PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003
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Offense Instructions (OI 1.1 - OI 23.2)

        OI 1.1    Forcibly Assaulting A Federal Officer (Without Use Of A Deadly Weapon) 18 USC 111(a)(1) (Felony Offense)
        OI 1.2    Forcibly Assaulting A Federal Officer (With Use Of A Deadly Weapon Or Inflicting Bodily Injury) 18 USC 111(b)
        OI 2       Concealment Of Property Belonging To Bankruptcy Estate Of Debtor (18 USC 152(1))
        OI 3       Presenting Or Using A False Claim In A Bankruptcy Proceeding (18 USC 152(4))
        OI 4       Embezzlement Of Bankruptcy Estate 18 USC 153
        OI 5.1    Bribery Of Public Official (Or Juror) (18 USC 201(b)(1))
        OI 5.2    Receipt Of Bribe By Public Official (Or Juror) (18 USC 201(b)(2))
        OI 6.1    Bribery Or Reward Of Bank Officer (18 USC 215(a)(1))
        OI 6.2    Receipt Of A Bribe Or Reward By Bank Officer (18 USC 215(a)(2))
        OI 7       Failure To Pay Child Support 18 USC 228(a)(3)
        OI 8       Deprivation Of Civil Rights (Without Bodily Injury, Kidnapping, Sexual Assault Or Death) (18 USC 242)
        OI 9       Damage To Religious Property (18 USC 247(a)(1) and (d)(2))
        OI 10.1  Freedom Of Access To Reproductive Health Services Intimidation Or Injury Of A Person (18 USC 248(a)(1))
        OI 10.2   Freedom Of Access To Reproductive Health Services Damage To A Facility (18 USC 248(a)(3))
        OI 11.1   Conspiracy To Defraud The Government With Respect To Claims (18 USC 286)
        OI 11.2   False Claims Against The Government (18 USC 287)
        OI 12      Presenting False Declaration Or Certification (18 USC 289)
        OI 13.1   General Conspiracy Charge (18 USC 371)
        OI 13.2    Multiple Objects (For Use With General Conspiracy Charge) (18 USC 371)
        OI 13.3    Multiple Conspiracies (For Use With General Conspiracy Charge) (18 USC 371)
        OI 13.4    Withdrawal From Conspiracy (For Use With General Conspiracy Charge) (18 USC 371)
        OI 13.5    Pinkerton Instruction [Pinkerton v. U.S., 328 U.S. 640 (1946)]
        OI 13.6    Conspiracy To Defraud United States (18 USC 371 (Second Clause))
        OI 14       Counterfeiting (18 USC 471)
        OI 15.1    Counterfeit - - Possession (18 USC 472)
        OI 15.2    Counterfeit - - Uttering (18 USC 472)
        OI 16       Counterfeit - - Dealing (18 USC 473)
        OI 17       Counterfeit - - Possession (18 USC 474(a))
        OI 18.1    Forgery (Endorsement Of Government Check) 18 USC 495 (First Paragraph) or 18 USC 510(a)(1) (Having A Face Value Of More Than $1,000)
        OI 18.2    Forgery (Uttering A Forged Endorsement) 18 USC 495 (Second Paragraph) or 18 USC 510(a)(2) (Having A Face Value Of More Than $1,000)
        OI 19       Criminal Street Gangs 18 USC 521
        OI 20       Smuggling (18 USC 545) (First Paragraph)
        OI 21       Theft Of Government Money Or Property (18 USC 641)
        OI 22       Theft Or Embezzlement By Bank Employee (28 USC 656)
        OI 23.1    Theft From Interstate Shipment (18 USC 659)
        OI 23.2    Buying Or Receiving Goods Stolen From Interstate Shipment (18 USC 659) (Second Paragraph)       

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Assaulting A Federal Officer (Without Use Of A Deadly Weapon) (18 USC 111(a)(1))

    Title 18, United States Code, Section 111(a)(1), makes it a Federal crime or offense for anyone to forcibly assault a Federal officer while the officer is engaged in the performance of official duties.

    [You are instructed that a Special Agent of the Federal Bureau of Investigation is one of the Federal officers referred to in that law, and that it is a part of the official duty of such an officer to execute arrest warrants issued by a Judge or Magistrate Judge of this Court.]

    The Defendant can be found guilty of the offense of assaulting a Federal officer only if all of the following facts are proved beyond a reasonable doubt:

    First: That the Defendant “forcibly assaulted” the person described in the indictment, as that term is hereafter defined;

    Second: That the person assaulted was a Federal officer as described above, then engaged in the performance of an official duty, as charged; and

    Third: That the Defendant acted knowingly and willfully.

    The term "forcible assault" means any willful threat or attempt to inflict serious bodily injury upon someone else, when coupled with an apparent present ability to do so, and includes any intentional display of force that would give a reasonable person cause to expect immediate and serious bodily harm or death even though the threat or attempt is not actually carried out and the victim is not actually injured.

    It is not necessary to show that the Defendant knew that the person being forcibly assaulted was, at that time, a Federal officer carrying out an official duty so long as it is established beyond a reasonable doubt that the victim was, in fact, a Federal officer acting in the course of performing an official duty and that the Defendant willfully committed a forcible assault upon the officer.

    On the other hand, the Defendant would not be guilty of a willful assault if the evidence leaves you with a reasonable doubt concerning whether the Defendant knew the victim to be a Federal officer and that the Defendant only acted because of a reasonable, good faith belief that self defense was needed to protect against an assault by a private citizen.

ANNOTATIONS AND COMMENTS

    18 USC 111(a)(1) provides:

    Whoever forcibly assaults, resists, opposes, impedes, intimidates or interferes with any [Federal officer or employee] designated in Section 1114 of this title while engaged in or on account of the performance of his official duties [shall be guilty of an offense against the United States],

    Maximum Penalty: Three (3) years imprisonment and applicable fine.

    In United States v. Fallen, 256 F.3d 1082 (11th Cir. 2001), the court distinguished simple assault, as defined at common law (the misdemeanor offense included within subsection (a) of the statute), from the “forcible assault” proscribed by the
statute as a felony offense. The latter is characterized by a threat or attempt to inflict serious bodily harm or death. In some cases, therefore, it may be necessary to give a lesser included offense instruction on simple assault. See Special Instruction 10.

    United States v. Young, 464 F.2d 160 (5th Cir. 1972); United States v. Danehy, 680 F.2d 1311 (11th Cir. 1982), although knowledge of the official capacity of the victim is unnecessary for conviction, a Defendant may not be found guilty if the Defendant acts from the mistaken belief that he or she is threatened with an intentional tort by a private citizen. In connection with a claim of self-defense, see United States v. Alvarez, 755 F.2d 830 (11th Cir. 1985), concerning an instruction about the relevance of the Defendant's state of mind and the alternative methods the Government has to negate such a claim.

[For 1997 Version of this instruction, see below]

1997 Version:

18 USC 111(a)(1) provides:

Whoever forcibly assaults, resists, opposes, impedes, intimidates or interferes with any [Federal officer or employee] designated in Section 1114 of this title while engaged in or on account of the performance of his official duties [shall be guilty of an offense against the United States],

Maximum Penalty: Three (3) years imprisonment and applicable fine.

United States v. Young, 464 F.2d 160 (5th Cir. 1972); United States v. Danehy, 680 F.2d 1311 (11th Cir. 1982), although knowledge of the official capacity of the victim is unnecessary for conviction, a Defendant may not be found guilty if the Defendant acts from the mistaken belief that he or she is threatened with an intentional tort by a private citizen. In connection with a claim of self-defense, see United States v. Alvarez, 755 F.2d 830 (11th Cir. 1985), concerning an instruction about the relevance of the Defendant's state of mind and the alternative methods the government has to negate such a claim.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Assaulting A Federal Officer (With Use Of A Deadly Weapon Or Inflicting Bodily Injury) (18 USC 111(b))

    Title 18, United States Code, Section 111(b), makes it a Federal crime or offense for anyone to forcibly assault a Federal officer [using a deadly or dangerous weapon] [inflicting bodily injury] while the officer is engaged in the performance of official duties. 

    [You are instructed that a Special Agent of the Federal Bureau of Investigation is one of the Federal officers referred to in that law, and that it is a part of the official duty of such an officer to execute arrest warrants issued by a Judge or Magistrate Judge of this Court.] 

    The Defendant can be found guilty of the offense of assaulting a Federal officer [with a deadly weapon] [inflicting bodily injury] only if all of the following facts are proved beyond a reasonable doubt:

    First: That the Defendant “forcibly assaulted” the person described in the indictment, as that term is hereafter defined;

    Second: That the person assaulted was a Federal officer, as described above, then engaged in the performance of an official duty, as charged; 

    Third: That the Defendant acted knowingly and willfully; and

    Fourth: That in so acting the Defendant [used a deadly or dangerous weapon] [inflicted bodily injury].

    The term "forcible assault" means any willful threat or attempt to inflict serious bodily injury upon someone else, when coupled with an apparent present ability to do so, and includes any intentional display of force that would give a reasonable person cause to expect immediate and serious bodily harm or death even though the threat or attempt is not actually carried out and the victim is not actually injured. 

    It is not necessary to show that the Defendant knew that the person being forcibly assaulted was, at that time, a Federal officer carrying out an official duty so long as it is established beyond a reasonable doubt that the victim was, in fact, a Federal officer acting in the course of performing an official duty and that the Defendant willfully committed a forcible assault upon the officer.

    On the other hand, the Defendant would not be guilty of a willful assault if the evidence leaves you with a reasonable doubt concerning whether the Defendant knew the victim to be a Federal officer and that the Defendant only acted because of a reasonable, good faith belief that self defense was needed to protect against an assault by a private citizen.

    [The term "deadly or dangerous weapon" includes any object capable of being readily used by one person to inflict severe bodily injury upon another person; and for such a weapon to have been "used," it must be proved that the Defendant not only possessed the weapon, but that the Defendant intentionally displayed the weapon in some manner while carrying out the forcible assault.] 

    [As stated before, a forcible assault requires a willful threat or attempt to inflict serious bodily injury or death upon someone, and such an assault may be committed even though the threat or attempt to cause such serious injury is not carried out and the intended victim is not actually injured. In this case, however, the indictment alleges that there actually was “bodily injury,” and that part of the charge - - the Fourth thing the Government must prove, as stated before - - is satisfied regardless of the seriousness of the injury if the Government proves that the victim suffered any cut, abrasion, bruise, burn, or disfigurement; physical pain; illness; impairment of a function of a bodily member, organ, or mental faculty; or any other injury to the body no matter how temporary.]

ANNOTATIONS AND COMMENTS

    18 USC 111(b) provides:

    Whoever, in the commission of any such act (i.e., a violation of 111(a) - - assaulting a Federal officer) uses a deadly or dangerous weapon or inflicts bodily injury [shall be punished as provided by law].

    Maximum Penalty: Ten (10) years imprisonment and applicable fine.

    In United States v. Fallen, 256 F.3d 1082 (11th Cir. 2001), the court distinguished simple assault, as defined at common law (the misdemeanor offense included within subsection (a) of the statute), from the “forcible assault” proscribed by the
statute as a felony offense. The latter is characterized by a threat or attempt to inflict serious bodily harm or death. In some cases, therefore, it may be necessary to give a lesser included offense instruction on simple assault. See Special Instruction 10.

    United States v. Young, 464 F.2d 160 (5th Cir. 1972); United States v. Danehy, 680 F.2d 1311 (11th Cir. 1982), although knowledge of the official capacity of the victim is unnecessary for conviction, a Defendant may not be found guilty if the Defendant acts from the mistaken belief that he or she is threatened with an intentional tort by a private citizen. In connection with a claim of self-defense, see United States v. Alvarez, 755 F.2d 830 (11th Cir. 1985), concerning an instruction about the relevance of the Defendant's state of mind and the alternative methods the government has to negate such a claim. 

    The definition of "bodily injury" in the last paragraph of the instruction is from United States v. Myers, 972 F.2d 1566, 1572 (11th Cir. 1992), cert. denied, 507 U.S. 1017, 113 S.Ct. 1813, 123 L.Ed.2d 445 (1993), defining the term under 18 USC 242.

    If the evidence justifies an instruction on the lesser included offense of assaulting a Federal officer without use of deadly weapon or infliction of bodily injury, see Special Instruction 10, Lesser Included Offense.

[For 1997 Version of this instruction, see below]

1997 Version:

18 USC 111(b) provides:

Whoever, in the commission of any such act (i.e., a violation of 111(a) - - assaulting a Federal officer) uses a deadly or dangerous weapon or inflicts bodily injury [shall be punished as provided by law].

Maximum Penalty: Ten (10) years imprisonment and applicable fine.

United States v. Young, 464 F.2d 160 (5th Cir. 1972); United States v. Danehy, 680 F.2d 1311 (11th Cir. 1982), although knowledge of the official capacity of the victim is unnecessary for conviction, a Defendant may not be found guilty if the Defendant acts from the mistaken belief that he or she is threatened with an intentional tort by a private citizen. In connection with a claim of self-defense, see United States v. Alvarez, 755 F.2d 830 (11th Cir. 1985), concerning an instruction about the relevance of the Defendant's state of mind and the alternative methods the government has to negate such a claim.

The definition of "bodily injury" is from United States v. Myers, 972 F.2d 1566, 1572 (11th Cir. 1992), cert. denied, 507 U.S. 1017, 113 S.Ct. 1813, 123 L.Ed.2d 445 (1993), defining the term under 18 USC 242.

If the evidence justifies an instruction on the lesser included offense of assaulting a Federal officer without use of deadly weapon or infliction of bodily injury, see Special Instruction 10, Lesser Included Offense.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Concealment Of Property Belonging To Bankruptcy Estate Of Debtor (18 USC 152(1))

    Title 18, United States Code, Section 152(1), makes it a Federal crime or offense for anyone, in a case governed by the Federal bankruptcy laws, fraudulently to conceal any property belonging to the estate of a bankruptcy debtor either from creditors or from an officer of the court charged with the control or custody of such property.

    The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

    First: That on or about the date charged, there was pending in the United States Bankruptcy Court for the _____ District of _____ , a bankruptcy case docketed as Case Number _____, wherein, _____ [doing business as _____ ] was the Debtor;

    Second: That the property or an interest in the property described in the indictment was a part of the bankruptcy estate of such Debtor; and

    Third: That the Defendant knowingly, willfully and fraudulently concealed the property from creditors or from the [Bankruptcy Administrator] [United States Trustee] who had responsibility for the control or custody of such property, as charged.

    The term "Debtor" simply means the person or corporation concerning whom a case under the Federal bankruptcy laws has been commenced. When a debtor files a voluntary petition under the bankruptcy laws, there is created an estate comprised, among other things, of all legal or equitable interests of the debtor in property wherever located and by whomever held as of the commencement of the bankruptcy case. Thus, any interest owned by the bankruptcy debtor in any property at the time the bankruptcy case begins is a part of the bankruptcy estate. The fact that another person or entity also owned an interest in the property with the bankruptcy debtor does not prevent the interest of the bankruptcy debtor in the property from being a part of the bankruptcy estate. The bankruptcy estate also includes proceeds, product, rents, or profits of or from property of the estate, except earnings from services performed by an individual debtor after the commencement of the case.

    The [Bankruptcy Administrator] [United States Trustee] for the Bankruptcy Court for the _____ District of _____ is an officer of the court and was at all relevant times responsible for the control or custody of all property constituting the bankruptcy estate in Case Number _____ .

    The essence of the charge in the indictment is the knowing and fraudulent concealment by the Defendant of property belonging to the estate of the debtor. The term "concealment" or "conceal" is to be given its ordinary meaning, that is, to prevent disclosure or recognition of, or to place out of sight or to withdraw from being observed.

    A person "fraudulently conceals" property of the estate of a debtor when that person knowingly withholds information or property, or knowingly acts for the purpose of preventing the discovery of such property, intending to deceive or to cheat a creditor or a custodian ordinarily for the purpose of causing some financial loss to another or bringing some financial gain to one's self. 

    The term "creditor" means a person or company that has a claim or a right to payment from the debtor that arose at the time of or before the bankruptcy court issued its order for relief concerning the debtor.

    The term “custodian” means a person authorized by the bankruptcy court to administer the property of the debtor and includes a bankruptcy administrator or trustee. 

    Fraudulently concealing property of the estate of the debtor may include transferring property to a third party or entity, destroying the property, withholding knowledge concerning the existence or whereabouts of property, or knowingly doing anything else by which that person acts to hinder, delay or defraud any of the creditors or the [Bankruptcy Administrator] [United States Trustee].

ANNOTATIONS AND COMMENTS

    18 USC 152(1) provides that whoever:

    (1) knowingly and fraudulently conceals . . . in connection with a case under title 11, from creditors or the United States Trustee, any property belonging to the estate of a debtor [shall be guilty of an offense against the United States].

    Maximum Penalty: Five (5) years imprisonment and applicable fine.

    Some of the definitions in this instruction are from 11 USC 101 and 541.

[For 1997 Version of this instruction, see below]

1997 Version:

18 USC 152(1) provides that whoever:

(1) knowingly and fraudulently conceals . . . in connection with a case under title 11, from creditors or the United States Trustee, any property belonging to the estate of a debtor [shall be guilty of an offense against the United States].

Maximum Penalty: Five (5) years imprisonment and applicable fine.

Many of the definitions in this instruction are from 11 USC 101(4), 101(9), 101(10), 101(12), 541(a)(1) and 541(a)(1)(6).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Presenting Or Using A False Claim In A Bankruptcy Proceeding (18 USC 152(4))

    Title 18, United States Code, Section 152(4), makes it a Federal crime or offense for anyone to knowingly and fraudulently [present] [use] a false claim in any bankruptcy proceeding. 

    The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

    First: That on or about the date charged, there was pending in the United States Bankruptcy Court for the _____ District of _____ , a bankruptcy case docketed as Case Number _____, wherein, _____ [doing business as _____ ] was the Debtor; 

    Second: That the Defendant [in a personal capacity] [as or through an agent, proxy, or attorney] [presented] [used] a claim against the estate of the Debtor in such bankruptcy proceeding; 

    Third: That the claim so [presented] [used] was false as to a material fact; and Fourth: That the Defendant [presented] [used] such claim knowingly and fraudulently.

    A claim is "false" if it is untrue and is then known to be untrue by the person [presenting] [using] it.

    A “material fact” means an important fact as distinguished from some unimportant or trivial detail.

    A claim is "fraudulent" if it is intended to deceive or to cheat, ordinarily for the purpose of causing some financial loss to another or bringing about some financial gain to one's self. 

ANNOTATIONS AND COMMENTS

    18 USC 152(4) provides that whoever:

    (4) knowingly and fraudulently presents any false claim for proof against the estate of a debtor, or uses any such claim in any case under title 11, in a personal capacity or as or through an agent, proxy, or attorney [shall be guilty of an offense against the United States]. 

    Maximum Penalty: Five (5) years imprisonment and applicable fine.

    See 11 USC 101(5) for a definition of “claim” if one is needed. 

    There are no decisions in the Eleventh Circuit as to whether materiality is an element of this offense. However, because the statute expressly incorporates the term “fraudulently” in conjunction with the term “false claim,” the Committee believes that materiality is an essential element of the offense that must be submitted to the jury under the Supreme Court decisions in United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310 (1995); United States v. Wells, 519 U.S. 482, 117 S.Ct. 921 (1997); and Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827 (1999). The Court concluded in Wells that materiality was not an element of the offense of making a “false statement” in violation of 18 USC 1014, but held in Neder that use of the words “fraud”or “fraudulently” in 18 USC 1341, 1343 and 1344, as terms of art, incorporated the common law requirement that proof of fraud necessitates proof of misrepresentation or concealment of a material fact. And Gaudin held that when
materiality is an essential element of an offense, it must be submitted to the jury.

[For 1997 Version of this instruction, see below]

1997 Version:

18 USC 152(4) provides that whoever:

(4) knowingly and fraudulently presents any false claim for proof against the estate of a debtor, or uses any such claim in any case under title 11, in a personal capacity or as or through an agent, proxy, or attorney [shall be guilty of an offense against the United States].

Maximum Penalty: Five (5) years imprisonment and applicable fine.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 4 
Embezzlement Of Bankruptcy Estate
18 USC 153

    Title 18, United States Code, Section 153, makes it a Federal crime or offense for anyone who has access to the property belonging to a bankruptcy estate as a trustee or custodian to knowingly and fraudulently embezzle or appropriate to that persons’ own use any property belonging to the bankruptcy estate.

    The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

    First: That on or about the date charged there was pending in the United States Bankruptcy Court for _____ , a bankruptcy case docketed as Case Number _____ , wherein _____ was the Debtor; 

    Second: That the property described in the indictment was a part of the bankruptcy estate of such Debtor; 

    Third: That the Defendant had access to such property by virtue of the Defendant’s participation in the administration of the bankruptcy estate of such Debtor as a trustee or custodian, as charged; and 

    Fourth: That the Defendant knowingly, willfully and fraudulently embezzled and appropriated to the Defendant’s own use, or spent or transferred, such property belonging to the estate of such Debtor. 

    The term “Debtor” simply means the person or corporation concerning whom a case under the Federal bankruptcy laws has been commenced. When a debtor files a voluntary petition under the bankruptcy laws, there is created an estate comprised, among other things, of all legal or equitable interests of the debtor in property wherever located and by whomever held as of the commencement of the bankruptcy case.

    The Bankruptcy Court  for the _____ has the authority and power under the applicable federal statutes and regulations to appoint a trustee or custodian to perform any necessary services with respect to the bankruptcy estate of the Debtor or otherwise be responsible for the control or custody of all property constituting the bankruptcy estate.

    The essence of the charge in the indictment is the knowing and fraudulent embezzlement or appropriation by the Defendant of property belonging to the estate of the Debtor. The term “fraudulent” means to knowingly deceive or mislead someone, ordinarily for the purpose of bringing about gain to one’s self. The terms “embezzle” or “appropriate” are to be given their ordinary meaning, that is, to wrongfully take the property of someone else and convert it to one’s own use or the use of another, or to wrongfully spend or transfer such property thereby depriving the rightful owner of its use.

ANNOTATIONS AND COMMENTS

    18 USC 153 provides:

    (a) Offense. A person described in subsection (b) [a trustee or other custodian] who knowingly and fraudulently appropriates to the person’s own use, embezzles, spends, or transfers any property. . . belonging to the estate of a debtor [shall be guilty of an offense against the United States].

    Maximum Penalty: Five (5) years imprisonment and applicable fine.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Bribery Of Public Official (18 USC 201(b)(1))

    Title 18, United States Code, Section 201(b)(1), makes it a Federal crime or offense for anyone to bribe a [public official] [juror].

    The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

    First: That the Defendant directly or indirectly [gave] [offered or promised] something of value to a [public official] [juror], as charged; and

    Second: That the Defendant did so knowingly and corruptly, with intent [to influence an official act] [to influence such public official to allow or make opportunity for the commission of a fraud on the United States] [to induce such public official to omit an act in violation of the public official's lawful duty]. 

    You are instructed that anyone holding the position of _____ , as described in the indictment, would be a [public official] [juror] as that term has been used in these instructions.

    The term "official act" means any decision or action on any question, matter, cause, suit, proceeding or controversy which is brought before a [public official] [juror] for a decision or to be acted upon.

    To act "corruptly" means to act knowingly and dishonestly for a wrongful purpose.

ANNOTATIONS AND COMMENTS

    18 USC 201(a)(1) and (b)(1) provide:

    §201. Bribery of public officials and [jurors]

    (a) For the purpose of this section - -

    (1) the term "public official" means . . . an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof. . . or a juror; 

* * * * *

    (b) Whoever - -

(1) directly or indirectly, corruptly gives, offers or promises anything of value to any public official or person who has been selected to be a public official, or offers or promises any public official or any person who has been selected to be a public official to give anything of value to any other person or entity, with intent - -

    (A) to influence any official act; or 

    (B) to influence such public official or person who has been selected to be a public official to commit or aid in committing, or collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or

    (C) to induce such public official or such person who has been selected to be a public official to do or omit to do any act in violation of the lawful duty of such official or person [shall be guilty of an offense against the United States].

    Maximum Penalty: Fifteen (15) years imprisonment and applicable fine, which may be enhanced to three times the monetary value of the amount of the bribe. Thus, under the principle of Apprendi, if the indictment alleges the amount of the bribe as a means of enhancing the maximum fine, the instruction should be modified to submit that issue to the jury. Consideration should also be given in such a case to the possible use of Special Instruction 10, Lesser Included Offense.

[For 1997 Version of this instruction, see below]

1997 Version:

18 USC 201(a)(1) and (b)(1) provide:

201. Bribery of public officials and [jurors]

(a) For the purpose of this section --

(1) the term "public official" means . . . an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof. . . or a juror;

* * * * *

(b) Whoever --

(1) directly or indirectly, corruptly gives, offers or promises anything of value to any public official or person who has been selected to be a public official, or offers or promises any public official or any person who has been selected to be a public official to give anything of value to any other person or entity, with intent --

(A) to influence any official act; or

(B) to influence such public official or person who has been selected to be a public official to commit or aid in committing, or collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or

(C) to induce such public official or such person who has been selected to be a public official to do or omit to do any act in violation of the lawful duty of such official or person [shall be guilty of an offense against the United States].

Maximum Penalty: Fifteen (15) years imprisonment and applicable fine.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Receiving Bribe By Public Official (18 USC 201(b)(2))

    Title 18, United States Code, Section 201(b)(2) makes it a Federal crime or offense for a [public official] [juror] to [demand or seek] [receive or accept] [agree to receive or accept] a bribe.

    The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

    First: That the Defendant, a [public official] [juror], [demanded or sought] [received or accepted] [agreed to receive or accept] either personally or for another person or entity, something of value; and

    Second: That the Defendant did so knowingly and corruptly in return for [being influenced in the performance of an official act] [being influenced to allow or make opportunity for the commission of a fraud on the United States] [being induced to omit an act in violation of the Defendant's lawful duty].

    You are instructed that anyone holding the position of _____ , as described in the indictment, would be a [public official] [juror] as that term has been used in these instructions.

    The term "official act" means any decision or action on any question, matter, cause, suit, proceeding or controversy that is brought before a [public official] [juror] for a decision or to be acted upon.

    To act "corruptly" means to act knowingly and dishonestly for a wrongful purpose.

ANNOTATIONS AND COMMENTS

    18 USC 201(a)(1) and (b)(2) provide:

    § 201. Bribery of public officials and [jurors] (a) For the purpose of this section - -

    (1) the term "public official" means . . . an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof. . . or a juror; 

* * * * *

        (b) Whoever - -

    (2) being a public official or person selected to be a public official, directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for:

    (A) being influenced in the performance of any official act;

    (B) being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or

    (C) being induced to do or omit to do any act in violation of the official duty of such official or person [shall be guilty of an offense against the United States].

Maximum Penalty: Fifteen (15) years imprisonment and applicable fine, which may be enhanced to three times the monetary value of the amount of the bribe. Thus, under the principle of Apprendi, if the indictment alleges the amount of the bribe as a means of enhancing the maximum fine, the instruction should be modified to submit that issue to the jury. Consideration should also be given in such a case to the possible use of Special Instruction 10, Lesser Included Offense.

[For 1997 Version of this instruction, see below]

1997 Version:

18 USC 201(a)(1) and (b)(2) provide:

201. Bribery of public officials and [jurors]

(a) For the purpose of this section --

(1) the term "public official" means . . . an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof. . . or a juror;

* * * * *

(b) Whoever --

(2) being a public official or person selected to be a public official, directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for:

(A) being influenced in the performance of any official act;

(B) being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or

(C) being induced to do or omit to do any act in violation of the official duty of such official or person [shall be guilty of an offense against the United States].

Maximum Penalty: Fifteen (15) years imprisonment and applicable fine.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Bribery Or Reward Of A Bank Officer (18 USC 215(a)(1))

    Title 18, United States Code, Section 215(a)(1), makes it a Federal crime or offense for anyone to corruptly [give] [offer] [promise] anything of value to any person with the intent to [influence] [reward] an [officer] [director] [employee] [agent] [attorney] of a financial institution in connection with any [business] [transaction] of such institution.

    The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

    First: That the Defendant [gave] [offered] [promised] something of value to the person named in the indictment, as charged;

    Second: That the Defendant did so knowingly and corruptly with the intent to [influence] [reward] an [officer] [director] [employee] [agent] [attorney] of a financial institution in connection with any business or transaction of that institution; and

    Third: That the money or other property so [given] [offered] [promised] had a value in excess of $1,000.

    You are instructed that the institution named in the indictment is a "financial institution" within the meaning of the law.

    To act "corruptly" means to act knowingly and dishonestly for a wrongful purpose. 

ANNOTATIONS AND COMMENTS

    Title 18 USC 215(a)(1) provides:

    § 215. Receipt of commissions or gifts for procuring loans 

    (a) Whoever - -

    (1) corruptly gives, offers, or promises anything of value to any person, with intent to influence or reward an officer, director, employee, agent, or attorney of a financial institution in connection with any business or transaction of such institution [shall be guilty of an offense against the United States].

    The term "financial institution" is defined in 18 USC 20.

Maximum penalty: Thirty (30) years imprisonment and applicable fine, which may be enhanced to three times the monetary value of the amount of the bribe. Thus, under the principle of Apprendi, if the indictment alleges the amount of the bribe as a means of enhancing the maximum fine, the instruction should be modified to submit that issue to the jury. Consideration should also be given in such a case to the possible use of Special Instruction 10, Lesser Included Offense. 

    18 USC 215(a) provides that if the value of the bribe does not exceed $1,000, the Defendant is subject to imprisonment for not more than one year, i.e., a misdemeanor offense. See Special Instruction 10, Lesser Included Offense.

    The forfeiture provisions of 18 USC 982 apply (18 USC 982(a)(2)(A)) if the indictment has given notice under Federal Rule of Criminal Procedure 32.2 that the Government will seek forfeiture as part of the sentence. The principle of Apprendi
v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), does not apply to forfeiture proceedings following conviction, and the burden of proof on a forfeiture count is preponderance of the evidence. United States v. Cabeza, 258 F.3d 1256 (11th
Circuit 2001).

    See Trial Instruction 8 for use in submitting forfeiture issues to the jury.

[For 1997 Version of this instruction, see below]

1997 Version:

Title 18 USC 215(a)(1) provides:

215. Receipt of commissions or gifts for procuring loans

(a) Whoever --

(1) corruptly gives, offers, or promises anything of value to any person, with intent to influence or reward an officer, director, employee, agent, or attorney of a financial institution in connection with any business or transaction of such institution [shall be guilty of an offense against the United States].

The term "financial institution" is defined in 18 USC 20.

Maximum penalty: Thirty (30) years imprisonment and applicable fine.

18 USC 215(a) provides that if the value of the bribe does not exceed $100, the Defendant is subject to imprisonment for not more than one year, i.e., a misdemeanor offense. See Special Instruction 10, Lesser Included Offense.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Receipt Of A Bribe Or Reward By Bank Officer (18 USC 215(a)(2))

    Title 18, United States Code, Section 215(a)(2), makes it a federal crime or offense for an [officer] [director] [employee] [agent] [attorney] of a financial institution, for the benefit of any person, corruptly to [solicit or demand] [accept or agree to accept] anything of value from any person, intending to be [influenced] [rewarded] in connection with any business or transaction of such institution.

    The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

    First: That the Defendant, as an [officer] [director] [employee] [agent] [attorney] of a financial institution [solicited or demanded] for the benefit of [himself] [another person] [accepted or agreed to accept] something of value from the person named in the indictment, as charged;

    Second: That the Defendant did so knowingly and corruptly, intending to be [influenced] [rewarded] in connection with any business or transaction of the financial institution; and

    Third: That the money or other property so [solicited or demanded] [accepted or agreed upon by the Defendant to accept] had a value in excess of $1,000. 

    You are instructed that the institution named in the indictment is a "financial institution" within the meaning of the law.

    To act "corruptly" means to act knowingly and dishonestly for a wrongful purpose.

ANNOTATIONS AND COMMENTS

    18 USC 215(a)(2) provides:

    §215. Receipt of commissions or gifts for procuring loans

    (a) Whoever - -

    (2) as an officer, director, employee, agent, or attorney of a financial institution, corruptly solicits or demands for the benefit of any person, or corruptly accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business or transaction of such institution [shall be guilty of an offense against the United States] The term "financial institution" is defined in 18 USC 20.

Maximum Penalty: Thirty (30) years imprisonment and applicable fine, which may be enhanced to three times the monetary value of the amount of the bribe. Thus, under the principle of Apprendi, if the indictment alleges the amount of the bribe as a means of enhancing the maximum fine, the instruction should be modified to submit that issue to the jury. Consideration should also be given in such a case to the possible use of Special Instruction 10, Lesser Included Offense.

    18 USC 215(a) provides that if the value of the bribe does not exceed $1,000, the Defendant is subject to imprisonment for not more than one year, i.e., a misdemeanor offense. See Special Instruction 10, Lesser Included Offense.

    The forfeiture provisions of 18 USC 982 apply (18 USC 982(a)(2)(A)) if the indictment has given notice under Federal Rule of Criminal Procedure 32.2 that the Government will seek forfeiture as part of the sentence. The principle of Apprendi
v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000) does not apply to forfeiture proceedings following conviction, and the burden of proof on a forfeiture count is preponderance of the evidence. United States v. Cabeza, 258 F.3d 1256 (11th
Circuit 2001).

    See Trial Instruction 8 for use in submitting forfeiture issues to the jury.

[For 1997 Version of this instruction, see below]

1997 Version:

18 USC 215(a)(2) provides:

215. Receipt of commissions or gifts for procuring loans

(a) Whoever --

(2) as an officer, director, employee, agent, or attorney of a financial institution, corruptly solicits or demands for the benefit of any person, or corruptly accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business or transaction of such institution [shall be guilty of an offense against the United States]

The term "financial institution" is defined in 18 USC 20.

Maximum Penalty: Thirty (30) years imprisonment and applicable fine.

18 USC 215(a) provides that if the value of the bribe does not exceed $100, the Defendant is subject to imprisonment for not more than one year, i.e., a misdemeanor offense. See Special Instruction 10, Lesser Included Offense.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 7
Failure To Pay Child Support
18 USC 228(a)(3)

    Title 18, United States Code, Section 228(a)(3) makes it a Federal crime or offense for anyone to willfully fail to pay a support obligation with respect to a child who resides in another State, if such obligation [has remained unpaid for a period longer than two years] [is greater than $10,000.]

    The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

    First: That the Defendant failed to pay a support obligation, as hereafter defined;

    Second: That the support obligation was for a child who resides in another State;

    Third: That the Defendant acted willfully in failing to pay the support obligation; and

    Fourth: That the support obligation [remained unpaid for a period longer than two years] [was greater than $10,000].

    The term “support obligation” means any amount determined under a court order or an order of an administrative process, pursuant to the law of a State, to be due from a person for the support and maintenance of a child or of a child and the parent with whom the child is living.

    [The existence of a support obligation that was in effect for the time period charged in the indictment creates a rebuttable presumption that the Defendant had the ability to pay the support obligation for that time period. A “rebuttable presumption” refers to a fact that may be assumed in the absence of evidence to the contrary.]

ANNOTATIONS AND COMMENTS

    18 USC 228(a)(3) provides:

    (a) Any person who - -

    (3) willfully fails to pay a support obligation with respect to a child who resides in another state, if such obligation has remained unpaid for a period longer than 2 years, or is greater than $10,000 [shall be guilty of an offense against the United States]. 

    Maximum Penalty: Two (2) years imprisonment and applicable fine. Section 228(d) mandates restitution in an amount equal to the unpaid support obligation as it exists at the time of sentencing.

    The rebuttable presumption is created by the statute, 18 USC 228(b). However in United States v. Grigsby, 85 F.Supp.2d 100 (D.R.I. 2000), the court held the presumption to be unconstitutional in violation of the Due Process Clause of the Fifth Amendment. No other court has addressed this issue to date.

    With respect to the giving of Special Instruction 9 dealing with an intentional violation of a known legal duty, see United States v. Williams, 121 F.3d 615 (11th Cir. 1997).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Deprivation Of Civil Rights (18 USC 242)

    Title 18, United States Code, Section 242, makes it a Federal crime or offense for anyone, acting under color of state law, to willfully deprive someone else of his or her rights secured by the Constitution or laws of the United States.

    The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

    First: That the Defendant committed the act of [describe the right of which the victim was deprived, e.g. deprivation of liberty without due process of law] as charged in the indictment;

    Second: That in so doing the Defendant acted or purported to act under color of state law; and 

    Third: That in so doing the Defendant willfully exceeded and misused or abused the Defendant's authority under state law.

    The phrase "under color of state law" covers not only acts done by an official under a State law, but also acts done by an official under any ordinance of a county or municipality of the State, as well as acts done under any regulation issued by any State or county or municipal official, and even acts done by an official under color of some State or local custom.

    To act "under color of state law" means to act beyond the bounds of lawful authority, but in such a manner that the unlawful acts were done while the official was purporting or pretending to act in the performance of official duties. In other words, the unlawful acts must consist of an abuse or misuse of power which is possessed by the official only because that person is an official. 

    [A Defendant may be found guilty of the charges contained in the indictment, however, even though the Defendant was not an official or employee of the State, or of any county, city, or other governmental unit, if you find beyond a reasonable doubt that the essential facts constituting the offense charged have been established, as defined in these instructions, and that the Defendant was a willful participant together with the state or its agents in the doing of such acts.]

    [The term "liberty" includes the liberty to be free from unlawful attacks upon the victim's person. "Liberty" thus includes the principle that no person may ever be physically assaulted, intimidated, or otherwise abused intentionally and without justification by a person acting under the color of the laws of any state.]

    [To be deprived of liberty "without due process of law" means to be deprived of liberty without authority of the law. Before the jury can determine whether or not the alleged victim was deprived of any liberty under the Federal Constitution "without due process of law" as charged in the indictment, the jury must first determine from the evidence whether the Defendant did any of the acts charged in the indictment. If so, you must next determine whether the Defendant acted within or without the bounds of the Defendant's lawful authority.]

    [If you find that the Defendant acted within the limits of the Defendant's lawful authority under State law, then the Defendant did not deprive the alleged victim of any liberty "without due process of law."]

    [On the other hand, if you should find that the Defendant acted beyond the limits of the Defendant's lawful authority under State law, then you may further find that the Defendant did deprive the alleged victim of liberty "without due process of law." And if you should so find, you must then proceed to decide whether, in so doing, the Defendant acted willfully, as charged.]

ANNOTATIONS AND COMMENTS

    18 USC 242 provides:

    Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State . . . to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States [shall be guilty of an offense against the United States.]

    Maximum Penalty: One (1) year imprisonment and applicable fine.

    18 USC 242 was amended in 1988 to increase the maximum penalty in a variety of situations, such as when bodily injury results or dangerous weapons are used. Under the principle of Apprendi, this charge must be modified if one of the many situations calling for an increased punishment is charged and, in that event, the Lesser Included Offense Special Instruction may also be used. 

    The Eleventh Circuit has approved the following definition of "bodily injury" under § 242: "the term 'bodily injury' means -- (A) a cut, abrasion, bruise, burn or disfigurement; (B) physical pain; (C) illness; (D) impairment of a function of a bodily member, organ or mental faculty; or (E) any other injury to the body, no matter how temporary." United States v. Myers, 972 F.2d 1566, 1572 (11th Cir. 1992), cert. denied, 507 U.S. 1017, 113 S.Ct. 1813, 123 L.Ed.2d 445 (1993).

    A private citizen who aids and abets a state officer may be guilty under § 242 if the private citizen willfully acts with state officers who are active participants. United States v. Farmer, 923 F.2d 1557, 1564 (11th Cir. 1991).

    If the determination of whether the Defendant acted within or without the limits of lawful authority is dependent upon the presence of “probable cause,” an instruction defining probable cause, tailored to the case, must be included in the charge. For
an example of a “probable cause” instruction, see Federal Claims Instruction 2.2, Pattern Jury Instructions (Civil Cases).

    The civil action requirement that the alleged constitutional infringement be “clearly established” under substantially similar circumstances in order to overcome qualified immunity is equally applicable in criminal prosecutions in the sense that the unlawfulness of the conduct must be apparent in the light of pre-existing case law so as to give “fair warning” to the accused offender. United States v. Lanier, 520 U.S. 259, 117 S.Ct. 1219 (1997). See also Marsh v. Butler County, 268 F.3d 1014, 1031 n.9 (11th Cir. 2001).

[For 1997 Version of this instruction, see below]

1997 Version:

18 USC 242 provides:

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State . . . to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States [shall be guilty of an offense against the United States.]

Maximum Penalty: One (1) year imprisonment and applicable fine.

18 USC 242 was amended in 1988 to increase the maximum penalty in a variety of situations, such as when bodily injury results or dangerous weapons are used. This charge must be modified if one of the many situations calling for an increased punishment is charged and, in that event, the Lesser Included Offense Special Instruction should be used. The Eleventh Circuit has approved the following definition of "bodily injury" under 242: "the term 'bodily injury' means -- (A) a cut, abrasion, bruise, burn or disfigurement; (B) physical pain; (C) illness; (D) impairment of a function of a bodily member, organ or mental faculty; or (E) any other injury to the body, no matter how temporary." United States v. Myers, 972 F.2d 1566, 1572 (11th Cir. 1992), cert. denied, 507 U.S. 1017, 113 S.Ct. 1813, 123 L.Ed.2d 445 (1993).

A private citizen who aids and abets a state officer may be guilty under 242 if the private citizen willfully acts with state officers who are active participants. United States v. Farmer, 923 F.2d 1557, 1564 (11th Cir. 1991).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 9  
Damage To Religious Property
(18 USC 247 (a)(1)) and (d)(2)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Damage To Religious Property (18 USC 247(a)(1))

    Title 18, United States Code, Section 247(a)(1), makes it a Federal crime or offense under certain circumstances for anyone to intentionally [deface] [damage] [destroy] any religious real property because of the religious character of that property.

    The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

    First: That the Defendant intentionally [defaced] [damaged] [destroyed] the real property described in the indictment, as charged;

    Second: That the Defendant did so knowingly and because of the religious character of that property; Third: That the offense was in or affected interstate or foreign commerce; 

    Fourth: That bodily injury to the person named in the indictment occurred as a direct or proximate result of the Defendant’s acts; and 

    Fifth: The Defendant employed [fire] [an explosive] in committing the offense.

    The term "religious property" simply means any church, synagogue, mosque, religious cemetery, or other religious property.

    The requisite effect on [interstate] [foreign] commerce can arise in a wide variety of ways, such as where the Defendant traveled into the state where the conduct occurred from [another state] [a foreign country]; or where materials to repair the damage traveled from one state into another state; or [insert other relevant conduct which affects commerce].

    [The term "bodily injury" simply means a cut, abrasion, bruise or disfigurement; or physical pain or illness; or the impairment of the function of a bodily member, organ or mental faculty; or any other injury to the body no matter how temporary.]

ANNOTATIONS AND COMMENTS

    18 USC 247 provides:

    (a) Whoever, in any of the circumstances referred to in subsection (b) of this section - -

    (1) intentionally defaces, damages, or destroys any religious real property, because of the religious character of that property, or attempts to do so [shall be guilty of an offense against the United States].

* * * * *

    (b) The circumstances referred to in subsection (a) are that the offense is in or affects interstate or foreign commerce.

* * * * *

    (d) The punishment for a violation of subsection (a) of this section shall be - -

    (2) if bodily injury results to any person, including any public safety officer performing duties as a direct or proximate result of conduct prohibited by this section, and the violation is by means of fire or an explosive a fine under this title or imprisonment for not more than 40 years, or both;

    Maximum Penalty: One (1) year imprisonment and applicable fine unless bodily injury results (or the offense is otherwise aggravated as specified in subsection (d)(1),(2) and (3) of the statute).

    This instruction covers three separate offenses embodied in § 247: (1) damage to property; (2) damage to property with bodily injury; (3) damage to property with bodily injury resulting from use of fire or explosives. In an appropriate case, therefore, it may be necessary to use Special Instruction 10, Lesser Included Offenses, and to modify that instruction if both of the lesser crimes are submitted to the jury.

[For 1997 Version of this instruction, see below]

1997 Version:

18 USC 247 provides:

(a) Whoever, in any of the circumstances referred to in subsection (b) of this section --

(1) intentionally defaces, damages, or destroys any religious real property, because of the religious character of that property, or attempts to do so [shall be guilty of an offense against the United States].

* * * * *

(b) The circumstances referred to in subsection (a) are that --

(1) in committing the offense, the defendant travels in interstate or foreign commerce, or uses a facility or instrumentality of interstate or foreign commerce in interstate or foreign commerce; and

(2) in the case of an offense under subsection (a)(1), the loss resulting from the defacement, damage, or destruction is more than $10,000.

Maximum Penalty: One (1) year imprisonment and applicable fine unless bodily injury results (or the offense is otherwise aggravated as specified in subsection (c)(1) and (2) of the statute).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 10.1  
Freedom Of Access To Reproductive Health Services 
Intimidation Or Injury Of A Person
(18 USC 248(a)(1))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Freedom Of Access To Reproductive Health Services Intimidation Or Injury Of A Person (18 USC 248(a)(1))

    Title 18, United States Code, Section 248(a)(1), makes it a Federal crime or offense for anyone by using [force] [threat of force] [physical obstruction] to intentionally [injure] [intimidate] [interfere with] a person [obtaining] [providing] reproductive health services.

    The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

    First: That the Defendant, by the use of [force] [threat of force] [physical obstruction] intentionally [injured] [intimidated] [interfered with] the person named in the indictment, as charged; [and]

    Second: That the Defendant did so knowingly and because such person was, or had been, [providing] [obtaining] reproductive health services; [and]

    Third: That the Defendant's acts resulted in [death] [bodily injury].

    [To "force" someone simply means to exert or apply physical compulsion or restraint against the person.]

    [To "interfere with" simply means to restrict a person's freedom of movement.]

    [To "intimidate" simply means to place a person in reasonable apprehension of bodily harm either to that person or to another.]

    [To "physically obstruct" simply means to render impassable ingress to or egress from a facility that provides reproductive health services.]

    The term "reproductive health services" simply means medical, surgical, counseling or referral services provided in a hospital, clinic, physician's office or other facility, relating to the human reproductive system including services relating to pregnancy or the termination of a pregnancy.

    [The term "bodily injury" means a cut, abrasion, bruise or disfigurement; or physical pain or illness; or the impairment of the function of a bodily member, organ or mental faculty; or any other injury to the body no matter how temporary.]

ANNOTATIONS AND COMMENTS

    18 USC 248(a)(1) provides:

Whoever - -

    (1) by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services [shall be guilty of an offense against the United States].

    Maximum Penalty: Ten (10) years imprisonment, and applicable fine, if bodily injury results. Three (3) years imprisonment, and applicable fine, for repeat offense. One (1) year imprisonment, and applicable fine, for first offense without bodily injury. Six (6) months, and applicable fine, “for an offense involving exclusively a nonviolent physical obstruction.”

    Lesser Included Offense (Special Instruction 10) may apply. Also, if the indictment or information charges only an exclusively nonviolent physical obstruction, the Defendant is not entitled of right to a jury trial. United States v. Unterberger, 97 F.3d 1413 (11th. Cir. 1996).

[For 1997 Version of this instruction, see below]

1997 Version:

18 USC 248(a)(1) provides:

Whoever --

(1) by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services [shall be guilty of an offense against the United States].

Maximum Penalty: One (1) year imprisonment and applicable fine unless bodily injury results.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Freedom Of Access To Reproductive Health Services Damage To A Facility (18 USC 248(a)(3))

    Title 18, United States Code, Section 248(a)(3), makes it a Federal crime or offense for anyone to intentionally [damage] [destroy] the property of a facility because such facility provides reproductive health services.

    The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

    First: That the Defendant intentionally [damaged] [destroyed] the facility described in the indictment, as charged; [and]

    Second: That the Defendant did so knowingly and because such facility was being utilized to provide reproductive health services; [and]

    Third: That the Defendant's acts resulted in [death] [bodily injury.]

    The term "facility" simply means a hospital, clinic, physician's office, or other facility that provides reproductive health services, and includes the building or structure in which such facility is located.

    The term "reproductive health services" simply means medical, surgical, counseling or referral services provided in a facility relating to the human reproductive system including services relating to pregnancy or the termination of a pregnancy.

    [The term "bodily injury" means a cut, abrasion, bruise or disfigurement; or physical pain or illness; or the impairment of the function of a bodily member, organ or mental faculty; or any other injury to the body no matter how temporary.]

ANNOTATIONS AND COMMENTS

    18 USC 248(a)(3) provides:

    Whoever - -

    (3) intentionally damages or destroys the property of a facility, or attempts to do so, because such facility provides reproductive health services, or intentionally damages or destroys the property of a place of religious worship [shall be guilty of an offense against the United States].

    Maximum Penalty: Ten (10) years imprisonment, and applicable fine, if bodily injury results. Three (3) years imprisonment, and applicable fine, for repeat offense.

    Lesser Included Offense (Special Instruction 10) may apply.

[For 1997 Version of this instruction, see below]

1997 Version:

18 USC 248(a)(3) provides:

Whoever --

(3) intentionally damages or destroys the property of a facility, or attempts to do so, because such facility provides reproductive health services, or intentionally damages or destroys the property of a place of religious worship [shall be guilty of an offense against the United States].

Maximum Penalty: One (1) year imprisonment and applicable fine unless bodily injury results.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 11.1
Conspiracy To Defraud The Government
With Respect To Claims
18 USC 286

FORECITE National™ Materials Related To This Instruction:

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

ANNOTATIONS AND COMMENTS

    18 USC 287 provides:

    Whoever makes or presents to any person or officer in the civil, military, or naval service of the United States, or to any department or agency thereof, any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false fictitious, or fraudulent [shall be guilty of an offense against the United States].

    Maximum Penalty: Five (5) years imprisonment and applicable fine.

    Note that Section 287, unlike other false claims or false statements provisions such as 18 USC 1001, does not expressly state that "materiality" is an essential element of the offense.

    Before 1997, the Fourth and Eighth Circuits held that materiality is an element of a violation under 18 USC 287. United States v. Pruitt, 702 F.2d 152, 155 (8th Cir. 1983); United States v. Snider, 502 F.2d 645, 652 n.12 (4th Cir. 1974), while the Second, Fifth, Ninth, and Tenth Circuits held that materiality is not an element under 18 USC 287. United States v. Upton, 91 F.3d 677 (5th Cir. 1996); United States v. Taylor, 66 F.3d 254, 255 (9th Cir. 1995); United States v. Parsons, 967 F.2d 452, 455 (10th Cir. 1992); United States v. Elkin, 731 F.2d 1005, 1009 (2d Cir.), cert. denied, 469 U.S. 822, 105 S.Ct. 97, 83 L.Ed.2d 43 (1984). 

    The Eleventh Circuit had explicitly avoided deciding whether materiality is an element under 18 USC 287. United States v. White, 27 F.3d 1531, 1535 (11th Cir. 1994).

    However, because the statute expressly incorporates the term “fraudulent” in conjunction with the term “false,” the Committee believes that materiality is an essential element of the offense that must be submitted to the jury under the more recent Supreme Court decisions in United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310 (1995); United States v. Wells, 519 U.S. 482, 117 S.Ct. 921 (1997); and Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827 (1999). The Court concluded in Wells that materiality was not an element of the offense of making a “false statement” in violation of 18 USC 1014, but held in Neder that use of the words “fraud”or “fraudulently” as terms of art in 18 USC 1341, 1343 and 1344 incorporated the common law requirement that proof of fraud necessitates proof of misrepresentation or concealment of a material fact. And Gaudin held that when materiality is an essential element of an offense, it must be submitted to the jury.

[For 1997 Version of this instruction, see below]

18 USC 287 provides:

Whoever makes or presents to any person or officer in the civil, military, or naval service of the United States, or to any department or agency thereof, any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false fictitious, or fraudulent [shall be guilty of an offense against the United States].

Maximum Penalty: Five (5) years imprisonment and applicable fine.

Note that Section 287, unlike other false claims or false statements provisions such as 18 USC 1001, does not expressly state that "materiality" is an essential element of the offense.

The Fourth and Eighth Circuits have held that materiality is an element of a violation under 18 USC 287. United States v. Pruitt, 702 F.2d 152, 155 (8th Cir. 1983); United States v. Snider, 502 F.2d 645, 652 n.12 (4th Cir. 1974).

The Second, Ninth, and Tenth Circuits have held that materiality is not an element under 18 USC 287. United States v. Taylor, 66 F.3d 254, 255 (9th Cir. 1995); United States v. Parsons, 967 F.2d 452, 455 (10th Cir. 1992); United States v. Elkin, 731 F.2d 1005, 1009 (2d Cir.), cert. denied, 469 U.S. 822, 105 S.Ct. 97, 83 L.Ed.2d 43 (1984).

The Eleventh Circuit has explicitly avoided deciding whether materiality is an element under 18 USC 287. United States v. White, 27 F.3d 1531, 1535 (11th Cir. 1994). The Eleventh Circuit relies on a decision from the former Circuit which says that if materiality is a required element under section 287, the trial judge must decide the issue as a question of law. See United States v. Haynie, 568 F.2d 1091, 1092 (5th Cir. 1978) (per curiam). Since Haynie and White were decided, the United States Supreme Court has held that where materiality is an element of the offense charged, due process requires that the trial judge submit every aspect of that element to the jury. This includes requiring the jury to determine what statement or representation was made and what decision the agency was trying to make. United States v. Gaudin, U.S. , 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995) (reviewing a conviction under 18 USC 1001). But see United States v. Klais, 68 F.3d 1282 (11th Cir. 1995), where the court distinguished Gaudin from an offense under 18 USC 922(a)(6), and held that the issue of materiality under 922(a)(6) is a question of law for the court. If an additional element of materiality is added to the instruction, United States v. White, 27 F.3d 1531 (11th Cir. 1994) holds that a statement is material if it "has a natural tendency to influence, or was capable of influencing, the decision of the tribunal in making a determination required to be made." Id. at 1535.

Also, more recently, the United States Supreme Court held in United States v. Wells, U.S. , 117 S.Ct. 921 (1997) that materiality is not an element of the offense proscribed by 18 USC 1014 (false statements made to banks), and that decision would seem to apply with equal force to this section. The committee thus elected to exclude materiality as an essential element under 287.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    18 USC 289 provides:

    Whoever knowingly and willfully makes, or presents any false, fictitious or fraudulent affidavit, declaration, certificate, voucher, endorsement, or paper or writing purporting to be such, concerning any claim for pension or payment thereof, or pertaining to any other matter within the jurisdiction of the Secretary of Veterans Affairs [shall be guilty of an offense against the United States].

    Maximum Penalty: Five (5) years imprisonment and applicable fine. 

    Note that Section 289, like Section 287, but unlike other false claims or false statements provisions such as 18 USC 1001, does not expressly state that "materiality" is an essential element of the offense. There are no decisions on the point under Section 289, but there seems to be no reason to distinguish cases decided under Section 287.

    Before 1997, the Fourth and Eighth Circuits had held that materiality is an element of a violation under 18 USC 287. United States v. Pruitt, 702 F.2d 152, 155 (8th Cir. 1983); United States v. Snider, 502 F.2d 645, 652 n.12 (4th Cir. 1974), while the Second, Fifth, Ninth, and Tenth Circuits had held that materiality is not an element under 18 USC 287. United States v. Upton, 91 F.3d 677 (5th Cir. 1996); United States v. Taylor, 66 F.3d 254, 255 (9th Cir. 1995); United States v. Parsons, 967 F.2d 452, 455 (10th Cir. 1992); United States v. Elkin, 731 F.2d 1005, 1009 (2d Cir.), cert. denied, 469 U.S. 822, 105 S.Ct. 97, 83 L.Ed.2d 43 (1984). 

    The Eleventh Circuit had explicitly avoided deciding whether materiality is an element under 18 USC 287.

    However, because the statute expressly incorporates the term “fraudulent” in conjunction with the term “false,” the Committee believes that materiality is an essential element of the offense that must be submitted to the jury under the more recent Supreme Court decisions in United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310 (1995); United States v. Wells, 519 U.S. 482, 117 S.Ct. 921 (1997); and Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827 (1999). The Court concluded in Wells that materiality was not an element of the offense of making a “false statement” in violation of 18 USC 1014, but held in Neder that use of the words “fraud”or “fraudulently” as terms of art in 18 USC 1341, 1343 and 1344 incorporated the common law requirement that proof of fraud necessitates proof of misrepresentation or concealment of a material fact. And Gaudin held that when materiality is an essential element of an offense, it must be submitted to the jury.

[For 1997 Version of this instruction, see below]

18 USC 289 provides:

Whoever knowingly and willfully makes, or presents any false, fictitious or fraudulent affidavit, declaration, certificate, voucher, endorsement, or paper or writing purporting to be such, concerning any claim for pension or payment thereof, or pertaining to any other matter within the jurisdiction of the Secretary of Veterans Affairs [shall be guilty of an offense against the United States].

Maximum Penalty: Five (5) years imprisonment and applicable fine.

Note that Section 289, like Section 287, but unlike other false claims or false statements provisions such as 18 USC 1001, does not expressly state that "materiality" is an essential element of the offense. There are no decisions on the point under Section 289, but there seems to be no reason to distinguish cases decided under Section 287.

The Fourth and Eighth Circuits have held that materiality is an element of a violation under 18 USC 287. United States v. Pruitt, 702 F.2d 152, 155 (8th Cir. 1983); United States v. Snider, 502 F.2d 645, 652 n.12 (4th Cir. 1974).

The Second, Ninth, and Tenth Circuits have held that materiality is not an element under 18 USC 287. United States v. Taylor, 66 F.3d 254, 255 (9th Cir. 1995); United States v. Parsons, 967 F.2d 452, 455 (10th Cir. 1992); United States v. Elkin, 731 F.2d 1005, 1009 (2d Cir.), cert. denied, 469 U.S. 822, 105 S.Ct. 97, 83 L.Ed.2d 43 (1984).

The Eleventh Circuit has explicitly avoided deciding whether materiality is an element under 18 USC 287. United States v. White, 27 F.3d 1531, 1535 (11th Cir. 1994). The Eleventh Circuit relies on a decision from the old Fifth Circuit which says that if materiality is a required element under Section 287, the trial judge must decide the issue as a question of law. See United States v. Haynie, 568 F.2d 1091, 1092 (5th Cir. 1978) (per curiam). Since Haynie and White were decided, the United States Supreme Court has held that where materiality is an element of the offense charged, due process requires that the trial judge submit every aspect of that element to the jury. This includes requiring the jury to determine what statement or representation was made and what decision the agency was trying to make. United States v. Gaudin, U.S. , 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995) (reviewing a conviction under 18 USC 1001). But see United States v. Klais, 68 F.3d 1282 (11th Cir. 1995), where the court distinguished Gaudin from an offense under 18 USC 922(a)(6), and held that the issue of materiality under 922(a)(6) is a question of law for the court. If an additional element of materiality is added to the instruction, United States v. White, 27 F.3d 1531 (11th Cir. 1994) holds that a statement is material if it "has a natural tendency to influence, or was capable of influencing, the decision of the tribunal in making a determination required to be made." Id. at 1535.

Also, more recently, the United States Supreme Court held in United States v. Wells, U.S. , 117 S.Ct. 921 (1997) that materiality is not an element of the offense proscribed by 18 USC 1014 (false statements made to banks), and that decision would seem to apply with equal force to this section. The committee thus elected to exclude materiality as an essential element under 289.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    18 USC 371 provides:

    If two or more persons conspire . . . to commit any offense against the United States . . . and one or more of such persons do any act to effect the object of the conspiracy, each [shall be guilty of an offense against the United States].

    Maximum Penalty: Five (5) years imprisonment and applicable fine. 

    United States v. Horton, 646 F.2d 181, 186 (5th Cir. 1981), approved this instruction.

[For 1997 Version of this instruction, see below]

18 USC 371 provides:

If two or more persons conspire . . . to commit any offense against the United States . . . and one or more of such persons do any act to effect the object of the conspiracy, each [shall be guilty of an offense against the United States].

Maximum Penalty: Five (5) years imprisonment and applicable fine.

United States v. Horton, 646 F.2d 181, 186 (5th Cir. 1981), approved this instruction.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

See FORECITE National™ Federal Models By Offense: Conspiracy: Offense Clause [Essential Elements] (18 USC 371)

See FORECITE National™ Federal Models By Offense: Conspiracy: Defraud Clause ( 18 USC 371)

    United States v. Ballard, 663 F.2d 534, 544 (5th Cir. Unit B, 1981), requires this instruction in order to assure a unanimous verdict when a single conspiracy embraces multiple alleged objects.

[For 1997 Version of this instruction, see below]

United States v. Ballard, 663 F.2d 534, 544 (5th Cir. Unit B, 1981), requires this instruction in order to assure a unanimous verdict when a single conspiracy embraces multiple alleged objects.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

See FORECITE National™ Federal Models By Offense: Conspiracy: Offense Clause [Essential Elements] (18 USC 371)

See FORECITE National™ Federal Models By Offense: Conspiracy: Defraud Clause ( 18 USC 371)

    United States v. Diecidue, 603 F.2d 535, 548-549 (5th Cir. 1979), approved this instruction.

[For 1997 Version of this instruction, see below]

You are further instructed, with regard to the alleged conspiracy offense, that proof of several separate conspiracies is not proof of the single, overall conspiracy charged in the indictment unless one of the several conspiracies which is proved is the single conspiracy which the indictment charges.

What you must do is determine whether the single conspiracy charged in the indictment existed between two or more conspirators. If you find that no such conspiracy existed, then you must acquit the Defendants of that charge. However, if you decide that such a conspiracy did exist, you must then determine who the members were; and, if you should find that a particular Defendant was a member of some other conspiracy, not the one charged in the indictment, then you must acquit that Defendant.

In other words, to find a Defendant guilty you must unanimously find that such Defendant was a member of the conspiracy charged in the indictment and not a member of some other separate conspiracy.

United States v. Diecidue, 603 F.2d 535, 548-549 (5th Cir. 1979), approved this instruction.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 13.4  
Withdrawal From Conspiracy 
(For Use With General Conspiracy Charge)
(18 USC 371)

See FORECITE National™ Federal Models By Offense: Conspiracy: Offense Clause [Essential Elements] (18 USC 371)

See FORECITE National™ Federal Models By Offense: Conspiracy: Defraud Clause ( 18 USC 371)

    As you have been instructed, a conspiracy, like the one charged in this case, does not become a crime until two things have occurred: first, the making of the agreement; and, second, the performance of some "overt act" by one of the conspirators.

    So, if a Defendant enters into a conspiracy agreement but later has a change of mind and withdraws from that agreement before anyone has committed an "overt act," as previously defined, then the crime was not complete at that time and the Defendant who withdrew cannot be convicted - - the Defendant would not be guilty of the alleged conspiracy offense.

    However, in order for you to decide that a Defendant withdrew from a conspiracy you must find that the Defendant took affirmative action to disavow or defeat the purpose of the conspiracy; and, as just explained, the Defendant must have taken such action before any member of the scheme had committed any "overt act."

ANNOTATIONS AND COMMENTS

    United States v. Jimenez, 622 F.2d 753 (5th Cir. 1980), approved an instruction in substantially the same form.

    United States v. Heathington, 545 F.2d 972 (5th Cir. 1977), withdrawal, to constitute a defense, must come before the completion or consummation of the offense through the commission of an overt act.

    It appears, therefore, that an instruction on withdrawal is never appropriate under a conspiracy statute that does not require proof of an overt act (such as 21 USC 846, 955c and 963). See United States v. Nicoll, 664 F.2d 1308 (5th Cir. Unit B, 1982). See Offense Instruction 75, infra.

    Withdrawal is an affirmative defense. The defendant must prove "that he undertook affirmative steps, inconsistent with the objects of the conspiracy, to disavow or to defeat the conspiratorial objectives, and either communicated those acts in a manner reasonably calculated to reach his co-conspirators or disclosed the illegal scheme to law enforcement authorities." United States v. Firestone, 816 F.2d 583, 589 (11th Cir.), cert. denied, 484 U.S. 948, 108 S.Ct. 338, 98 L.Ed.2d 365 (1987). Neither arrest nor incarceration during the time frame of the conspiracy automatically triggers withdrawal from a conspiracy. United States v. Gonzalez, 940 F.2d 1413, 1427 (11th Cir. 1991).

[For 1997 Version of this instruction, see below]

1997 Version:

As you have been instructed, a conspiracy, like the one charged in this case, does not become a crime until two things have occurred: first, the making of the agreement; and, second, the performance of some "overt act" by one of the conspirators.

So, if a Defendant enters into a conspiracy agreement but later has a change of mind and withdraws from that agreement before anyone has committed an "overt act," as previously defined, then the crime was not complete at that time and the Defendant who withdrew cannot be convicted - - the Defendant would not be guilty of the alleged conspiracy offense.

However, in order for you to decide that a Defendant withdrew from a conspiracy you must find that the Defendant took affirmative action to disavow or defeat the purpose of the conspiracy; and, as just explained, the Defendant must have taken such action before any member of the scheme had committed any "overt act."

United States v. Jimenez, 622 F.2d 753 (5th Cir. 1980), approved an instruction in substantially the same form.

United States v. Heathington, 545 F.2d 972 (5th Cir. 1977), withdrawal, to constitute a defense, must come before the completion or consummation of the offense through the commission of an overt act.

It appears, therefore, that an instruction on withdrawal is never appropriate under a conspiracy statute that does not require proof of an overt act (such as 21 USC 846, 955c and 963). See United States v. Nicoll, 664 F.2d 1308 (5th Cir. Unit B, 1982). See Offense Instruction 75, infra.

Withdrawal is an affirmative defense. The defendant must prove "that he undertook affirmative steps, inconsistent with the objects of the conspiracy, to disavow or to defeat the conspiratorial objectives, and either communicated those acts in a manner reasonably calculated to reach his co-conspirators or disclosed the illegal scheme to law enforcement authorities." United States v. Firestone, 816 F.2d 583, 589 (11th Cir.), cert. denied, 484 U.S. 948, 108 S.Ct. 338, 98 L.Ed.2d 365 (1987). Neither arrest nor incarceration during the time frame of the conspiracy automatically triggers withdrawal from a conspiracy. United States v. Gonzalez, 940 F.2d 1413, 1427 (11th Cir. 1991).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 13.5  
Pinkerton Instruction 
[Pinkerton v. U. S., 328 U.S. 640 (1946)]

See FORECITE National™ Federal Models By Offense: Conspiracy: Offense Clause [Essential Elements] (18 USC 371)

See FORECITE National™ Federal Models By Offense: Conspiracy: Defraud Clause ( 18 USC 371)

    In some instances a conspirator may be held responsible under the law for a substantive offense in which he or she had no direct or personal participation if such offense was committed by other members of the conspiracy during the course of such conspiracy and in furtherance of its objects.

    So, in this case, with regard to Counts _____, and insofar as the Defendants _____ are concerned, respectively, if you have first found either of those Defendants guilty of the conspiracy offense as charged in Count _____ of the indictment, you may also find such Defendant guilty of any of the offenses charged in Counts _____ even though such Defendant did not personally participate in such offense if you find, beyond a reasonable doubt: 

    First: That the offense charged in such Count was committed by a conspirator during the existence of the conspiracy and in furtherance of its objects;

    Second: That the Defendant under consideration was a knowing and willful member of the conspiracy at the time of the commission of such offense; and

    Third: That the commission of such offense by a co-conspirator was a reasonably foreseeable consequence of the conspiracy.

ANNOTATIONS AND COMMENTS

    This charge is an adaptation of the one set forth in footnote 22, United States v. Alvarez, 755 F.2d 830, 848 (11th Cir. 1985).

[For 1997 Version of this instruction, see below]

1997 Version:

This charge is an adaptation of the one set forth in footnote 22, United States v. Alvarez, 755 F.2d 830, 848 (11th Cir. 1985).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

See FORECITE National™ Federal Models By Offense: Conspiracy: Offense Clause [Essential Elements] (18 USC 371)

See FORECITE National™ Federal Models By Offense: Conspiracy: Defraud Clause ( 18 USC 371)

    18 USC 371 provides:

    If two or more persons conspire . . . to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each [shall be guilty of an offense against the United States].

    Maximum Penalty: Five (5) years imprisonment and applicable fine.

[For 1997 Version of this instruction, see below]

18 USC 371 provides:

If two or more persons conspire . . . to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each [shall be guilty of an offense against the United States].

Maximum Penalty: Five (5) years imprisonment and applicable fine.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    18 USC 471 provides:

    Whoever, with intent to defraud, falsely makes, forges, counterfeits, or alters any obligation or other security of the United States [shall be guilty of an offense against the United States].

    Maximum Penalty: Twenty (20) years imprisonment and applicable fine. See Trial Instruction 8 for use in submitting forfeiture issues to the Jury.

[For 1997 Version of this instruction, see below]

18 USC 471 provides:

Whoever, with intent to defraud, falsely makes, forges, counterfeits, or alters any obligation or other security of the United States [shall be guilty of an offense against the United States].

Maximum Penalty: Fifteen (15) years imprisonment and applicable fine.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    18 USC 472 provides:

    Whoever, with intent to defraud . . . keeps in possession or conceals any falsely made [or] counterfeited . . . obligation . . . of the United States [shall be guilty of an offense against the United States.] 

    Maximum Penalty: Twenty (20) years imprisonment and applicable fine. 

    See Trial Instruction 8 for use in submitting forfeiture issues to the jury.

[For 1997 Version of this instruction, see below]

18 USC 472 provides:

Whoever, with intent to defraud . . . keeps in possession or conceals any falsely made [or] counterfeited . . . obligation . . . of the United States [shall be guilty of an offense against the United States.]

Maximum Penalty: Fifteen (15) years imprisonment and applicable fine.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 15.2  
Counterfeit -- Uttering
(18 USC 472)

See FORECITE National™ Federal Models By Offense: Passing Counterfeit Securities Or Obligations ( 18 USC 472)

    Title 18, United States Code, Section 472, makes it a Federal crime or offense for anyone to pass or utter, with intent to defraud, any counterfeit United States Federal Reserve Note.

    The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

    First: That the Defendant passed or uttered a counterfeit Federal Reserve Note as charged;

    Second: That the Defendant knew at the time that the note was counterfeit; and

    Third: That the Defendant passed or uttered the note willfully and with intent to defraud.

    To "pass" or "utter" a counterfeit note includes any attempt to spend the note or otherwise place it in circulation. 

    To act "with intent to defraud" means to act with the specific intent to deceive or cheat, ordinarily for the purpose of causing some financial loss to another, or bringing about some financial gain to one's self. It is not necessary, however, to prove that the United States or anyone else was in fact defrauded so long as it is established that the Defendant acted "with intent to defraud."

ANNOTATIONS AND COMMENTS

    18 USC 472 provides:

    Whoever, with intent to defraud, passes [or] utters . . . any falsely made [or] counterfeited . . . obligation . . . of the United States [shall be guilty of an offense against the United States.] 

    Maximum Penalty: Twenty (20) years imprisonment and applicable fine.

    The "pass" element can be satisfied at any stage after the manufacturing of a counterfeit bill by the willful delivery of the bill to someone for the purpose of placing the bill in circulation, provided the person delivering the bill had the intent to defraud
someone who might thereafter accept the bill as true and genuine. See United States v. Wilkerson, 469 F.2d 963 (5th Cir. 1972).

    See Trial Instruction 8 for use in submitting forfeiture issues to the Jury.

[For 1997 Version of this instruction, see below]

1997 Version:

18 USC 472 provides:

Whoever, with intent to defraud, passes [or] utters . . . any falsely made [or] counterfeited . . . obligation . . . of the United States [shall be guilty of an offense against the United States.]

Maximum Penalty: Fifteen (15) years imprisonment and applicable fine.

The "pass" element can be satisfied at any stage after the manufacturing of a counterfeit bill by the willful delivery of the bill to someone for the purpose of placing the bill in circulation, provided the person delivering the bill had the intent to defraud someone who might thereafter accept the bill as true and genuine. See United States v. Wilkerson, 469 F.2d 963 (5th Cir. 1972).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    18 USC 473 provides:

    Whoever buys, sells, exchanges, transfers, receives, or delivers any false, forged, counterfeited, or altered obligation or other security of the United States, with the intent that the same be passed, published, or used as true and genuine, shall be [guilty of an offense against the United States].

    Maximum Penalty: Twenty (20) years imprisonment and applicable fine.

    The "pass" element can be satisfied at any stage after the manufacturing of a counterfeit bill by the willful delivery of the bill to someone for the purpose of placing the bill in circulation, provided the person delivering the bill had the intent to defraud
someone who might thereafter accept the bill as true and genuine. See United States v. Wilkerson, 469 F.2d 963 (5th Cir. 1972). 

    See Trial Instruction 8 for use in submitting forfeiture issues to the jury.

[For 1997 Version of this instruction, see below]

18 USC 473 provides:

Whoever buys, sells, exchanges, transfers, receives, or delivers any false, forged, counterfeited, or altered obligation or other security of the United States, with the intent that the same be passed, published, or used as true and genuine, shall be [guilty of an offense against the United States].

Maximum Penalty: Ten (10) years imprisonment and applicable fine.

The "pass" element can be satisfied at any stage after the manufacturing of a counterfeit bill by the willful delivery of the bill to someone for the purpose of placing the bill in circulation, provided the person delivering the bill had the intent to defraud someone who might thereafter accept the bill as true and genuine. See United States v. Wilkerson, 469 F.2d 963 (5th Cir. 1972).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 17  
Counterfeit -- Possession
(18 USC 474(a))
(Fifth Paragraph)

FORECITE National™ Materials Related To This Instruction:

    Title 18, United States Code, Section 474, makes it a Federal crime or offense for anyone to possess counterfeit United States Federal Reserve Notes made "after the similitude" of genuine money with intent to sell or otherwise use it.

    The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

    First: That the Defendant possessed counterfeit Federal Reserve Notes made after the similitude of genuine notes, as charged;

    Second: That the Defendant knew at the time that the notes were not genuine; and

    Third: That the Defendant possessed the counterfeit notes willfully and with intent to sell or otherwise use them.

    A Federal Reserve Note is "made after the similitude" of a genuine note, even though it does not purport to be an exact reproduction, so long as it bears such a likeness or resemblance to a genuine note that it is calculated to deceive an honest, sensible and unsuspecting person of ordinary observation and care dealing with a person supposed to be upright and honest.

ANNOTATIONS AND COMMENTS

    18 USC 474(a) (fifth paragraph) provides:

    Whoever has in his possession or custody . . . any obligation or other security made or executed, in whole or in part, after the similitude of any obligation or other security issued under the authority of the United States, with intent to sell or otherwise use the same [shall be guilty of an offense against the United States].

    Maximum Penalty: Twenty-five (25) years imprisonment for a Class B felony (18 USC 3581) and applicable fine.

    The definition of "after the similitude" is taken from United States v. Parr, 716 F.2d 796, 807 (11th Cir. 1983).

    See Trial Instruction 8 for use in submitting forfeiture issues to the Jury.

[For 1997 Version of this instruction, see below]

1997 Version:

18 USC 474(a) (fifth paragraph) provides:

Whoever has in his possession or custody . . . any obligation or other security made or executed, in whole or in part, after the similitude of any obligation or other security issued under the authority of the United States, with intent to sell or otherwise use the same [shall be guilty of an offense against the United States].

Maximum Penalty: Twenty-five (25) years imprisonment and applicable fine.

The definition of "after the similitude" is taken from United States v. Parr, 716 F.2d 796, 807 (11th Cir. 1983).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    18 USC 495 (first paragraph) provides: 

    Whoever falsely makes, alters, forges, or counterfeits any . . . writing, for the purpose of obtaining or receiving, or of enabling any other person, either directly or indirectly, to obtain or receive from the United States or any officers or agents thereof, any sum of money [shall be guilty of an offense against the United States].

    Maximum Penalty: Ten (10) years imprisonment and applicable fine.

    18 USC 510(a)(1) provides:

    (a) Whoever, with intent to defraud - -

    (1) falsely makes or forges any endorsement or signature on a Treasury check or bond or security of the United States [having a face value of more than $1,000] [shall be guilty of an offense against the United States].

    Maximum penalty: Ten (10) years imprisonment and applicable fine. 

If the evidence justifies an instruction on the lesser included offense under § 510(c), see Special Instruction 10, Lesser Included Offense.

[For 1997 Version of this instruction, see below]

18 USC 495 (first paragraph) provides:

Whoever falsely makes, alters, forges, or counterfeits any . . . writing, for the purpose of obtaining or receiving, or of enabling any other person, either directly or indirectly, to obtain or receive from the United States or any officers or agents thereof, any sum of money [shall be guilty of an offense against the United States].

Maximum Penalty: Ten (10) years imprisonment and applicable fine.

18 USC 510(a)(1) provides:

(a) Whoever, with intent to defraud - -

(1) falsely makes or forges any endorsement or signature on a Treasury check or bond or security of the United States [having a face value of $500 or more] [shall be guilty of an offense against the United States].

Maximum penalty: Ten (10) years imprisonment and applicable fine.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

See FORECITE National™ Federal Models By Offense: Uttering A Forged Endorsement Having A Face Value Of $500 Or More (18 USC 495) (Second Paragraph) or 18 USC 510(a)(2)

    Title 18, United States Code, Section 495, makes it a Federal crime or offense for anyone to utter or pass as true any United States Treasury check with a forged endorsement.

    18 USC 545 (first paragraph) provides:

    Whoever knowingly and willfully, with intent to defraud the United States, smuggles, or clandestinely introduces . . . into the United States any merchandise which should have been invoiced [shall be guilty of an offense against the United States].

    Maximum Penalty: Five (5) years imprisonment and applicable fine.

    See Trial Instruction 8 for use in submitting forfeiture issues to the Jury.

[For 1997 Version of this instruction, see below]

18 USC 545 (first paragraph) provides:

Whoever knowingly and willfully, with intent to defraud the United States, smuggles, or clandestinely introduces . . . into the United States any merchandise which should have been invoiced [shall be guilty of an offense against the United States].

Maximum Penalty: Five (5) years imprisonment and applicable fine.

    Title 18, United States Code, Section 641, makes it a Federal crime or offense for anyone to [embezzle] [steal] [convert] any money or property belonging to the United States having a value of more than $1,000.

    The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

    First: That the money or property described in the indictment belonged to the United States;

    Second: That the Defendant [embezzled] [stole] [converted] such money or property to his own use or to the use of another;

    Third: That the Defendant did so knowingly and willfully with intent to deprive the owner of the use or benefit of the money or property so taken; and

    Fourth: That the money or property had a value in excess of $1,000.

    The word "value" means the face, par, or market value, or cost price, either wholesale or retail, whichever is greater.

    It is not necessary to prove that the Defendant knew that the Government owned the property at the time of the wrongful taking so long as it is established, beyond a reasonable doubt, that the Government did in fact own the money or property involved, that the Defendant knowingly and willfully [embezzled] [stole] [converted] it, and that it had a value in excess of $1,000.

    [To "embezzle" means the wrongful or willful taking of money or property of someone else after the money or property has lawfully come within the possession or control of the person taking it.]

    [To "steal" or "convert" means the wrongful or willful taking of money or property belonging to someone else with intent to deprive the owner of its use or benefit either temporarily or permanently. No particular type of movement or carrying away is required to constitute a "taking," as that word is used in these instructions.] 

    Any appreciable change in the location of the property with the necessary willful intent constitutes a taking whether or not there is any actual removal of it from the owner's premises.

ANNOTATIONS AND COMMENTS

    18 USC 641 (first paragraph) provides:

    Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another . . . any . . . money, or thing of value of the United States [having a value in excess of the sum of $1,000 [shall be guilty of an offense against the United States].

    Maximum Penalty: Ten (10) years imprisonment and applicable fine; or if the value of the property taken does dot exceed $1,000, then one (1) year imprisonment and applicable fine.

    Government does not lose its property interest in an erroneously issued tax refund check payable to the defendant even where defendant who received the check has done nothing to induce the issuance of the check. United States v. McRee, 7 F.3d 976 (11th Cir. 1993) (en banc), cert. denied, 511 U.S. 1071, 114 S.Ct. 1649, 128 L.Ed.2d 368 (1994).

    When an outright grant is paid over to the end recipient, utilized, commingled or otherwise loses its identity, the money in the grant ceases to be federal. United States v. Smith, 596 F.2d 662 (5th Cir. 1979). But federal grant money remains federal money even after being deposited in grantee's bank account and even if commingled with non-federal funds so long as the government exercises supervision and control over the funds and their ultimate use. Hayle v. United States, 815 F.2d 879 (2nd Cir. 1987), cited with approval in United States v. Hope, 901 F.2d 1013, 1019 (11th Cir. 1990). Identifiable funds advanced by a HUD grantee to a subgrantee in anticipation of immediate federal reimbursement for purposes governed by and subject to federal statutes and regulations can be considered federal funds when those funds are diverted by the subgrantee prior to their delivery to the end recipient. United States v. Hope, supra.

    Elements of an embezzlement offense under this statute are: (1) that the money or property belonged to the United States or an agency thereof [and had a value in excess of $1,000]; (2) that the property lawfully came into the possession or care of the defendant; (3) that the defendant fraudulently appropriated the money or property to his own use or the use of others; and (4) that the defendant did so knowingly and willfully with the intent either temporarily or permanently to deprive the owner of the use of the money or property so taken. United States v. Burton, 871 F.2d 1566 (11th Cir. 1989).

    If the evidence justifies an instruction on the lesser included offense (theft of property having a value of $1,000 or less), see Special Instruction 10, Lesser Included Offense.

[For 1997 Version of this instruction, see below]

1997 Version:

18 USC 641 (first paragraph) provides:

Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another . . . any . . . money, or thing of value of the United States [having a value in excess of the sum of $100] [shall be guilty of an offense against the United States].

Maximum Penalty: Ten (10) years imprisonment and applicable fine; or if the value of the property taken does dot exceed $100, then one (1) year imprisonment and applicable fine.

Government does not lose its property interest in an erroneously issued tax refund check payable to the defendant even where defendant who received the check has done nothing to induce the issuance of the check. United States v. McRee, 7 F.3d 976 (11th Cir. 1993) (en banc), cert. denied, U.S. , 114 S.Ct. 1649, 128 L.Ed.2d 368 (1994).

When an outright grant is paid over to the end recipient, utilized, commingled or otherwise loses its identity, the money in the grant ceases to be federal. United States v. Smith, 596 F.2d 662 (5th Cir. 1979). But federal grant money remains federal money even after being deposited in grantee's bank account and even if commingled with non-federal funds so long as the government exercises supervision and control over the funds and their ultimate use. Hayle v. United States, 815 F.2d 879 (2nd Cir. 1987), cited with approval in United States v. Hope, 901 F.2d 1013, 1019 (11th Cir. 1990). Identifiable funds advanced by a HUD grantee to a subgrantee in anticipation of immediate federal reimbursement for purposes governed by and subject to federal statutes and regulations can be considered federal funds when those funds are diverted by the subgrantee prior to their delivery to the end recipient. United States v. Hope, supra.

Elements of an embezzlement offense under this statute are: (1) that the money or property belonged to the United States or an agency thereof [and had a value in excess of $100]; (2) that the property lawfully came into the possession or care of the defendant; (3) that the defendant fraudulently appropriated the money or property to his own use or the use of others; and (4) that the defendant did so knowingly and willfully with the intent either temporarily or permanently to deprive the owner of the use of the money or property so taken. United States v. Burton, 871 F.2d 1566 (11th Cir. 1989).

If the evidence justifies an instruction on the lesser included offense (theft of property having a value of $100 or less), see Special Instruction 10, Lesser Included Offense.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    18 USC 656 provides:

    Whoever, being an officer, director, agent or employee of . . . any . . . national bank or insured bank . . . embezzles, abstracts, purloins or willfully misapplies any of the moneys, funds or credits[having a value in excess of $1,000] of such bank . . . or . . . intrusted to the custody or care of such bank [shall be guilty of an offense against the United States].

    Maximum Penalty: Thirty (30) years imprisonment and applicable fine.

    If the evidence justifies an instruction on the lesser included offense (embezzlement or misapplication of funds having a value of $1,000 or less), see Special Instruction 10, Lesser Included Offense.

    See Trial Instruction 8 for use in submitting forfeiture issues to the Jury.

[For 1997 Version of this instruction, see below]

18 USC 656 provides:

Whoever, being an officer, director, agent or employee of . . . any national bank or insured bank . . . embezzles, abstracts, purloins or willfully misapplies any of the moneys, funds or credits [having a value in excess of $100] of such bank . . . or . . . intrusted to the custody or care of such bank [shall be guilty of an offense against the United States].

Maximum Penalty: Thirty (30) years imprisonment and applicable fine.

If the evidence justifies an instruction on the lesser included offense (embezzlement or misapplication of funds having a value of $100 or less), see Special Instruction 10, Lesser Included Offense.

    Title 18, United States Code, Section 659, makes it a Federal crime or offense for anyone to [embezzle] [steal] from a [railroad car] [motor truck] any property which has a value of more than $1,000 and is part of an interstate shipment of freight.

    The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

    First: That the Defendant knowingly and willfully [embezzled] [stole] from a [railroad car] [motor truck] the property described in the indictment, as charged;

    Second: That such property was then moving as, or was a part of, an interstate shipment of freight or express; and

    Third: That such property then had a value in excess of $1,000.

    The word "value" means the face, par, or market value, or cost price, either wholesale or retail, whichever is greater.

    [To "embezzle" means the wrongful or willful taking of the goods or property of someone else after such property has lawfully come into the possession or control of the person taking it.]

    [To "steal" or "unlawfully take" means the wrongful or willful taking of goods or property, belonging to someone else, with intent to deprive the owner of the use and benefit of such property and to convert it to one's own use or the use of another.] An "interstate shipment" means goods or property that is moving as a part of interstate commerce; and interstate commerce simply means the movement or transportation of goods from one state into another state.

    The interstate nature of a shipment begins when the property is first identified and set aside for the shipment, and comes into the possession of those who start its movement toward interstate transportation. The interstate nature of the shipment then continues until the shipment arrives at its destination and is there delivered.

    Section 659 of Title 18, United States Code, further provides that a waybill or other shipping document shall be "prima facie" evidence of the places from which and to which the shipment was made.

    "Prima facie evidence" means sufficient evidence, unless outweighed by other evidence in the case. In other words, waybills, or bills of lading, or other shipping documents such as invoices, if proved, are sufficient to show the interstate nature of the shipment in the absence of other evidence in the case which leads the jury to a different conclusion.

    And, while the interstate nature of the shipment must be proved as an essential part of the offense, it is not necessary to show that the Defendant actually knew that the goods were a part of such a shipment at the time of the alleged [embezzlement] [stealing]; only that the Defendant knowingly and willfully [embezzled] [stole] them.

ANNOTATIONS AND COMMENTS

    18 USC 659 (second paragraph) provides:

    Whoever buys or receives or has in his possession any such [goods having a value in excess of $1,000 embezzled or stolen from an interstate shipment of freight], knowing the same to have been embezzled or stolen [shall be guilty of an offense against the United States].

    Maximum Penalty: Ten (10) years imprisonment and applicable fine.

    If the evidence justifies an instruction on the lesser included offense (receipt of stolen goods having a value of $1,000 or less), see Special Instruction 10, Lesser Included Offense.

18 USC 659 (second paragraph) provides:

Whoever buys or receives or has in his possession any [goods having a value in excess of $100 embezzled or stolen from an interstate shipment of freight], knowing the same to have been embezzled or stolen [shall be guilty of an offense against the United States].

Maximum Penalty: Ten (10) years imprisonment and applicable fine.

If the evidence justifies an instruction on the lesser included offense (receipt of stolen goods having a value of $100 or less), see Special Instruction 10, Lesser Included Offense.