; e.g., 5
kilograms or more of a mixture or substance containing
cocaine; 50 grams or more of methamphetamine], then
you should answer the [first] question “No.”
[If you answer the first question “No,” then you
must answer the next question. That question asks you
to determine whether the government has proven be-
yond a reasonable doubt that the offense involved
[insert lesser quantity consistent with charge in indict-
ment; e.g., 500 grams or more of a mixture or substance
containing cocaine; 5 grams or more of
methamphetamine.] If you find that the government
has proven beyond a reasonable doubt that the offense
involved [insert lesser quantity; e.g., 500 grams or more
of a mixture or substance containing cocaine; 5 grams
or more of methamphetamine], then you should answer
the second question “Yes.”]
If you find that the government has not proven be-
yond a reasonable doubt that the offense involved
[insert lesser quantity consistent with charge in indict-
ment; e.g., 500 grams or more of a substance containing
cocaine], then you should answer the second question
“No.”
Committee Comment
Based on the Supreme Court’s decision in Apprendi v. New
Jersey, 530 U.S. 466 (2000), this instruction should be given when-
ever the drug quantity may affect the statutory maximum
sentence. The jury need only find the threshold quantity that trig-
gers the increased statutory maximum penalty; it need not find
the exact quantity involved. See United States v. Kelly, 519 F.3d
355, 363 (7th Cir. 2005); United States v. Washington, 558 F.3d
716, 719–20 (7th Cir. 2009).
For many controlled substances, the statutory language does
not require calculation of the amount of the pure form of the con-
trolled substance but rather references, for example, “1 kilogram
846
STATUTORY INSTRUCTIONS
1026
or more of a mixture or substance containing a detectable amount
of heroin.” 21 U.S.C. § 841(b)(1)(A)(i) (emphasis added). For others
the statutory language references either the controlled substance
itself or a mixture or substance (in different quantities), for
example, “50 grams or more of methamphetamine . . . or 500
grams or more of a mixture or substance containing a detectable
amount of methamphetamine . . .” 21 U.S.C. § 841(b)(1)(A)(viii),
The instruction given to the jury should track the way in which
the pertinent quantity is charged in the indictment.
The Seventh Circuit approved the methodology of this instruc-
tion in United States v. Saunders, 826 F.3d 363, 373–74 & 374 n.1.
(7th Cir. 2016).
The part of the instruction regarding inclusion of amounts
distributed by other co-conspirators is worded in accordance with
Pinkerton v. United States, 328 U.S. 640, 647–48 (1946), as
discussed in United States v. Cruse, 805 F.3d 795, 817 (7th Cir.
2015).
846
CRIMINAL INSTRUCTIONS
1027
21 U.S.C. § 848 CONTINUING CRIMINAL
ENTERPRISE—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] engaging in a continuing criminal enterprise. In
order for you to find [the; a] defendant guilty of this
charge, the government must prove each of the [four]
following elements beyond a reasonable doubt:
1. That the defendant committed a continuing
series of at least three or more of the narcotics offenses
alleged in Count
—
; and
2. The defendant committed the offenses acting in
concert with five or more other persons; and
3. The defendant acted as an organizer, supervi-
sor or manager of those five or more other persons; and
4. The defendant obtained substantial income or
resources from the offenses.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
See United States v. Gibbs, 61 F.3d 536, 537 (7th Cir. 1995);
United States v. Herrera-Rivera, 25 F.3d 491, 498 (7th Cir. 1994).
In a continuing criminal enterprise case, the jury must unani-
mously agree not only that the defendant committed a “continuing
848
STATUTORY INSTRUCTIONS
1028
series of violations”, but also about which specific violations make
up that “continuing series.” Richardson v. United States, 526 U.S.
813 (1999).
848
CRIMINAL INSTRUCTIONS
1029
21 U.S.C. § 848 CONTINUING CRIMINAL
ENTERPRISE—CONTINUING SERIES OF
OFFENSES
The narcotics offenses you may consider in deter-
mining whether the defendant committed a continuing
series of at least three offenses include:
[List possible predicate offenses (including those
charged in the indictment), e.g., distribution of a con-
trolled substance, possession of a controlled substance
with the intent to distribute, or use of telephones to fa-
cilitate the commission of a narcotics offense.]
In determining whether the defendant engaged in
a continuing series of at least three narcotics offenses,
you may consider the offenses alleged in the indictment
[as well as other alleged offenses of these types.] You
must find that the government has proved that the
defendant committed an offense beyond a reasonable
doubt in order to consider it to be part of a continuing
series.
Committee Comment
See Garrett v. United States, 471 U.S. 773 (1985); United
States v. Baker, 905 F.2d 1100, 1103 (7th Cir. 1990). Baker has
been criticized in other Circuits for holding that a drug conspiracy
cannot be used as one of the series of three predicate offenses to a
CCE. See, e.g., United States v. Van Nguyen, 602 F.3d 886, 900
(8th Cir. 2010); United States v. Young, 745 F.2d 733 (2nd Cir.
1984); cf. United States v. Markowski, 772 F.2d 358, 361 n.1 (7th
Cir. 1985). The jury must unanimously agree not only that the
defendant committed a “continuing series of violations,” but also
on which specific violations make up that “continuing series.”
Richardson v. United States, 526 U.S. 813 (1999).
The bracketed language should only be used if the indictment
charges a continuing series of offenses consisting of specified acts,
as opposed to a series of acts consisting of statutory categories of
offenses such as “multiple acts of possession of controlled sub-
stances with intent to distribute and distribution of controlled
substances.”
848
STATUTORY INSTRUCTIONS
1030
21 U.S.C. § 848 CONTINUING CRIMINAL
ENTERPRISE—FIVE OR MORE PERSONS
If you find that the defendant committed a continu-
ing series of narcotics offenses, you must also decide
whether the defendant committed this series of offenses
in concert with five or more persons whom he organized,
supervised or managed. [Those persons do not have to
be named in the indictment.]
In order to find that the defendant acted in concert
with five or more persons, you must unanimously agree
that the defendant organized, supervised or managed
five or more persons in committing the series of
offenses. However, you do not have to agree on the
identity of five or more persons with whom the defen-
dant acted. [You do not have to find that the five or
more persons acted together at the same time, or that
the defendant personally dealt with them, or that all
five persons were present at the same time.] [It is not
required that the defendant acted in concert with five
or more persons in the commission of any single offense
that is one of the series of offenses constituting the
continuing criminal enterprise.] [You do not have to
find that the defendant had the same relationship with
each of the five or more persons.]
Committee Comment
See United States v. Gibbs, 61 F.3d 536, 538, 539 n.1 (7th Cir.
1995); United States v. Bafia, 949 F.2d 1465, 1470–71 (7th Cir.
1991); United States v. Markowski, 772 F.2d 358, 364 (7th Cir.
1985). In Richardson v. United States, 526 U.S. 813 (1999), the
Supreme Court assumed, without deciding the issue, that jury
unanimity is not required as to the identity of the “five or more
persons” supervised by the defendant pursuant to the statute
because the “five or more persons” provision is “significantly differ-
ent” from the “continuing series of violations” provision.
The bracketed instructions should be given only where the
question addressed is raised.
848
CRIMINAL INSTRUCTIONS
1031
21 U.S.C. § 848 CONTINUING CRIMINAL
ENTERPRISE—ORGANIZING, MANAGING,
SUPERVISING
The terms “organizer,” “supervisory position,” and
“any other position of management” are used in their
ordinary meaning. As to each of the five or more people,
the government must prove that the defendant orga-
nized or supervised or managed them in accomplishing
the activities that contribute to the continuing
enterprise.
The defendant need not have had personal contact
with each of the five or more persons whom he orga-
nized, supervised or managed. [The defendant may still
be considered an organizer, supervisor or manager even
if he delegated the authority to personally hire those
whom he is alleged to have organized, supervised or
managed.]
Committee Comment
See United States v. Gibbs, 61 F.3d 536, 538 (7th Cir. 1995);
see also United States v. Mannino, 635 F.2d 110, 116–17 (2nd Cir.
1980); United States v. Ray, 731 F.2d 1361, 1367 (9th Cir. 1984);
United States v. Dickey, 736 F.2d 571, 587 (10th Cir. 1984); United
States v. Rhodes, 779 F.2d 1019, 1026 (4th Cir. 1985). The
bracketed language should be used only if evidence is presented
that would support a jury’s finding that such a delegation took
place.
848
STATUTORY INSTRUCTIONS
1032
21 U.S.C. § 848 CONTINUING CRIMINAL
ENTERPRISE—SUBSTANTIAL INCOME OR
RESOURCES
The term “substantial” means of real worth and
importance, or of considerable value. The term “re-
sources” includes money, drugs or other items of mate-
rial value.
The element of “substantial income or resources”
can be proved circumstantially. For example, evidence
of substantial gross receipts, substantial gross income
or expenditures, receipt or possession of a large amount
of narcotics, a large cash flow, a substantial amount of
money changing hands, or anticipated profits from
future sales may be considered by you in determining
whether defendant obtained “substantial income and
resources” from the continuing criminal enterprise.
[Substantial income or resources is not limited to
substantial “net” income or profit.]
Committee Comment
See United States v. Herrera-Rivera, 25 F.3d 491, 499 (7th Cir.
1994); United States v. Dickey, 736 F.2d 571, 588 (10th Cir. 1984)
(substantial gross receipts, gross income, or gross expenditures);
United States v. Graziano, 710 F.2d 691, 698 (11th Cir. 1983)
(receipt of narcotics constitutes income); United States v. Chagra,
669 F.2d 241, 257–58 (5th Cir. 1982) (“accounts receivable” from
drug transaction constitutes income; circumstantial evidence
permissible; lavish personal expenditures with no legitimate source
of income); United States v. Thomas, 632 F.2d 837, 847 (10th Cir.
1980) (large cash flow); United States v. Bolts, 558 F.2d 316, 321
(5th Cir. 1977) (substantial amounts of money changing hands);
United States v. Jeffers, 532 F.2d 1101, 1116–17 (7th Cir. 1976)
(gross receipts), rev’d in part on other grounds, 432 U.S. 137 (1977).
848
CRIMINAL INSTRUCTIONS
1033
21 U.S.C. § 853 DRUG FORFEITURE—
ELEMENTS
The Forfeiture Allegation[s] in the Indictment al-
lege that the following property is subject to forfeiture
under Title 21, United States Code, Section 853:
[LIST PROPERTY]
In order for you to find that this property is subject
to forfeiture, the government must prove both of the
following by a preponderance of the evidence:
1. [That the property constituted or was derived
from the proceeds obtained personally by the defendant,
directly or indirectly, as a result of the defendant’s[s’]
participation in the drug offense[s] charged in Count[s];]
[That the property was used or intended to be used by
the defendant, in any manner or part, to commit, or to
facilitate the commission of, [that] [those] drug offen-
se[s];]
2. If you find from your consideration of all the
evidence that the government has proved this by a
preponderance of the evidence [as to the property you
are considering and as to the defendant you are
considering], then you should check the “Yes” line on
the Special Forfeiture Verdict Form [as to that property
and that defendant].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove this by a preponderance of the evidence [as to
the property you are considering and as to the defendant
you are considering], then you should check the “No”
line on the Special Forfeiture Verdict Form [as to that
property and that defendant].
Committee Comment
In Honeycutt v. United States, the Supreme Court held that
853
STATUTORY INSTRUCTIONS
1034
under 21 U.S.C. § 853(a)(1) a defendant may not be held “jointly
and severally liable for property that his co-conspirator derived
from the crime but that the defendant himself did not acquire.”
137 S. Ct. 1626, 1632 (2017). The pattern instruction has been
revised to make clear that the property subject to forfeiture under
§ 853(a)(1) must be found to be property the defendant himself
obtained as a result of the crime.
853
CRIMINAL INSTRUCTIONS
1035
21 U.S.C. § 853(b) DEFINITION OF “PROPERTY”
Property that is subject to forfeiture includes [real
property, including things growing on, affixed to, and
found in land] [; and] [tangible and intangible personal
property, including rights, privileges, interests, claims
and securities].
853(b)
STATUTORY INSTRUCTIONS
1036
21 U.S.C. § 853(d) REBUTTABLE
PRESUMPTION
If you find that the government has proven by a
preponderance of the evidence:
1. That the property at issue was acquired by a
person convicted of [name violation] during the time pe-
riod of this offense or within a reasonable time after
such period; and
2. That there was no likely source for the prop-
erty at issue other than the violation of [name viola-
tion], then there is a rebuttable presumption that any
property of a person convicted of [name violation] is
subject to forfeiture.
Committee Comment
See Honeycutt v. United States,
—
U.S.
—
, 137 S. Ct. 1626,
1633 (2017). This instruction leaves a place for the Court to fill in
the violation under Title 21, Subchapter I or Subchapter II. It is
based on the language of 18 U.S.C. § 853(d).
853(d)
CRIMINAL INSTRUCTIONS
1037
21 U.S.C. § 856(a)(1) MAINTAINING DRUG-
INVOLVED PREMISES—ELEMENTS
[The indictment charges defendant[s] with; Count
—
of the indictment charges the defendant[s] with]
maintaining a drug-involved premises. In order for you
to find [the; a] defendant guilty of this charge, the
government must prove both of the following elements
beyond a reasonable doubt:
1. The defendant knowingly [opened; leased;
rented; used; maintained] a place; and
2. The defendant did so for the purpose of [manu-
facturing; distributing; using] a controlled substance.
The government is not required to prove that was the
defendant’s sole purpose.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
See generally United States v. Flores-Olague, 717 F.3d 526,
531–32 (7th Cir. 2013); United States v. Acosta, 534 F.3d 574, 591
(7th Cir. 2008). The statute requires that the defendant maintain
(etc.) the premises “for the purpose of” manufacturing (etc.) a con-
trolled substance. In United States v. Church, 970 F.2d 401, 405–06
(7th Cir. 1992), the Seventh Circuit held that the government need
not prove that drug use/distribution was the sole purpose for which
the defendant maintained the premises at issue. Beyond this,
however, the Seventh Circuit has not defined or specified degree of
illegal usage of the premises that is required to violate the statute.
856(a)(1)
STATUTORY INSTRUCTIONS
1038
Indeed, in Church, the court stated that “[r]ather than judicially
modify the phrase ‘for the purpose,’ we agree that the meaning of
that phrase lies within the common understanding of jurors and
needs no further elaboration.” Id. at 406 n.1. Some of the other
Circuits that have considered this issue have required that the il-
legal purpose to be “a significant purpose” or “one of the primary
or principal uses” of the premises. See United States v. Russell,
595 F.3d 633, 643 (6th Cir. 2010); United States v. Soto-Silva, 129
F.3d 340, 346 n.4 (5th Cir. 1997); United States v. Verners, 53 F.3d
291, 296 (10th Cir. 1995). Others have rejected a “primary use”
standard. See, e.g., United States v. Roberts, 913 F.2d 211, 220
(5th Cir. 1990). But the Fifth Circuit also agreed with Church that
the statutory phrase “for the purpose of” requires no elaboration.
Id.; see also United States v. Payton, 636 F.3d 1027, 1042 (8th Cir.
2011).
The Committee has followed the admonition in Church and
has not attempted to define the “purpose” requirement beyond
what Church itself holds, namely that the illegal purpose need not
be the sole purpose for which the defendant maintains the
premises.
The “purpose” must be that of the defendant; it is not enough
to open or maintain a place that is used by others for proscribed
purposes. The defendant must maintain the place for his own goal
of manufacturing, distributing or using controlled substances.
United States v. Banks, 987 F.2d 463, 466 (7th Cir. 1993). One way
to tell whether a defendant had the requisite mental purpose under
subsection (a)(1) is to decide whether he acted as a supervisor,
manager, or entrepreneur. Id.
856(a)(1)
CRIMINAL INSTRUCTIONS
1039
21 U.S.C. § 856(a)(1) MAINTAINING DRUG-
INVOLVED PREMISES—LIMITING
INSTRUCTION
A person “maintains a drug-involved premises” if
he owns or rents the premises, or exercises control over
them, and for a sustained period, uses those premises
to manufacture, store, or sell drugs, or directs others to
those premises to obtain drugs. The mere fact that the
defendant lived in a [house; premises] used for [manu-
facturing; distributing; using] a controlled substance is
insufficient to prove that he maintained the house for
the purpose of [manufacturing; distributing; using] a
controlled substance.
[A defendant’s mere personal use of a controlled
substance in a [house; premises] is insufficient to prove
that he maintained the house for the purpose of
[manufacturing; distributing; using] a controlled
substance.]
Committee Comment
See United States v. Flores-Olague, 717 F.3d 526, 531–32 (7th
Cir. 2013); United States v. Acosta, 534 F.3d 574, 591 (7th Cir.
2008), as to the provision on merely living in a drug house.
The second sentence of this instruction is not supported by
any existing case law. However, because personal possession,
ordinarily a misdemeanor or a lesser felony, often occurs in a
defendant’s own home, the Committee believes that allowing a
conviction under the “drug house” statute based only on personal
use in one’s own home would produce an absurd result.
856(a)(1)
STATUTORY INSTRUCTIONS
1040
21 U.S.C. § 856(a)(2) MAINTAINING DRUG-
INVOLVED PREMISES—ELEMENTS
[The indictment charges defendant[s] with; Count
—
of the indictment charges the defendant[s] with]
maintaining a drug-involved premises. In order for you
to find [the; a] defendant guilty of this charge, the
government must prove the following [four] elements
beyond a reasonable doubt:
1. The defendant [managed; controlled] the place
specified in Count
———
as an [owner; lessee; agent; em-
ployee; occupant; mortgagee]; and
2. The defendant knowingly [rented this place;
leased this place; profited from this place; made this
place available for use, with or without compensation]
for the purpose of unlawfully [manufacturing; storing;
distributing; using] a controlled substance. The govern-
ment is not required to prove that was the defendant’s
sole purpose.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
See generally United States v. Flores-Olague, 717 F.3d 526,
531–32 (7th Cir. 2013); United States v. Acosta, 534 F.3d 574, 591
(7th Cir. 2008). The statute requires that the defendant manage or
control the premises “for the purpose of” manufacturing (etc.) a
controlled substance. In United States v. Church, 970 F.2d 401,
856(a)(2)
CRIMINAL INSTRUCTIONS
1041
405–06 (7th Cir. 1992), a case under § 856(a)(1), the Seventh
Circuit held that the government need not prove that drug use/
distribution was the sole purpose for which the defendant
maintained the premises at issue. Beyond this, however, the
Seventh Circuit has not defined or specified the degree of illegal
usage of the premises that is required to violate § 856. Indeed, in
Church, the court stated that “[r]ather than judicially modify the
phrase ‘for the purpose,’ we agree that the meaning of that phrase
lies within the common understanding of jurors and needs no fur-
ther elaboration.” Id. at 406 n. 1. Some of the other circuits that
have considered this issue have required that the illegal purpose
to be “a significant purpose” or “one of the primary or principal
uses” of the premises. See United States v. Russell, 595 F.3d 633,
643 (6th Cir. 2010); United State v. Soto-Silva, 129 F.3d 340, 346
n.4 (5th Cir. 1997); United States v. Verners, 53 F.3d 291, 296
(10th Cir. 1995). Others have rejected a “primary use” standard.
That same court, however, agreed with Church, that the statutory
phrase “for the purpose” requires no elaboration. Id.; see also United
States v. Payton, 636 F.3d 1027, 1042 (8th Cir. 2011).
The Committee has followed the admonition of Church and
has not attempted to define the “purpose” requirement beyond
what Church itself holds, namely that the illegal purpose need not
be the sole purpose for which the defendant maintains the
premises.
In a case under § 856(a)(2), the limitation that United States
v. Acosta, 534 F.3d 574, 591 (7th Cir. 2008) suggests for offenses
under § 856(a)(1) (see Comment to previous instruction) does not
appear to apply, because § 856(a)(2) necessarily implies invited
activities of others if it has any application beyond the scope of
§ 856(a)(1).
856(a)(2)
STATUTORY INSTRUCTIONS
1042
21 U.S.C. § 859 DISTRIBUTION OF
CONTROLLED SUBSTANCE TO PERSON
UNDER 21—ELEMENTS
[The indictment charges defendant[s] with; Count
—
of the indictment charges the defendant[s] with]
distributing [identify the controlled substance in
charge] to a person under 21 years of age. In order for
you to find [the; a] defendant guilty of this charge, the
government must prove the following [five] elements
beyond a reasonable doubt:
1. The defendant distributed [identify the con-
trolled substance]; and
2. The defendant did so knowingly; and
3. The defendant knew that the substance was a
controlled substance. The government is not required to
prove that the defendant knew the substance was
[identify the controlled substance in charge]; and
4. The defendant was at least 18 years of age; and
5. The person to whom the defendant distributed
the controlled substance was under 21 years of age.
The government is not required to prove that the
defendant knew that the person to whom he distributed
the substance was under 21 years of age.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
859
CRIMINAL INSTRUCTIONS
1043
doubt [as to the charge you are considering] then you
should find the defendant not guilty [of that charge].
Committee Comment
This instruction should be used in conjunction with the
instruction under 21 U.S.C. § 841 defining “distribution” and the
general instruction defining “knowingly.”
With regard to the fifth element, it remains an open question
in this Circuit whether the government must prove that the
defendant knew that the person to whom he distributed the
substance was under 21 years of age. The Eleventh Circuit has
held that the government need not prove this fact, see United
States v. Pruitt, 763 F.2d 1256, 1261–62 (11th Cir. 1985) and the
Seventh Circuit cited this holding with approval when deciding
whether U.S.S.G. § 2K2.1(b)(4) has a mens rea requirement. See
United States v. Schnell, 982 F.2d 216, 220 (7th Cir. 1992). Other
courts have held that federal drug trafficking statutes impose strict
liability with regard to a minor’s age. See, e.g., United States v.
Cook, 76 F.3d 596, 601–02 (4th Cir. 1996) (collecting cases); cf.
United States v. Chin, 981 F.2d 1275, 1280 (D.C. Cir. 1992) (“We
join our sister circuits in holding that a defendant’s knowledge of
the juvenile’s age is not an element of the crime of using a juvenile
to commit or conceal a drug offense”). It does not appear that any
court has held otherwise.
859
STATUTORY INSTRUCTIONS
1044
21 U.S.C. § 951(a)(2) DEFINITION OF CUSTOMS
TERRITORY OF THE UNITED STATES
The “customs territory of the United States”
includes only the United States, the District of Colum-
bia, and Puerto Rico.
Committee Comment
Section 951(a)(2) defines this term by reference to general
headnote 2 to the Tariff Schedules of the United States. As of
1984, this headnote defined “customs territory” as set out in this
instruction.
951(a)(2)
CRIMINAL INSTRUCTIONS
1045
21 U.S.C. § 952(a) DEFINITION OF
“CONTROLLED SUBSTANCE”
[Identify the controlled substance] is a [controlled
substance; narcotic drug; non-narcotic drug].
Committee Comment
If the defendant challenges the government’s proof that the
substance in question falls within the statutory definition of the
substance charged, a more detailed instruction may be required.
That instruction should make clear that the government must
prove beyond a reasonable doubt that the substance in question
was in fact the substance charged as defined in the appropriate
Schedule of 21 U.S.C. § 812. The instructions may also need to
include a definition of the substance as articulated in § 802(16)
(definition of “narcotic” drug) and § 812. For examples of such
instructions, see United States v. Luschen, 614 F.2d 1164, 1169 n.2
(8th Cir. 1980); United States v. Umentum, 547 F.2d 987, 992 n.3
(7th Cir. 1976); United States v. Orzechowski, 547 F.2d 978, 982–83
n.3, 983 n.4 (7th Cir. 1976).
952(a)
STATUTORY INSTRUCTIONS
1046
21 U.S.C. §§ 952(a) & (b); 960(a) IMPORTATION
OF CONTROLLED SUBSTANCES—ELEMENTS
[The indictment charges defendant[s] with; Count
—
of the indictment charges the defendant[s] with]
importation of [identify the controlled substance alleged
in charge]. In order for you to find [the; a] defendant
guilty of this charge, the government must prove each
of the [three; four] following elements beyond a reason-
able doubt:
1. The defendant brought [identify the controlled
substance alleged in the charge] from a point outside
the United States into [the United States; customs ter-
ritory of the United States]; and
2. The defendant did so knowingly; and
3. The defendant knew the substance [was; con-
tained] some kind of a controlled substance. The govern-
ment is not required to prove that the defendant knew
the substance was [identify the controlled substance.] [;
and]
[4. The [identify the controlled substance] was not
imported or exported pursuant to regulations prescribed
by the Attorney General.]
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
952(a) & (b); 960(a)
CRIMINAL INSTRUCTIONS
1047
Committee Comment
This instruction incorporates the definition of importation into
an element rather than using that term and then defining it
separately. Because the definition is simple, this provides for
clearer instruction. The term import is defined at 21 U.S.C.
§ 951(a)(1) and has been interpreted to require the government to
prove that the substance emanated from a point outside the United
States and was then brought into the United States or a United
States customs territory. See, e.g., United States v. Seni, 662 F.2d
277, 286–87 (4th Cir. 1981); United States v. Watkins, 662 F.2d
1090, 1098 (4th Cir. 1981).
The prior (1999) pattern instructions for 21 U.S.C. § 952(a) er-
roneously omitted the requirement that the government prove that
the defendant acted knowingly. The likely reason for this omission
was that the prior instruction was based solely upon § 952(a). That
subsection makes it unlawful to import a controlled substance, but
it does not create the crime of importation. The statute creating
the crime is 21 U.S.C. § 960(a), which states that anyone who
“knowingly or intentionally” violates section 952 commits a crime.
A conviction for importation under § 960 thus requires that a
defendant act knowingly or intentionally. See, e.g., United States
v. Osideko, 201 F. App’x 366 (7th Cir. 2006).
952(a) & (b); 960(a)
STATUTORY INSTRUCTIONS
1048
22 U.S.C. § 2778 IMPORTING/EXPORTING
WEAPONS WITHOUT A LICENSE
[The indictment charges the defendant[s] with;
Count[s]
———
of the indictment charge[s] the defen-
dant[s] with] willfully [[attempting to] import; export] a
[defense article; service; name the specific item] which
appears on the United States Munitions List without
first [obtaining a license; receiving written approval].
In order for you to find [the; a] defendant guilty of this
charge, the government must prove the following be-
yond a reasonable doubt:
1. The defendant [[attempted to] import[ed];
export[ed]] [defense article; service; name the specific
item];
2. The [name the specific item] was listed on the
United States Munitions List at the time of the [[at-
tempted] import; export];
3. The defendant did not first [obtain a license;
receive written approval] for the [[attempted] import;
export] of [defense article; service; name the specific
item]; and,
4. The defendant acted willfully.
If you find from your consideration of all the evi-
dence that the government proved each of these ele-
ments beyond a reasonable doubt, then you should find
the defendant guilty.
If, on the other hand, you find from your consider-
ation of all the evidence that the government failed to
prove any one of these elements beyond a reasonable
doubt, then you should find the defendant not guilty.
2778
CRIMINAL INSTRUCTIONS
1049
Committee Comment
The United States Munitions List is found at 22 CFR § 1.21.1.
See also Fifth Circuit Pattern Criminal Instruction 2.101 (2019).
Title 22 U.S.C. § 2778(c) applies, in theory, to a broad range of
statutory and regulatory activity. The provision broadly punishes
violation of “any provision of [section 2778], section 2779 of this
title, a treaty referred to in subsection (j)(1)(C)(i), or any rule or
regulation issued under this section or section 2779 of this title,
including any rule or regulation issued to implement or enforce a
treaty referred to in subsection (j)(1)(C)(i) or an implementing ar-
rangement pursuant to such treaty.” 22 U.S.C. § 2778(c). However,
in practice, the statute has been used to prohibit the import/export
of “defensive articles” and, more specifically, items found on the
United States Munitions List. See United States v. Dobek, 789
F.3d 698 (7th Cir. 2015); see also United States v. Pulungan, 569
F.3d 326 (7th Cir. 2009).
2778
STATUTORY INSTRUCTIONS
1050
22 U.S.C. § 2778(c) WILLFULLY—DEFINITION
A defendant acts willfully if they [[attempted]
imported; exported] a [defense article; service; name
the specific item] knowing that the law forbade [[at-
tempting] importing; exporting] the [defense article;
service; name the specific item] into [name of
jurisdiction].
Committee Comment
This instruction defines the requirement of “willful” conduct
as used in the fourth element of the section 2778 instruction. The
Seventh Circuit has approved the definition of “willful” conduct
under section 2778 as set forth in this instruction. The Seventh
Circuit has held that a finding of willfulness for purpose of section
2778 requires proof that the defendant knew the specific item at
issue was being imported/exported in violation of the law. United
States v. Dobek, 789 F.3d 698, 701 (7th Cir. 2015) (“the defendant
acted willfully if he exported military aircraft parts to Venezuela
knowing that the law forbade exporting those parts to that
country”); see also United States v. Pulungan, 569 F.3d 326, 331
(7th Cir. 2009) (willfulness in the context of section 2778 requires
knowledge of the specific regulation, not merely violation of some
regulation).
2778(c)
CRIMINAL INSTRUCTIONS
1051
26 U.S.C. § 5845 DEFINITIONS OF FIREARM-
RELATED TERMS
Committee Comment
The terms “firearm,” “machinegun,” “rifle,” “shotgun,” “any
other weapon,” “destructive device,” “antique firearm,” “unservice-
able firearm,” “make,” “transfer,” “dealer,” “importer,” and
“manufacturer” are defined in 26 U.S.C. § 5845. The definitions of
those terms for the jury should, if necessary, be taken from the
statute.
5845
STATUTORY INSTRUCTIONS
1052
26 U.S.C. § 5861(a) FAILURE TO PAY TAX OR
REGISTER—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] engaging as a [manufacturer of; importer of;
dealer in] firearms [without having paid the special tax;
without having registered] as required by law. In order
for you to find [the; a] defendant guilty of this charge,
the government must prove both of the following ele-
ments beyond a reasonable doubt:
1. The defendant was engaged in business as a
[manufacturer of; importer of; dealer in] firearms; and
2. The defendant did so [without having first paid
the special tax; without having registered] as required
by law.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
5861(a)
CRIMINAL INSTRUCTIONS
1053
26 U.S.C. § 5861(d) RECEIVING OR
POSSESSING AN UNREGISTERED FIREARM—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [receiving; possessing] a firearm which is not
registered in the National Firearms Registration and
Transfer Record. In order for you to find [the; a]
defendant guilty of this charge, the government must
prove each of the [three] following elements beyond a
reasonable doubt:
1. The defendant knowingly [possessed; received]
a firearm [as described in the indictment] that had [a]
characteristic[s] which required it to be registered in
the National Firearms Registration and Transfer Rec-
ord, specifically, that it [list characteristic[s]]; and
2. The defendant knew that the firearm had [that;
those] characteristic[s]; and
3. The firearm was not registered in the National
Firearms Registration and Transfer Record.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The term “knowingly” is defined in Pattern Instruction 4.10.
In the first element, the court should provide a list of all the
5861(d)
STATUTORY INSTRUCTIONS
1054
characteristics in the appropriate statutory definition of the partic-
ular firearm or firearms which are the subject of the prosecution.
These definitions are found at 26 U.S.C. § 5845. See Staples v.
United States, 511 U.S. 600, 619 (1994) (§ 5861(d) requires proof
that a defendant knew of the characteristics of his weapon that
made it a “firearm” under the National Firearms Act); United
States v. Meadows, 91 F.3d 851 (7th Cir. 1996).
For purposes of this statute, the term “firearm” is defined by
26 U.S.C. § 5845(a).
5861(d)
CRIMINAL INSTRUCTIONS
1055
26 U.S.C. § 5861(h) RECEIPT OR POSSESSION
OF A FIREARM WITH AN OBLITERATED,
REMOVED, CHANGED, OR ALTERED SERIAL
NUMBER—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] unlawful [receipt; possession] of a firearm with
a[n] [obliterated; removed; changed; altered] serial
number. In order for you to find [the; a] defendant guilty
of this charge, the government must prove each of the
[three] following elements beyond a reasonable doubt:
1. The defendant knowingly [received; possessed]
a firearm [as described in the indictment]; and
2. The firearm had a[n] [obliterated; removed;
changed; altered] serial number; and
3. The defendant knew that the serial number
had been [obliterated; removed; changed; altered].
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The third element of this instruction requires that the govern-
ment prove that the defendant knew the serial number had been
obliterated, removed, changed, or altered. In Staples v. United
States, 511 U.S. 600 (1994), the Court held that 26 U.S.C. § 5861(d)
requires the government to prove that the defendant knew of the
5861(h)
STATUTORY INSTRUCTIONS
1056
characteristics that brought his weapon within the statutory defi-
nition of a firearm. Id. at 602, 604, 609, 619. Specifically, the Court
held that the government had to prove that the defendant knew
the weapon he possessed had automatic firing capability, which
made it a “machine gun” within the meaning of the firearms
statute. Id. at 602. The rifle at issue was manufactured as a semi-
automatic weapon (which is not a “firearm” within the scope of the
National Firearms Act), but was modified to have automatic firing
capability. Id. at 603. Although the Committee has found no
authority deciding whether knowledge of the obliteration, removal,
change or alteration is an element of a § 5861(h) offense, Staples
may be read as requiring such knowledge. Thus, the Committee
has included that requirement as an element of the offense. The
Eleventh Circuit pattern instruction also includes such a require-
ment, see Pattern Crim. Jury Instr. 11th Cir. 0106.2, Possession of
Firearm Having Altered Or Obliterated Serial Number—26 USC
§ 5861(h)(2020).
The term “knowingly” is defined in Pattern Instruction 4.10.
For purposes of this statute, the term “firearm” is defined by
26 U.S.C. § 5845(a).
5861(h)
CRIMINAL INSTRUCTIONS
1057
26 U.S.C. § 5861(j) TRANSPORTING,
DELIVERING OR RECEIVING AN
UNREGISTERED FIREARM—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [transporting; delivering; receiving] an unregis-
tered firearm. In order for you to find [the; a] defendant
guilty of this charge, the government must prove each
of the [three] following elements beyond a reasonable
doubt:
1. The defendant knowingly [transported; deliv-
ered; received] a firearm [as described in the indict-
ment] in interstate commerce that had [a] characteris-
tic[s] which required it to be registered in the National
Firearms Registration and Transfer Record, specifi-
cally, that it [list characteristic[s]]; and
2. The firearm was unregistered; and
3. The defendant knew that the firearm had [that;
those] characteristic[s] that caused it to be required to
be registered.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The term “knowingly” is defined in Pattern Instruction 4.10.
In the first element, the court must provide a list of all the
5861(j)
STATUTORY INSTRUCTIONS
1058
characteristics in the appropriate statutory definition of the partic-
ular firearm or firearms which are the subject of the prosecution.
These definitions are found at 26 U.S.C. § 5845. See Staples v.
United States, 511 U.S. 600, 619 (1994) (26 U.S.C. § 5861(d)
requires proof that a defendant knew of the characteristics of his
weapon that made it a “firearm” under the National Firearms Act);
see also United States v. Meadows, 91 F.3d 851 (7th Cir. 1996).
While Staples involved a violation of § 5861(d), because § 5861(j)
also requires proof that a firearm was unregistered, the Court’s
holding that the defendant have knowledge of the characteristics
of the weapon that required it to be registered would appear to ap-
ply with equal force to a violation of this subsection.
While the term “interstate commerce” is not defined under
§ 5861(j), the definition set forth in 18 U.S.C. § 921(a)(2) may be
instructive.
For purposes of this statute, the term “firearm” is defined by
26 U.S.C. § 5845(a).
5861(j)
CRIMINAL INSTRUCTIONS
1059
26 U.S.C. § 7201 ATTEMPT TO EVADE OR
DEFEAT TAX—ELEMENTS
[The indictment charges defendant[s] with; Count
———
of the indictment charges the defendant[s] with]
attempting to evade or defeat his [individual income]
tax. In order for you to find [the; a] defendant guilty of
this charge, the government must prove each of the
[four] following elements beyond a reasonable doubt:
1. On the date for filing a federal [income] tax
return, federal [income] tax was due and owing by the
defendant. [If the defendant owed tax for a particular
year, then the tax was due and owing as of [April 15;
other date pursuant to extension] of the following year.];
and
2. The defendant knew he had a legal duty to pay
the tax; and
3. The defendant did some affirmative act to
evade [payment of; assessment of; computation of] the
tax. Any conduct that is likely to have a misleading or
concealing effect can constitute an affirmative act. A
lawful act can serve as an affirmative act if it is done
with the intent to evade income tax. [The mere failure
to file a tax return is not an affirmative act.]; and
4. In doing so, the defendant acted [willfully, that
is,] with the intent to violate his legal duty to pay the
tax.
The government is not required to prove the precise
amount of additional tax alleged in the indictment or
the precise amount of [additional] tax owed.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
7201
STATUTORY INSTRUCTIONS
1060
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
See Sansone v. United States, 380 U.S. 343, 351 (1965); Spies
v. United States, 317 U.S. 492, 499 (1943); United States v. King,
126 F.3d 987, 989–90 (7th Cir. 1997) This section covers both at-
tempts to avoid payment of taxes and attempts to avoid assess-
ment of taxes. United States v. Voorhies, 658 F.2d 710, 713 (9th
Cir. 1981).
Willfully is defined in the instruction as acting with the intent
to violate a legal duty to pay a tax. Cheek v. United States, 498
U.S. 192 (1991). See United States v. Murphy, 469 F.3d 1130, 1137
(7th Cir. 2006) (“proof of a specific intent to do something which
the law forbids; more than a showing of careless disregard for the
truth is required”); United States v. Patridge, 507 F.3d 1092,
1093–94 (7th Cir. 2007).
“Any conduct that is likely to have a misleading or concealing
effect can constitute an affirmative act.” A lawful act can thus
serve as an affirmative act if it is done with the intent to evade
income tax. United States v. Valenti, 121 F.3d 327, 333 (7th Cir.
1997) (citing United States v. Jungles, 903 F.2d 468, 474 (7th Cir.
1990)). However, the mere failure to file a tax return is not an af-
firmative act. Valenti, 121 F.3d at 333. Contrary to what was said
in a prior Committee Comment, a “substantial” deficiency is not
required. United States v. Daniels, 387 F.3d 636 (7th Cir. 2004).
7201
CRIMINAL INSTRUCTIONS
1061
26 U.S.C. § 7201 UNANIMITY AS TO ACTS OF
EVASION
Committee Comment
The Committee recommends the use of a unanimity instruc-
tion modeled on Pattern Instruction 4.04, which should require the
jury to agree unanimously on at least one of the specific acts of
evasion charged in the indictment.
7201
STATUTORY INSTRUCTIONS
1062
26 U.S.C. § 7201 NO NEED FOR TAX
ASSESSMENT
If the defendant has incurred a tax liability, then it
exists from the date the return is due. The government
need not prove that there was an administrative as-
sessment of tax or that the defendant received a tax
assessment.
Committee Comment
This instruction should be given only if the contrary position
is argued by the defendant.
7201
CRIMINAL INSTRUCTIONS
1063
26 U.S.C. §§ 7201, 7203 & 7206 KNOWLEDGE OF
CONTENTS OF RETURN
You may infer that a tax return was, in fact, signed
by the person whose name appears to be signed to it.
You are not required, however, to infer this.
If you find that the government has proved beyond
a reasonable doubt that the defendant signed [the; a]
tax return, then you may infer that the defendant knew
of the contents of the return. You are not required,
however, to infer this.
Committee Comment
Under 26 U.S.C. § 6064, “[t]he fact that an individual’s name
is signed to a return, statement or other document shall be prima
facie evidence for all purposes that the return, statement or other
document was actually signed by him.”
This instruction’s reference to a “signature” may require
modification in a case involving an electronically-filed tax return.
7201, 7203 & 7206
STATUTORY INSTRUCTIONS
1064
26 U.S.C. §§ 7201, 7203 & 7206 FUNDS OR
PROPERTY FROM UNLAWFUL SOURCES
In determining the defendant’s taxable income,
income received from unlawful activities is treated in
the same manner as income from lawful activities.
Committee Comment
See 26 U.S.C. § 61; James v. United States, 366 U.S. 213 (1961);
Rutkin v. United States, 343 U.S. 130 (1952)
7201, 7203 & 7206
CRIMINAL INSTRUCTIONS
1065
26 U.S.C. § 7203 FAILURE TO FILE TAX
RETURN—ELEMENTS
[The indictment charges defendant[s] with; Count
of the indictment charges the defendant[s] with] willful
failure to file an [individual; partnership; corporate;
trust] [income; [name other type]] tax return. In order
for you to find [the; a] defendant guilty of this charge,
the government must prove each of the [three] follow-
ing elements beyond a reasonable doubt:
1. The defendant was required by law to file an
[individual; partnership; corporate; trust] [income;
name other] tax return for [insert calendar or fiscal
year in question]. [I will explain in a moment when [a
person; other form of entity] is required by law to file a
tax return.]; and
2. The defendant failed to file the return as
required by law; and
3. The defendant [acted willfully, that is, he] knew
that he was required by law to file an income tax return
and intentionally failed to do so.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
Willfulness is defined within the instruction, as in the instruc-
7203
STATUTORY INSTRUCTIONS
1066
tion for 26 U.S.C. § 7201.
7203
CRIMINAL INSTRUCTIONS
1067
26 U.S.C. § 7203 WHEN PERSON IS OBLIGATED
TO FILE RETURN
[Use only the paragraph(s) that apply.]
A [single individual, married individual filing
separately, etc.] [under; over] 65 years old was required
to make and file an individual income tax return if that
individual had a gross income of $
—————
or more.
“Gross income” means all income from any source,
including [wages and compensation for services, tips,
compensation in the form of personal expenses paid for
by defendant’s corporation, income from fraud, em-
bezzlement, etc.]
A married individual was required to file a federal
income tax return if he had a separate gross income in
excess of $
—————
and a total gross income, when
combined with that of his spouse, in excess of $
—————
where [either; both] [is; are] [over; under] 65 years old.
Any person who received more than $
—————
net
income from business (Schedule C), was required to
make and file an individual income tax return.
If the defendant had the required gross income in
[insert year], then he was required to file a tax return
on or before [insert date return was due].
For the years [name years] a corporation [partner-
ship; trust] was required to make and file a corporate
[partnership; trust] income tax return, whether or not
that corporation had income.
Committee Comment
This instruction should be adapted for the particular years at
issue, as filing requirements may change from year to year.
“The definition of gross income under the Internal Revenue
Code sweeps broadly.” United States v. Burke, 504 U.S. 229, 233
7203
STATUTORY INSTRUCTIONS
1068
(1992); see also United States v. Benson, 67 F.3d 641 (7th Cir.
1995) (citing Burke).
7203
CRIMINAL INSTRUCTIONS
1069
26 U.S.C. § 7203 TAX RETURN MUST CONTAIN
SUFFICIENT INFORMATION
Submitting a tax form that does not contain suf-
ficient financial information to enable the Internal Rev-
enue Service to determine the individual’s tax liability
does not qualify as the filing of a tax return under the
law. It is up to you to determine whether the tax form
the defendant filed contained enough information to en-
able the Internal Revenue Service to determine the
defendant’s tax liability.
Committee Comment
See United States v. Verkuilen , 690 F.2d 648, 654 (7th Cir.
1982).
7203
STATUTORY INSTRUCTIONS
1070
26 U.S.C. § 7206 DEFINITION OF “MATERIAL”
A false matter is “material” if the matter was
capable of influencing the Internal Revenue Service.
Committee Comment
See United States v. Pree, 408 F.3d 855, 873 (7th Cir. 2005)
(“[a] false statement is material when it has the potential for hin-
dering the IRS’s efforts to monitor and verify the tax liability of
the taxpayer.”) (citations omitted); United States v. Peters, 153
F.3d 445 (7th Cir. 1998) (defining materiality).
7206
CRIMINAL INSTRUCTIONS
1071
26 U.S.C. § 7206(1) FRAUD AND FALSE
STATEMENTS—ELEMENTS
[The indictment charges defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] filing a false tax return. In order for you to find
[the; a] defendant guilty of this charge, the government
must prove each of the [five] following elements beyond
a reasonable doubt:
1. The defendant [prepared an [income] tax
return; caused someone to prepare an [income] tax
return]; and
2. The income tax return was false [or incomplete]
as to a material matter, as charged in the Count; and
3. The defendant signed the income tax return,
which contained a written declaration that it was made
under penalties of perjury; and
4. The defendant [acted willfully, that is, he] knew
that he had a legal duty to file a truthful [and complete]
tax return, but when he signed the return, he did not
believe that it was truthful [or complete] as to a mate-
rial matter; and
5. The defendant [filed; caused someone to file]
the [income] tax return with the Internal Revenue
Service.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
7206(1)
STATUTORY INSTRUCTIONS
1072
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
A charge of filing a false tax return does not, unlike a charge
of evasion, require proof of a tax deficiency. United States v. Peters,
153 F.3d 445, 461 (7th Cir. 1998).
Willfulness is defined within the instruction, as in the instruc-
tion for 26 U.S.C. § 7201. See United States v. Pree, 408 F.3d 855,
867 (7th Cir. 2005) (willfulness as element).
7206(1)
CRIMINAL INSTRUCTIONS
1073
26 U.S.C. § 7206(2) AIDING AND ABETTING IN
SUBMITTING FALSE AND FRAUDULENT
RETURN—ELEMENTS
[The indictment charges defendant[s] with;
Count[s]
———
of the indictment charge[s] the defen-
dant[s] with] aiding and abetting in the [preparation;
presentation] of a false tax return. In order for you to
find [the; a] defendant guilty of this charge, the govern-
ment must prove each of the [three] following elements
beyond a reasonable doubt:
1. The defendant [aided; assisted in; procured;
counseled; advised] the [preparation; presentation] of
an [income] tax return that was false as to a material
matter. There must be some affirmative participation
which at least encourages the perpetrator. The return
must be filed with the Internal Revenue Service. [The
government is not required to prove that the defendant
[prepared; signed] the tax return.]; and
2. The defendant knew that the income tax return
was false, that is, that the income tax return was
untrue when it was made.; and
3. The defendant acted willfully, that is, with the
intent to violate the law.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
7206(2)
STATUTORY INSTRUCTIONS
1074
Committee Comment
See United States v. Dunn, 961 F.2d 648, 651 (7th Cir. 1992)
(issue of willfulness); United States v. Hooks, 848 F.2d 785, 791–92
(7th Cir. 1988) (application of 26 U.S.C. § 7206(2) “has a broad
sweep, making all forms of willful assistance in preparing a false
return an offense”); United States v. Palivos, 486 F.3d 250, 258–59
(7th Cir. 2007) (return must be filed with the Internal Revenue
Service); United States v. Hooks, 848 F.2d 785, 789 (7th Cir. 1988)
(“there must exist some affirmative participation which at least
encourages the perpetrator”).
7206(2)
CRIMINAL INSTRUCTIONS
1075
26 U.S.C. § 7206(2) KNOWLEDGE OF TAXPAYER
IRRELEVANT
The government is not required to prove that the
taxpayer [who filed the false tax return; for whom the
false tax return was filed] knew the return was false.
Committee Comment
See United States v. Motley, 940 F.2d 1079, 1084 (7th Cir.
1991); United States v. Hooks, 848 F.2d 785, 791 (7th Cir. 1988)
(defendant willfully caused tax preparer to file a false estate tax
return and therefore violated Section 7206(2), regardless of
whether tax preparer knew of falsity or fraud).
7206(2)
STATUTORY INSTRUCTIONS
1076
26 U.S.C. § 7212 CORRUPTLY ENDEAVORING
TO OBSTRUCT OR IMPEDE DUE
ADMINISTRATION OF INTERNAL REVENUE
LAWS—ELEMENTS
[The indictment charges defendant[s] with; Count
———
of the indictment charges the defendant[s] with]
corruptly endeavoring to obstruct or impede the due
administration of the internal revenue laws. In order
for you to find [the; a] defendant guilty of this charge,
the government must prove each of the [four] following
elements beyond a reasonable doubt:
1. The defendant [made an effort; acted] with the
purpose to obstruct or impede the due administration of
the internal revenue laws, which includes the Internal
Revenue Service’s lawful functions to [ascertain income;
compute, assess and collect income taxes; audit tax
returns and records; and investigate possible criminal
violations of the internal revenue laws]; and
2. The defendant’s [effort; act] had a reasonable
tendency to obstruct or impede the due administration
of the internal revenue laws. The effort need not be
successful; and
3. The defendant acted knowingly; and
4. The defendant acted [corruptly, that is,] with
the purpose to obtain an unlawful benefit for himself or
someone else.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
7212
CRIMINAL INSTRUCTIONS
1077
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
See United States v. Valenti, 121 F.3d 327 (7th Cir. 1997).
7212
STATUTORY INSTRUCTIONS
1078
26 U.S.C. § 7212 GOOD FAITH
If the defendant believes in good faith that he is
acting within the law or that his actions comply with
the law, he cannot be said to have acted [corruptly, or]
with the purpose to obtain an unlawful benefit for
himself or someone else. This is so even if the defen-
dant’s belief was not objectively reasonable. However,
you may consider the reasonableness of the defendant’s
belief together with all the other evidence to determine
whether the defendant held the belief in good faith.
Committee Comment
See Cheek v. United States, 498 U.S. 192, 202, 204–06 (1991);
United States v. Becker, 965 F.2d 383, 388 (7th Cir. 1992).
7212
CRIMINAL INSTRUCTIONS
1079
31 U.S.C. § 5324(a)(3) STRUCTURING
FINANCIAL TRANSACTIONS—ELEMENTS
[The indictment charges defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] structuring a currency transaction. In order for
you to find [the; a] defendant guilty of this charge, the
government must prove each of the following [three]
elements beyond a reasonable doubt:
1. [Defendant’s name] had knowledge that [finan-
cial institutions; name(s) of financial institution(s)
involved] are required to report currency transactions
in amounts greater than $10,000; and
2. [Defendant’s name] [structured; attempted to
structure] a currency transaction for the purpose of
evading this reporting requirement; and
3. The transaction involved one or more domestic
financial institutions.
I will define some of these terms in a moment.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
See 31 U.S.C. § 5324(a)(3); 31 C.F.R. § 103.11(gg); United
States v. Van Allen, 524 F.3d 814, 819–20 (7th Cir. 2008); United
States v. Cassano, 372 F.3d 868, 878 (7th Cir. 2004), vacated on
5324(a)(3)
STATUTORY INSTRUCTIONS
1080
other grounds 543 U.S. 1109 (2005). This instruction uses the most
common example of structuring, specifically the offense described
in section 5324(a)(3). If the defendant is charged under a different
subsection of the statute, the instruction should be modified
accordingly.
A previous version of the criminal prohibition against structur-
ing required proof of willfulness. In Ratzlaf v. United States, 510
U.S. 135 (1994), the Supreme Court held that this required proof
that the defendant acted with knowledge that his conduct was
unlawful. Id. at 137. Congress responded by eliminating the statu-
tory requirement of willfulness. See United States v. Griffin,84
F.3d 912, 925 (7th Cir. 1996) (citing Pub. L. No. 103-325, § 411,
108 Stat. 2160, 2253 (1994)). Note, though, that § 5324(a) still
requires proof that the defendant acted “for the purpose of evading
the [currency transaction] reporting requirements.” 31 U.S.C.
§ 5324(a). The Seventh Circuit has determined that to convict, the
government must prove that the defendant had knowledge of the
reporting requirements and acted to avoid them. See Van Allen,
524 F.3d at 820; Cassano, 372 F.3d at 878.
The instruction does not use the phrase “had knowledge of the
reporting requirements” because it is somewhat opaque regarding
the extent of knowledge required. The instruction is adapted from
language approved in United States v. MacPherson, 424 F.3d 183,
189 (2d Cir. 2005). Though the Seventh Circuit’s decisions in Van
Allen and Cassano use the term “avoid,” the Committee has used
the statutory term “evade” because it is believed to be more descrip-
tive of what is required. “Evade” is a commonly understood term
that is used elsewhere in these instructions. See, e.g., Pattern
Instruction for 26 U.S.C. § 7201.
5324(a)(3)
CRIMINAL INSTRUCTIONS
1081
31 U.S.C. § 5324(a)(3) DEFINITION OF
STRUCTURING FINANCIAL TRANSACTIONS
A financial institution must file a currency transac-
tion report with the Internal Revenue Service every
time a customer engages in a currency transaction of
more than $10,000.00.
[Commercial banks; Banks that are insured by the
Federal Deposit Insurance Corporation; Credit Unions;
Insert other] are financial institutions.
A currency transaction is the physical transfer of
currency from one [person; entity] to another [person;
entity].
A person structures a currency transaction when
he[, by himself or on behalf of others,] conducts one or
more currency transactions at one [or more] financial
institution[s] [or different branches of the same financial
institution], on one [or more] day[s], with the purpose
of evading currency transaction reporting requirements.
Structuring may include breaking down a single sum of
currency over $10,000 into smaller sums, or conducting
a series of cash transactions all at or below $10,000,
with the purpose of evading currency transaction
reporting requirements.
You may find [defendant’s name] guilty of unlaw-
fully structuring a transaction regardless of whether
the financial institution filed a true and accurate cur-
rency transaction report.
Committee Comment
See 31 U.S.C. 5312 & 31 C. F. R. § 103.11(n) (“financial institu-
tion”); 31 U.S.C. § 103.11(ii) (“transaction in currency”); 31 U.S.C.
§ 103.11(gg) (“structuring”); 31 U.S.C. § 103.22(b)(i) (obligation to
file currency transaction report). This instruction uses the most
common example of currency structuring. If it does not fit the par-
ticular case, a more applicable example should be devised.
5324(a)(3)
STATUTORY INSTRUCTIONS
1082
42 U.S.C. § 408(a)(3) MAKING OR CAUSING TO
BE MADE A FALSE STATEMENT OR
REPRESENTATION OF MATERIAL FACT FOR
USE IN DETERMINING A FEDERAL BENEFIT—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] [making; causing to be made] a false statement or
representation for use in determining federal benefits.
In order for you to find [the; a] defendant guilty of this
charge, the government must prove each of the [three]
following elements beyond a reasonable doubt:
1. The defendant [made; caused to be made] the
false statement or representation [as charged in the
indictment]; and
2. The statement or representation was for use in
determining the right to a federal benefit; and
3. The statement or representation was of a mate-
rial fact.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
A fact is material for purposes of § 408(a)(3) if it has “a natu-
ral tendency to influence or was capable of influencing the govern-
ment agency or official.” United States v. Phythian, 529 F.3d 807,
408(a)(3)
CRIMINAL INSTRUCTIONS
1083
813 (8th Cir. 2008) (quotation omitted). See also United States v.
Moore, 446 F.3d 671, 681 (7th Cir. 2006) (defining “material state-
ment” under 18 U.S.C. § 1001).
The statute does not appear to contain any mens rea
requirement. The Eighth and Eleventh Circuits (and the Western
District of Virginia, in the Fourth Circuit) have read a require-
ment into the statute that the defendant make the false statement
with some form of the “intent to deceive.” United States v. Henderson,
416 F.3d 686, 692 (8th Cir. 2005); United States v. Youngblood,
263 F. App’x 829 (11th Cir. 2008); United States v. Miller, 621 F.
Supp. 2d 323, 333 (W.D. Va. 2009). The Committee takes no posi-
tion on such a requirement.
408(a)(3)
STATUTORY INSTRUCTIONS
1084
42 U.S.C. § 408(a)(7)(A) USE OF A FALSELY
OBTAINED SOCIAL SECURITY NUMBER—
ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] using a falsely obtained social security number.
In order for you to find [the; a] defendant guilty of this
charge, the government must prove each of the [four]
following elements beyond a reasonable doubt:
1. The defendant willfully used for any purpose a
social security account number assigned by the Com-
missioner of Social Security; and
2. The social security account number was ob-
tained based on false information provided to the Com-
missioner of Social Security by any person; and
3. The defendant knew the social security account
number he was using had been obtained based on false
information; and
4. The defendant used the social security account
number with the intent to deceive.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
The inclusion of the term “willfully” in a jury instruction is
408(a)(7)(A)
CRIMINAL INSTRUCTIONS
1085
generally frowned upon as confusing unless the statute at issue
uses the word, see Pattern Instructions 4.11 (comment). Here, will-
fully is listed in the statute (along with knowingly and with intent
to deceive) as part of the mens rea for the crime of using a falsely
obtained social security number. All three terms overlap, but the
proposed instruction attempts to separate the terms so that a jury
can give meaningful consideration to each as a conceptually
distinct state of mind, thus giving effect to each word Congress
used in the statute.
Few cases in the Seventh Circuit or elsewhere have addressed
the intent requirement of this statute, and those that have did not
address the way the three mens rea terms interact in the statute.
See United States v. Pryor, 32 F.3d 1192, 1194 (7th Cir. 1994) (ap-
plying willfully, knowingly, and with intent to deceive only to the
“use” of the fraudulent social security account number); see also
United States v. Rastegar, 472 F.3d 1032, 1037 (8th Cir. 2007)
(focusing on the intent to deceive prong of the analysis).
The term “knowingly” is defined in Pattern Instruction 4.10,
which should also be given to define the term “knew” in the third
element of this instruction.
408(a)(7)(A)
STATUTORY INSTRUCTIONS
1086
42 U.S.C. § 408(a)(7)(A) & (B) DEFINITION OF
“INTENT TO DECEIVE”
“Intent to deceive” means to act for the purpose of
misleading someone. It is not necessary for the govern-
ment to prove, however, that anyone was in fact misled
or deceived.
Committee Comment
See United States v. Sirbel, 427 F.3d 1155, 1159–60 (8th Cir.
2005).
408(a)(7)(A) & (B)
CRIMINAL INSTRUCTIONS
1087
42 U.S.C. § 408(a)(7)(B) USE OF A FALSE
SOCIAL SECURITY NUMBER—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] use of a false social security number. In order for
you to find [the; a] defendant guilty of this charge, the
government must prove each of the [three] following
elements beyond a reasonable doubt:
1. The defendant represented for any purpose a
particular social security account number to be his [or
another person’s];
2. The representation was false; and
3. The defendant acted with intent to deceive.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
Most of the cases that have reached the appellate level have
involved a challenge to the “purpose” for which the social security
number was used. Courts have unanimously held that the
language “any other purpose” in the statute means exactly what it
says. See United States v. Johnson-Wilder, 29 F.3d 1100, 1103 (7th
Cir. 1994); see also United States v. Herrera-Martinez, 525 F.3d
60, 65–66 (1st Cir. 2008); United States v. Barel, 939 F.2d 26, 34
(3d Cir. 1991); United States v. Holland, 880 F.2d 1091, 1095 (9th
Cir. 1989). The false representation need not be made for the
purpose of pecuniary gain. Johnson-Wilder, 29 F.3d at 1103.
408(a)(7)(B)
STATUTORY INSTRUCTIONS
1088
While mere possession of a social security number cannot
sustain a conviction under this section, see United States v. Porter,
409 F.3d 910, 916 (8th Cir. 2005), the Eighth Circuit found that at
least in some cases possession of an official document with a false
social security number is sufficient evidence for a jury to determine
that the possessor misrepresented a number to be his. United
States v. Teitloff, 55 F.3d 391, 394 (8th Cir. 1995).
The consent of the person to whom the social security number
is actually assigned is not a defense to the crime of false use. United
States v. Soape, 169 F.3d 257, 269 (5th Cir. 1999).
408(a)(7)(B)
CRIMINAL INSTRUCTIONS
1089
42 U.S.C. § 408(a)(7)(C) SOCIAL SECURITY
CARD VIOLATIONS—ELEMENTS
[The indictment charges the defendant[s] with;
Count[s]
—
of the indictment charge[s] the defendant[s]
with] a violation of this statute regarding social secu-
rity cards. In order for you to find [the; a] defendant
guilty of this charge, the government must prove both
of the following elements beyond a reasonable doubt:
1. The defendant altered a social security card;
and
2. The defendant did so knowingly.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
Aside from alteration there are four other ways by which a
person may violate this statute. If one of the other alternatives is
relevant to the case on trial, one of the following should be
substituted for or added to the first element as appropriate:
[1. The defendant bought a card that [is; purports to be] a
social security card; and]
-or-
[1. The defendant sold a card that [is; purports to be] a social
security card; and]
-or-
408(a)(7)(C)
STATUTORY INSTRUCTIONS
1090
[1. The defendant counterfeited a social security card; and]
-or-
[1. The defendant possessed a [counterfeit] social security card
with intent to sell or alter it].
The First Circuit has held that social security cards that lack
a name and number are not sufficiently complete to be “counter-
feited” for purposes of this offense. United States v. Gomes, 969
F.2d 1290, 1294 (1st Cir. 1992).
The term “knowingly” is defined at Pattern Instruction 4.10.
408(a)(7)(C)
CRIMINAL INSTRUCTIONS
1091
42 U.S.C. § 408(a)(7)(C) DEFINITION OF
“COUNTERFEIT”
“Counterfeit[ed]” means that the social security
card bears [or was made to bear] such a likeness or
resemblance to something genuine that it is calculated
to deceive an honest, sensible, and unsuspecting person
of ordinary observation and using care when dealing
with an individual who is presumed to be honest and
upright.
Committee Comment
See United States v. Brunson, 657 F.2d 110, 114 (7th Cir.
1981); United States v. Gomes, 969 F.2d 1290, 1293–94 (1st Cir.
1992).
408(a)(7)(C)
STATUTORY INSTRUCTIONS
1092
42 U.S.C. § 1320a-7b(b) CRIMINAL PENALTIES
FOR ACTS INVOLVING FEDERAL HEALTH
CARE PROGRAMS—ILLEGAL
REMUNERATIONS
[The indictment charges the defendant[s] with;
Count[s]
———
of the indictment charge[s] the defen-
dant[s] with] [solicitation; receipt; offer; payment] of re-
muneration in whole or in part from a federal health
care program—namely
—————
. In order for you to
find [the; a] defendant guilty of this charge, the govern-
ment must prove each of the four following elements
beyond a reasonable doubt:
1. The defendant knowingly [solicited; received;
offered; paid] the remuneration, which took the form of
a [kickback; bribe; rebate] in cash or in kind;
2. The defendant did so willfully;
3. The defendant did so [in return for [referring
an individual to a person for the furnishing or arrang-
ing of any item or service; purchasing, leasing, order-
ing, or arranging for any good, facility, service, or item;
recommending purchasing, leasing, or ordering any
good, facility, service, or item]; to induce such person
[to refer an individual to a person for the furnishing or
arranging of any item or service; to purchase, lease, or-
der, or arrange for any good, facility, service, or item; to
recommend purchasing, leasing, or ordering any good,
facility, service, or item]]; and
4. The [item; service; good; facility] was one for
which payment may be made in whole or in part under
a federal health care program.
If you find from your consideration of all the evi-
dence that the government has proved each of these
elements beyond a reasonable doubt [as to the charge
1320a-7b(b)
CRIMINAL INSTRUCTIONS
1093
you are considering], then you should find the defendant
guilty [of that charge].
If, on the other hand, you find from your consider-
ation of all the evidence that the government has failed
to prove any one of these elements beyond a reasonable
doubt [as to the charge you are considering], then you
should find the defendant not guilty [of that charge].
Committee Comment
Section 1320a-7b(b) uses both “knowingly” and “willfully” to
define the mens rea element. When interpreting this provision,
practitioners should consider the potential application of United
States v. Schaul, 962 F.3d 917 (7th Cir. 2020). In Schaul, the
Seventh Circuit held that, in the context of 18 U.S.C. § 1347,
“knowingly” and “willfully” have separate meanings and must be
proven in the conjunctive. The Schaul court also strongly implied
that, under section 1347, “willfully” means to act with an “intent
to defraud,” which was already considered an element of section
1347. Id. at 924. The Committee notes, however, that section
1320a-7b(b) does not require an intent to defraud. In fact, section
1320a-7b(h) clarifies that “a person need not have actual knowl-
edge of [the Anti-Kickback Statute] or specific intent to commit a
violation” of it in order to be found guilty. In the absence of con-
trolling law, litigants may also refer to the definition of “willfully”
under 18 U.S.C. § 1035, which similarly has no “intent to defraud”
requirement. There, “willfully” is defined as acting “voluntarily
and intentionally and with the intent to do something he knows is
illegal.” See United States v. Natale, 719 F.3d 719, 741–42 (7th
Cir. 2013).
“Once the government establishes the elements of a violation
of the Anti-Kickback Statute, the burden shifts to a defendant to
demonstrate by a preponderance of the evidence that her conduct
fell within the safe harbor provision of the statute.” United States
v. George, 900 F.3d 405, 413 (7th Cir. 2018) (citing United States v.
Jumah, 493 F.3d 868, 873 (7th Cir. 2007)). Those safe harbor pro-
visions are laid out in section 1320a-7b(b)(3). See also 42 C.F.R.
§ 1001.952(b) (the statute’s corresponding regulations).
In cases involving Medicare certifications and recertifications,
practitioners should consider U.S. v. Patel, 778 F.3d 607, 612–18
(7th Cir. 2015). In Patel, the Seventh Circuit interpreted the term
“referring” (which is not defined in the statute) to extend to both
certifications and recertifications.
To the extent that a case involves a partial payment, U.S. v.
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Borrasi, 639 F.3d 774, 782 (7th Cir. 2011) is instructive. In that
case, the Seventh Circuit joined the Third, Fifth, Ninth, and Tenth
Circuits in holding that “if part of the payment compensated past
referrals or induced future referrals, that portion of the payment
violates 42 U.S.C. § 1320a-7b(b)(1).”
In cases in which the defendant is not a physician, U.S. v.
Polin, 194 F. 3d 863 (7th Cir. 1999) is instructive. In that case,
which involved a Medicare kickback scheme perpetrated by a medi-
cal device sales representative, the Seventh Circuit recognized
that “[t]he different subsections do not distinguish between physi-
cians and lay-persons”—both can be found guilty under section
1320a-7b(b). Id. at 866–67.
If the success of an alleged kickback scheme requires the rec-
ommendation, certification, or permission of a third party (such as
a doctor), practitioners should look to United States v. George, 900
F.3d 405 (7th Cir. 2018). In George, the Seventh Circuit rejected
the argument that section 1320a-7b(b)’s application is limited to
persons who could be deemed “relevant decisionmakers.” Id. at
413. George involved an alleged scheme whereby the defendant
(the owner of a referral agency) received payments from a home
healthcare entity for each Medicare patient she referred. On ap-
peal, the defendant argued that, because the persons she referred
had to be certified by a physician before they could be admitted to
the home healthcare entity, she was not the relevant decision-
maker, and therefore could not be convicted for a violation of the
Anti-Kickback statute. The court rejected this argument, reiterat-
ing that the statute’s focus is on “imposing liability on operatives
who ‘leverage fluid, informal power and influence.’ ’’ Id. at 411
(quoting United States v. Shoemaker, 746 F.3d 614, 629–30 (5th
Cir. 2014)); see also id. at 412 (“[P]ayments were made in this case
to refer a Medicare patient to a service provider, and such conduct
is prohibited under the plain language of the statute.”).
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