9315292.1
Criminal Tax Manual
JURY INSTRUCTIONS - METHODS OF PROOF/MISCELLANEOUS........................ 1
Methods of Proof ............................................................................................................ 1
Specific Items Method of Proof (Unreported Income) ............................................... 1
Specific Items Method ................................................................................................ 2
Net Worth Method of Proof ........................................................................................ 3
The "Net Worth Method" of Determining Income - Explained.................................. 9
Net Worth Method .................................................................................................... 13
Expenditures Method of Proof .................................................................................. 15
Cash Expenditures Method ....................................................................................... 21
Cash Expenditures Method ....................................................................................... 22
Bank Deposits (Plus Cash Expenditures) Method .................................................... 24
Bank Deposits Method .............................................................................................. 28
The "Bank Deposits Method" of Determining Income - Explained ......................... 30
Miscellaneous ............................................................................................................... 32
Consider Each Count Separately .............................................................................. 32
Separate Consideration Of Multiple Counts ............................................................. 33
Consider Each Count And Each Defendant Separately ............................................ 34
Separate Consideration Of Each Count And Each Defendant .................................. 35
Give Each Defendant Separate Consideration .......................................................... 36
Separate Consideration For Each Defendant ............................................................ 37
Separate Consideration For Each Defendant ............................................................ 38
Caution -- Consider Only Crime Charged ................................................................ 39
Caution – Punishment (Single Defendant -- Single Count) ...................................... 40
Caution – Punishment (Single Defendant -- Single Count) ...................................... 41
Caution – Punishment (Single Defendant -- Multiple Counts) ................................. 42
Caution – Punishment (Single Defendant -- Multiple Counts) ................................. 43
Caution – Punishment (Multiple Defendants -- Single Count) ................................. 44
Caution – Punishment (Multiple Defendants -- Single Count) ................................. 45
(Multiple Defendants -- Multiple Counts) ................................................................ 46
Caution – Punishment (Multiple Defendants -- Multiple Counts) ............................ 47
"On Or About" -- Explained ..................................................................................... 48
Date Of Crime Charged ............................................................................................ 49
Each Tax Year is Separate ........................................................................................ 50
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Proof of Precise Amount of Tax Owed Not Necessary ............................................ 51
Not Necessary to Show Any Additional Tax Due .................................................... 52
Funds or Property From Unlawful Sources .............................................................. 53
Computation of Tax Deficiency................................................................................ 54
Accrual Method of Accounting ................................................................................ 55
Corporate Diversions ................................................................................................ 56
Corporate Diversions (2)........................................................................................... 59
Constructive Dividends ............................................................................................. 61
Loan -- Explained ..................................................................................................... 63
Gift -- Defined........................................................................................................... 64
Gift -- Defined........................................................................................................... 66
Partnership Income ................................................................................................... 68
Partnership Losses .................................................................................................... 69
Deductions ................................................................................................................ 70
Overstatement of Lawful Deductions ....................................................................... 71
Proof of Lawful Deductions...................................................................................... 73
Economic Substance ................................................................................................. 74
Income Tax on Ministers .......................................................................................... 76
Deductions -- Tax Exempt Organizations................................................................. 77
Charitable Contribution -- Defined ........................................................................... 79
Charitable Contributions And Gifts -- Year Deductible ........................................... 80
Civil Tax Irrelevant ................................................................................................... 81
“Deliberate Ignorance or Willful Blindness” ............................................................ 82
Knowledge of Contents of Return ............................................................................ 84
Proof of Knowledge of Contents of Returns............................................................. 85
Exculpatory Statements - Later Proved False ........................................................... 86
Exculpatory Statements - Later Proved False ........................................................... 88
False Exculpatory Statements ................................................................................... 89
Similar Acts .............................................................................................................. 90
Prior Similar Acts ..................................................................................................... 92
Prior Similar Acts ..................................................................................................... 93
Prior Similar Acts ..................................................................................................... 94
Cautionary Instruction During Trial - Prior Similar Acts ......................................... 95
Cautionary Instruction During Trial - Similar Acts .................................................. 96
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Opinion Evidence -- The Expert Witness ................................................................. 98
Opinion Evidence -- The Expert Witness ................................................................. 99
Opinion Evidence -- The Expert Witness ............................................................... 100
Opinion Evidence -- The Expert Witness ............................................................... 101
Opinion Evidence -- The Expert Witness ............................................................... 102
Opinion Evidence -- The Expert Witness ............................................................... 103
Opinion Evidence -- The Expert Witness ............................................................... 104
Charts and Summaries -- Not Admitted.................................................................. 105
Charts and Summaries -- Not Admitted.................................................................. 106
Charts and Summaries -- Not Admitted.................................................................. 107
Charts and Summaries -- Not Admitted.................................................................. 108
Charts and Summaries -- Admitted......................................................................... 109
Charts and Summaries -- Admitted......................................................................... 110
Charts and Summaries -- Admitted......................................................................... 111
Charts and Summaries -- Admitted......................................................................... 112
Lesser Included Offense ......................................................................................... 113
Lesser Included Offense (Attempted Evasion of Payment/Failure to Pay) ............ 115
Lesser Included Offense ......................................................................................... 117
Lesser Included Offense ......................................................................................... 118
Lesser Included Offense ......................................................................................... 119
Lesser Included Offense ......................................................................................... 120
Action on Advice of Counsel .................................................................................. 121
Defenses -- Reliance on Accountant ....................................................................... 122
Defenses - Reliance on Accountant for Tax Return Preparation ............................ 123
Good Faith Reliance Upon Advice of Counsel....................................................... 124
Good Faith Belief of Accused ................................................................................. 125
First Amendment .................................................................................................... 130
Immunized Witnesses ............................................................................................. 132
Credibility of Witnesses -- Immunized Witness ..................................................... 133
Testimony Under Grant of Immunity ..................................................................... 134
Testimony Under Grant of Immunity ..................................................................... 135
Statute of Limitations -- Conspiracy ....................................................................... 136
Statute of Limitations -- Tax Evasion ..................................................................... 137
APPENDIX ..................................................................................................................... 138
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9315292.1
JURY INSTRUCTIONS - METHODS OF PROOF/MISCELLANEOUS
Title 18 Offenses ● Title 26 Offenses
[JI 100]
Methods of Proof
GOVERNMENT PROPOSED JURY INST. NO. MP-1
Specific Items Method of Proof (Unreported Income)
To establish the first element of the offense charged, the receipt by the defendant of
unreported income upon which a substantial amount of tax was due and owing, the
government has presented evidence under the "specific items" method of proof. The
"specific items" method simply consists of offering evidence of particular or specific
amounts of taxable income received by the defendant during a tax year, with evidence
that the defendant did not include those amounts in his [her] tax return for that year,
together with evidence concerning the defendant's knowledge of the omission and his
[her] intent and willfulness in attempting to evade payment of tax by the omission.
United States v. Beck, 59-2 U.S.T.C., para. 9486, p. 73,115 (W.D. Wash. Feb. 19, 1959),
aff'd in part and rev'd in part on other grounds, 298 F.2d 622 (9th Cir. 1962)
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GOVERNMENT PROPOSED JURY INST. NO. MP-2
Specific Items Method
To prove that substantial additional tax was due, the government must prove beyond a
reasonable doubt that (a) the defendant received substantial income in addition to what he
[she] reported on his [her] income tax return, and (b) there was tax due in addition to
what was shown to be due on the return.
In order to prove that the defendant received substantial additional income that was
omitted from his [her] tax return, the government in this case has introduced evidence of
[describe the specific items of income or other evidence which is the basis for the
allegation of evasion].
[JI-101]
If you find, based on all the evidence, that the government has established beyond a
reasonable doubt that the defendant received substantial income in addition to that
reported on his [her] income tax return for the year in question, then you must decide
whether, as a result of the defendant's additional, unreported income, there was tax due in
addition to what was shown to be due on the return. In reaching your decision on this
issue, you should consider, along with all the other evidence, the expert testimony
introduced during the trial concerning the computation of the defendant's additional tax
liability when the alleged additional income was taken into account.
If you find, based on all the evidence, that the government has established beyond a
reasonable doubt that the defendant received substantial additional income and that, as a
result of this additional income, there was tax due in addition to what was shown to be
due on his income tax return, then this first element has been satisfied.
3 Leonard B. Sand et al., Modern Federal Jury Instructions - Criminal, Instruction 59-5
(2008 rev. ed.)
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GOVERNMENT PROPOSED JURY INST. NO. MP-3
Net Worth Method of Proof
Theory
To establish the understatement of tax for the evasion counts for the years ____, ____,
and ____, the government relies upon proof by the “net worth” method. I should explain
that a person's "net worth" is the difference between his [her] assets and his [her]
liabilities at any given date. It is the difference between what he [she] owns and what he
[she] owes at that time. If a person has more assets at the end of the year than at the
beginning of the year and if that person's liabilities remain the same or decrease, then his
[her] net worth has obviously increased. However, only the cost price of the assets is to
be considered. Mere increases in market value that have not been realized must not be
taken into account.
[In this case, the defendant is married, and is charged with filing false joint income tax
returns for the defendant and his [her] spouse. The government accordingly has
introduced evidence purporting to reflect their joint net worth and expenditures.]
1
The theory of the net worth method of proof is that if the government proves beyond a
reasonable doubt that the defendant's net worth, as I have just defined it, has increased
during the taxable year, then it may be inferred that the defendant had receipts of either
money or property during the year; and if the government satisfies you beyond a
reasonable doubt that the defendant had a source of taxable income and that the receipts
did not come from nontaxable sources, then you may find that the receipts constituted
taxable income to the defendant.
If you also find that the government proved that the defendant spent money on items that
did not add to the defendant's net worth at the end of the year (items such as living
expenses and taxes), then it may be inferred that those expenditures also came from funds
received during the year. Consequently, such expenditures also may be taken into account
in determining the amount of the defendant's taxable income for the year, provided they
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were not deductible expenditures which the defendant was entitled to claim as deductions
in computing taxable income on his [her] return.
In this case, the government has undertaken to prove what the defendant was worth at the
beginning of each year involved and what he [she] was worth at the end of that year, so
as to show that his [her] net worth increased during the year. The government also has
introduced
[JI-102] other evidence, which, if you believe it, would tend to establish money paid out
by the defendant for such non-deductible items as federal income taxes, living expenses,
and other personal expenditures.
The government claims that the sum of the defendant's net worth increases and non-
deductible expenditures for each year, less adjustments, as shown by the government's
evidence, represents the defendant's correct taxable income for that year. The resulting
figures are alleged by the government to be a reasonable approximation of what the
defendant should have reported on his [her] income tax return.
As I have already told you, an attempt to evade income tax for one year is a separate
offense from an attempt to evade the tax for a different year. So you must consider the
evidence as to each year separately in arriving at your verdict.
Opening Net Worth
Now, I want to point out to you that because the net worth method of proving unreported
income involves a comparison of the beginning and ending net worth of the defendant in
each prosecution year, the result cannot be correct unless the beginning point, or the
opening net worth, is reasonably accurate. You will readily appreciate that if, at the
beginning point, the defendant actually owned substantial assets that the government has
failed to include in its computations, apparent increases in net worth during the
indictment years may be no more than the disclosure of money previously saved or the
result of a change in the form of other assets that the defendant owned at the beginning of
the year and that the government did not take into account. For example, a taxpayer
might have had a substantial amount of cash on hand (not in a bank) which he [she] 1 had
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saved up in prior years and which he [she] used to acquire assets or make purchases or
other expenditures during a prosecution year. In that case, an apparent increase in the
defendant's net worth might be only the result of a conversion of prior accumulated cash
into tangible property. Similarly, cash on hand accumulated from prior years may have
been used to make non-deductible expenditures. You must, therefore, in order to convict,
be satisfied that the government's evidence establishes an opening net worth with
reasonable certainty as of the beginning of the year.
On the other hand, the government is not required to refute all possible speculation that,
at the beginning of the year, the defendant might have had assets the investigation failed
to disclose; nor is the government required to prove the exact cost of the assets owned by
the defendant at the starting point or the precise amount of his [her] undeposited cash on
hand. It is enough if the government, although unable to determine the exact cost of the
assets owned by the defendant at the beginning of the year, can show beyond a
reasonable doubt that such assets were insufficient to account for the subsequent
increases in the defendant's net worth.
The burden rests originally upon the government, and the burden remains upon the
government, to establish an opening net worth with reasonable certainty.
In this case the government has endeavored to prove that the defendant [and his (her)
spouse]
1
did not have any assets at the beginning of the year other than those disclosed as
a result of its investigation by [e.g., tracing the financial and income tax return filing
history of the defendant (and his spouse) and by introducing into evidence the defendant's
own statements]. The evidence introduced by the government of the defendant's [income
tax returns and] financial history in years prior to those named in the indictment may be
considered by you only for such light as it may shed on the innocence or guilt of the
defendant during the years charged in the indictment.
In determining whether or not the opening net worth is reasonably accurate, you may
consider whether the government has tracked down all "reasonable leads" or
explanations, if any,
[JI-103] suggested to the government by the defendant (or his [her] representative)
during the investigation, which tend to establish the defendant's innocence.
1
Where the defendant was married and filed joint returns and the net worth computation reflects a joint net
worth, then appropriate language should be used in the instruction. This would also apply where both a
husband and wife are charged.
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If you are satisfied that any such reasonable leads and explanations have been exhausted
or refuted, then this would be evidence which you could consider in determining whether
the opening net worth included all of the defendant's assets. Obviously, improbable
explanations would not be entitled to as much weight as plausible and reasonable
explanations. If you should find that the government's investigation has failed to refute
what seem to you to be plausible explanations, then such failure may be considered by
you in determining the validity of the opening net worth.
If you find that the government has not established the opening net worth of the
defendant to a reasonable certainty as of the beginning of any year named in the
indictment, then you will return a verdict of not guilty as to any such count of the
indictment.
If you find as to any year that the funds reflected in increased net worth and expenditures
are not substantially in excess of the income reported by the defendant on his [her] return
for that year, or if you have a reasonable doubt as to whether such funds are substantially
in excess of the reported income, then you will return a verdict of not guilty as to any
such count of the indictment.
If you find, on the other hand, that the government has established the opening net worth
of the defendant to a reasonable certainty as of the beginning of any year named in the
indictment, and if you also are convinced beyond a reasonable doubt that the funds
reflected in increased net worth and expenditures during that year are substantially in
excess of the income reported on the defendant's tax return, then you will proceed to
inquire whether the government has established that those funds represented taxable
income on which the defendant willfully attempted to evade or defeat the tax.
Current Taxable Income
The burden is on the government to establish beyond a reasonable doubt that the funds
reflected in the defendant's increased net worth and non-deductible expenditures arose
from taxable, rather than nontaxable, sources.
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In this connection, I charge you that the federal income tax is levied on gains, profits, and
income derived from salaries, wages, or compensation for personal services, of whatever
kind and in whatever form paid, or from professions, vocations, trades, businesses,
commerce, or sales, or dealings in property; also from interest, rents, dividends,
securities, or the transaction of any business, legal or illegal, carried on for gain or profit,
or gains or profits and income derived from any source whatever.
The law states, however, that certain kinds of funds do not constitute income. Since no
income tax is levied on such funds, they need not and should not be reported as income.
These funds include gifts, inheritances, proceeds of loans, [and certain other
miscellaneous items which are not pertinent here].
As I have previously stated, the burden rests upon the government to prove beyond a
reasonable doubt that the funds reflected in increased net worth and expenditures arose
from a taxable source or sources, or that the funds did not come from nontaxable sources.
In other words, the government must establish either a likely source of income from
which you believe the net worth increases and expenditures sprang, or that nontaxable
sources of income have been negated as a source of the net worth increases and
expenditures.
[JI-104]
If you find that the defendant offered timely explanations of the source[s] of his [her]
funds, and that the stated source[s] was [were] reasonably susceptible of being checked,
the government may not disregard the defendant’s explanation. You may take into
consideration any failure by the government to pursue such explanations, if any were
made, or the results of any investigation made by the government into the truth of the
explanations. On the other hand, where relevant leads are not forthcoming, the
government is not required to negate every conceivable source of nontaxable funds, and
if the defendant failed to supply information in that regard, you may take such failure into
account. The defendant is not required, however, to provide any explanations to prove the
source of his net worth, for, as I have said, the burden is on the government to prove that
the increases arose from taxable sources.
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This instruction is based on the rationale of the courts in the following decisions:
Holland v. United States, 348 U.S. 121 (1954)
Friedberg v. United States, 348 U.S. 142 (1954)
United States v. Calderon, 348 U.S. 160 (1954)
United States v. Massei, 355 U.S. 595 (1957)
United States v. Johnson, 319 U.S. 503 (1942)
United States v. Sorrentino, 726 F.2d 876, 879, 880 (1st Cir. 1984)
United States v. Koskerides, 877 F.2d 1129, 1137 (2d Cir. 1989)
United States v. Breger, 616 F.2d 634, 635 (2d Cir. 1980)
United States v. Terrell, 754 F.2d 1139, 1144 (5th Cir. 1985)
United States v. Schafer, 580 F.2d 774, 775 (5th Cir. 1978)
United States v. Anderson, 642 F.2d 281, 285 (9th Cir. 1981)
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GOVERNMENT PROPOSED JURY INST. NO. MP-4
The "Net Worth Method" of Determining Income - Explained
To establish a substantial understatement of the tax on the income tax return of the
defendant for the year[s] ____, the government has relied upon proof by the so-called
"net worth method" of determining income for that particular period. This "net worth
method," if used correctly, is an indirect or circumstantial way to reliably determine
income.
A person's "net worth" is the difference between that person's total assets and total
liabilities on any given day. Said another way, a person's net worth is the difference
between what a person owns and what that person owes at any particular time. If a person
had more assets at the end of the year than at the beginning of that year, and if that
person's liabilities remained the same during that same year, then that person's net worth
has increased.
In determining net worth, however, only the cost price of the defendant's assets is to be
considered. Mere increases in market value that have not been actually realized through
sale or conversion into cash must not be taken into account in computing net worth in a
case such as this.
If the evidence in the case shows beyond a reasonable doubt that the defendant's net
worth, computed in this manner, has increased during the year[s] in question, then the
jury may find that the defendant had receipts of either money or property during that
year. If the evidence in the
[JI-105] case also establishes beyond a reasonable doubt that the defendant had one or
more sources of taxable income and that the receipts just referred to did not come from
non-taxable income, then the jury may find that such receipts constituted taxable income
to the defendant during that period.
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To show that the defendant's net worth increased in this case, the government has
undertaken to prove the defendant's net worth at the beginning of the year 20__ , and also
attempted to prove the defendant's net worth at the end of that same year. The
government has also introduced evidence in an effort to prove that the defendant paid out
various amounts of money during the taxable year for such non-deductible items as
personal and living expenses.
Because the "net worth method" of determining income involves a comparison of the net
worth of the defendant at the beginning and again at the end of the year in question, the
result cannot be accepted as correct unless this starting net worth figure, the beginning
point, is reasonably accurate. Although the government is not required to prove the exact
value of each and every asset owned by the defendant at the starting point, the evidence
must establish beyond a reasonable doubt that all assets owned by the defendant at the
starting point were not sufficient to account for any apparent subsequent increase in the
defendant's net worth. Said another way, the evidence in the case must establish beyond a
reasonable doubt that the defendant's assets at the beginning of the year, plus the
defendant's reported income for that same taxable year, do not add up to an amount
sufficient to account for the increases in net worth plus non-deductible expenditures
during that same year.
The government contends that any increases in the net worth of the defendant during the
taxable year 20__ , plus any non-deductible expenditures by the defendant for that year as
shown by the evidence in the case, represent the defendant's true and correct net income
for that year. These resulting figures are alleged by the government to be a reasonable
approximation of what the defendant should have reported on his [her] income tax return
for the calendar year 20__ .
The burden is always upon the government to establish beyond a reasonable doubt that
any amounts reflected in defendant's increased net worth plus non-deductible
expenditures were from taxable, rather than non-taxable, sources. In this regard, you are
instructed that federal income tax is levied on income derived from compensation for
personal services of every kind, and in whatever form paid, as well as on income from
interest, dividends, gains, profits, [and certain other items not pertinent to this case].
The law provides, however, that funds or property received from certain sources do not
constitute taxable income. Since no federal income tax is levied on such funds or
property, such funds or property do not need to be reported as income. Non-taxable funds
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or non-taxable property include such items as gifts, inheritances, the proceeds of life
insurance policies, loans, [and certain other items not pertinent to this case].
If it appears from the evidence in the case that during the course of the investigation of
his [her] income tax return and before the trial of this case, the defendant offered to
Treasury agents certain explanations of the sources of certain funds or property and these
sources of funds or property were reasonably capable of being checked and verified by
Treasury agents, the government may not unreasonably disregard such explanations. In
evaluating the evidence in this case you may take into consideration any failure of the
government to reasonably investigate the truth of any such explanations as well as the
trustworthiness of the explanations provided.
On the other hand, the government is not required, without suggestion or explanation
from the defendant, to investigate every conceivable source of non-taxable funds. If it
appears from the evidence in the case that the defendant did not provide an explanation as
to the source or sources of any increase in his [her] net worth, then the jury may consider
such failure as one of the
[JI-106] circumstances in evidence in the case, bearing in mind always that the law never
imposes upon a defendant in a criminal case the burden or duty to offer or produce any
evidence. The burden is always upon the government to establish beyond a reasonable
doubt from the evidence in the case every essential element of the crime charged,
including the claim that any increase in the defendant's net worth was from taxable
sources.
If the jury should find that the evidence in the case does not establish the net worth of the
defendant to a reasonable degree of certainty at the beginning any of the years charged in
the indictment, then the jury should find the defendant not guilty as to that year. If the
jury should find that any increase in net worth for a particular year is not substantially in
excess of the income reported by the defendant on his [her] return for that year, then the
jury should find the defendant not guilty as to that year.
On the other hand, if the evidence in the case establishes beyond a reasonable doubt the
amount of the net worth of the defendant as of the beginning of the particular calendar
year charged in a Count of the indictment, and further establishes beyond a reasonable
doubt that funds reflected in any increased net worth, plus the defendant's expenditures,
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during the same year substantially exceed the income reported on the defendant's tax
return, the jury should then proceed to determine whether the evidence in the case also
establishes beyond a reasonable doubt that such additional funds represented taxable
income, and then proceed to determine whether the government has proven that the
defendant acted willfully in attempting to evade or defeat the additional tax, as charged in
Count[s] ___ of the indictment.
2B Kevin F. O'Malley et al., Federal Jury Practice and Instructions, § 67.05 (modified)
(5th ed. 2000)
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GOVERNMENT PROPOSED JURY INST. NO. MP-5
Net Worth Method
In this case the Government relies upon the so-called “net worth method” of proving
unreported income.
A person's “net worth” at any given date is the difference between such person's total
assets and total liabilities on that date. It is the difference between what one owns and
what one owes (measuring the value of what one owns by its cost rather than unrealized
increases in market value).
If the evidence establishes beyond a reasonable doubt that the Defendant's net worth
increased during a taxable year, then you may infer that the Defendant had receipts of
money or property during that year; and if the evidence also establishes that those
receipts cannot be accounted for by non-taxable sources, then you may further infer that
those receipts were taxable income to the Defendant.
In addition to the matter of the Defendant's net worth, if the evidence establishes beyond
a reasonable doubt that the Defendant spent money during the year on living expenses,
taxes and other expenditures, which did not add to the Defendant's net worth at the end of
the year, then you may infer that those expenditures also came from funds received
during the year; and, again, if the evidence establishes that those receipts cannot be
accounted for by non-taxable sources, then you may further infer that those funds were
also taxable income to the Defendant (provided, of course, the expenditures were not for
items which would be deductible on the Defendant's tax return).
[JI-107]
Because the “net worth method” of proving unreported income involves a comparison of
the Defendant's net worth at the beginning of the year and the Defendant's net worth at
the end of the year, the result cannot be accepted as correct unless the starting net worth
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is reasonably accurate. In that regard the proof need not show the exact value of all the
assets owned by the Defendant at the starting point so long as it is established that the
assets owned by the Defendant at that time were insufficient by themselves to account for
the subsequent increases in the Defendant's net worth. So, if you should decide that the
evidence does not establish with reasonable certainty what the Defendant's net worth was
at the beginning of the year, you should find the Defendant not guilty.
In determining whether or not the claimed net worth of the Defendant at the starting point
(or the beginning of the year) is reasonably accurate, you may consider whether
Government agents sufficiently investigated all reasonable “leads” suggested to them by
the Defendant, or which otherwise surfaced during the investigation, concerning the
existence and value of other assets. If you should find that the Government's investigation
has either failed to reasonably pursue, or to refute, plausible explanations advanced by
the Defendant or which otherwise arose during the investigation concerning other assets
the Defendant had at the beginning of the year (or other non-taxable sources of income
the Defendant had during the year), then you should find the Defendant not guilty.
Notice, however, that this duty to reasonably investigate applies only to suggestions or
explanations made by the Defendant, or to reasonable leads that otherwise turn up; the
Government is not required to investigate every conceivable asset or source of non-
taxable funds.
If you decide the evidence in the case establishes beyond a reasonable doubt the
maximum possible amount of the Defendant's net worth at the beginning of the tax year,
and further establishes that any increase in the Defendant's net worth at the end of that
year, together with non-deductible expenditures made during the year, did substantially
exceed the amount of income reported on the Defendant's tax return for that year, you
should then proceed to decide whether the evidence also establishes beyond a reasonable
doubt that such additional funds represented taxable income (that is, income from taxable
sources) on which the Defendant willfully attempted to evade and defeat the tax as
charged in the indictment.
Pattern Jury Instructions: Eleventh Circuit, Criminal Cases, OI 93.2 (2003 ed.)
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GOVERNMENT PROPOSED JURY INST. NO. MP-6
Expenditures Method of Proof
Theory
The government has introduced evidence of the expenditures method of proof to establish
that the taxable income reported by the defendant on his [her] income tax returns is not
true and correct. By this method, the government seeks to establish that the defendant
1
spent an amount greater than the amount reported on his [her] income tax returns as being
available for spending. In other words, the government claims that the defendant could
not have spent the amount that he [she] did in a given year unless he [she] had more
income than the defendant reported on his [her] return for that year.
[In this case, the defendant is married, and is charged with filing false joint income tax
returns for the defendant and his [her] spouse. The government accordingly has
introduced evidence purporting to reflect their joint expenditures.]
2
Under the expenditures method, the first step is to add up and total the amounts that the
defendant spent during a given year. The next step is to subtract from the total amount
spent: (1)
[JI-108] any funds that the defendant had on hand at the beginning of the year which
were spent during the year; (2) any monies received by a conversion into cash of assets
that were on hand at the beginning of the year; and (3) any nontaxable funds received
during the year.
2
The instruction should be modified in those instances where a joint return is involved and also where the
net worth computation reflects the joint net worth of a husband and wife, or, in rare instances, the joint net
worth of a defendant and a third party.
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The government claims that a reasonable approximation of the taxable income the
defendant should have reported is the amount remaining after personal deductions,
exemptions, and adjustments are subtracted from the defendant's income computed on the
basis I have just explained to you.
Opening Net Worth
Now, I want to go over some of the points I have just mentioned. As I previously said,
under the expenditures method, you subtract from the total amount spent any funds the
defendant had on hand at the beginning of the year and any monies received by
converting into cash assets that were on hand at the beginning of the year. Another way
of saying this is that a starting point or opening net worth must be established so that the
defendant is not improperly charged with spending that reflects only what he [she] earned
or had from prior years.
You will readily appreciate that if the defendant actually owned substantial assets at the
beginning point which the government has failed to consider in its computations,
apparent spending of income during the indictment years may be no more than the
disclosure of money previously saved or the result of a conversion into cash of assets the
defendant owned at the beginning of the year.
For example, a taxpayer might have had a substantial amount of cash on hand that he
[she] had saved up in prior years and used to make purchases or other expenditures
during a prosecution year. In that case, an apparent spending out of income during the
year might be only the result of spending money earned in a prior year. You must,
therefore, be satisfied that the government's evidence establishes that the defendant has
been given credit for any cash on hand that he [she] had as well as for any cash realized
from the conversion into cash of assets that he [she] had on hand.
However, the government is not required to refute all possible speculation that the
defendant might have converted into cash assets that he [she] had at the beginning of the
year that the investigation failed to disclose; nor is it necessary for the government to
prove the precise amount of cash on hand that the defendant had at the beginning of the
year. It is enough if the government can show beyond a reasonable doubt that cash on
hand and the conversion of assets into cash do not account for the expenditures of the
defendant during the taxable year.
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The burden rests originally upon the government, and the burden remains upon the
government, to establish an opening net worth with reasonable certainty.
In this case, the government has attempted to prove that the defendant did not have any
cash on hand or assets at the beginning of the year that he [she] later converted into cash,
other than those disclosed as a result of its investigation by, among other things, tracing
the financial history of the defendant. The evidence introduced by the government of the
defendant's [income tax return(s) and] financial history in years prior to those named in
the indictment may be considered by you for such light as it may shed on the innocence
or guilt of the defendant during the years named in the indictment.
In determining whether or not the opening net worth is reasonably accurate, you may
consider whether the government has tracked down "reasonable leads" or explanations, if
any, suggested to the government by the defendant (or his [her] representative) during the
investigation, which tend to establish the defendant's innocence.
[JI-109]
If you are satisfied that any such reasonable leads and explanations have been exhausted
or refuted, then this would be evidence that you could consider in determining whether
the opening net worth relied on by the government is reasonably accurate. Obviously,
improbable explanations would not be entitled to as much weight as plausible and
reasonable explanations. If you should find that the government's investigation has failed
to refute what seem to you to be plausible explanations, such failure may be considered
by you in determining the validity of the opening net worth.
If you find that the government has not established the opening net worth of the
defendant to a reasonable certainty as of the beginning of any year named in the
indictment, then you will find that the defendant is not guilty of reporting a taxable
income that is not true and correct for that year.
If you find as to any year that the funds spent by the defendant are not substantially in
excess of the taxable income reported by the defendant on his [her] return for that year, or
if you have a reasonable doubt as to whether such funds are substantially in excess of
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reported taxable income, then you will find that the defendant is not guilty of reporting a
taxable income that is not true and correct for that year .
If you find, on the other hand, that the government has established the net worth of the
defendant to a reasonable certainty as of the beginning of any year named in the
indictment, and if you are also convinced beyond a reasonable doubt that the
expenditures established by the government during that year are substantially in excess of
the income reported on the defendant's tax return, then you will proceed to inquire
whether the government has established that those funds represented income.
Current Taxable Income
The burden is on the government to establish beyond a reasonable doubt that the funds
reflected in the defendant's expenditures arose from taxable, rather than nontaxable,
sources.
In this connection, I charge you that the federal income tax is levied on gains, profits, and
income derived from salaries, wages, or compensation for personal services, of whatever
kind and in whatever form paid, or from professions, vocations, trades, businesses,
commerce, or sales, or dealings in property; also from interest, rent, dividends, securities,
or the transaction of any business, [legal or illegal], carried on for gain or profit, or gains
or profits and income derived from any source whatever.
The law states, however, that certain kinds of funds do not constitute income. Since no
income tax is levied on such funds, they need not and should not be reported as income.
These funds include gifts, inheritances, proceeds of loans, [and certain other
miscellaneous items which are not pertinent here].
As I have previously stated, the burden rests upon the government to prove beyond a
reasonable doubt that the funds reflected in the defendant's expenditures arose from a
taxable source or sources or that the funds did not come from nontaxable sources. In
other words, expenditures alone do not establish the receipt of taxable income unless the
evidence shows either: (1) a likely source of income from which you believe they sprang;
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or (2) that the government has established that the defendant did not have a nontaxable
source of income which would account for the expenditures.
If you find that the defendant offered timely explanations of the source of his [her] funds,
which were reasonably susceptible of being checked, the government may not disregard
them; and you may take into consideration any failure by the government to investigate
such explanations, if
[JI-110] any were made, or the results of any investigation made by the government into
the truth of the explanations. On the other hand, where relevant leads are not
forthcoming, the government is not required to negate every conceivable source of
nontaxable funds, and if the defendant failed to supply information in that regard, you
may take that failure into account. The defendant is not required, however, to provide any
explanations or to prove the source of his [her] funds, for, as I have said, the burden is on
the government to prove that the funds used for expenditures arose from taxable sources.
This instruction is based on the rationale of the courts in the following decisions:
Taglianetti v. United States, 398 F.2d 558, 562 (1st Cir. 1968), aff'd., 394 U.S. 315
(1969)
United States v. Citron, 783 F.2d 307, 315 (2d Cir. 1986)
United States v. Breger, 616 F.2d 634, 635 (2d Cir. 1980)
United States v. Marshall, 557 F.2d 527, 529 (5th Cir. 1977)
United States v. Newman, 468 F.2d 791, 793 (5th Cir. 1972)
United States v. Penosi, 452 F.2d 217, 219 (5th Cir. 1971)
United States v. Caswell, 825 F.2d 1228, 1231-32 (8th Cir. 1987)
United States v. Pinto, 838 F.2d 426, 431-32 (10th Cir. 1988)
The instruction is also based on the rationale of the following decisions involving the net
worth method, which is essentially the same as the expenditures method, Taglianetti v.
United States, 398 F.2d at 562:
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Holland v. United States, 348 U.S. 121 (1954)
Friedberg v. United States, 348 U.S. 142 (1954)
United States v. Calderon, 348 U.S. 160 (1954)
United States v. Massei, 355 U.S. 595 (1957)
United States v. Johnson, 319 U.S. 503 (1942)
United States v. Sorrentino, 726 F.2d 876, 879, 880 (1st Cir. 1984)
United States v. Breger, 616 F.2d 634, 635 (2d Cir. 1980)
United States v. Terrell, 754 F.2d 1139, 1144 (5th Cir. 1985)
United States v. Schafer, 580 F.2d 774, 775 (5th Cir. 1978)
United States v. Anderson, 642 F.2d 281, 285 (9th Cir. 1981)
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GOVERNMENT PROPOSED JURY INST. NO. MP-7
Cash Expenditures Method
In this case the Government relies upon the so-called “cash expenditures method” of
proving unreported income. The theory of this method of proof is that if a taxpayer's
expenditures and disbursements for a particular taxable year, together with any increase
in net worth exceed the total of the taxpayer's reported income together with non-taxable
receipts and available cash at the beginning of the year, then the taxpayer has understated
[his] [her] income.
The “cash expenditures method” necessarily involves not only the examination of the
Defendant's expenditures and disbursements during the taxable year, but also an
examination of the Defendant's “net worth” at the beginning and at the end of that year.
[JI-111]
[The remainder of this instruction should consist of the text of Proposed Instruction No.
MP-5, supra, from the second paragraph to the end of that instruction.]
Pattern Jury Instructions: Eleventh Circuit, Criminal Cases, OI 93.4 (2003 ed.)
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GOVERNMENT PROPOSED JURY INST. NO. MP-8
Cash Expenditures Method
To establish a substantial understatement of the tax on the income tax return of Defendant
for the year[s] ______ , the government has relied upon proof by the so-called “cash
expenditures method” of determining income for that particular period. This “cash
expenditures method,” if done correctly, is an indirect or circumstantial way to reliably
determine income.
In this method of proof, if a taxpayer's expenditures and disbursements for a particular
taxable year, together with any increase in net worth, exceed the total of reported income
together with non-taxable receipts for that same year and available cash at the beginning
of the year, then the taxpayer has unreported income.
A person's net worth is the difference between a person's total assets and that person's
total liabilities on any given date. Said another way, net worth is the difference between
what a person owns and what that person owes at any particular time.
The “cash expenditures method” necessarily involves not only the examination of the
defendant's expenditures and disbursements during the taxable year in question, but also
an examination of the defendant's net worth at the beginning and again at the end of that
year.
3
3
Notes following this jury instruction in O'Malley state, “The pertinent portions of the instruction on the
‘Net Worth Method’, Section 67.5, should be given to the jury in conjunction with this instruction.” Thus,
the prosecutor should consult the above net worth instructions for appropriate language to include. While
the expenditures method is a "variant of the net worth method," there are certain different elements
involved in their presentation, including the showing of net worth required. Under the expenditures method,
"net worth need not be established by a formal net worth statement. Rather, accurate inclusion of
diminution of resources serves the function of enabling the jurors to determine if expenditures were
financed by liquidation of assets, depletion of a cash hoard, or unreported income." United States v. Citron,
783 F.2d 307, 315 (2d Cir. 1986); see Taglianetti v. United States, 398 F.2d 558, 562 (1st Cir. 1968), aff'd,
394 U.S. 316 (1969); United States v. Caswell, 825 F.2d 1228, 1232 (8th Cir. 1987); United States v. Pinto,
838 F.2d 426, 432 (10th Cir. 1988).
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2B Kevin F. O'Malley et al., Federal Jury Practice and Instructions, § 67.06 (5th ed.
2000)
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GOVERNMENT PROPOSED JURY INST. NO. MP-9
Bank Deposits (Plus Cash Expenditures) Method
4
To prove the alleged understatements of taxable income, the government relies upon the
bank deposits [plus cash expenditures] method of proof.
5
To use this method of proof, the government must establish that the defendant was
engaged in an income-producing activity during the tax years in issue and that, during the
course of such
[JI-112] activity, regular and periodic deposits having the inherent appearance of current
income were made into bank accounts in the defendant's name or under his [her]
dominion and control.
Deposits into such accounts are totaled. Non-income transactions, such as transfers
between bank accounts, redeposits, and deposits of nontaxable amounts, such as loan
proceeds, gifts, inheritances, or prior accumulations, are subtracted from the total
deposits. [To this total is added any additional undeposited income that the defendant
received during the tax year in issue and any cash or currency expenditures made with
undeposited funds not derived from a nontaxable source.]
6
The appropriate deductions, exclusions, exemptions, and credits to which the defendant is
entitled then are subtracted, leaving an amount the government contends to be the
corrected taxable income for the tax year in issue. This amount is then used to compute
4
CAUTION: The above instruction does not include an instruction on cash on hand. In those instances
where the bank deposits computation includes cash expenditures or currency deposits, the cases indicate
that the government must establish a beginning cash on hand figure. See
Section 33.08, supra. In such a
case, the above instruction should be supplemented with a cash on hand instruction. For an example of a
cash on hand instruction, see Proposed Jury Instruction 272 below.
5
The material in brackets applies to cases that include cash or currency expenditures.
6
The material in brackets applies to cases that include both cash or currency expenditures and undeposited
income. Where only one is included in a case, the bracketed language should be modified accordingly.
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the corrected tax due and owing for the year, which is then compared with the actual tax
paid in order to establish the alleged understatement of taxes.
If you find that the defendant’s bank deposits [plus undeposited income and cash
expenditures] establish for a tax return in issue a taxable income figure that exceeds the
taxable income reported on the tax returns for the years involved, you will proceed to
inquire whether the government has established that those excess deposits [and other
funds received or spent but not deposited] represent additional taxable income on which
the defendant willfully attempted to evade or defeat the tax. In this connection, if the
government has established that the defendant was engaged in an income-producing
business or activity, that he [she] was making regular and periodic deposits of money to
bank accounts in his [her] name or under his control, that the deposits and other funds
received and available for deposit have the appearance of income, then you may, but are
not required to, draw the inference that these deposits [and other funds available for
deposit] represented income during the year in question.
Explanations or "leads" as to the source of the funds used or available for deposits during
the prosecution years, such as cash-on-hand, gifts, loans, or inheritances, may be offered
to the government by or on behalf of the defendant. If such leads are relevant, reasonably
plausible, and reasonably susceptible of being checked, then the government must
investigate into the truth of the explanations. Additionally, leads must be furnished well
in advance of trial for the government to be obligated to investigate them or to include
them in the government's computations. However, if no such leads are provided, the
government is not required to negate every conceivable source of nontaxable funds.
The government claims that it has correctly taken into account all of the factors which I
have mentioned and that the bank deposits plus undeposited income and cash
expenditures result in a figure that fairly approximates the defendant's true individual
taxable income for the calendar years 20__ and 20__.
This instruction is based on the rationale, and not the actual language, of the opinions
below:
United States v. Morse, 491 F.2d 149, 151 (1st Cir. 1974)
United States v. Slutsky, 487 F.2d 832, 840 (2d Cir. 1973)
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United States v. Nunan, 236 F.2d 576, 587 (2d Cir. 1956)
United States v. Venuto, 182 F.2d 519, 521 (3d Cir. 1950)
Morrison v. United States, 270 F.2d 1, 2 (4th Cir. 1959)
Skinnett v. United States, 173 F.2d 129 (4th Cir. 1949)
United States v. Conaway, 11 F.3d 40, 43-44 (5th Cir. 1993)
United States v. Tafoya, 757 F.2d 1522, 1528 (5th Cir. 1985)
United States v. Normile, 587 F.2d 784, 785 (5th Cir. 1979)
United States v. Boulet, 577 F.2d 1165, 1167 (5th Cir. 1978)
[JI-113]
United States v. Horton, 526 F.2d 884, 887 (5th Cir. 1976)
United States v. Parks, 489 F.2d 89, 90 (5th Cir. 1974)
United States v. Moody, 339 F.2d 161, 162 (6th Cir. 1964)
United States v. Ludwig, 897 F.2d 875, 878-882 (7th Cir. 1990)
United States v. Esser, 520 F.2d 213, 216 (7th Cir. 1975)
United States v. Stein, 437 F.2d 775, 779 (7th Cir. 1971)
United States v. Lacob, 416 F.2d 756, 759 (7th Cir. 1969)
United States v. Mansfield, 381 F.2d 961, 965 (7th Cir. 1967)
United States v. Abodeely, 801 F.2d 1020, 1024-1025 (8th Cir. 1986)
United States v. Vannelli, 595 F.2d 402, 404 (8th Cir. 1979)
United States v. Stone, 770 F.2d 842, 844 (9th Cir. 1985)
United States v. Soulard, 730 F.2d 1292, 1296 (9th Cir. 1984)
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United States v. Hall, 650 F.2d 994, 999 (9th Cir. 1981)
United States v. Helina, 549 F.2d 713, 720 (9th Cir. 1977)
Percifield v. United States, 241 F.2d 225, 229 & n.7 (9th Cir. 1957)
United States v. Bray, 546 F.2d 851, 853 (10th Cir. 1976).
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GOVERNMENT PROPOSED JURY INST. NO. MP-10
Bank Deposits Method
In this case the Government relies upon what is called the “bank deposits method” of
proving unreported income.
This method of proof proceeds on the theory that if a taxpayer is engaged in an income
producing business or occupation and periodically deposits money in bank accounts in
the taxpayer's name or under the taxpayer's control, an inference arises that such bank
deposits represent taxable income unless it appears that the deposits represented re-
deposits or transfers of funds between accounts, or that the deposits came from non-
taxable sources such as gifts, inheritances or loans. This theory also contemplates that
any expenditures by the Defendant of cash or currency from funds not deposited in any
bank and not derived from a non-taxable source, similarly raises an inference that such
cash or currency represents taxable income.
Because the “bank deposits method” of proving unreported income involves a review of
the Defendant's deposits and cash expenditures that came from taxable sources, the
Government must establish an accurate cash-on-hand figure for the beginning of the tax
year. The proof need not show the exact amount of the beginning cash-on-hand so long as
it is established that the Government's claimed cash-on-hand figure is reasonably
accurate. So, if you should decide that
[JI-114] the evidence does not establish with reasonable certainty what the Defendant's
cash-on-hand was at the beginning of the year, you should find the Defendant not guilty.
In determining whether or not the claimed cash-on-hand of the Defendant at the starting
point (or the beginning of the year) is reasonably accurate, you may consider whether
Government agents sufficiently investigated all reasonable “leads” suggested to them by
the Defendant, or which otherwise surfaced during the investigation, concerning the
existence of other funds at that time. If you should find that the Government's
investigation has either failed to reasonably pursue, or to refute, plausible explanations
which were advanced by the Defendant, or which otherwise arose during the
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investigation, concerning the Defendant's cash-on-hand at the beginning of the year, then
you should find the Defendant not guilty. Notice, however, that this duty to reasonably
investigate applies only to suggestions or explanations made by the Defendant, or to
reasonable leads that otherwise turn up; the Government is not required to investigate
every conceivable source of non-taxable funds.
If you decide that the evidence in the case establishes beyond a reasonable doubt that the
Defendant's bank deposits together with non-deductible cash expenditures during the year
did substantially exceed the amount of income reported on the Defendant's tax return for
that year, you should then proceed to decide whether the evidence also establishes
beyond a reasonable doubt that such additional deposits and expenditures represented
taxable income (that is, income from taxable sources) on which the Defendant willfully
attempted to evade and defeat the tax as charged in the indictment.
Pattern Jury Instructions: Eleventh Circuit, Criminal Cases, OI 93.3 (2003 ed.)
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GOVERNMENT PROPOSED JURY INST. NO. MP-11
The "Bank Deposits Method" of Determining Income - Explained
To establish a substantial understatement of the tax on the income tax return of Defendant
for the year[s] 20__, the government has relied upon proof by the so-called “bank
deposits method” of determining income during a particular period. This “bank deposits
method”, done correctly, is an indirect or circumstantial way to reliably determine
income.
The theory of this method of proof is that if a taxpayer is engaged in an activity that
produces income and if that taxpayer periodically deposits money in bank accounts under
the taxpayer's name, or under the taxpayer's control, it may be inferred, unless otherwise
explained, that these bank deposits represent taxable income. If there are expenditures of
cash by the taxpayer from funds not deposited in any bank and not from any non-taxable
source, such as by gift or from inheritance, it may be inferred, unless otherwise
explained, that this cash represents unreported income.
In this method of proof, a taxpayer's bank deposits for the tax year are totaled, with
adjustments made for funds in transit at the beginning and again at the end of that year.
Any “non-income” deposits are excluded from this total and income which has not been
deposited is included in the total. This procedure provides a gross income figure.
Income tax is then calculated in the usual way with legitimate credits and legitimate
deductions taken into account. If the resulting figure is greater than that which the
taxpayer reported on [his] [her] tax return for that year, then that taxpayer has unreported
income in that amount.
Because the “bank deposits method” of determining income involves a review of bank
deposits and cash expenditures during a taxable year, the government must establish with
a reasonable degree of certainty an accurate “cash on hand” figure for the beginning of
the tax year in
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[JI-115] question. The government is not required to prove an exact “cash on hand”
figure, but must prove a figure that is reasonably accurate.
If, therefore, you do not find that the government has established to a reasonable degree
of certainty what the defendant's “cash on hand” was at the beginning of the year 20__,
then you should find the defendant not guilty.
If on the other hand, you find that the government has proven to a reasonable degree of
certainty what the defendant's “cash on hand” was at the beginning of the year 20__, you
must then proceed to decide whether the evidence in the case establishes beyond a
reasonable doubt that the bank deposits and non-deductible cash expenditures of
Defendant substantially exceeded the amount reported on [his][her] tax return for that
year. If so, you should then proceed to decide whether or not the government has proven,
beyond a reasonable doubt, that the defendant willfully attempted to evade or defeat the
additional tax as charged in Count of the indictment.
2B Kevin F. O'Malley et al., Federal Jury Practice and Instructions, § 67.07 (5th ed.
2000)
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Miscellaneous
GOVERNMENT PROPOSED JURY INST. NO. Misc-1
Consider Each Count Separately
A separate crime is charged in each count of the indictment. Each charge, and the
evidence pertaining to it, should be considered separately by the jury. The fact that you
may find [the] [a] defendant guilty or not guilty as to one of the counts should not control
your verdict as to any other count.
1A Kevin F. O’Malley et al., Federal Jury Practice and Instructions, § 12.12 (6th ed.
2008)
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GOVERNMENT PROPOSED JURY INST. NO. Misc-2
Separate Consideration Of Multiple Counts
A separate crime is charged against the defendant in each count. You must decide each
count separately. Your verdict on one count should not control your verdict on any other
count.
Manual of Model Jury Instructions for the Ninth Circuit, § 3.12 (2003 ed.)
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GOVERNMENT PROPOSED JURY INST. NO. Misc-3
Consider Each Count And Each Defendant Separately
A separate crime is alleged against [each][one or more] of the defendants in each count of
the indictment. Each alleged offense, and any evidence pertaining to it, should be
considered separately by the jury. The fact that you find one defendant guilty or not
guilty of one of the offenses charged should not control your verdict as to any other
offense charged against that defendant or against any other defendant.
You must give separate and individual consideration to each charge against each
defendant.
1A Kevin F. O’Malley et al., Federal Jury Practice and Instructions, § 12.13 (6th ed.
2008)
[JI-116]
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GOVERNMENT PROPOSED JURY INST. NO. Misc-4
Separate Consideration Of Each Count And Each Defendant
A separate crime is charged against one or more of the defendants in each count. The
charges have been joined for trial. You must decide the case of each defendant on each
crime charged against that defendant separately. Your verdict on any count as to any
defendant should not control your verdict on any other count or as to any other defendant.
All of the instructions apply to each defendant and to each count (unless a specific
instruction states that it applies only to [a specific defendant][or][a specific count]).
Manual of Model Criminal Jury Instructions for the Ninth Circuit, § 3.14 (2003 ed.)
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GOVERNMENT PROPOSED JURY INST. NO. Misc-5
Give Each Defendant Separate Consideration
It is your duty to give separate and personal consideration to the case of each defendant.
When you do so, you should analyze what the evidence in the case shows with respect to
that defendant, leaving out of consideration entirely any evidence admitted solely against
some other defendant or defendants.
Each defendant is entitled to have his [her] case determined from evidence as to his [her]
own acts, statements, and conduct and any other evidence in the case which may be
applicable to him [her].
The fact that you return a verdict of guilty or not guilty as to one defendant should not, in
any way, affect your verdict regarding any other defendant.
1A Kevin F. O’Malley et al., Federal Jury Practice and Instructions, § 12.14 (6th ed.
2008)
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GOVERNMENT PROPOSED JURY INST. NO. Misc-6
Separate Consideration For Each Defendant
Even though the defendants are being tried together, you must give each of them separate
consideration. In doing this, you must analyze what the evidence shows about each
defendant [, leaving out of consideration any evidence that was admitted solely against
some other defendant or defendants]. Each defendant is entitled to have his/her case
decided on the evidence and the law that applies to that defendant.
Federal Criminal Jury Instructions of the Seventh Circuit, § 4.05 (1998 ed.)
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GOVERNMENT PROPOSED JURY INST. NO. Misc-7
Separate Consideration For Each Defendant
Although the defendants are being tried together, you must give separate consideration to
each defendant. In doing so, you must determine which evidence in the case applies to
each defendant, disregarding any evidence admitted solely against some other
defendant[s]. The fact that you may find one of the defendants guilty or not guilty should
not control your verdict as to any other defendant[s].
[JI-117]
Manual of Model Criminal Jury Instructions for the Ninth Circuit, § 1.14 (2003 ed.)
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GOVERNMENT PROPOSED JURY INST. NO. Misc-8
Caution -- Consider Only Crime Charged
You are here to decide whether the government has proved beyond a reasonable doubt
that the defendant is guilty of the crime charged. The defendant is not on trial for any act,
conduct, or offense not alleged in the indictment. Neither are you concerned with the
guilt of any other person or persons not on trial as a defendant in this case, except as you
are otherwise instructed.
Fifth Circuit Criminal Jury Instructions, No. 1.19 (2001 ed.)
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GOVERNMENT PROPOSED JURY INST. NO. Misc-9
Caution – Punishment (Single Defendant -- Single Count)
If a defendant is found guilty, it will be my duty to decide what the punishment will be.
You should not be concerned with punishment in any way. It should not be a part of your
consideration or discussions.
Fifth Circuit Criminal Jury Instructions, No. 1.20 (2001 ed.)
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GOVERNMENT PROPOSED JURY INST. NO. Misc-10
Caution – Punishment (Single Defendant -- Single Count)
I caution you, members of the jury, that you are here to determine from the evidence in
this case whether the defendant is guilty or not guilty. The defendant is on trial only for
the specific offense alleged in the indictment.
Also, the question of punishment should never be considered by the jury in any way in
deciding the case. If the defendant is convicted the matter of punishment is for the judge
to determine.
Pattern Jury Instructions: Eleventh Circuit, Criminal Cases, BI 10.1 (2003 ed.)
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GOVERNMENT PROPOSED JURY INST. NO. Misc-11
Caution – Punishment (Single Defendant -- Multiple Counts)
A separate crime or offense is charged in each count of the indictment. Each count, and
the evidence pertaining to it, should be considered separately. The fact that you may find
the defendant guilty or not guilty as to one of the offenses charged should not control
your verdict as to any other offense charged.
Fifth Circuit Criminal Jury Instructions, No. 1.21 (2001 ed.)
[JI-118]
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GOVERNMENT PROPOSED JURY INST. NO. Misc-12
Caution – Punishment (Single Defendant -- Multiple Counts)
A separate crime or offense is charged in each count of the indictment. Each charge and
the evidence pertaining to it should be considered separately. The fact that you may find
the defendant guilty or not guilty as to one of the offenses charged should not affect your
verdict as to any other offense charged.
I caution you, members of the jury, that you are here to determine from the evidence in
this case whether the defendant is guilty or not guilty. The defendant is on trial only for
those specific offenses alleged in the indictment.
Also, the question of punishment should never be considered by the jury in any way in
deciding the case. If the defendant is convicted the matter of punishment is for the Judge
alone to determine.
Pattern Jury Instructions: Eleventh Circuit, Criminal Cases, BI 10.2 (2003 ed.)
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GOVERNMENT PROPOSED JURY INST. NO. Misc-13
Caution – Punishment (Multiple Defendants -- Single Count)
The case of each defendant and the evidence pertaining to that defendant should be
considered separately and individually. The fact that you may find one of the defendants
guilty or not guilty should not control your verdict as to any other defendant.
Fifth Circuit Criminal Jury Instructions, No. 1.22 (2001 ed.)
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GOVERNMENT PROPOSED JURY INST. NO. Misc-14
Caution – Punishment (Multiple Defendants -- Single Count)
The case of each defendant and the evidence pertaining to each defendant should be
considered separately and individually. The fact that you may find any one of the
defendants guilty or not guilty should not affect your verdict as to any other defendant.
I caution you, members of the jury, that you are here to determine from the evidence in
this case whether each defendant is guilty or not guilty. Each defendant is on trial only
for the specific offense alleged in the indictment.
Also, the question of punishment should never be considered by the jury in any way in
deciding the case. If a defendant is convicted the matter of punishment is for the Judge
alone to determine later.
Pattern Jury Instructions: Eleventh Circuit, Criminal Cases, BI 10.3 (2003 ed.)
[JI-119]
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9315292.1
GOVERNMENT PROPOSED JURY INST. NO. Misc-15
(Multiple Defendants -- Multiple Counts)
A separate crime is charged against one or more of the defendants in each count of the
indictment. Each count, and the evidence pertaining to it, should be considered
separately. The case of each defendant should be considered separately and individually.
The fact that you may find one or more of the accused guilty or not guilty of any of the
offenses charged should not control your verdict as to any other offense or any other
defendant. You must give separate consideration as to each defendant.
Fifth Circuit Criminal Jury Instructions, No. 1.23 (2001 ed.)
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9315292.1
GOVERNMENT PROPOSED JURY INST. NO. Misc-16
Caution – Punishment (Multiple Defendants -- Multiple Counts)
A separate crime or offense is charged against one or more of the defendants in each
count of the indictment. Each charge, and the evidence pertaining to it, should be
considered separately. Also, the case of each defendant should be considered separately
and individually. The fact that you may find one or more of the defendants guilty or not
guilty of any of the offenses charged should not affect your verdict as to any other
offense or any other defendant.
I caution you, members of the jury, that you are here to determine from the evidence in
this case whether each defendant is guilty or not guilty. Each defendant is on trial only
for the specific offense alleged in the indictment.
Also, the question of punishment should never be considered by the jury in any way in
deciding the case. If the defendant is convicted the matter of punishment is for the Judge
alone to determine later.
Pattern Jury Instructions: Eleventh Circuit, Criminal Cases, BI 10.4 (2003 ed.)
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9315292.1
GOVERNMENT PROPOSED JURY INST. NO. Misc-17
"On Or About" -- Explained
The indictment charges that the offense alleged [in Count _________] was committed
"on or about" a certain date.
Although it is necessary for the government to prove beyond a reasonable doubt that the
offense was committed on a date reasonably near the date alleged in [Count ______ of]
the indictment, it is not necessary for the government to prove that the offense was
committed precisely on the date charged.
1A Kevin F. O'Malley, Federal Jury Practice and Instructions, § 13.05 (6th Ed. 2008)
Fifth Circuit Criminal Jury Instructions, No. 1.18 (2001 ed.)
[JI-120]
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GOVERNMENT PROPOSED JURY INST. NO. Misc-18
Date Of Crime Charged
The indictment charges that the offense was committed "on or about" _______. The
government must prove that the offense happened reasonably close to that date but is not
required to prove that the alleged offense happened on that exact date.
Federal Criminal Jury Instructions of the Seventh Circuit, § 4.04 (1998 ed.)
1A Kevin F. O'Malley et al, Federal Jury Practice and Instructions, § 13.05, notes (6th
ed. 2008)
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GOVERNMENT PROPOSED JURY INST. NO. Misc-19
Each Tax Year is Separate
Any willful failure to comply with the requirements of the Internal Revenue Code for one
year is a separate matter from any such failure to comply for a different year. The tax
obligations of the defendant in any one year must be determined separately from the tax
obligations in any other year.
2B Kevin F. O'Malley et al., Federal Jury Practice and Instructions, § 67.24 (5th ed.
2000)
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GOVERNMENT PROPOSED JURY INST. NO. Misc-20
Proof of Precise Amount of Tax Owed Not Necessary
The government must prove beyond a reasonable doubt that the defendant willfully
attempted to evade or defeat a substantial portion of the tax owed.
Although the government must prove a willful attempt to evade a substantial portion of
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.
Kevin F. O'Malley, et al., Federal Jury Practice and Instructions, § 67.08 (5th Ed.
2000)
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GOVERNMENT PROPOSED JURY INST. NO. Misc-21
Not Necessary to Show Any Additional Tax Due
Although the government is required to prove beyond a reasonable doubt that the
defendant willfully filed a false document as charged in Count ____ of the indictment
[information], the government is not required to prove that any additional tax was due to
the government or that the government was deprived of any tax revenues by reason of
any filing of any false return.
2B Kevin F. O’Malley et al., Federal Jury Practice and Instructions, § 67.19 (5th Ed.
2000)
[JI-121]
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9315292.1
GOVERNMENT PROPOSED JURY INST. NO. Misc-22
Funds or Property From Unlawful Sources
There has been evidence in this case that the defendant received funds or property from
unlawful sources.
In determining the issue of the taxable income of the defendant, no distinction is made
between income derived from lawful or unlawful sources. Funds or property received
from unlawful or illegal sources, therefore, are treated in the same manner as funds or
property from lawful or legal sources.
2B Kevin F. O’Malley et al., Federal Jury Practice and Instructions, § 67.21 (5th Ed.
2000)
26 U.S.C. § 61
James v. United States, 366 U.S. 213 (1961)
Rutkin v. United States, 343 U.S. 130 (1952)
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GOVERNMENT PROPOSED JURY INST. NO. Misc-23
Computation of Tax Deficiency
The first step in arriving at an individual’s taxable income is to determine the gross
income of that individual. Gross income generally means all income from whatever
source derived. Gross income includes, but is not limited to, compensation for services,
such as wages, salaries, fees, or commissions, income derived from a trade or business,
gains from dealings in property, interest, royalties, and dividends. Gross income includes
both lawful and unlawful earnings.
After having determined an individual’s gross income, the next step in arriving at the
income upon which the tax is imposed is to subtract from the gross income such
deductions and losses as the law provides. In this connection, an individual is permitted
to deduct from gross income all of the ordinary and necessary expenses paid or incurred
during the taxable year in carrying on any trade or business or other profit-seeking
endeavors, to the extent those expenses are not reimbursed by the business.
The amount remaining after subtracting the allowable deductions and losses from gross
income is termed “adjusted gross income.” In arriving at income upon which the tax is
imposed, the individual is permitted to deduct from adjusted gross income either the zero
bracket amount allowed by law or, in the alternative, amounts paid during the year for
itemized deductions, which are limited by law, such as medical expenses, state income
and property taxes, interest, charitable contributions, and other miscellaneous items. An
individual is then allowed a deduction for each qualified exemption. The resulting figure
is termed “taxable income,” that is to say, the sum on which the income tax is normally
imposed.
26 U.S.C. §§ 61 through 223 (Corporations, 26 U.S.C. §§ 61 through 281)
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GOVERNMENT PROPOSED JURY INST. NO. Misc-24
Accrual Method of Accounting
Taxable income is computed by using the same method of accounting that the taxpayer
used to compute his [her] income, as long as that accounting method clearly reflects
income. In this case, the defendant reported taxable income and deductible expenses on
the accrual method of accounting.
Under the accrual method of accounting, income is to be included in the taxable year
when all events have occurred which fix the right to receive such income and the amount
of the income can be determined with reasonable accuracy. Similarly, deductions are
allowable for the taxable year in which all the events have occurred which establish the
fact of liability giving rise to such deduction and the amount of the deduction can be
determined with reasonable accuracy. When income is actually received or an expense is
actually paid is irrelevant in the accrual method of
[JI-122] accounting.
26 U.S.C. §§ 446, 461(a)
Treasury Regulations on Income Tax (1986 Code), Sec. 1.461-1(a)(2) (26 C.F.R.)
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9315292.1
GOVERNMENT PROPOSED JURY INST. NO. Misc-25
Corporate Diversions
Gains or profits and income derived from any source whatever are included in gross
income for the purpose of taxation of income. This includes both lawful and unlawful
gains.
You have heard evidence that the defendant was a shareholder in and diverted cash or
other property from the [insert name of corporation], a corporation.
If you find that the defendant was a shareholder in the [insert name of corporation] and
obtained cash or other property from the corporation, then you should proceed to
determine whether this was income to the defendant.
In regard to this, you must first determine whether the defendant had complete control
over the cash or other property he [she] obtained from the corporation, took it as his [her]
own, and treated it as his [her] own, so that as a practical matter he [she] derived
economic value from the money or property received. If you find this to be the case, then
the money or property received by the defendant may [constitute] [be] income.
The defendant has introduced evidence to establish that [describe defense, e.g., money (or
property) was held by the defendant for legitimate corporate purposes, constituted a loan
or repayment of a loan, or constituted a nontaxable return of the defendant’s investment
in the corporation] and therefore was not income to the defendant for tax purposes.
In determining whether the defendant received any income from his [her] corporation,
you are instructed as follows:
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1. Loan. If you find that funds taken by the defendant (or any part thereof) were a loan
from the corporation that was to be repaid or were repayment by the corporation of a loan
from the defendant, then to the extent that the distribution was a loan or loan repayment,
it would not be income to the defendant.
2. Return of Investment (or return of capital). If the funds constituted a distribution from
the corporation and the distribution was with respect to the corporation’s stock, and if the
accumulated earnings and profits of the corporation and the earnings and profits of the
corporation for the taxable year in issue were not great enough in amount to account for
the distribution, all or a portion of the distribution may constitute a nontaxable return of
the defendant’s investment in the corporation. The amount of a distribution that is not
accounted for by a corporation’s earnings and profits is a return of capital, and not
taxable to a shareholder,
[JI-123] to the extent of the shareholder’s investment. The amount of such a distribution
in excess of the shareholder’s investment is capital gain income to the shareholder, which
is taxable.
A payment to a shareholder is not automatically a distribution with respect to the
corporation’s stock. To constitute such a distribution, a distribution must be made to a
shareholder because of his ownership of the corporation’s stock and be paid to the
shareholder in his capacity as such. Therefore, a payment does not qualify as a
distribution with respect to stock if, for example, the corporation pays an individual
shareholder in his capacity as a debtor, creditor, employee, or vendee, or under other
circumstances where the individual’s status as a shareholder is incidental, such as
embezzlement or misappropriation. Facts with a bearing on whether a distribution is with
respect to a corporation’s stock include the distribution of stock ownership and conditions
of corporate employment (whether, for example, a shareholder's efforts on behalf of a
corporation amount to a good reason to treat a payment as salary). [Point to additional
facts of the case that support the conclusion that a diversion is not a distribution with
respect to stock.]
It is for you the jury to decide whether the circumstances surrounding a receipt of funds,
including the intent of the defendant and the corporation, establish that the funds received
by the defendant constituted income or a loan or return of the defendant’s investment.
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Boulware v. United States, 128 S. Ct. 1168 (2008)
United States v. D’Agostino, 145 F.3d 69, 72-73 (2d Cir. 1998)
United States v. Ruffin, 575 F.2d 346, 351 n.6 (2d Cir. 1978)
United States v. Leonard, 524 F.2d 1076, 1082-1084 (2d Cir. 1975)
DiZenzo v. Commissioner Of Internal Revenue, 348 F.2d 122, 125-127 (2d Cir. 1965)
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GOVERNMENT PROPOSED JURY INST. NO. Misc-25b
Corporate Diversions (2)
7
Gains or profits and income derived from any source whatever are included in gross
income for the purpose of taxation of income. This includes both lawful and unlawful
gains.
You have heard evidence that the defendant was a stockholder in and received cash or
other property from the [insert name of corporation], a corporation.
If you find that the defendant was a stockholder in the [insert name of corporation] and
obtained cash or other property from the corporation, then you should proceed to
determine whether this was income to the defendant.
In this connection, you must first determine whether the defendant had complete control
over the cash or other property he [she] obtained from the corporation, took it as his [her]
own, and treated it as his [her] own, so that as a practical matter he [she] derived
economic value from the money or property received. If you find this to be the case, then
the money or property received by the defendant would be income; if you do not find this
to be the case, then the money or property obtained by the defendant would not be
income to the defendant.
Boulware v. United States, 128 S. Ct. 1168 (2008)
United States v. D’Agostino, 145 F.3d 69, 72-73 (2d Cir. 1998)
United States v. Ruffin, 575 F.2d 346, 351 n.6 (2d Cir. 1978)
United States v. Leonard, 524 F.2d 1076, 1082-1084 (2d Cir. 1975)
7
This instruction should not be used if there is evidence of a basis for finding diverted funds to be
nontaxable other than that the defendant held the funds on behalf of the corporation and expended them
only for legitimate corporate purposes. For an instruction explaining the bases for finding funds nontaxable,
such as a claim that diverted funds were loans or repayment of loans, see the instructions above and below.
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DiZenzo v. Commissioner Of Internal Revenue, 348 F.2d 122, 125-127 (2d Cir. 1965)
[JI-124]
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GOVERNMENT PROPOSED JURY INST. NO. Misc-26
Constructive Dividends
8
The government has introduced evidence to establish that the defendant was a
shareholder in [insert name of corporation], a corporation, and [e.g., obtained money or
property from the corporation] and/or [caused the corporation to spend money for
personal purposes of the defendant]
9
which represented a [dividend] [and/or capital gain
income]
10
that should have been reported on the defendant's return.
The defendant has introduced evidence to establish that [describe defense, e.g., money (or
property) obtained by the defendant from the corporation and expenditures made by the
corporation for personal purposes of the defendant] was not income to the defendant but
[e.g., a loan from the corporation or a nontaxable return of the defendant’s investment in
the corporation].
11
In determining whether the defendant received any income from his [her] corporation,
you are instructed as follows:
1. Dividend. A distribution by a corporation to or for the benefit of a stockholder that is
not a loan is reportable as a dividend to the extent that the distribution (or any part
thereof) could have been paid out of the accumulated earnings and profits of the
corporation; or out of the earnings and profits of the corporation for the taxable year in
issue.
8
This instruction may be given in those situations where the government’s theory of the case is that
diverted funds constituted a constructive dividend but the defendant has introduced evidence to the effect
that there were no corporate earnings or profits from which a dividend could have been paid.
9
Select language and alternatives that reflect the evidence introduced by the government.
10
Select language and alternatives that reflect the evidence introduced by the government.
11
If the defense evidence is to the effect that the defendant received no money or property from the
corporation and no expenditures were made for personal purposes of the defendant, this portion of the
instruction should be modified accordingly.
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2. Return of Capital. If the accumulated and current earnings and profits of the
corporation are not great enough in amount to account for all, or a part of, the distribution
to the defendant, then that portion of the distribution which could not be paid out of
earnings and profits would be a nontaxable return of capital up to the amount of money
invested in the corporation by the defendant.
3. Capital Gain Income. Finally, any portion of the distribution which exceeds both the
accumulated earnings and profits of the corporation and the amount the defendant had
invested in the corporation, would be capital gain income to the defendant.
[4. Loan. If you find that a distribution received by the defendant (or any part thereof)
was a loan from the corporation that was to be repaid, then to the extent that the
distribution was a loan, it would not be income to the defendant.]
12
Boulware v. United States, 128 S. Ct. 1168 (2008)
United States v. D’Agostino, 145 F.3d 69, 72-73 (2d Cir. 1998)
United States v. Thetford, 676 F.2d 170, 175 n.5 (5th Cir. 1982), cert. denied, 459 U.S.
1148 (1983)
Bernstein v. United States, 234 F.2d 475, 480-482 (5th Cir.), cert. denied, 352 U.S. 915
(1956)
[JI-125]
12
This portion of the instruction is to cover those situations where evidence has been introduced of a loan
defense. Another instruction concerning loans is set forth below.
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GOVERNMENT PROPOSED JURY INST. NO. Misc-27
Loan -- Explained
A loan that the parties to the loan agree is to be repaid does not constitute gross income as
that term is defined by the Internal Revenue Code. However, merely calling a transaction
a loan is not sufficient to make it such. When money is acquired and there is no good
faith intent on the part of the borrower to repay the funds advanced, such funds are
income under the income tax laws and are taxable as such.
United States v. Mann, 161 F.3d 840, 854 (5th Cir. 1998)
United States v. Swallow, 511 F.2d 514, 522 n.7 (10th Cir.), cert. denied, 423 U.S. 845
(1975)
See also United States v. Rosenthal, 454 F.2d 1252 (2d Cir. 1972), cert. denied, 406 U.S.
931 (1972)
United States v. Rosenthal, 470 F.2d 837, 841-842 (2d Cir. 1972), cert. denied, 412 U.S.
909 (1973)
United States v. Rochelle, 384 F.2d 748, 751 (5th Cir. 1967), cert. denied, 390 U.S. 946
(1968)
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GOVERNMENT PROPOSED JURY INST. NO. Misc-28
Gift -- Defined
It is for you, the jury, to decide whether certain funds are taxable or nontaxable as gifts to
the defendant. In determining whether a payment of money or property to the defendant
is a nontaxable gift, you should look to the intent of the parties at the time the payment
was made, particularly the intent of the person making the payment.
A gift proceeds from a detached and disinterested generosity arising from affection,
respect, admiration, charity, or like impulses. In this regard, the most critical
consideration is the transferor’s or donor’s intention. What controls is the intention with
which the payment, however voluntary, was made.
If a payment in funds or in property from one person to another proceeds primarily from
a duty, either moral or legal, that payment is not a gift. Likewise, if the payment acts as
an incentive for an anticipated benefit of an economic nature, then such payment is not a
gift. Similarly, where
[JI-126] the payment is in return for services rendered, it is not a gift. It does not matter
whether the donor derives economic benefit from the payment.
Moreover, the donor’s characterization of his [her] action is not conclusive. It is for you,
the jury, to determine objectively whether what is called a gift is in reality a gift.
Additionally, the parties' expectations or hopes as to the tax treatment of their conduct
have nothing to do with the matter.
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The decision as to whether individual payments are gifts or income [or political
contributions] is a question of fact for you to determine in the light of practical human
experience. If you find that a payment was a gift, as I have defined it, then that payment
does not constitute income and need not be reported on an income tax return.
Commissioner v. Duberstein, 363 U.S. 278, 285-286 (1960)
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GOVERNMENT PROPOSED JURY INST. NO. Misc-29
Gift -- Defined
It is for you, the jury, to decide whether certain funds are taxable or nontaxable as gifts to
the defendant. In determining whether a payment of money or property to the defendant
is a nontaxable gift, you should look to the intent of the parties at the time the payment
was made, particularly the intent of the person making the payment.
A gift proceeds from a detached and disinterested generosity arising from affection,
respect, admiration, charity, or like impulses. In this regard, the most critical
consideration is the transferor's or donor's intention. What controls is the intention with
which the payment, however voluntary, was made.
The characterization given to a certain payment by either the defendant or the person
making the payment is not conclusive. Rather, you the members of the jury must make an
objective inquiry as to whether a certain payment is a gift. You should look at the terms
and substance of any request made by the defendant for the funds. In addition, you may
take into account the following factors:
1. A payment is not a gift if it is made to compensate the defendant for his services. In
this connection, you should consider how the defendant made his living.
2. A payment is not a gift if the person making the payment expects to receive anything
in return for it. A payment would not be a gift if it was made with the expectation that it
would allow the defendant to remain in business.
3. A payment is not a gift if the person making the payment felt he had a duty or
obligation to make the payment.
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4. A payment is not a gift if the person making the payment did so out of fear or
intimidation.
This is not a complete listing of all the factors you should consider. You should take into
account all the facts and circumstances of this case in determining whether any payment
was a gift.
United States v. Terrell, 754 F.2d 1139, 1149 n.3 (5th Cir.), cert. denied, 472 U.S. 1029
(1985)
13
[JI-127] the expectation that it will be used to further the religious or ministerial
activities of the defendant.] This sentence would appear to be incomplete. In its opinion,
the court correctly states the law on this point as follows, Terrell, 754 F.2d at 1149:
If money is given to a minister for religious purposes, any money used
instead for the personal benefit of the minister becomes taxable
income to him.
13
The instruction in Terrell also stated, “A payment is not a gift to the defendant if it is made with
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GOVERNMENT PROPOSED JURY INST. NO. Misc-30
Partnership Income
A partnership as such is not subject to income tax. Instead, each partner is individually
taxed on and must report his [her] share of the partnership income, even if the income is
not actually distributed to the partners.
If the partnership incurs a loss, each partner can deduct his [her] share of the loss on that
partner's individual return.
26 U.S.C. §§ 701, 702
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GOVERNMENT PROPOSED JURY INST. NO. Misc-31
Partnership Losses
A partnership does not pay taxes. Its income or loss flows through to the individual
partners. The loss which a partner is entitled to claim on his [her] tax return with respect
to a partnership loss is limited to the amount of his [her] contribution to the partnership.
A partner’s contribution to the partnership includes the amount of money he [she]
contributed to the partnership as well as his [her] proportionate share of the partnership's
liabilities or debts.
In the present case, if you find that certain asserted partnership liabilities do not exist or
are of lesser value than that asserted on the partnership tax return, then such claimed
liability, or portion thereof, may not be included in determining a partner's contribution to
the partnership.
On the other hand, if you find that liabilities in the amounts asserted by [Name of
partnership] were in fact incurred, then each partner’s contribution to the partnership
would include his [her] proportionate share of those partnership liabilities in determining
the amount of loss which each partner is entitled to claim on his [her] individual income
tax return.
26 U.S.C. §§ 704(d), 722, & 752(a)
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GOVERNMENT PROPOSED JURY INST. NO. Misc-32
Deductions
Generally, there is an inference that a taxpayer will claim all deductions allowed on his
[her] return, and the deductions stated on the return are prima facie proof of the
maximum deductible amounts to which the defendant is entitled. Accordingly, if the
defendant asserts additional deductions other than those shown on the return, it is
incumbent upon the defendant to introduce evidence with respect to such additional
deductions. The government has no burden of proving deductions beyond those claimed
on the return.
This instruction is based on Fed. R. Evid. 801(d) and the rationale of the opinions below:
[JI-128]
United States v. Link, 202 F.2d 592, 593-594 (3d Cir. 1953)
United States v. Lacob, 416 F.2d 756, 760 (7th Cir. 1969), cert. denied, 396 U.S. 1059
(1970)
United States v. Bender, 218 F.2d 869, 871-872 (7th Cir.), cert. denied, 349 U.S. 920
(1955)
Clark v. United States, 211 F.2d 100, 103 (8th Cir. 1954), cert. denied, 348 U.S. 911
(1955)
United States v. Marabelles, 724 F.2d 1374, 1383 (9th Cir. 1984)
Elwert v. United States, 231 F.2d 928, 933 (9th Cir. 1956)
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GOVERNMENT PROPOSED JURY INST. NO. Misc-33
Overstatement of Lawful Deductions
An income tax return may be false, not only by reason of an understatement of income,
but also because of an overstatement of lawful deductions.
The term “deduction” means any item allowed by the internal revenue laws to be
subtracted from gross income, in computing the amount of net or taxable income for
income tax purposes.
In this case, it is charged that the income tax return was false because of an alleged
willful overstatement of the amount of the deductions allowed by the internal revenue
laws.
A deduction from gross income is allowed by the internal revenue laws, within limits not
pertinent here, for such charitable contributions as are actually paid by the taxpayer
during the taxable year to religious, charitable, educational and similar non-profit
organizations.
A deduction from gross income is also allowed by the internal revenue laws for certain
taxes, including State, County, and City taxes.
The internal revenue laws also permit, within limits not pertinent here, a deduction from
gross income for expenses actually paid during the taxable year, not compensated for by
insurance or otherwise, for medical and dental care regardless of when the incident or
event which occasioned the expense occurred.
Devitt and Blackmar, Federal Jury Practice and Instructions (3d Ed. 1977), § 36.07
- 72 -
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See United States v. Helmsley, 941 F2d 71, 92 (2nd Cir. 1991), cert. denied, 112 S. Ct.
1162 (1992)
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GOVERNMENT PROPOSED JURY INST. NO. Misc-34
Proof of Lawful Deductions
The evidence in the case need not establish beyond a reasonable doubt that the
deductions, as allowed by the revenue laws, totalled the exact amount alleged in the
indictment, or that the allowable deductions were overstated in the exact amounts alleged.
The evidence must establish beyond a reasonable doubt only that the accused willfully
overstated, or caused to be overstated, in some substantial amount, the deductions to
which the taxpayer was entitled under the internal revenue laws, as charged in the
indictment.
Devitt and Blackmar, Federal Jury Practice and Instructions (3d Ed. 1977), § 36.08
[JI-129]
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GOVERNMENT PROPOSED JURY INST. NO. Misc-35
Economic Substance
14
A transaction without economic substance that is entered into solely for the purpose of
tax avoidance cannot properly be used to compute taxes. That is to say, the law does not
allow a deduction that arises out of a transaction which has no purpose, substance, or
utility apart from the anticipated tax consequences. On the other hand, a deduction is
proper in this context if there is some economic substance to the transaction giving rise to
the deduction beyond the taxpayer's desire to secure a deduction.
A taxpayer may of course try to pay as little tax as possible, so long as he [she] uses legal
means. Transactions may be arranged in an attempt to minimize taxes if the transactions
have economic substance.
The government contends that [describe the transaction] has no economic substance. The
defendant contends that this transaction did have economic substance.
In determining whether a particular transaction had economic substance or not, you are
instructed to consider the overall circumstances surrounding the asserted transaction.
If, after reviewing the evidence regarding a transaction, you find that the reduction of
taxes was the sole purpose for entering into the transaction and that the transaction had no
other substance or utility, then you may disregard the intended tax effects of the
transaction.
If, on the other hand, you find that the defendant's desire to reduce taxes was not the only
motive for entering into the transaction but that the transaction had substance or utility
14
This is an extremely complex area. Consequently, great care should be exercised in framing an
instruction on economic substance. The law of your circuit should be carefully checked to insure that the
instruction is consistent with the latest law on the question.
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apart from the taxpayer's desire to reduce taxes, then you are to consider the tax aspects
and impact of the transaction, as I have instructed you previously.
United States v. Ingredient Technology Corporation, 698 F.2d 88, 97 n.9 (2d Cir.), cert.
denied, 462 U.S. 1131 (1983)
Goldstein v. Commissioner, 364 F.2d 734, 740-41 (2d Cir. 1966), cert. denied, 385 U.S.
1005 (1967)
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GOVERNMENT PROPOSED JURY INST. NO. Misc-36
Income Tax on Ministers
The federal income tax is levied on income received by ministers. When an individual
provides ministerial services as his trade or business, controls the money he receives in
that business, and receives no separate salary, the income of that business is taxable to the
minister. Payments made to a minister as compensation for his services also constitute
income to him. If money is given to a minister for religious purposes, any money used
instead for the personal benefit of the minister becomes taxable income to him.
The law provides that funds or property received from certain sources do not constitute
taxable income. Since no income tax is levied on such funds or property, they are not
properly reported
[JI-130] as income. Such nontaxable funds or property includes such items as gifts,
inheritances, the proceeds of life insurance policies, loans and other miscellaneous items.
United States v. Terrell, 754 F.2d 1139, 1148-1149 (5th Cir.), cert. denied, 472 U.S. 1029
(1985)
15
15
The opinion in Terrell states that the district court instructed that “[v]oluntary contributions, when
received by the minister, are income to him.” It appears that the court was referring to a situation where a
minister receives a contribution and uses it for personal purposes rather than turning the contribution over
to the church.
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GOVERNMENT PROPOSED JURY INST. NO. Misc-37
Deductions -- Tax Exempt Organizations
The government contends in Counts ____, and ____, that the defendant,
__________________, falsely claimed, on his [her] income tax return, a deduction for
charitable contributions [made to __________________]. The defendant contends that
the deduction was properly claimed as a charitable contribution made to a tax-exempt
organization.
For a contribution to be deductible, it must have been made as a gift to a tax-exempt
organization. For an organization to be tax exempt it must have been organized and
operated exclusively for religious, charitable, or educational purposes, and no part of the
net earnings of the organization may inure to the benefit of any private individual.
An organization is regarded as operated exclusively for religious, charitable, or
educational purposes, only if all of the following criteria are met:
1. The organization must have been organized and operated exclusively for exempt
purposes, i.e., religious, charitable, or educational purposes, and not, except to an
insubstantial degree, for a non-exempt purpose. That is to say, an organization is not tax
exempt if its activities involve a single non-exempt purpose that is substantial in nature,
regardless of the number or importance of truly exempt purposes.
2. No part of the net earnings of the organization may inure in whole, or in part, to the
benefit of any private stockholder or individual. A private individual for these purposes is
a person having a personal and private interest in the activities of the organization. The
phrase, net earnings inure to the benefit of a private individual, means that funds of the
organization are used by a private individual for personal purposes.
3. The organization cannot have been organized or operated for the benefit of the
personal or private interests of an individual but only for a public purpose. In other
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words, the organization cannot have been organized or operated for the benefit of private
interests, such as designated individuals, the creator of the organization, or his family, or
for persons controlled by such private interests.
26 U.S.C. § 170(c)(2)(B)&(C)
26 U.S.C. § 501(a)&(c)(3)
26 C.F.R. § 1.170A-1 (1993)
[JI-131]
26 C.F.R. § 1.501(c)(3)-1(c)(2) (1993)
26 C.F.R. § 1.501(a)-1(c) (1993)
26 C.F.R. § 1.501(c)(3)-1(d)(1)(ii) (1993)
United States v. Daly, 756 F.2d 1076, 1082-1083 (5th Cir.), cert. denied, 474 U.S. 1022
(1985)
McGahen v. Commissioner, 76 T.C. 468, 481-483 (1981), aff'd, 720 F.2d 664 (3d Cir.
1983)
Ecclesiastical Order of Ism of Am v. Commissioner, 80 T.C. 833, 839-841 (1983)
Better Business Bureau v. United States, 326 U.S. 279, 283 (1945)
Stephenson v. Commissioner, 79 T.C. 995, 1002 (1982), aff'd, 748 F.2d 331 (6th Cir.
1984)
Hall v. Commissioner, 729 F.2d 632, 634 (9th Cir. 1984)
Davis v. Commissioner, 81 T.C. 806, 818 (1983), aff'd, 767 F.2d 931 (1985)
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GOVERNMENT PROPOSED JURY INST. NO. Misc-38
Charitable Contribution -- Defined
For income tax purposes, a charitable contribution is defined as a contribution or gift to
an organization, corporation, trust, fund, or foundation organized and operated
exclusively for religious, charitable, or educational purposes, no part of the net earnings
of which inures to or is used for the benefit of any private shareholder or individual.
26 U.S.C. § 170(c)
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GOVERNMENT PROPOSED JURY INST. NO. Misc-39
Charitable Contributions And Gifts -- Year Deductible
If you find that a charitable contribution or gift, as previously defined, was made by the
defendant to a tax-exempt organization, then you are instructed that any such charitable
contribution or gift can only be claimed as a deduction (by the individual who made the
contribution or gift) for the tax year in which the contribution was made, i.e., the year in
which it was paid to a tax-exempt organization. For example, if a contribution to a tax-
exempt organization was made in the year 2004, then it would only be deductible on the
taxpayer's 2004 return.
26 U.S.C. § 170(a)(1)
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GOVERNMENT PROPOSED JURY INST. NO. Misc-40
Civil Tax Irrelevant
There is a distinction between the civil liability of a defendant and a defendant’s criminal
liability. This is a criminal case.
The defendant is charged under the law with the commission of a crime, and the fact that
the defendant has or has not settled his [her] civil liability for the payment of taxes
claimed to be due to the United States is not to be considered by you in determining the
issues in this case.
Spies v. United States, 317 U.S. 492, 495 (1943)
United States v. Dack, 747 F.2d 1172, 1174-1175 (7th Cir. 1984)
United States v. Richards, 723 F.2d 646, 648 (8th Cir. 1984)
United States v. Voorhies, 658 F.2d 710, 714 (9th Cir. 1981)
[JI-132]
United States v. Buras, 633 F.2d 1356, 1360 (9th Cir. 1980)
Devitt and Blackmar, Federal Jury Practice and Instructions (3d Ed. 1977), § 35.17
(modified)
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GOVERNMENT PROPOSED JURY INST. NO. Misc-41
“Deliberate Ignorance or Willful Blindness”
The element of knowledge may be satisfied by inferences drawn from proof that a
defendant deliberately closed her [his] eyes to what would otherwise have been obvious
to him [her]. A finding beyond a reasonable doubt of a conscious purpose to avoid
enlightenment would permit an inference of knowledge. Stated another way, a
defendant's knowledge of a fact may be inferred from proof beyond a reasonable doubt of
her [his] deliberate blindness to the existence of the fact.
It is entirely up to you as to whether you find any deliberate closing of the eyes, and the
inferences to be drawn from any such evidence. Although knowledge may be inferred
from the defendant's behavior, the issue is what the defendant actually knew. A showing
of mistake, carelessness, negligence, even gross negligence or recklessness, is not
sufficient to support a finding of knowledge.
See United States v. MacKenzie, 777 F.2d 811, 818 n.2 (2d Cir. 1985), cert. denied, 476
U.S. 1169 (1976)
COMMENTS
1 The law on “deliberate ignorance” or “willful blindness” varies from circuit to circuit.
Several circuits have indicated that “deliberate ignorance” instructions are rarely
appropriate. See, e.g., United States v. Mapelli, 971 F.2d 284, 286 (9th Cir. 1992); United
States v. Ojebode, 957 F.2d 1218, 1229 (5th Cir. 1992), cert. denied, 113 S. Ct. 1291
(1993); United States v. de Francisco-Lopez, 939 F.2d 1405, 1409 (10th Cir. 1991).
Furthermore, several recent cases have found “deliberate ignorance” instructions to
constitute reversible error when the evidence did not support the giving of the instruction.
See, e.g., United States v. Mapelli, 971 F.2d at 287; United States v. Barnhart, 979 F.2d
647, 652-53 (8th Cir. 1992). But see United States v. Stone, 9 F.3d 934, 937-41 (11th Cir.
1993) (holding that giving of deliberate ignorance instruction was harmless error).
Consequently, great care should be exercised in the use of such an instruction. The law of
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the circuit should be carefully checked and no such instruction should be requested unless
the evidence clearly supports it.
2 If the evidence does clearly support a “deliberate ignorance” instruction and a decision
is made to request one, care still must be taken regarding its wording. In particular, no
instruction should be requested in a criminal tax case which is inconsistent with the
standard of willfulness set forth in Cheek v. United States, 498 U.S. 192, 201 (1991), that
is, a voluntary, intentional violation of a known legal duty.
3 Unlike the instruction set forth above, which requires actual knowledge, the “deliberate
ignorance” instruction in United States v. Fingado, 934 F.2d 1163, 1166 (10th Cir.), cert.
denied, 112 S. Ct. 320 (1991), provided that the element of knowledge was established if
the defendant was “aware of a high probability of the existence of the fact in question
unless he actually believes it does not exist.” Although we believe that, in the context of a
defendant's deliberate ignorance, this standard does satisfy the knowledge component of
willfulness in criminal tax cases, we do not recommend its use (although, obviously, such
an instruction may be used in the Tenth Circuit), because there is at least some risk that a
court of appeals will hold that only a defendant’s actual knowledge is sufficient.
[JI-133]
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GOVERNMENT PROPOSED JURY INST. NO. Misc-42
Knowledge of Contents of Return
Section 6064 of Title 26 of the United States Code provides, in part:
The fact that an individual’s name is signed to a return * * * shall be prima facie evidence
for all purposes that the return * * * was actually signed by him.
In other words, you may infer and find 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 accept any such
inference or to make any such finding.
If you find beyond a reasonable doubt from the evidence in the case that the defendant
signed the return in question, then you may also draw the inference and may also find,
but are not required to find, that the defendant knew of the contents of the return that the
defendant signed.
2B Kevin F. O’Malley et al., Federal Jury Practice and Instructions, § 67.22 (5th Ed.
2000)
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GOVERNMENT PROPOSED JURY INST. NO. Misc-43
Proof of Knowledge of Contents of Returns
The fact that an individual’s name is signed to a return means that, unless and until
outweighed by evidence in the case which leads you to a different or contrary conclusion,
you may find that the filed tax return was in fact signed by the person whose name
appears to be signed to it. If you find proof beyond a reasonable doubt that the defendant
signed his [her] tax return, that is evidence from which you may, but are not required to,
find or infer that the defendant had knowledge of the contents of the return.
Manual of Model Criminal Jury Instructions for the District Courts of the Eighth
Circuit, Instruction No. 6.26.7206 (2007 ed.)
United States v. Wainwright, 448 F.2d, 984, 986 (10th Cir. 1971), cert. denied, 407 U.S.
911 (1972)
United States v. Gaines, 690 F.2d 849, 853-55 (11th Cir. 1982)
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GOVERNMENT PROPOSED JURY INST. NO. Misc-44
Exculpatory Statements - Later Proved False
Statements knowingly and voluntarily made by Defendant upon being informed that a
crime had been committed or upon being accused of a criminal charge, may be
considered by the jury.
When a defendant voluntarily offers an explanation or voluntarily makes some statement
tending to show his [her] innocence and it is later shown that the defendant knew that the
statement or explanation was false, the jury may consider this as showing a consciousness
of guilt on the part of Defendant since it is reasonable to infer that an innocent person
does not usually find it necessary to invent or fabricate an explanation or statement
tending to establish his [her] innocence.
Whether or not evidence as to a Defendant's explanation or statement points to a
consciousness of guilt on his [her] part and the significance, if any, to be attached to any
such evidence, are
[JI-134] matters exclusively within the province of the jury as the sole judges of the facts
of this case.
In your evaluation of evidence of an exculpatory statement shown to be false, you may
consider that there may be reasons--fully consistent with innocence--that could cause a
person to give a false statement showing his innocence. Fear of law enforcement,
reluctance to become involved, and simple mistake may cause a person who has
committed no crime to give such a statement or explanation.
[Any testimony concerning a false exculpatory statement by Defendant is in no way
attributable to any other defendant on trial in this case and may not be considered by you
in determining whether the government has proven the charge[s] against any other
defendant beyond a reasonable doubt.]
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1A Kevin F. O’Malley et al., Federal Jury Practice and Instructions, § 14.06 (6th Ed.
2008)
COMMENT
1 The Fifth, Seventh, Ninth and Eleventh Circuits either do not include any
consciousness of guilt instructions, or specifically recommend that these matters be left to
argument and that no such instruction be given. See the Committee Comments to the
Seventh Circuit Instruction 3.05 and Ninth Circuit Instruction 4.03. The Federal Judicial
Center includes a general instruction on “Defendant's Incriminating Actions after the
Crime.” See Federal Jury Center Instruction 43. But the Committee Commentary
recommends that it should not be given in most cases, and that generally these matters
should be left to argument by counsel.
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GOVERNMENT PROPOSED JURY INST. NO. Misc-45
Exculpatory Statements - Later Proved False
Now, during the course of the trial of this matter you heard witnesses testify about
statements made by the defendant _______ after he been confronted with some
suggestion that he might have been guilty of the commission of a crime, and I am
expressing no opinion now about the evidence in the case, about what the facts are, but
once in awhile I have to refer to some of the evidence which has been heard so that you
understand the principle of law that I am referring to. I charge you that the conduct of a
defendant, including statements made and acts done upon being informed that a crime has
been committed, or upon being confronted with a criminal charge, may be considered by
the Jury in the light of other evidence in the case in determining the guilt or innocence of
the accused. When a defendant voluntarily offers an explanation or makes some
statement tending to establish his innocence or her innocence, and such explanation or
statement is later shown to be false in whole or in part, the Jury may consider whether
this circumstantial evidence points to a consciousness of guilt. It is reasonable to infer
that an innocent person does not ordinarily find it necessary to invent or fabricate a
voluntary explanation or statement tending to establish his innocence. Whether or not
evidence as to a defendant's voluntary explanation or statement points to a consciousness
of guilt and the significance, if any, to be attached to any such evidence are matters for
determination by the Jury. I am not suggesting to you that either of the defendants made
any contradictory statements. I am not suggesting that at all. I express no opinion about it,
but I give you that principle of law in the charge because, if you conclude that such
contradictory statements were made either in whole or in part, then that is the principle of
law for your consideration, but, as I say, I express no opinion about the matter
whatsoever
This instruction was approved in United States v. Pringle, 576 F.2d 1114, 1120 (5th Cir.
1979); but see Comment to prior instruction.
[JI-135]
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GOVERNMENT PROPOSED JURY INST. NO. Misc-46
False Exculpatory Statements
When a defendant voluntarily and intentionally offers an explanation, or makes some
statement tending to show his innocence, and this explanation or statement is later shown
to be false, you may consider whether this evidence points to a consciousness of guilt.
The significance to be attached to any such evidence is a matter for you to determine.
United States v. Davis, 437 F.3d 989, 995-996 (10th Cir. 2006)
United States v. Strother, 49 F.3d 869, 876-77 (2d Cir. 1995)
Manual of Model Criminal Jury Instructions for the District Courts of the Eighth
Circuit, No. 4.15 (2008 ed.).
See also United States v. Pino-Lara, 104 F.3d 357 (2d Cir. 1996); United States v.
Hudson, 717 F.2d 1211, 1215 (8th Cir. 1983).
COMMENTS
If the defendant denies making the statement or denies that it is exculpatory or false, this
language may need to be changed to more clearly state that the jury must decide whether
or not the statement was made or whether or not it was false or exculpatory. United States
v. Holbert, 578 F.2d 128, 130 (8th Cir. 1978); United States v. Pringle, 576 F.2d 1114,
1120 n.6 (5th Cir. 1978); see also Hudson, 717 F.2d at 1215 (defendant asserted
statement was not false or exculpatory; approved instruction stating, “[w]hether or not
evidence as to a defendant's voluntary explanation or statement points to a consciousness
of guilt, and the significance to be attached to any such evidence, are matters exclusively
within the province of the jury.”).
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GOVERNMENT PROPOSED JURY INST. NO. Misc-47
Similar Acts
During this trial, you have heard evidence of acts of the defendant which may be similar
to those charged in the indictment, but which were committed on other occasions. You
must not consider any of this evidence in deciding if the defendant committed the acts
charged in the indictment. However, you may consider this evidence for other, very
limited, purposes.
If you find beyond a reasonable doubt from other evidence in this case that the defendant
did commit the acts charged in the indictment, then you may consider evidence of the
similar acts allegedly committed on other occasions to determine:
whether the defendant had the state of mind or intent necessary to commit the crime
charged in the indictment;
or
whether the defendant had a motive or the opportunity to commit the acts charged in the
indictment;
or
whether the defendant acted according to a plan or in preparation for commission of a
crime;
or
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[JI-136]
whether the defendant committed the acts for which he is on trial by accident or mistake.
These are the limited purposes for which any evidence of other similar acts may be
considered.
Fifth Circuit Criminal Jury Instructions No. 1.30 (2001)
COMMENT
United States v. Pompa, 434 F.3d 800, 805-06 (5th Cir. 2005), cites instructions with
approval. See also United States v. Practi, 861 F.2d 82 (5th Cir. 1988) (states court
“should” give jury cautionary and limiting instruction when similar act evidence is
introduced; review for plain error if no timely objection). Under some circumstances, the
failure to give a limiting instruction, even in the absence of a request, may constitute
plain error, although instructions that clearly inform jury of need to convict on charges
filed may avoid plain error. Id.
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GOVERNMENT PROPOSED JURY INST. NO. Misc-48
Prior Similar Acts
(1) You have heard testimony that the defendant committed some [crimes, acts, wrongs]
other than the ones charged in the indictment. If you find the defendant did those [crimes,
acts, wrongs], you can consider the evidence only as it relates to the government’s claim
on the defendant’s [intent, motive, opportunity, preparation, plan, knowledge, identity,
absence of mistake, absence of accident]. You must not consider it for any other purpose.
(2) Remember that the defendant is on trial here for ______, not for the other acts. Do not
return a guilty verdict unless the government proves the crime charged beyond a
reasonable doubt.
Pattern Jury Instructions of the Sixth Circuit, Criminal Cases, § 7.13 (2007 ed.)
COMMENT
This instruction should be used when evidence of other crimes has been admitted to
prove motive, opportunity, intent or the like under Fed. R. Evid. 404(b). Moreover, the
instruction should specify the purpose(s) for which the jury may consider the evidence
(e.g., intent, motive).
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GOVERNMENT PROPOSED JURY INST. NO. Misc-49
Prior Similar Acts
You [are about to hear] [have heard] evidence that the defendant (describe evidence the
jury is about to hear or has heard). You may consider this evidence only if you
(unanimously)
find it is more likely true than not true. This is a lower standard than proof beyond a
reasonable
doubt. If you find that this evidence is more likely true than not true, you may consider it
to help
you decide (describe purpose under 404(b) for which evidence has been admitted.) You
should
give it the weight and value you believe it is entitled to receive. If you find that it is not
more
likely true than not true, then you shall disregard it.
Remember, even if you find that the defendant may have committed [a] similar [act]
[acts] in the past, this is not evidence that [he] [she] committed such an act in this case.
You may not convict a person simply because you believe [he] [she] may have
committed similar acts in the past. The defendant is on trial only for the crime[s] charged,
and you may consider the evidence or prior acts only on the issue of (state proper purpose
under 404(b), e.g., intent, knowledge, motive.)]
[JI-137]
Manual of Model Criminal Jury Instructions for the District Courts of the Eighth
Circuit, § 2.08 (2008).
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GOVERNMENT PROPOSED JURY INST. NO. Misc-50
Prior Similar Acts
You have heard evidence of other [crimes] [acts] [wrongs] engaged in by the defendant.
You may consider that evidence only as it bears on the defendant's [e.g. motive,
opportunity, intent, preparation, plan, etc.] and for no other purpose.
Ninth Circuit Manual of Model Criminal Jury Instructions, § 4.3 (2008)
COMMENTS
See United States v. Montgomery, 150 F.3d 983, 1000 (9th Cir. 1998) (four-part test for
admissibility under Fed. R. Evid. 404(b))
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GOVERNMENT PROPOSED JURY INST. NO. Misc-51
Cautionary Instruction During Trial - Prior Similar Acts
You are about to hear testimony that the defendant previously committed other [crimes]
[wrongs] [acts] not charged here. I instruct you that the testimony is being admitted only
for the limited purpose of being considered by you on the question of defendant's [intent]
[motive] [opportunity] [preparation] [plan] [knowledge] [identity] [absence of mistake]
[absence of accident] and for no other purpose.
Ninth Circuit Manual of Model Criminal Jury Instructions, No. 2.10 (2008)
This instruction comports with Fed. R. Evid. 404(b). Such a limiting instruction must be
given if requested (Fed. R. Evid. 105) and must be given sua sponte when appropriate.
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GOVERNMENT PROPOSED JURY INST. NO. Misc-51b
Cautionary Instruction During Trial - Similar Acts
Evidence that an act was done or that an offense was committed by Defendant _______
at some other time is not, of course, any evidence or proof whatever that, at another time,
the defendant performed a similar act or committed a similar offense, including the
offense charged in [Count ____ of] this indictment.
Evidence of a similar act or offense may not be considered by the jury in determining
whether Defendant _______ actually performed the physical acts charged in this
indictment. Nor may such evidence be considered for any other purpose whatever, unless
the jury first finds beyond a reasonable doubt from other evidence in the case, standing
alone, that Defendant _____ physically did the act charged in [Count ______ of] this
indictment.
If the jury should find beyond a reasonable doubt from other evidence in the case that the
Defendant _____ did the act or acts alleged in the particular count under consideration,
the jury may then consider evidence as to an alleged earlier act of a like nature in
determining the state of mind or intent with which Defendant _______ actually did the
act or acts charged in the particular count.
[JI-138]
The defendant is not on trial for any acts or crimes not alleged in the indictment. Nor may
a defendant be convicted of the crime[s] charged even if you were to find that he [she]
committed other crimes--even crimes similar to the one charged in this indictment.
O'Malley, Grenig and Lee, 1A Federal Jury Practice and Instructions, § 17.08 (6th Ed.
2008)
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COMMENTS
1 While Federal Rule of Evidence 404(b) prohibits evidence of prior acts or offenses "to
show action in conformity therewith," the United States Supreme Court has held that
such evidence is admissible for other purposes, including proof of knowledge or intent.
Andresen v. Maryland, 427 U.S. 463, 483 (1976).
2 A limiting instruction must be given, if requested. Fed. R. Evid. 105.
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GOVERNMENT PROPOSED JURY INST. NO. Misc-52
Opinion Evidence -- The Expert Witness
The rules of evidence ordinarily do not permit witnesses to testify as to their own
opinions or their own conclusions about important questions in a trial. An exception to
this rule exists as to those persons who are described as "expert witnesses." An "expert
witness" is someone who, by education or by experience, may have become
knowledgeable in some technical, scientific, or very specialized area. If such knowledge
or experience may be of assistance to you in understanding some of the evidence or in
determining a fact, an "expert witness" in that area may state an opinion as to a matter in
which he or she claims to be an expert.
You should consider each expert opinion received in evidence in this case and give it
such weight, if any, as you may think it deserves. You should consider the testimony of
expert witnesses just as you consider other evidence in this case. If you should decide that
the opinion of an expert witness is not based upon sufficient education or experience, or
if you should conclude that the reasons given in support of the opinion are not sound, or
if you should conclude that the opinion is outweighed by other evidence [including that
of other "expert witnesses"], you may disregard the opinion in part or in its entirety.
As I have told you several times, you -- the jury -- are the sole judges of the facts of this
case.
O'Malley, Grenig and Lee, 1A Federal Jury Practice and Instructions (6th Ed. 2008),
§ 14.01
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GOVERNMENT PROPOSED JURY INST. NO. Misc-53
Opinion Evidence -- The Expert Witness
During the trial you heard the testimony of _______________, who expressed opinions
concerning __________________.
If scientific, technical, or other specialized knowledge might assist the jury in
understanding the evidence or in determining a fact in issue, a witness qualified by
knowledge, skill, experience, training, or education, may testify and state an opinion
concerning such matters.
Merely because such a witness has expressed an opinion does not mean, however, that
you must accept this opinion. You should judge such testimony like any other testimony.
You may accept it or reject it, and give it as much weight as you think it deserves,
considering the witness's
[JI-139] education and experience, the soundness of the reasons given for the opinion,
and all other evidence in the case.
Fifth Circuit Criminal Jury Instructions, No. 1.17 (2001 ed.)
COMMENT
The revised instructions specifically deleted references to the witness as an expert.
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GOVERNMENT PROPOSED JURY INST. NO. Misc-54
Opinion Evidence -- The Expert Witness
(1) You have heard the testimony of __________, who testified as an opinion witness.
(2) You do not have to accept _____’s opinion. In deciding how much weight to give it,
you should consider the witness's qualifications and how he reached his conclusions.
Also consider the other factors discussed in these instructions for weighing the credibility
of witnesses.
(3) Remember that you alone decide how much of a witness's testimony to believe, and
how much weight it deserves.
Sixth Circuit Pattern Criminal Jury Instructions, § 7.03 (2007)
COMMENTS
1 The instructions were revised to delete use of the term “expert.”
2 Additional instructions are appropriate if a witness, such as a law enforcement officer,
testifies about facts as well as opinions.
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GOVERNMENT PROPOSED JURY INST. NO. Misc-55
Opinion Evidence -- The Expert Witness
You have heard a witness [witnesses] give opinions about matters requiring special
knowledge or skill. You should judge this testimony in the same way that you judge the
testimony of any other witness. The fact that such a person has given an opinion does not
mean that you are required to accept it. Give the testimony whatever weight you think it
deserves, considering the reasons given for the opinion, the witness' qualifications, and
all of the other evidence in the case.
Pattern Criminal Federal Jury Instructions for the Seventh Circuit, No. 3.07 (1998)
COMMENT
The term “expert” was removed from the instruction to avoid undue credit.
[JI-140]
- 102 -
9315292.1
GOVERNMENT PROPOSED JURY INST. NO. Misc-56
Opinion Evidence -- The Expert Witness
You have heard testimony from persons described as experts. Persons who, by
knowledge, skill, training, education or experience, have become expert in some field
may state their opinions on matters in that field and may also state the reasons for their
opinion.
Expert testimony should be considered just like any other testimony. You may accept or
reject it, and give it as much weight as you think it deserves, considering the witness's
education and experience, the soundness of the reasons given for the opinion, the
acceptability of the methods used, and all other evidence in the case.
Manual of Model Criminal Jury Instructions for the District Courts of the Eighth
Circuit, 4.10 (2008 ed.)
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9315292.1
GOVERNMENT PROPOSED JURY INST. NO. Misc-57
Opinion Evidence -- The Expert Witness
You have heard testimony from persons who, because of education or experience, are
permitted to state opinions and the reasons for their opinion.
Expert opinion testimony should be judged just like any other testimony. You may accept
or reject it, and give it as much weight as you think it deserves, considering the witness'
education and experience, the reasons for the opinion, and all the other evidence in the
case.
Ninth Circuit Manual of Model Criminal Jury Instructions, No. 4.17 (2008 ed.)
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9315292.1
GOVERNMENT PROPOSED JURY INST. NO. Misc-58
Opinion Evidence -- The Expert Witness
When knowledge of a technical subject matter might be helpful to the jury, a person
having special training or experience in that technical field is permitted to state an
opinion concerning those technical matters.
Merely because such a witness has expressed an opinion, however, does not mean that
you must accept that opinion. The same as with any other witness, it is up to you to
decide whether to rely upon it.
Pattern Jury Instructions: Eleventh Circuit, Criminal Cases, Eleventh Circuit, (2003)
Basic Instruction No. 7
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9315292.1
GOVERNMENT PROPOSED JURY INST. NO. Misc-59
Charts and Summaries -- Not Admitted
Charts or summaries have been prepared by __________ and shown to you during the
trial for the purpose of explaining facts that are allegedly contained in books, records, and
other documents which are in evidence in the case. Such charts or summaries are not
evidence in this trial or proof of any fact. If you find that these charts or summaries do
not correctly reflect facts or figures shown by the evidence in the case, the jury should
disregard the charts or summaries.
[JI-141]
In other words, such charts or summaries are used only as a matter of convenience for
you and to the extent that you find they are not, in truth, summaries of facts or figures
shown by the evidence in the case, you can disregard them entirely.
O'Malley, Grenig and Lee, 1A Federal Jury Practice and Instructions, § 14.02 (6th Ed.
2008)
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9315292.1
GOVERNMENT PROPOSED JURY INST. NO. Misc-60
Charts and Summaries -- Not Admitted
During the trial you have seen counsel use [summaries, charts, drawings, calculations, or
similar material] which were offered to assist in the presentation and understanding of the
evidence. This material is not itself evidence and must not be considered as proof of any
facts.
Sixth Circuit Criminal Panel Jury Instructions, No. 7.12 (2007 ed.)
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9315292.1
GOVERNMENT PROPOSED JURY INST. NO. Misc-61
Charts and Summaries -- Not Admitted
Certain charts and summaries have been shown to you in order to help explain the facts
disclosed by the books, records, or other underlying evidence in the case. Those charts or
summaries are used for convenience. They are not themselves evidence or proof of any
facts. If they do not correctly reflect the facts shown by the evidence in the case, you
should disregard these charts and summaries and determine the facts from the books,
records or other underlying evidence.
Manual of Model Criminal Jury Instructions for the District Courts of the Eighth
Circuit,No. 4.11 (2008 ed.)
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9315292.1
GOVERNMENT PROPOSED JURY INST. NO. Misc-62
Charts and Summaries -- Not Admitted
Certain charts and summaries have been shown to you in order to help explain the facts
disclosed by the books, records, and other documents which are in evidence in the case.
They are not themselves evidence or proof of any facts. If they do not correctly reflect the
facts or figures shown by the evidence in the case, you should disregard these charts and
summaries and determine the facts from the underlying evidence.
Ninth Circuit Manual of Model Criminal Jury Instructions, No. 4.18 (2008)
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9315292.1
GOVERNMENT PROPOSED JURY INST. NO. Misc-63
Charts and Summaries -- Admitted
Charts or summaries have been prepared by _________, have been admitted into
evidence, and have been shown to you during the trial for the purpose of explaining facts
that are allegedly contained in books, records, or other documents which are in evidence
in the case. You may consider the charts and summaries as you would any other evidence
admitted during the trial and give them such weight or importance, if any, as you feel
they deserve.
O'Malley, Grenig and Lee, 1A Federal Jury Practice and Instructions, § 14.02 (6th Ed.
2008)
[JI-142]
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GOVERNMENT PROPOSED JURY INST. NO. Misc-64
Charts and Summaries -- Admitted
Certain summaries are in evidence. They truly and accurately summarize the contents of
voluminous books, records or documents, and should be considered together with and in
the same manner as all other evidence in the case.
16
and/or
Certain summaries are in evidence. Their accuracy has been challenged by [the
government] [the defendant]. Thus the original materials upon which the exhibits are
based have also been admitted into evidence so that you may determine whether the
schedules or summaries are accurate.
17
Pattern Criminal Federal Jury Instructions for the Seventh Circuit, Nos. 3.15 and 3.16
(1998)
16
This instruction should only be given when the accuracy and authenticity of the exhibits are not in
question.
17
This instruction is not intended to cover the situation where some or all of the underlying materials are
unavailable.
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GOVERNMENT PROPOSED JURY INST. NO. Misc-65
Charts and Summaries -- Admitted
You will remember that certain [schedules] [summaries] [charts] were admitted in
evidence. You may use those [schedules] [summaries] [charts] as evidence, even though
the underlying documents and records are not here. [However, the [accuracy]
[authenticity] of those [schedules][summaries] [charts] has been challenged. It is for you
to decide how much weight, if any, you will give to them. In making that decision, you
should consider all of the testimony you heard about the way in which they were
prepared.]
Manual of Model Criminal Jury Instructions for the District Courts of the Eighth
Circuit,No. 4.12 (2008 ed.)
COMMENT
1 Bracketed text applies if the accuracy or authenticity of a chart is challenged.
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9315292.1
GOVERNMENT PROPOSED JURY INST. NO. Misc-66
Charts and Summaries -- Admitted
Certain charts and summaries have been received into evidence. Charts and summaries
are only as good as the underlying supporting material. You should, therefore, give them
only such weight as you think the underlying evidence deserves.
Ninth Circuit Manual of Model Criminal Jury Instructions, No. 4.19 (2008 ed.)
[JI-143]
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9315292.1
GOVERNMENT PROPOSED JURY INST. NO. Misc-67
Lesser Included Offense
18
The law permits the jury to determine whether the government has proven the guilt of the
Defendant _____ for any [less serious] [other] offense which is, by its very nature,
necessarily included in the crime of [insert name of charged offense] that is charged in
[Count _____ of] the indictment.
If the jury should unanimously find that the government has proven each of the essential
elements of the offense of [insert name of charged offense] that is charged in Count
_____ of the indictment beyond a reasonable doubt, the foreperson should write "guilty"
in the space provided and the jury's consideration of that count [for that defendant] is
concluded.
If the jury should determine unanimously
19
that the government has not proven each
element of the offense of [insert name of charged offense] that is charged in Count _____
of the indictment beyond a reasonable doubt, then the foreperson should write "not
guilty" in the space provided and the jury should then consider the guilt or innocence of
Defendant ___ for the [less serious][other] offense necessarily included in the offense of
[insert name of charged offense] charged in Count _____ of the indictment.
18
CAUTION: There are only a limited number of circumstances where a lesser included offense instruction
is appropriate in a criminal tax case. See
Section 8.11 of this Manual.
19
Some courts have noted that a jury need not unanimously decide upon a verdict of not guilty before
proceeding to a consideration of the lesser included offense. See, e.g., United States v. Jackson, 726 F.2d
1466 (9th Cir. 1984); United States v. Tsanas, 572 F.2d 340, 346 (2d Cir.1978). The law of your circuit
should be consulted on this point. If a unanimous decision of not guilty is not required, the following
language may be substituted for this paragraph:
If, after reasonable efforts have been unsuccessful, the jury is unable to reach a verdict as to whether the
government has proven each element of the offense charged in Count _____ of the indictment beyond a
reasonable doubt, the jury should then consider whether the defendant is guilty or not guilty of the [less
serious] [other] crime of [insert name of lesser included offense]
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The crime of [insert name of charged offense], which is charged in Count _____ of the
indictment in this case, necessarily includes the [less serious] [other] offense of [insert
name of lesser included offense]. In order to find Defendant ___ guilty of the [less
serious] [other] included offense, the government must prove the following ____
essential elements beyond a reasonable doubt: [list elements of lesser included offense].
The difference between the crime charged in Count _____ of the indictment and the [less
serious][other] included offense is [list additional elements necessary to prove charged
offense].
The jury will bear in mind that the burden is always upon the government to prove,
beyond a reasonable doubt, each and every essential element of any [less serious] [other]
offense which is necessarily included in any crime charged in Count _____ of the
indictment. The law never imposes upon a defendant in a criminal case the burden or
duty of calling any witnesses or producing any evidence.
O’Malley, Grenig and Lee, 1A Federal Jury Practice and Instructions, § 20.05 (6th Ed.
2008)
[JI-144] which is necessarily included in the offense of [insert name of charged offense]
charged in Count _____ of the indictment.
- 115 -
9315292.1
GOVERNMENT PROPOSED JURY INST. NO. Misc-68
Lesser Included Offense (Attempted Evasion of Payment/Failure to Pay)
20
The law permits the jury to determine whether the government has proven the guilt of the
defendant for any offense that is necessarily included in any crime charged in the
indictment,whenever such a course is consistent with the facts found by the jury from the
evidence in the case, and with the law as given in the instructions of the court.
So, if the jury should unanimously
21
find the accused "Not Guilty" of the crime of
willfully attempting to evade or defeat payment of tax as charged in Count _____ of the
indictment, then the jury must proceed to determine whether the government has proven
the guilt of the defendant as to any lesser offense, which is necessarily included in the
crime charged.
The crime of willfully attempting to evade or defeat payment of taxes, which is the crime
charged in Count _____ of the indictment, necessarily includes the lesser offense of
willful failure to pay the tax. This lesser offense is defined in Section 7203 of the Internal
Revenue Code [26 U.S.C.§ 7203], which provides in part that:
"Any person required . . . to pay any . . . tax, . . ., who willfully fails to pay such . . . tax . .
. at the time or times required by law shall be guilty of an offense against the laws of the
United States.
20
CAUTION: There are only a limited number of circumstances where a lesser included offense instruction
is appropriate in a criminal tax case. See
Section 8.11 of this Manual; United States v. Becker, 965 F.2d
383, 390-91 (7th Cir. 1992) (§ 7203, willful failure to file, is not a lesser included offense of §7201, tax
evasion).
21
Some courts have noted that a jury need not unanimously decide upon a verdict of not guilty before
proceeding to a consideration of the lesser included offense. See, e.g., United States v. Jackson, 726 F.2d
1466 (9th Cir. 1984); United States v. Tsanas, 572 F.2d 340 (2d Cir. 1978).The law of your circuit should
be consulted on this point. If a unanimous decision of not guilty is
- 116 -
9315292.1
In order for the defendant to be found guilty of the lesser included offense of willful
failure to pay the tax, the government must prove each of the following elements beyond
a reasonable doubt:
1. That there was a tax due and owing by the defendant;
2. That the defendant failed to pay the tax when due; and
3. That the failure was willful.
As stated before, the burden is always on the prosecution to prove beyond a reasonable
doubt each essential element of the crime charged; the law never imposes on a defendant
in a criminal case the burden or duty of calling any witness or producing any evidence.
Schmuck v. United States, 489 U.S. 705, 715-21 (1989)
Sansone v. United States, 380 U.S. 343, 351-352 (1965)
[JI-145] not required, the following language may be substituted for this paragraph:
So, if, after reasonable efforts have been unsuccessful, the jury is unable to reach a
verdict as to whether the government has proven each element of the offense of willfully
attempting to evade or defeat payment of a tax as charged in Count _____ of the
indictment beyond a reasonable doubt, then the jury must proceed to determine whether
the government has proven beyond a reasonable doubt the guilt of the defendant as to any
lesser offense, which is necessarily included in the crime charged.
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9315292.1
GOVERNMENT PROPOSED JURY INST. NO. Misc-69
Lesser Included Offense
22
We have just talked about what the government has to prove for you to convict the
defendant of the crime charged in the indictment [insert name of greater crime]. Your
first task is to decide whether the government has proved, beyond a reasonable doubt,
that the defendant committed that crime. If your verdict on that is guilty, you are finished.
But if your verdict is not guilty, or if after all reasonable efforts, you are unable to reach a
verdict, you should go on to consider whether the defendant is guilty of [insert name of
lesser included crime]. You should find the defendant guilty of [insert name of lesser
included crime] if the government has proved, beyond a reasonable doubt, that the
defendant did everything we discussed before except that it did not prove that the
defendant [describe missing element].
To put it another way, the defendant is guilty of [insert name of lesser included crime] if
the following things are proved beyond a reasonable doubt: [list elements of lesser
included crime].The defendant is guilty of [insert name of greater crime] if it is proved
beyond a reasonable doubt that the defendant did all those things and, in addition,
[describe missing element]. If your verdict is that the defendant is guilty of [insert name
of greater crime], you need go no further. But if your verdict on that crime is not guilty,
or if after all reasonable efforts, you are unable to reach a verdict on it, you should
consider whether the defendant has been proved guilty of [insert name of lesser included
crime].
Of course, if the government has not proved beyond a reasonable doubt that the
defendant committed [insert name of lesser included crime], your verdict must be not
guilty of all of the charges.
Fifth Circuit Pattern Criminal Jury Instructions, No. 1.33 (2001 ed.)
22
CAUTION: There are only a limited number of circumstances where a lesser included offense is
appropriate in a criminal tax case. See
Section 8.11 of this Manual.
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GOVERNMENT PROPOSED JURY INST. NO. Misc-70
Lesser Included Offense
23
If you find the defendant not guilty of the offense of [insert name of greater offense] as
charged in Count ___ [or if you cannot unanimously agree that the defendant is guilty of
that offense], then you must go on to consider whether the government has proved the
offense of [insert name of lesser included offense].
Pattern Federal Criminal Jury Instructions for the Seventh Circuit, No. 2.02 (1998 ed.)
[JI-146]
23
CAUTION: There are only a limited number of circumstances where a lesser included offense instruction
is appropriate in a criminal tax case. See
Section 8.11 of this Manual.
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GOVERNMENT PROPOSED JURY INST. NO. Misc-71
Lesser Included Offense
24
The crime of [insert name of greater offense] includes the lesser crime of [insert name of
lesser included offense]. If (1) [any] [all]
25
of you are not convinced beyond a reasonable
doubt that the defendant is guilty of [insert name of greater offense] and (2) all of you are
convinced beyond a reasonable doubt that the defendant is guilty of the lesser crime of
[insert name of lesser included offense], you may find the defendant guilty of [insert
name of lesser included offense].
In order for the defendant to be found guilty of the lesser crime of [insert name of lesser
included offense], the government must prove each of the following elements beyond a
reasonable doubt:[list elements of lesser included offense].
Ninth Circuit Manual of Model Criminal Jury Instructions, No. 3.15 (2008 ed.).
24
CAUTION: There are only a limited number of circumstances where a lesser included offense instruction
is appropriate in a criminal tax case. See Section 8.09 of this Manual.
25
If the defendant expresses no choice, the trial court may employ either a jury instruction requiring the
jury to unanimously acquit on the greater charge before considering the lesser included offense or an
instruction advising the jury that it can consider the lesser included offense if it is unable after a reasonable
effort to reach a verdict on the greater offense. It is error to reject the form of instruction that is timely
requested by the defendant. United States v. Jackson, 726F.2d 1466, 1469-1470 (9th Cir. 1984).
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GOVERNMENT PROPOSED JURY INST. NO. Misc-72
Lesser Included Offense
26
In some cases, the law that a defendant is charged with breaking actually covers two
separate crimes -- one is more serious than the second, and the second is generally called
a "lesser included offense."
So, in this case, with regard to the offense charged in Count _____, if you should find the
defendant "not guilty" of that crime as defined in these instructions, you should then
proceed to decide whether the defendant is guilty or not guilty of the lesser included
offense of [insert name of lesser included offense]. The [first] lesser included offense
would consist of proof beyond a reasonable doubt of all of the facts stated before as
necessary to a conviction under Count ,except .
[If you find the Defendant “not guilty” of the crime as charged in Count , and also find
the Defendant “not guilty” of the first lesser included offense just discussed, you should
then proceed to decide whether the Defendant is guilty or not guilty of a second lesser
included offense of [give generic description of the second lesser included offense]. The
second lesser included offense would consist of proof beyond a reasonable doubt of all of
the facts stated before as necessary to a conviction under Count , except ____.]
[JI-147]
Pattern Jury Instructions: Eleventh Circuit, Criminal Cases, SI 10 (2003 ed.)
26
CAUTION: There are only a limited number of circumstances where a lesser included offense instruction
is appropriate in a criminal tax case. See
Section 8.11 of this Manual.
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9315292.1
GOVERNMENT PROPOSED JURY INST. NO. Misc-73
Action on Advice of Counsel
Defendant claims that [he] [she] is not guilty of the willful or deliberate wrongdoing as
charged in[Count _____ of] the indictment because [he] [she] acted on the basis of advice
from his [her]attorney.
If [before taking any action] [failing to take any action], the defendant, while acting in
good faith and for the purpose of securing advice on the lawfulness of [his] [her] future
conduct, sought and obtained the advice of an attorney [he] [she] considered to be
competent, and made a full and accurate report or disclosure to his [her] attorney of all
important and material facts of which [he][she] had knowledge or the means of knowing,
and then acted strictly in accordance with the advice his [her] attorney gave following
this full report or disclosure, then the defendant would not be willfully or deliberately
doing wrong in [performing] [omitting] some act the law [forbids][requires], as these
terms are used in these instructions.
Whether the defendant acted in good faith for the purpose of truly seeking guidance as to
questions about which he [she] was in doubt, and whether he [she] made a full and
complete report or disclosure to [his] [her] attorney and whether [he] [she] acted strictly
in accordance with the advice received, are all questions for the jury to determine.
O’Malley, Grenig and Lee, 1A Federal Jury Practice and Instructions, § 19.08 (6th Ed.
2008)
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9315292.1
GOVERNMENT PROPOSED JURY INST. NO. Misc-74
Defenses -- Reliance on Accountant
You have heard evidence that the defendant received advice from an accountant, [insert
name of person] and you may consider that evidence in deciding whether the defendant
acted willfully and with knowledge.
The mere fact that the defendant may have received accounting advice does not, in
itself,necessarily constitute a complete a defense. Instead, you must ask yourselves
whether the defendant honestly and in good faith sought the advice of an accountant as to
what he may lawfully do; whether he fully and honestly laid all the facts before his
accountant; and whether in good faith he honestly followed such advice, relying upon it
and believing it to be correct. In short you should consider whether, in seeking and
obtaining advice from a lawyer, the defendant intended that his acts shall be lawful. If he
did so, it is the law that a defendant cannot be convicted of a crime which involves willful
and unlawful intent, even if such advice were an inaccurate.
On the other hand, no man can willfully and knowingly violate the law and excuse
himself from the consequences of his conduct by pleading that he followed the advice of
his accountant.
Whether the defendant acted in good faith for the purpose of seeking guidance as to the
specific acts in this case, and whether he made a full and complete report to his
accountant, and whether he acted substantially in accordance with the advice received,
are questions for you to determine.
[JI-148]
1 Sand, Siffert, Loughlin, Reiss, Allen and Rakoff, Modern Federal Jury Instructions:
Criminal,Instruction 8-4 (Comment), pp. 8-20 - 8-21 (2008 ed.).
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9315292.1
GOVERNMENT PROPOSED JURY INST. NO. Misc-75
Defenses - Reliance on Accountant for Tax Return Preparation
If the defendant, provided [insert name of person who prepared return] with full
information with regard to his [her] taxable income and expenses, and the defendant then
adopted, signed, and filed the tax return as prepared by [insert name of person who
prepared return] without having reason to believe that it was not correct, then you will
find the defendant not guilty.
If, on the other hand, you find beyond a reasonable doubt that the defendant did not
provide full and complete information to [insert name of person who prepared return], or
that the defendant knew that the return as prepared by [insert name of person who
prepared return] was not correct and substantially understated the tax liability of
defendant [and his wife] [and her husband], then you may find the defendant guilty even
though he did not prepare the return himself but rather had it prepared for him [her] by
another person.
See United States v. Vannelli, 595 F.2d 402, 404-05 (8th Cir. 1979)
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9315292.1
GOVERNMENT PROPOSED JURY INST. NO. Misc-76
Good Faith Reliance Upon Advice of Counsel
Good faith is a complete defense to the charge in the indictment if good faith on the part
of the defendant is inconsistent with the existence of willfulness, which is an essential
part of the charge.The burden of proof is not on the defendant to prove his good faith, of
course, since he [she] has no burden to prove anything. The government must establish
beyond a reasonable doubt that the defendant acted willfully as charged in the indictment.
So, a defendant would not be "willfully" doing wrong if, before taking any action with
regard to the alleged offense, he [she] consulted in good faith an attorney whom he [she]
considered competent, made a full and accurate report to her [his] attorney of all material
facts of which he[she] had the means of knowledge, and then acted strictly in accordance
with the advice given to him [her] by his [her] attorney.
Whether the defendant acted in good faith for the purpose of seeking advice concerning
questions about which he [she] was in doubt, and whether he [she] made a full and
complete report to her[his] attorney, and whether he [she] acted strictly in accordance
with the advice he [she] received,are all questions for you to determine.
Pattern Jury Instructions: Eleventh Circuit, Criminal Cases, SI 18 (2003 ed.)
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9315292.1
GOVERNMENT PROPOSED JURY INST. NO. Misc-77
Good Faith Belief of Accused
27
To establish a violation of (26 U.S.C. 7201, 7202, 7203, 7206), as charged in Count(s)
____ of the indictment, the government must prove beyond a reasonable doubt that the
defendant acted willfully. “Willfully” means a voluntary and intentional violation of a
known legal duty. The defendant’s conduct was not willful if he [she] acted through
negligence -- even gross negligence -- mistake, or accident, or due to a good-faith belief
or misunderstanding as to the law. Defendant claims that he [she] acted in good faith.
[JI-149] A good faith belief is one that is honestly and genuinely held.
28
In determining
whether the defendant held a good faith belief, you are to determine what the defendant
in fact believed, not what a reasonable person should have believed. When determining
whether an asserted belief of the defendant was actually or genuinely held, you may also
consider the reasonableness of the claimed belief. Note, however, that in considering the
defendant's asserted good-faith misunderstanding or belief, you must make your decision
based upon what the evidence established that the defendant actually believed and not
upon what you (or someone else) believe or think the defendant ought to believe. The test
you must apply is whether the defendant himself [herself] actually believed in good faith
that he [she] had [reported and paid the entire tax due under the Internal Revenue Code]
[complied with all of the obligations under the Internal Revenue Code]. If the defendant
actually had that belief [those beliefs], a finding that his belief[s] is [are] unreasonable is
not a basis for finding that the defendant lacked good faith.
I instruct you that a defendant who knows what the law requires and who merely
disagrees with the law and chooses not to follow it does not present a good faith defense.
It is the duty of all persons to obey the law whether or not they agree with it. Also, a
person's claim that the tax laws violate his [her] constitutional rights does not constitute a
good faith misunderstanding of the law and does not negate willfulness. [Furthermore, a
27
CAUTION: Do not propose this instruction in cases involving only charges in which willfulness is not an
element of the crime, such as 18 U.S.C. §§ 286, 287, 371 (conspiracy, defraud clause), 1001, and 26 U.S.C.
§ 7212. However, where knowledge of falsity or fraudulence is an element of an offense and falsity or
fraudulence turns on the law, a mistake of law may negate knowledge, and therefore an instruction
regarding a good faith misunderstanding of the law or belief as to the law may be appropriate. See, e.g.,
United States v. Nash, 175 F.3d 429, 436-37 (6th Cir. 1999).
28
This instruction is for use in cases where a defendant asserts a good faith misunderstanding of the law.
The instruction should be modified for use in cases where a defendant claims that he [she] does not know
the requirements of the law.
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9315292.1
person's disagreement with [the government's monetary system and policies] does not
negate willfulness.] (Modify with claims relevant to case.)
While the term “good faith” has no precise definition, it refers to, among other things, a
belief that is actually held and the intent to perform all lawful obligations. A person who
acts on a belief actually held in good faith is not punishable under this statute merely
because that belief turns out to be incorrect or wrong. The tax laws subject to criminal
punishment only those people who willfully violate the law. It is for you, the jury, to
determine whether the defendant acted in good faith -- that is, whether he [she] sincerely
misunderstood the law -- or whether the defendant knew that he [she] was required to
[pay taxes] [file a true and correct return]. You should consider all of the evidence in the
case bearing on the defendant's state of mind when determining whether the defendant
acted willfully as alleged in Counts [identify counts where willfulness is an element, do
not include offenses, such as 18 U.S.C. 286, 287, 371 (conspiracy, defraud clause), and
26 U.S.C. 7212, that do not have willfulness as an element]. Evidence you may consider
includes evidence that the defendant was aware of his [her] [duty to file a return], [duty to
pay a tax on April 15, YEAR], [duty to file a true and correct return] [court opinions
rejecting [his] [her] claims] [IRS forms that specify that {wages are income}], or other
evidence that informed the defendant that his [her] claim was wrong.]
Ultimately, if the evidence in the case leaves you, the jury, with a reasonable doubt as to
whether the defendant made a good-faith effort to comply with the law or acted with
willful intent to violate the law, you must acquit the defendant.
Remember that the burden of proving good faith does not rest with the defendant,
because the defendant has no obligation to prove anything to you. The government has
the burden of proving to you beyond a reasonable doubt that the defendant acted
willfully.
Cheek v. United States, 498 U.S. 192 (1991)
United States v. Marston, 517 F.3d 996, 1003 (8th Cir. 2008)
United States v. Dean, 487 F.3d 840, 850-51 (11th Cir. 2007)
United States v. Pensyl, 387 F.3d 456, 459-60 (6th Cir. 2004)
United States v. Middleton, 246 F.3d 825, 837 (6th Cir. 2001)
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United States v. Hilgeford, 7 F.3d 1340, 1342-44 (7th Cir. 1993)
United States v. Grunewald, 987 F.2d 531,536 (8th Cir. 1993)
United States v. Barnett, 945 F.2d 1296, 1298-99 (5th Cir. 1991)
Alternatives
Good Faith
A defendant does not act willfully if he [she] believes in good faith that he [she] is acting
within the law or that his [her] actions comply with the law. Therefore, if the defendant
actually believed that what he [she] was doing was in compliance with the tax law, he
[she] cannot be said to have willfully [attempted to evade or defeat taxes] [failed to file
tax returns] [filed false or fraudulent tax returns]. This is so even if the defendant's belief
was not objectively reasonable, as long as he [she] actually
held the belief in good faith. Nevertheless, you may consider, as a factor in deciding
whether he [she] actually held that belief, whether the defendant's asserted beliefs about
the tax statutes were reasonable.
On the other hand, if the defendant claimed, even in good faith, that the tax laws were not
valid or were unconstitutional, he [she] would not be excused from violating them. If the
defendant understood the duties imposed on him [her], but claimed that the Internal
Revenue laws were invalid or unconstitutional as applied to him [her], that claim, no
matter how earnestly asserted, would not be a defense to the charges in this case.
Likewise, a disagreement with the Internal Revenue Code or a claim that the law should
be different from what it is, no matter how earnestly asserted, is not a defense and does
not negate willfulness. It is the duty of all citizens to obey the law whether they agree
with it or not. I instruct you that a defendant who knows what the law requires and who
merely disagrees with the law and disobeys it, does not present a good faith defense.
Cheek v. United States, 498 U.S. 192 (1991)
United States v. Marston, 517 F.3d 996, 1003 (8th Cir. 2008)
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United States v. Dean, 487 F.3d 840, 850-51 (11th Cir. 2007)
United States v. Pensyl, 387 F.3d 456, 459-60 (6th Cir. 2004)
United States v. Middleton, 246 F.3d 825, 837 (6th Cir. 2001)
United States v. Hilgeford, 7 F.3d 1340, 1342-44 (7th Cir. 1993)
United States v. Grunewald, 987 F.2d 531,536 (8th Cir. 1993)
United States v. Barnett, 945 F.2d 1296, 1298-99 (5th Cir. 1991)
Good Faith - objective reasonableness a factor
While a good faith belief need not be objectively reasonable to negate willfulness, the
objective reasonableness of a belief is a factor for the jury to consider in determining
whether a defendant actually held the belief and acted upon it. The more farfetched a
belief is, the less likely it is that a person actually held or would act upon that belief. A
defendant who knows what the law is and who disagrees with it does not have a defense
of bona fide misunderstanding. A persistent refusal to acknowledge the law does not
constitute misunderstanding of the law. One is not immune from criminal prosecution if
he [she] knows what the law is but believes that it should be otherwise and therefore
violates it.
Seventh Circuit Pattern Jury Instruction (edited)
United States v. Marston, 517 F.3d 996, 1003 (8th Cir. 2008)
United States v. Dean, 487 F.3d 840, 850-51 (11th Cir. 2007)
United States v. Pensyl, 387 F.3d 456, 459-60 (6th Cir. 2004)
United States v. Middleton, 246 F.3d 825, 837 (6th Cir. 2001)
United States v. Hilgeford, 7 F.3d 1340, 1342-44 (7th Cir. 1993)
United States v. Grunewald, 987 F.2d 531,536 (8th Cir. 1993)
United States v. Barnett, 945 F.2d 1296, 1298-99 (5th Cir. 1991)
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COMMENTS
1 These instructions amplify and clarify a number of points in former Instruction No.
Misc-77, which was based on O’Malley, Grenig and Lee, 2B Federal Jury Practice and
Instructions, § 67.25 (5th Ed. 2000).
2 See also the instructions concerning a good faith belief defense set forth as a part of the
instructions on 26 U.S.C. § 7203, supra.
3 In light of the decision in Cheek v. United States, 498 U.S. 192 (1991), care should be
taken to ensure that an instruction on the good faith defense does not suggest that a
claimed good faith belief as to the requirements of the law or a claimed good faith
mistake of law must be objectively reasonable to negate willfulness. However,
instructions informing the jury that it may consider the reasonableness of a claimed belief
in determining whether a defendant actually held the belief have been held to be
consistent with Cheek. See, e.g., United States v. Grunewald, 987 F.2d 531,536 (8th Cir.
1993).
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GOVERNMENT PROPOSED JURY INST. NO. Misc-78
First Amendment
The First Amendment does not provide a defense to a criminal charge simply because the
actor uses words to carry out his illegal purpose. Speech which "incites imminent lawless
activity" is not protected speech under the First Amendment. Speech which "merely
advocates law violation"is protected by the First Amendment.
If you find that the defendant's speech was limited to the advocacy of violations of the
income tax laws or remote action, then his speech is protected by the First Amendment
and cannot be a basis for a guilty verdict. If, however, you find that the defendant's
speech both was intended by
[JI-150] him and, in fact, tended to produce or incite a likely imminent filing of a false
income tax return, then such speech is not protected by the First Amendment.
Brandenburg v. Ohio, 395 U.S. 444 (1969)
Rice v. Paladin Enterprises, Inc., 128 F.3d 233 (4th Cir. 1997)
United States v. Rowlee, 899 F.2d 1275, 1276-78 (2d Cir. 1990)
United States v. Kelley, 769 F.2d 215, 216-17 (4th Cir. 1985)
United States v. Freeman, 761 F.2d 549, 551-52 (9th Cir. 1985)
United States v. Holecek, 739 F.2d 331, 334-35 (8th Cir. 1984)
United States v. Damon, 676 F.2d 1060, 1062-63 (5th Cir. 1982)
United States v. Buttorff, 572 F.2d 619, 622-24 (8th Cir. 1978)
COMMENT
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1 An instruction such as this is appropriate, if at all (see United States v. Daly, 756 F.2d
1076,1082 (5th Cir.), cert. denied, 474 U.S. 1022 (1985) ("the speech Daly claims is
protected was not itself the wrong for which he was convicted, but it was merely the
means by which he committed the crimes of which he was convicted")), only when the
government's case is predicated solely on what the defendant said. If the defendant
engaged in an illegal course of conduct, his activities are not protected by the First
Amendment merely because the conduct was in part carried out by language in contrast
to direct action. See United States v. Kelley, 864 F.2d 569, 577 (7th Cir.),cert. denied, 110
S. Ct. 55 (1989); United States v. Solomon, 825 F.2d 1292, 1297 (9th Cir.1987), cert.
denied, 484 U.S. 1046 (1988); see Paladin Enterprises, Inc., 128 F.3d at 245-46.
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GOVERNMENT PROPOSED JURY INST. NO. Misc-79
Immunized Witnesses
The witnesses [insert name of first witness] and [insert name of second witness] testified
under a grant of immunity, pursuant to court order, after a petition by the government
was filed requesting such an order. Under the law, none of the testimony during this trial
can ever be used against them in any subsequent criminal proceeding. However, if any
one of them testified untruthfully under the grant of immunity, he [she] could be
prosecuted for perjury or the making of a false statement even though he [she] was
testifying under a grant of immunity.
The testimony of a witness who provides evidence against a defendant for immunity from
prosecution, or for personal advantage or vindication, must be examined and weighed by
the jury with greater care than the testimony of an ordinary witness. The jury must
determine whether the witness's testimony has been affected by interest or by prejudice
against the defendant.
United States v. Lea, 618 F.2d 426, 432 n.7 (7th Cir. 1980)
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GOVERNMENT PROPOSED JURY INST. NO. Misc-80
Credibility of Witnesses -- Immunized Witness
The testimony of an immunized witness, someone who has been told by the government
either that his [her] crimes will go unpunished in return for testimony or that his [her]
testimony will not be used against him [her] in return for that cooperation,
29
must be
examined and weighed by the jury with greater care than the testimony of someone who
is appearing in court without the need for such an agreement with the government.
[Insert name of witness] may be considered to be an immunized witness in this case.
[JI-151]
The jury must determine whether the testimony of the immunized witness has been
affected by self-interest, or by the agreement he [she] has with the government, or by his
[her] own interest in the outcome of this case, or by prejudice against the defendant.
O’Malley, Grenig and Lee, 1A Federal Jury Practice and Instructions, § 15.03 (6th Ed.
2008)
29
Only the clause that fits the facts of the case should be chosen for use in the instruction.
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GOVERNMENT PROPOSED JURY INST. NO. Misc-81
Testimony Under Grant of Immunity
You have heard testimony from [insert name of witness], who received immunity -- that
is, a promise from the government that any testimony or other information he [she]
provided would not be used against him [her] in a criminal case. You may give her [his]
testimony such weight as you feel it deserves, keeping in mind that it must be considered
with caution and great care.
Federal Pattern Criminal Jury Instructions for the Seventh Circuit, § 3.13 (1998 ed.)
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GOVERNMENT PROPOSED JURY INST. NO. Misc-82
Testimony Under Grant of Immunity
You have heard testimony from [insert name of witness], a witness who received
immunity. That testimony was given in exchange for a promise by the government that
[the witness will not be prosecuted] or [the testimony will not be used in any case against
the witness].
In evaluating [insert name of witness]'s testimony, you should consider the extent to
which or whether [witness name’s] testimony may have been influenced by [this] [any of
these] factor(s). In addition, you should examine [witness name’s] testimony with greater
caution than that of other witnesses.
Ninth Circuit Manual of Model Criminal Jury Instructions, No. 4.9 (2008 ed.)
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GOVERNMENT PROPOSED JURY INST. NO. Misc-83
Statute of Limitations -- Conspiracy
In order for any defendant to be found guilty of the crime of conspiracy, as charged in
Count [insert count number] in violation of Section 371 of Title 18 of the United States
Code, the government must prove each of the following elements beyond a reasonable
doubt:
* * * *
One of the members of the conspiracy performed at least one overt act after [beginning of
statute of limitations period] for the purpose of carrying out the conspiracy.
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GOVERNMENT PROPOSED JURY INST. NO. Misc-84
Statute of Limitations -- Tax Evasion
In order to establish that the [a] defendant willfully attempted to evade or defeat a tax, as
alleged in Count(s) [insert count number], in violation of Section 7201 of Title 26 of the
United States Code, the government must prove each of the following elements beyond a
reasonable doubt:
* * * *
That the defendant made an affirmative attempt after [beginning of statute of limitations
period] to evade or defeat a tax.
[JI-152]
