PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003
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Offense Instructions (OI 24 - OI 48)

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    18 USC 666(a)(1)(B) and (b) provides:

    (a) Whoever, if the circumstance described in subsection (b) of this section exists - -

    (1) being an agent of an organization, or of a State, local, or Indian tribal government, or any agency thereof --

    (B) corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more [shall be guilty of an offense against the United States].

    (b) The circumstance referred to in subsection (a) of this section is that the organization, government, or agency receives, in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance.

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

    In United States v. Fischer, 168 F.3d 1273 (11th Cir. 1999), Affirmed, Fischer v. United States, 529 U.S. 667, 120 S.Ct. 1780 (2000), the Court held that Medicare disbursements are “benefits” within the meaning of the statute, and that the Government is not required to prove a direct link between the federal assistance and the fraudulent conduct in issue.

FORECITE National™ CASE NOTES:  See FORECITE National™ 103.9.3.3 [Bribery Concerning Federal Program: Requirement Of Nexus Between Bribe Or Kickback And Expenditure Of Federal Funds (18 USC 666(a)(1)(B))].

[For 1997 Version of this instruction, see below]

18 USC 666(a)(1)(B) and (b) provides:

(a) Whoever, if the circumstance described in subsection (b) of this section exists - -

(1) being an agent of an organization, or of a State, local, or Indian tribal government, or any agency thereof - -

(B) corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more [shall be guilty of an offense against the United States].

(b) The circumstance referred to in subsection (a) of this section is that the organization, government, or agency receives, in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance.

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

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    18 USC 751(a) provides:

    Whoever escapes or attempts to escape from the custody of the Attorney General or his authorized representative, or from any institution or facility in which he is confined by direction of the Attorney General, or from any custody under or by virtue of any process issued under the laws of the United States by any court, judge, or commissioner, or from the custody of an officer or employee of the United States pursuant to lawful arrest [shall be guilty of an offense against the United States].

    Maximum Penalty: Five (5) years imprisonment and $250,000 fine. 

    In United States v. Bailey, 444 U.S. 394, 408, 100 S.Ct. 624, 633, 62 L.Ed.2d 575 (1980), the Supreme Court rejected the notion that 751(a) requires proof of "an intent to avoid confinement." The Court held that the prosecution meets its burden by showing that the escapee knew his actions would result in leaving physical confinement without permission.

    Regarding escape from an INS Detention Facility, see United States v. Rodriguez-Fernandez, 234 F.3d 498 (11th Cir. 2000).

    The first element, pertaining to custody or confinement, normally can be established by demonstrating that a subject was (1) in the custody of the Attorney General or her authorized representative; (2) confined in an institution by direction of the Attorney General; (3) in custody under or by virtue of any process issued under the laws of the United States by any court, judge, or magistrate; or (4) in the custody of an officer or employee of the United States pursuant to a lawful arrest. Id. at 500, fn.6.

    The Eighth, Ninth and Tenth Circuits hold that custody may be minimal or even constructive. See United States v. Gluck, 542 F.2d 728, 731 (8th Cir. 1976). 

    If the indictment alleges an attempt, see Special Instruction 11.

[For 1997 Version of this instruction, see below]

18 USC 751(a) provides:

Whoever escapes or attempts to escape from the custody of the Attorney General or his authorized representative, or from any institution or facility in which he is confined by direction of the Attorney General, or from any custody under or by virtue of any process issued under the laws of the United States by any court, judge, or commissioner, or from the custody of an officer or employee of the United States pursuant to lawful arrest [shall be guilty of an offense against the United States].

Maximum Penalty: Five (5) years imprisonment and $250,000 fine.

In United States v. Bailey, 444 U.S. 394, 408, 100 S.Ct. 624, 633, 62 L.Ed.2d 575 (1980), the Supreme Court rejected the notion that 751(a) requires proof of "an intent to avoid confinement." The Court held that the prosecution meets its burden by showing that the escapee knew his actions would result in leaving physical confinement without permission.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    18 USC 752(a) provides:

    Whoever rescues or attempts to rescue or instigates, aids or assists the escape, or attempt to escape, of any person arrested upon a warrant or other process issued under any law of the United States, or committed to the custody of the Attorney General or to any institution or facility by his direction [shall be guilty of an offense against the United States].

    Maximum Penalty: Five (5) years imprisonment and $250,000 fine.

    It may be necessary in some cases to define the boundary line between aiding an escape (under this section) and harboring a fugitive (in violation of 18 USC 1072). If an escapee reaches safety so that the escape itself is accomplished, any aid given to the fugitive after that point would constitute harboring, not aiding the escape. See United States v. DeStefano, 59 F.3d 1 (1st Cir. 1995) in which the Court of Appeals approved the following instruction: "The crime of aiding or assisting an escape cannot occur after the escapee reaches temporary safety. After that, aid or assistance to a fugitive is no longer aiding or assisting his escape . . ."

[For 1997 Version of this instruction, see below]

18 USC 752(a) provides:

Whoever rescues or attempts to rescue or instigates, aids or assists the escape, or attempt to escape, of any person arrested upon a warrant or other process issued under any law of the United States, or committed to the custody of the Attorney General or to any institution or facility by his direction [shall be guilty of an offense against the United States].

Maximum Penalty: Five (5) years imprisonment and $250,000 fine.

It may be necessary in some cases to define the boundary line between aiding an escape (under this section) and harboring a fugitive (in violation of 18 USC 1072). If an escapee reaches safety so that the escape itself is accomplished, any aid given to the fugitive after that point would constitute harboring, not aiding the escape. See United States v. DeStefano, 59 F.3d 1 (1st Cir. 1995) in which the Court of Appeals approved the following instruction: "The crime of aiding or assisting an escape cannot occur after the escapee reaches temporary safety. After that, aid or assistance to a fugitive is no longer aiding or assisting his escape . . ."

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 27  
Making Threats By Mail Or Telephone
(18 USC 844(e))

    Title 18, United States Code, Section 844(e) makes it a Federal crime or offense for anyone to use an instrument of commerce, including the [mail] [telephone] to willfully communicate any threat to [kill, injure or intimidate any individual] [unlawfully damage or destroy any building] by means of [fire] [an explosive]. 

    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 made, or caused to be made, a threat to [kill, injure or intimidate any individual] [unlawfully damage or destroy a building] by means of [fire] [an explosive] as charged;

    Second: That the Defendant used, or caused to be used, an instrument of commerce, such as [the mail] [a telephone] to communicate the threat; and 

    Third: That the Defendant acted knowingly and willfully.

    A "threat" means a statement expressing an intention to [kill, injure or intimidate an individual] [unlawfully damage or destroy a building] by means of [fire] [an explosive], and made with the intent that it be understood by others as a serious threat. It is not necessary to prove that the Defendant actually intended to carry out the threat.

ANNOTATIONS AND COMMENTS

    18 USC 844(e) provides:

    Whoever, through the use of the mail, telephone, telegraph, or other instrument of commerce, willfully makes any threat, or maliciously conveys false information knowing the same to be false, concerning an attempt or alleged attempt being made, or to be made, to kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, vehicle, or other real or personal property by means of fire or an explosive [shall be guilty of an offense against the United States].

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

    The term “explosive” is defined in 18 USC 844(j) if the circumstances of the case require inclusion of a definition of the term in the instructions.

[For 1997 Version of this instruction, see below]

Annotations and Comments

18 USC 844(e) provides:

Whoever, through the use of the mail, telephone, telegraph, or other instrument of commerce, willfully makes any threat, or maliciously conveys false information knowing the same to be false, concerning an attempt or alleged attempt being made, or to be made, to kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, vehicle, or other real or personal property by means of fire or an explosive [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 28
Federal Arson Statute
(18 USC 844(i))

    Title 18, United States Code, Section 844(i), makes it a Federal crime or offense of anyone to [attempt to] maliciously damage or destroy by fire or explosive any building, vehicle, or any other real or personal property used in interstate or foreign commerce, or affecting interstate or foreign commerce.

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

    First: That the Defendant [damaged] [destroyed] [attempted to damage or destroy] a [building] [vehicle] [other real or personal property] as described in the indictment by means of a [fire] [explosive], as charged.

    Second: That the Defendant acted intentionally or with willful disregard of the likelihood that damage or injury would result from [his] [her] acts.

    Third: That the [building] [vehicle] [other real or personal property] that was [damaged] [destroyed] [attempted to be damaged or destroyed] by the Defendant, was used [in interstate or foreign commerce] [in any activity affecting foreign or interstate commerce].

    “Interstate or foreign commerce” refers to commercial activity between places in different states, or between some place in the United States and some place outside the United States, and it must be proved that the [building] [vehicle] [other real or personal property] described in the indictment was actually used for a function that either involved interstate or foreign commerce or directly affected such commerce.

ANNOTATIONS AND COMMENTS

    18 USC 844(i) provides:

    (i) Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned . . .

    Penalty ranges from 5 years imprisonment to the death penalty and includes an applicable fine. See 18 USC 844(i).

    United States v. Gullett, 75 F.3d 941, 948 (4th Cir. 1996), “maliciously,” as contained in 844(i), is comparable to the common law definition of malice and “is satisfied if the defendant acted intentionally or with willful disregard of the likelihood that damage or injury would result from his or her acts.”

    Jones v. United States, 529 U.S. 848, 859, 120 S.Ct. 1904, 1912 (2000), holding that “building” in 844(i) “covers only property currently used in commerce or in an activity affecting commerce,” and does not cover an owner occupied dwelling.

    For a discussion of the interstate commerce requirement of 844(i) in light of Jones, see United States v. Odom, 252 F.3d 1289 (11th Cir. 2001). 

    Explosive is defined in 18 USC 844(j).

    If the indictment alleges an attempt, see Special Instruction 11.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    18 USC 871(a) provides:

    Whoever knowingly and willfully deposits for conveyance in the mail . . . any letter . . . or document containing any threat to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States . . . or knowingly and willfully otherwise makes any such threat against the President [shall be guilty of an offense against the United States].

    Maximum Penalty: Five (5) years imprisonment and $250,000 fine.

    The language defining a "true threat" provides explanation and clarification as to the proper standard to be applied in determining whether a threat is a true threat or not. See, e.g., United States v. Callahan, 702 F.2d 964, 965 (11th Cir. 1983); see generally Lucero v. Trosch, 904 F.Supp. 1336, 1340 (S.D. Ala. 1995).

[For 1997 Version of this instruction, see below]

Annotations and Comments

USC 871(a) provides:

Whoever knowingly and willfully deposits for conveyance in the mail . . . any letter . . . or document containing any threat to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States . . . or knowingly and willfully otherwise makes any such threat against the President [shall be guilty of an offense against the United States].

Maximum Penalty: Five (5) years imprisonment and $250,000 fine.

The language defining a "true threat" provides explanation and clarification as to the proper standard to be applied in determining whether a threat is a true threat or not. See, e.g., United States v. Callahan, 702 F.2d 964, 965 (11th Cir. 1983); see generally Lucero v. Trosch, 904 F.Supp. 1336, 1340 (S.D. Ala. 1995).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 30.1 
Interstate Transmission Of Demand For Ransom 
For Return Of Kidnapped Person 
(18 USC 875(a)) 

    Title 18, United States Code, Section 875(a), makes it a Federal crime or offense for anyone to knowingly and willfully transmit in interstate or foreign commerce a demand or request for reward or ransom for the release of any kidnapped person.

    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 sent or transmitted in [interstate] [foreign] commerce a demand or request for a ransom or reward for the release of a kidnapped person.

    Second: That the Defendant sent or transmitted that demand or request with intent to extort money or other thing of value; and

    Third: That the Defendant did so knowingly and willfully.

    [To transmit something in “interstate commerce” merely means to send it from a place in one state to a place in another state.] [To transmit something in “foreign commerce” merely means to send it from a place in the United States to any place in a country other than the United States.]

    To act with intent to “extort” means to act with the intent to obtain money or something of value from someone else, with his or her consent, but induced by the wrongful use of actual or threatened force, violence or fear.

    A “thing of value” includes property rights or other tangible objects as well as any intangible objects of value to the Defendant. 

    A kidnapped person is someone who is forcibly and unlawfully held, kept, detained or confined against his or her will.

    The essence of the offense is the willful transmission of an extortionate communication in interstate commerce with the intent to obtain money or other thing of value for the release of a kidnapped victim, and it is not necessary to prove that the Defendant actually participated in any kidnapping or actually succeeded in obtaining the money or other thing of value.

ANNOTATIONS AND COMMENTS

    18 USC 875(a) provides that:

    Whoever transmits in interstate commerce any communication containing any demand or request for a ransom or reward for the release of any kidnapped person, shall be fined under this title or imprisoned not more than twenty years, or both.

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

    Although this subsection of 875 does not specifically require an intent to extort, it has been held that such intent is implicitly an element. “Congress intended not only that there be a criminal intent element of the crime charged in the statute [18 USC 875(a)] but also that this intent element be specifically the intent to extort.” United States v. Heller, 579 F.2d 990, 995 (6th Cir. 1978).

    Under United States v. Nilsen, 967 F.2d 539, 543 (11th Cir. 1992), “thing of value” is a clearly defined term that includes both tangibles and intangibles.

    The federal kidnapping statute is 18 USC 1201.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    18 USC 875(b) provides that:

    Whoever, with intent to extort from any person . . . any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another [shall be guilty of an offense against the United States].

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

    The language defining a “true threat” provides explanation and clarification as to the proper standard to be applied in determining whether a threat is a true threat or not. See, e.g., United States v. Callahan, 702 F.2d 964, 965 (11th Cir. 1983); see generally Lucero v. Trosch, 904 F.Supp. 1336, 1340 (S.D. Ala. 1995).

    Under United States v. Nilsen, 967 F.2d 539, 543 (11th Cir. 1992), “thing of value” is a clearly defined term that includes both tangibles and intangibles.

[For 1997 Version of this instruction, see below]

Annotations and Comments

18 USC 875(b) provides that:

Whoever, with intent to extort from any person . . . any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another [shall be guilty of an offense against the United States].

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

The language defining a "true threat" provides explanation and clarification as to the proper standard to be applied in determining whether a threat is a true threat or not. See, e.g., United States v. Callahan, 702 F.2d 964, 965 (11th Cir. 1983); see generally Lucero v. Trosch, 904 F.Supp. 1336, 1340 (S.D. Ala. 1995).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 30.3
Interstate Transmission Of Threat To Kidnap Or Injure
(18 USC 875(c))

    Title 18, United States Code, Section 875(c), makes it a Federal crime or offense for anyone to knowingly and willfully transmit in interstate commerce or foreign commerce a threat to kidnap or injure someone.

    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 sent or transmitted in [interstate] [foreign] commerce a communication containing a true threat [to kidnap any person] [to injure the person of another], as charged;

    Second: That the Defendant did so knowingly and willfully.

    [To transmit something in “interstate commerce” merely means to send it from a place in one state to a place in another state.] [To transmit something in “foreign commerce” merely means to send it from a place in the United States to any place outside the United States.]

    A “true threat” means a serious threat as distinguished from idle or careless talk, or something said in a joking manner. A statement is a true threat if it was made under such circumstances that a reasonable person would construe it as a serious expression of an intent [to kidnap] [to injure] another person.

    The essence of the offense is the willful transmission of a true threat in interstate or foreign commerce. It is not necessary that anyone actually intended to carry out the threat.

ANNOTATIONS AND COMMENTS

    18 USC 875(c) provides that:

    Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.

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

    The language defining a “true threat” provides explanation and clarification as to the proper standard to be applied in determining whether a threat is a true threat or not. See, e.g., United States v. Callahan, 702 F.2d 964, 965 (11th Cir. 1983); see generally, Lucero v. Trosch, 904 F.Supp. 1336, 1340 (S.D. Ala. 1995).

    This subsection, as distinguished from 875(a) (implicitly), and 875(b) and 875(d) (explicitly), does not require an intent to extort.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 30.4 
Interstate Transmission Of Extortionate Communication 
(18 USC 875(d))

    Title 18, United States Code, Section 875(d), makes it a Federal crime of offense for anyone to knowingly and willfully send or transmit in interstate or foreign commerce a threat to injure the property or reputation of another.

    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 sent or transmitted in [interstate] [foreign] commerce a communication containing a true threat [to injure the reputation] [to injure the property] of another, as charged; 

    Second: That the Defendant sent or transmitted that communication with intent to extort money or other thing of value; and 

Third: That the Defendant did so knowingly and willfully.

    [To transmit something in “interstate commerce” merely means to send it from a place in one state to a place in another state.] [To transmit something in “foreign commerce” merely means to send it from a place in the United States to any place outside the United States.]

    A “true threat” means a serious threat as distinguished from idle or careless talk, or something said in a joking manner. A statement is a true threat if it was made under such circumstances that a reasonable person would construe it as a serious expression of an intent to injure the [property] [reputation] of another person.

    To act with intent to “extort” means to act with the intent to obtain money or something of value from someone else, with his or her consent, but induced by the wrongful use of actual or threatened force, violence or fear.

    A “thing of value” includes property rights or other tangible objects as well as any intangible objects of value to the Defendant. 

    The essence of the offense is the willful transmission of an extortionate communication in interstate commerce with the intent to obtain money or other thing of value, and it is not necessary to prove that the Defendant actually succeeded in obtaining the money or other thing of value, or that the Defendant actually intended to carry out the threat.

ANNOTATIONS AND COMMENTS

    18 USC 875(d) provides that:

    Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to injure the property or reputation of the addressee or of another or the reputation of a deceased person or any threat to accuse the addressee or any other person of a crime, shall be fined under this title or imprisoned not more than two years, or both.

    Maximum Penalty: Two (2) years imprisonment and applicable fine.

    The language defining a “true threat” provides explanation and clarification as to the proper standard to be applied in determining whether a threat is a true threat or not. See, e.g., United States v. Callahan, 702 F.2d 964, 965 (11th Cir. 1983); see generally Lucero v. Trosch, 904 F. Supp. 1336, 1340 (S.D. Ala. 1995). 

    Under United States v. Nilsen, 967 F.2d 539, 543 (11th Cir. 1992), “thing of value” is clearly defined term that includes both tangibles and intangibles.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 31.1
Mailing Threatening Communications
(18 USC 876) (First Paragraph)

    Title 18, United States Code, Section 876, makes it a Federal crime or offense for anyone to knowingly and willfully use the United States mail to transmit a demand or request for reward or ransom for the release of any kidnapped person.

    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 deposited or caused to be deposited in the mail, for delivery by the United States Postal Service, a demand or request for a ransom or reward for the release of a kidnapped person;

    Second: That the Defendant sent or caused to be sent that demand or request with intent to extort money or some other thing of value; and

    Third: That the Defendant did so knowingly and willfully.

    To act with intent to "extort" means to act with the intent to obtain money or something of value from someone else, with his or her consent, but induced by the wrongful use of actual or threatened force, violence or fear.

    A “thing of value” includes property rights or other tangible objects as well as any intangible objects of value to the Defendant.

    The essence of the offense is the willful transmission of an extortionate communication through the use of the mails with the intent to obtain money or other thing of value for the release of a kidnapped victim, and it is not necessary to prove that the Defendant actually participated in any kidnapping or succeeded in obtaining the money or other thing of value.

ANNOTATIONS AND COMMENTS

    18 USC 876 (first paragraph) provides:

    Whoever knowingly deposits in any post office or authorized depository for mail matter, to be sent or delivered by the Postal Service or knowingly causes to be delivered by the Postal Service according to the direction thereon, any communication, with or without a name or designating mark subscribed thereto, addressed to any other person, and containing any demand or request for ransom or reward for the release of any kidnapped person, shall be fined under this title or imprisoned not more than twenty years, or both.

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

    Under United States v. Nilsen, 967 F.2d 539, 543 (11th Cir. 1992), “thing of value” is a clearly defined term that includes both tangible and intangibles.

    The federal kidnapping statute is 18 USC 1201.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 31.2 Mailing Threatening Communications
(18 USC 876) (Second Paragraph)

    Title 18, United States Code, Section 876, makes it a Federal crime or offense for anyone to use the United States mail to transmit an extortionate communication.

    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 deposited or caused to be deposited in the mail, for delivery by the United States Postal Service, a communication containing a true threat, as charged;

    Second: That the nature of the threat was to [kidnap] [injure] the person of someone; and

    Third: That the Defendant made the threat willfully and with intent to extort money or other thing of value.

    A "true threat" is a statement expressing an intention to [kidnap someone, that is, to steal and carry away someone's person] [to inflict bodily injury upon someone]; and it means a real or serious threat as distinguished from idle or careless talk, or something said in a joking manner. A statement is a true threat if it was made under such circumstances that a reasonable person would construe it as a serious expression of an intent [to kidnap] [to injure] another person.

    To act with intent to "extort" means to act with the intent to induce someone else to pay money or something of value by willfully threatening [a kidnaping] [an injury] if such payment is not made.

    A “thing of value” includes property rights or other tangible objects as well as any intangible objects of value to the Defendant. 

    So, the essence of the offense is the knowing conveyance through the mail of a threat to [kidnap] [injure] the person of someone, willfully made with intent to extort money or something of value; and it is not necessary to prove that any money or other thing of value was actually paid or that the Defendant actually intended to carry out the threat.

ANNOTATIONS AND COMMENTS

    18 USC 876 (second paragraph) provides:

    Whoever, with intent to extort from any person any money or other thing of value, [deposits in any post office or authorized depository for mail matter, or causes to be delivered by the Post Office] any communication containing any threat to kidnap any person or any threat to injure the person of the addressee or of another [shall be guilty of an offense against the United States].

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

    United States v. Wilkes, 685 F.2d 135 (5th Cir. 1982), approved the inclusion of willfulness as an essential element of this offense.

    United States v. DeShazo, 565 F.2d 893 (5th Cir. 1978), present intent to actually do injury is not required.

    The language defining a "true threat" provides explanation and clarification as to the proper standard to be applied in determining whether a threat is a true threat or not.  See United States v. Taylor, 972 F.2d 1247, 1251 (11th Cir. 1992) (standard is whether a reasonable recipient, familiar with context of the communication at issue, would interpret it as a threat).

    Under United States v. Nilsen, 967 F.2d 539, 543 (11th Cir. 1992) “thing of value” is a clearly defined term that includes both tangibles and intangibles.

[For 1997 Version of this instruction, see below]

Annotations and Comments

18 USC 876 (second paragraph) provides:

Whoever, with intent to extort from any person any money or other thing of value, [deposits in any post office or authorized depository for mail matter, or causes to be delivered by the Post Office] any communication containing any threat to kidnap any person or any threat to injure the person of the addressee or of another [shall be guilty of an offense against the United States].

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

United States v. Wilkes, 685 F.2d 135 (5th Cir. 1982), approved the inclusion of willfulness as an essential element of this offense.

United States v. DeShazo, 565 F.2d 893 (5th Cir. 1978), present intent to actually do injury is not required.

The language defining a "true threat" provides explanation and clarification as to the proper standard to be applied in determining whether a threat is a true threat or not. See United States v. Taylor, 972 F.2d 1247, 1251 (11th Cir. 1992) (standard is whether a reasonable recipient, familiar with context of the communication at issue, would interpret it as a threat).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 31.3 
Mailing Threatening Communications 
(18 USC  876) (Third Paragraph)

    Title 18, United States Code, Section 876, makes it a Federal crime or offense for anyone to knowingly and willfully use the United States mail to transmit a threat to kidnap or injure someone.

    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 deposited or caused to be deposited in the mail, for delivery by the United States Postal Service, a true threat to [kidnap] [injure] someone, as charged; and

    Second: That the Defendant did so knowingly and willfully.

    A “true threat” means a serious threat as distinguished from idle or careless talk, or something said in a joking manner. A statement is a true threat if it was made under such circumstances that a reasonable person would construe it as a serious expression of an intent to [kidnap] [injure] another person.

    The essence of the offense is the willful transmission of a true threat through the use of the mails. It is not necessary that anyone actually intended to carry out the threat.

ANNOTATIONS AND COMMENTS

    18 USC 876 (third paragraph) provides:

    Whoever knowingly so deposits or causes to be delivered as aforesaid, any communication with our without a name or designating mark subscribed thereto, addressed to any other person and containing any threat to kidnap any person or any threat to injure the person of the addressee or of another, shall be fined under this title or imprisoned not more than five years, or both.

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

    The language defining a “true threat” provides explanation and clarification as to the proper standard to be applied in determining whether a threat is a true threat or not. See, e.g., United States v. Callahan, 702 F.2d 964, 965 (11th Cir. 1983); see generally Lucero v. Trosch, 904 F.Supp. 1336, 1340 (S.D. Ala. 1995).

    This subsection, like its counterpart §875(c), does not require an intent to extort.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 31.4 
Mailing Threatening Communications 
(18 USC  876) (Fourth Paragraph)

    Title 18, United States Code, Section 876, makes it a Federal crime or offense for anyone to knowingly and willfully use the United States mail to transmit any threat to [injure the property of another person] [injure the reputation of another person] [accuse another person of a crime].

    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 deposited or caused to be deposited in the mail, for delivery by the United States Postal Service, a true threat [to injure the reputation of someone] [to injure the property of someone] [to accuse someone of a crime], as charged; and 

    Second: That the Defendant made the threat willfully and with intent to extort money or other thing of value.

    A “true threat” means a serious threat as distinguished from idle or careless talk, or something said in a joking manner. A statement is a true threat if it was made under such circumstances that a reasonable person would construe it as a serious expression of an intent to injure the [property] [reputation] of another person [accuse another person of a crime].

    To act with intent to “extort” means to act with the intent to obtain money or something of value from someone else, with his or her consent, but induced by the wrongful use of actual or threatened force, violence or fear.

    A “thing of value” includes property rights or other tangible objects as well as any intangible objects of value to the Defendant.

    The essence of the offense is the willful transmission by mail of an extortionate communication with the intent to obtain money or other thing of value, and it is not necessary to prove that the Defendant actually succeeded in obtaining the money or other thing of value, or that anyone actually intended to carry out the threat.

ANNOTATIONS AND COMMENTS

    18 USC 876(fourth paragraph) provides that:

    Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to injure the property or reputation of the addressee or of another or the reputation of a deceased person or any threat to accuse the addressee or any other person of a crime, shall be fined under this title or imprisoned not more than two years, or both.

    Maximum Penalty: Two (2) years imprisonment and applicable fine.

    The language defining a “true threat” provides explanation and clarification as to the proper standard to be applied in determining whether a threat is a true threat or not. See, e.g., United States v. Callahan, 702 F.2d 964, 965 (11th Cir. 1983); see generally Lucero v. Trosch, 904 F.Supp. 1336, 1340 (S.D. Ala. 1995).

    Under United States v. Nilsen, 967 F.2d 539, 543 (11th Cir. 1992), “thing of value” is a clearly defined term that includes both tangibles and intangibles.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 32  
False Impersonation Of A Citizen
(18 USC 911)

    Title 18, United States Code, Section 911, makes it a Federal crime or offense for anyone to falsely and willfully impersonate a citizen 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 was an alien at the time alleged in the indictment;

    Second: That the Defendant falsely represented [himself] [herself] to be a citizen of the United States, as charged; and

    Third: That the Defendant made such false representation knowingly and willfully.

    An "alien" is any person who is not a citizen of the United States.

    American citizenship is acquired by birth within the United States, or through judicial proceedings known as "naturalization". One is also a citizen, even though born outside the United States, if both parents were citizens and one of them had a residence in the United States prior to the birth.

    [The Immigration and Naturalization Service is the agency having jurisdiction, supervision and control over the entry of aliens into the United States, and officers of that agency have the right to administer oaths, and to take and consider evidence, concerning the right or privilege of any alien to enter, re-enter, pass through or remain in the United States.]

ANNOTATIONS AND COMMENTS

    18 USC 911 provides:

    Whoever falsely and willfully represents himself to be a citizen of the United States [shall be guilty of an offense against the United States]."

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

    The Eleventh Circuit has not discussed it, but the Ninth Circuit makes it clear that “fraudulent purpose” is not an element of the crime. It must only be proved that “the misrepresentation was voluntarily and deliberately made.” See Chow Bing Kew v.
United States, 248 F.2d 466, 469 (9th Cir.) cert. denied, 355 U.S. 889, 78 S.Ct. 259 (1957).

[For 1997 Version of this instruction, see below]

Annotations and Comments

18 USC 911 provides:

Whoever falsely and willfully represents himself to be a citizen of the United States [shall be guilty of an offense against the United States]."

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

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 912, makes it a Federal crime or offense for anyone to falsely impersonate an officer 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 falsely assumed or pretended to be an officer or employee acting under the authority of the United States, as charged;

    Second: That, while pretending to be a federal officer or employee, the Defendant [acted as such] [demanded or obtained money or other thing of value]; and

    Third: That the Defendant did so knowingly and willfully with intent to deceive or defraud another.

    To act "with intent to deceive or defraud" means to act with the specific intent to mislead another, 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 912 provides:

    Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency, or officer thereof, and [1] acts as such, or [2] in such pretended character demands or obtains any money . . . or thing of value [shall be guilty of an offense against the United States].

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

    United States v. Gayle, 967 F.2d 483, 486-87 (11th Cir. 1992) (en banc), intent to defraud is an essential element of this offense.

[For 1997 Version of this instruction, see below]

Annotations and Comments

18 USC 912 provides:

Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency, or officer thereof, and [1] acts as such, or [2] in such pretended character demands or obtains any money . . . or thing of value [shall be guilty of an offense against the United States].

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

United States v. Gayle, 967 F.2d 483, 486-87 (11th Cir. 1992) (en banc), intent to defraud is an essential element of this offense.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 922(a)(1)(A), makes it a Federal crime or offense to be in the business of dealing in firearms without a Federal license.

    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 engaged in the business of dealing in firearms; 

    Second: That the Defendant engaged in such business without a license issued under federal law; and

    Third: That the Defendant did so knowingly and willfully.

    The term "firearm" means any weapon which is designed to, or may readily be converted to, expel a projectile by the action of an explosive; and the term includes the frame or receiver of any such weapon, or any firearm muffler or firearm silencer.

    A person is "engaged in the business of selling firearms at wholesale or retail," if that person devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms. Such term does not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of that person's personal collection of firearms. 

    The term "dealer" means any person engaged in the business of selling firearms at wholesale or retail regardless of whether the selling of firearms is the Defendant’s principal business or job.

    The term "with the principal objective of livelihood and profit" means that the intent underlying the sale or disposition of firearms is predominantly one of obtaining livelihood and pecuniary gain (whether one actually earns a profit or not) as opposed to other intents, such as improving or liquidating a personal firearms collection. [However, proof of profit motive is not required as to a person who engages in the regular and repetitive purchase and disposition of firearms for criminal purposes or terrorism.]

ANNOTATIONS AND COMMENTS

    18 USC 922(a)(1) provides:

    (a) It shall be unlawful - -

    (1) for any person - -

    (A) except a licensed . . . dealer, to engage in the business of . . . dealing in firearms.

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

    The definition of "firearm" is taken from 18 USC 921(a)(3). The definition of "dealer" is taken from 18 USC 921(a)(11). The definition of "engaged in the business" is taken from 18 USC 921(a)(21)(C). The definition of "principal objective of livelihood and profit" is taken from 18 USC 921(a)(22).

    Willfulness is an essential element of the offense under 18 USC 924(a)(1)(D), but the Government does not have to prove that the Defendant knew of the licensing requirement to satisfy this element. Bryan v. United States, 524 U.S. 184, 118 S.Ct. 1939 (1998).

[For 1997 Version of this instruction, see below]

Annotations and Comments

18 USC 922(a)(1) provides:

(a) It shall be unlawful --

(1) for any person --

(A) except a licensed . . . dealer, to engage in the business of . . . dealing in firearms.

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

The definition of "firearm" is taken from 18 USC 921(a)(3). The definition of "dealer" is taken from 18 USC 921(a)(11). The definition of "engaged in the business" is taken from 18 USC 921(a)(21)(A). The definition of "principal objective of livelihood and profit" is taken from 18 USC 921(a)(22). Willfulness is an essential element of the offense under 18 USC 924(a)(1)(D). See also, regarding the element of willfulness, United States v. Sanchez-Corcino, 85 F.3d 549 (11th Cir. 1997).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code Section 922(a)(5), makes it a Federal crime or offense under certain circumstances for anyone who is not a licensed firearms dealer to sell or transfer a firearm to someone who lives in another state.

    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 willfully transferred, sold or delivered a firearm to another person as charged;

    Second: That neither the Defendant nor the person to whom the firearm was transferred was a licensed firearms importer, manufacturer, dealer or collector at the time of such transfer; and

    Third: That the Defendant knew or had reasonable cause to believe that the person to whom the firearm was transferred resided in a state other than the state in which the Defendant resided.

    The term "firearm" means any weapon which is designed to, or may readily be converted to, expel a projectile by the action of an explosive; and the term includes the frame or receiver of any such weapon, or any firearm muffler or firearm silencer.

    To "transfer" a firearm simply means to deliver possession of a firearm to another person.

    To have "reasonable cause to believe" that someone is a resident of another state means to have knowledge of facts which, although not amounting to direct knowledge, would cause a reasonable person knowing the same facts to reasonably conclude that such other person was a resident of another state. The essence of the offense is to knowingly transfer a firearm to a resident of another state. It is not a violation of the law to transfer a firearm to a resident of one's own state of residency.

    [The law does not apply to the loan or rental of a firearm to any person for temporary use for lawful sporting purposes; nor does the law apply to any transfer or delivery of a firearm to carry out a bequest to, or an acquisition by intestate succession by, a person who is permitted to acquire or possess a firearm by the laws of the state of his or her residence.]

    [A "bequest" refers to a provision in a person's will providing for the disposition of property after death; and the term "intestate succession" refers to the law of the state providing for the inheritance of property from a person who dies without leaving a will. Thus, to carry out a "bequest" or "intestate succession" simply means to transfer something after the owner has died and in accordance with the owner's will or the state law of intestate succession, as the case might be.]

ANNOTATIONS AND COMMENTS

    18 USC 922(a)(5) provides:

    (a) It shall be unlawful - -

* * * * *

    (5) for any person [other than a licensed dealer] to transfer, sell . . . or deliver any firearm to any person [other than a licensed dealer] who the transferor knows or has reasonable cause to believe does not reside in . . . the State in which the transferor resides [unless] the transfer [is] made to carry out a bequest . . . [or constitutes] a loan or rental . . . for temporary use for lawful sporting purposes.

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

    18 USC 924(a)(1)(D) makes willfulness an element of the offense, and in Bryan v. United States, 524 U.S. 184, 118 S.Ct. 1939 (1998) the Court held that “willfulness” should be given its usual meaning and did not require proof that the Defendant had specific knowledge of the criminal statute being violated by his conduct.

[For 1997 Version of this instruction, see below]

Annotations and Comments

18 USC 922(a)(5) provides:

(a) It shall be unlawful --

* * * * *

(5) for any person [other than a licensed dealer] to transfer, sell . . . or deliver any firearm to any person [other than a licensed dealer] who the transferor knows or has reasonable cause to believe does not reside in . . . the State in which the transferor resides [unless] the transfer [is] made to carry out a bequest . . . [or constitutes] a loan or rental . . . for temporary use for lawful sporting purposes.

18 USC 924(a)(1)(D) makes willfulness an element of the offense.

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

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 922(a)(6), makes it a Federal crime or offense for anyone, in the process of buying a firearm, to make a false statement to a licensed firearms dealer.

    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 acquired or attempted to acquire a firearm from a Federally licensed firearms dealer, as charged;

    Second: That in so doing the Defendant [knowingly made a false or fictitious statement, orally or in writing] [knowingly furnished or exhibited a false or fictitious identification], [intended to deceive] [likely to deceive] such dealer; and

    Third: That the subject matter of the false [statement] [identification] was material to the lawfulness of the sale.

    The term "firearm" means any weapon which is designed to, or may readily be converted to, expel a projectile by the action of an explosive; and the term includes the frame or receiver of any such weapon, or any firearm muffler or firearm silencer.

    A [statement] [identification] is "false or fictitious" if it was untrue when [made] [used] and was then known to be untrue by the person [making it] [using it]. 

    A false [statement] [identification] is "likely to deceive" if the nature of the [statement] [identification], considering all of the surrounding circumstances at the time, would probably mislead or deceive a reasonable person of ordinary prudence.

    The "materiality" of the alleged false [statement] [identification] is not a matter with which you are concerned, but rather is a question for the Court to decide. You are instructed that the alleged false [statement] [identification] described in the indictment, if proved, did relate to a material fact.

ANNOTATIONS AND COMMENTS

    18 USC 922(a)(6) provides:

    (a) It shall be unlawful - -

    * * * * *

    (6) for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, . . . manufacturer, . . . dealer, or . . . collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition . . . .

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

    United States v. Klais, 68 F.3d 1282 (11th Cir. 1995), held that under 922(a)(6) materiality is a question of law, distinguishing the Supreme Court's decision in United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), holding that in context of 18 USC 1001 materiality is question for jury.

    Willfulness is not an essential element of this offense. See 18 USC 924(a)(1)(A).

[For 1997 Version of this instruction, see below]

Annotations and Comments

18 USC 922(a)(6) provides:

(a) It shall be unlawful --

* * * * *

(6) for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, . . . manufacturer, . . . dealer, or . . . collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition . . . .

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

United States v. Klais, 68 F.3d 1282 (11th Cir. 1995), held that under 922(a)(6) materiality is a question of law, distinguishing the Supreme Court's decision in United States v. Gaudin, U.S. , 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), holding that in context of 18 USC 1001 materiality is question for jury.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 922(b)(5), makes it a Federal crime or offense for a Federally licensed firearms dealer to sell [a firearm] [armor-piercing ammunition] to anyone without keeping a record concerning the purchaser.

    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 was a Federally licensed firearms dealer at the time the alleged offense occurred;

    Second: That the Defendant sold or delivered [a firearm] [armor-piercing ammunition] to the person named in the indictment; and

    Third: That having sold or delivered the [firearm] [armor-piercing ammunition] to such person, the Defendant knowingly and willfully failed to record the name, age and place of residence of that individual in the records required to be kept
by law.

    [The term "firearm" means any weapon which is designed to, or may readily be converted to, expel a projectile by the action of an explosive; and the term includes the frame or receiver of any such weapon, or any firearm muffler or firearm silencer.]

    [The term "armor-piercing ammunition" means a projectile or projectile core which may be used in a handgun and which is constructed entirely (excluding the presence of traces of other substances) from one or a combination of tungsten alloys, steel, iron, brass, bronze, beryllium copper or depleted uranium. The term also includes a full jacketed projectile larger than .22 caliber designed and intended for use in a handgun and whose jacket has a weight of more than 25 percent of the total weight of the projectile.]

ANNOTATIONS AND COMMENTS

    18 USC 922(b)(5) provides:

    (b) It shall be unlawful for any licensed . . . dealer . . . to sell or deliver--

    * * * * *

    (5) any firearm or armor-piercing ammunition to any person unless the licensee notes in his records, required to be kept pursuant to section 923 of this chapter, the name, age, and place of residence of such person . . . .

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

    18 USC 924(a)(1)(D) makes willfulness an element of the offense, and in Bryan v. United States, 524 U.S. 184, 118 S.Ct. 1939 (1998) the Court held that “willfulness” should be given its usual meaning and did not require proof that the Defendant had specific knowledge of the criminal statute being violated by his conduct.

[For 1997 Version of this instruction, see below]

18 USC 922(b)(5) provides:

(b) It shall be unlawful for any licensed . . . dealer . . . to sell or deliver --

* * * * *

(5) any firearm or armor-piercing ammunition to any person unless the licensee notes in his records, required to be kept pursuant to section 923 of this chapter, the name, age, and place of residence of such person . . . .

18 USC 924(a)(1)(D) makes willfulness an element of the offense.

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

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 34.5  
Sale Of Firearm To Convicted Felon
(18 USC 922(d)(1))

    Title 18, United States Code, Section 922(d)(1), makes it a Federal crime or offense for any person to knowingly sell a firearm to a convicted felon.

    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 sold the firearm described in the indictment, at or about the time alleged;

    Second: That the person who bought the firearm had been convicted in a court of a crime punishable by imprisonment for a term exceeding one year, that is, a felony offense; and

    Third: That the Defendant acted with knowledge or with reasonable cause to believe that such person had been so convicted.

    The term "firearm" means any weapon which is designed to, or may readily be converted to, expel a projectile by the action of an explosive; and the term includes the frame or receiver of any such weapon, or any firearm muffler or firearm silencer.

    To have "reasonable cause to believe" that someone is a convicted felon means to have knowledge of facts which, although not amounting to direct knowledge, would cause a reasonable person, knowing the same things, to reasonably conclude that the other person was in fact a convicted felon.

ANNOTATIONS AND COMMENTS

    18 USC 922(d)(1) provides:

    (d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person - -

* * * * *

    (1) is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.

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

    Willfulness is not an essential element of this offense. See 18 USC 924(a)(2).

    When a Defendant offers to stipulate to his or her status as a previously convicted felon, and the Government declines the stipulation, the issue should be evaluated under the balancing test of FRE 403. While there is no per se rule requiring the Government to accept such a stipulation, it can be an abuse of discretion to admit evidence of the nature of a stipulated conviction where the nature of the crime (as distinguished from the fact of the conviction itself) has potential prejudice outweighing any probative value. Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644 (1997).

[For 1997 Version of this instruction, see below]

Annotations and Comments

18 USC 922(d) provides:

(d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person - -

* * * * *

(1) is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.

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

When a Defendant offers to stipulate to his or her status as a previously convicted felon, and the Government declines the stipulation, the issue should be evaluated under the balancing test of FRE 403. While there is no per se rule requiring the Government to accept such a stipulation, it can be an abuse of discretion to admit evidence of the nature of a stipulated conviction where the nature of the crime (as distinguished from the fact of the conviction itself) has potential prejudice outweighing any probative value. Old Chief v. United States, U.S. , 117 S.Ct. 644, (1/7/97), 1997 WL 3230(US).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 34.6  
Possession Of Firearm By A Convicted Felon
(18 USC 922(g)(1))

    Title 18, United States Code, Section 922(g), makes it a Federal crime or offense for anyone who has been convicted of a felony offense to possess any firearm in or affecting interstate commerce.

    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 possessed a firearm in or affecting interstate commerce, as charged; and

    Second: That before the Defendant possessed the firearm the Defendant had been convicted in a court of a crime punishable by imprisonment for a term in excess of one year, that is, a felony offense.

    The term "firearm" means any weapon which is designed to, or may readily be converted to, expel a projectile by the action of an explosive; and the term includes the frame or receiver of any such weapon, or any firearm muffler or firearm silencer.

    The term "interstate commerce" includes the movement of a firearm between any place in one state and any place in another state. It is not necessary for the Government to prove that the Defendant knew that the firearm had moved in interstate commerce before the Defendant possessed it, only that it had made such movement.

ANNOTATIONS AND COMMENTS

    18 USC 922(g)(1) provides:

    (g) It shall be unlawful for any person - -

    (1) who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year - - to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

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

    When a Defendant offers to stipulate to his or her status as a previously convicted felon, and the Government declines the stipulation, the issue should be evaluated under the balancing test of FRE 403. While there is no per se rule requiring the Government to accept such a stipulation, it can be an abuse of discretion to admit evidence of the nature of a stipulated conviction where the nature of the crime (as distinguished from the fact of the conviction itself) has potential prejudice outweighing any probative value. Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644 (1997).

    Willfulness is not an essential element of this offense. See 18 USC 924(a)(2).

    The Government is not required to prove that the unlawfully possessed firearm was operable. United States v. Adams, 137 F.3d 1298 (11th Cir. 1998).

    What constitutes a prior state court “conviction” is determined, under 18 USC §921(a)(20), according to state law; and, under Florida law, a “conviction” requires an adjudication of guilt by a jury verdict or a plea of guilty. A plea of nolo contendere followed by a withholding of adjudication by the Court is not a “conviction” for purposes of 922(g)(1). United States v. Willis, 106 F.3d 966 (11th Cir. 1997).

    In United States v. Scott, 263 F.3d 1270 (11th Cir. 2001), the Court held that as long as the weapon at issue had a minimal nexus to interstate commerce, application of 922(g) was constitutional. The interstate nexus was demonstrated by the fact that the firearm Defendant possessed was manufactured in California and had moved in interstate commerce to Georgia, where Defendant was found in possession of the weapon.

    With regard to a “justification” defense under 922(g), see United States v. Deleveaux, 205 F.3d 1292 (11th Cir. 2000). The Court held that in order to establish a justification defense, Defendant must prove by a preponderance of the evidence
that: (1) Defendant was under unlawful and present, imminent, and impending threat of death or serious bodily injury, (2) Defendant did not negligently or recklessly place himself in a situation where Defendant would be forced to engage in criminal conduct, (3) Defendant had no reasonable legal alternative to violating the law, and (4) there was a direct causal relationship between the criminal action and the avoidance. Id. at 1297. See Special Instruction 16, Justification or Necessity.

[For 1997 Version of this instruction, see below]

Annotations and Comments

18 USC 922(g) provides:

(g) It shall be unlawful for any person - -

(1) who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year - - to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

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

When a Defendant offers to stipulate to his or her status as a previously convicted felon, and the Government declines the stipulation, the issue should be evaluated under the balancing test of FRE 403. While there is no per se rule requiring the Government to accept such a stipulation, it can be an abuse of discretion to admit evidence of the nature of a stipulated conviction where the nature of the crime (as distinguished from the fact of the conviction itself) has potential prejudice outweighing any probative value. Old Chief v. United States, U.S. , 117 S.Ct. 644, (1/7/97), 1997 WL 3230(US).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 922(m), makes it a Federal crime or offense for any licensed firearms dealer to make a false entry in any record the dealer is required by Federal law to keep.

    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 was a Federally licensed firearms dealer at the time the alleged offense occurred;

    Second: That the Defendant made a false entry in the firearm records [he] [she] was required by federal law to maintain; and

    Third: That the Defendant made the false entry with knowledge of the falsity.

    A _____ is a record which a Federally licensed firearms dealer is required by federal law to keep or maintain.

    An entry in a record is "false" if it was untrue at the time it was made, and was then known to be untrue by the dealer who made it. 

ANNOTATIONS AND COMMENTS

    18 USC 922(m) provides:

    It shall be unlawful for any licensed . . . dealer . . . . knowingly to make any false entry in, to fail to make appropriate entry in, or to fail to properly maintain, any record which he is required to keep pursuant to section 923 of this chapter or regulations promulgated thereunder.

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

    Willfulness is not an essential element of this offense. See 18 USC 924(a)(3)(B).

[For 1997 Version of this instruction, see below]

18 USC 922(m) provides:

It shall be unlawful for any licensed . . . dealer . . . . knowingly to make any false entry in, to fail to make appropriate entry in, or to fail to properly maintain, any record which he is required to keep pursuant to section 923 of this chapter or regulations promulgated thereunder.

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

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 34.8 
Possession Of A Machine Gun 
(18 USC 922(o)(1))

    Title 18, United States Code, Section 922(o)(1), makes it a Federal crime or offense for anyone to possess a machine gun.

    Title 26, United States Code, Section 5845(b), defines a “machine gun” as any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended for use in converting a weapon into a machine gun, and any combination of parts from which a machine gun can be assembled if such parts are in the possession or under the control of a
person.

    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 possessed a “machine gun,” as defined above: and 

    Second: That the Defendant knew, or was aware of, the essential characteristics of the firearm which made it a “machine gun” as defined above.

ANNOTATIONS AND COMMENTS

    18 USC 922(o)(1) provides:

    . . . [I]t shall be unlawful for any person to transfer or possess a machine gun.

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

    Willfulness is not an essential element of this offense. See 18 USC 924(a)(2).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 35.1 
False Statement With Respect To Information Required To Be Kept By Dealer 
(18 USC 924(a)(1)(A))

    Title 18, United States Code, Section 924(a)(1)(A), makes it a Federal crime or offense for any person to make a false statement or representation with respect to information required to be kept in any record a licensed firearms dealer is required by Federal law to keep.

    An [ATF Form 4473] is a record which a Federally licensed firearms dealer is required by federal law to keep or maintain.

    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 person named as such in the indictment was a Federally licensed firearms dealer at the time the alleged offense occurred;

    Second: That the Defendant made a false statement or representation in the firearm records the licensed firearms dealer was required by federal law to maintain; and

    Third: That the Defendant made the false statement or representation with knowledge of the falsity.

    An entry in a record is “false” if it was untrue at the time it was made, and was then known to be untrue by the person who made it.

ANNOTATIONS AND COMMENTS

    18 USC 924(a)(1)(A) provides:

    (a)(1) . . . [w]hoever:

    (A) knowingly makes any false statement or representation with respect to the information required by this chapter to be kept in the records of a person licensed under this chapter [shall be guilty of an offense against the United States.]

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

    Willfulness is not an essential element of this offense.

    In United States v. Nelson, 221 F.3d 1206 (11th Cir. 2000) the Court held that 924(a)(1)(A) applies to “straw purchases” where the buyer of the firearm intends at the point of sale to later transfer the weapon to another person. Such a buyer cannot truthfully certify on ATF 4473 that he or she is the “actual buyer” of the firearm.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ 117.2.1 [Federal Firearm Enhancement: Failure To Include Type Of Firearm In Indictment Is Jurisdictional Defect (18 USC 924(c))].  

See also FORECITE National™ 117.3.1 [Use Or Carrying Of A Weapon Or Firearm: Defense Theory That Mere Possession Of The Weapon Was Not "Active Employment"].

    Title 18, United States Code, Section 924(c)(1), makes it a separate federal crime or offense for anyone to [carry a firearm during and in relation to] [possess a firearm in furtherance of] [a drug trafficking crime] [a crime of violence].

    The Defendant can be found guilty of that offense as charged in Count _____ of the indictment only if all of the following facts are proved beyond a reasonable doubt:

    First: That the Defendant committed the [drug trafficking offense] [crime of violence] charged in Count _____ of the indictment;

    Second: That during the commission of that offense the Defendant knowingly [carried] [possessed] a firearm, as charged; and

    Third: That the Defendant [carried the firearm “in relation to” the] [possessed the firearm “in furtherance of” the] [drug trafficking offense] [crime of violence].

    The term "firearm" means any weapon which is designed to, or may readily be converted to, expel a projectile by the action of an explosive; and the term includes the frame or receiver of any such weapon or any firearm muffler or firearm silencer.

    To [“carry”] [ “possess”] a firearm means that the Defendant either had a firearm on or around [his] [her] person or transported, conveyed or controlled a firearm in such a way that it was available for immediate use if the Defendant so desired during the commission of the [drug trafficking offense] [crime of violence]; and to carry a firearm “in relation to” an offense means that there must be a connection between the Defendant, the firearm, and the [drug trafficking offense] [crime of violence] so that the presence of the firearm was not accidental or coincidental, but facilitated the crime by serving some important function or purpose of the criminal activity. [To possess a firearm “in furtherance” of an offense means something more than mere presence of a firearm; it must be shown that the firearm helped, furthered, promoted or advanced the offense in some way.

    [The indictment charges that the Defendant knowingly [carried a firearm during and in relation to [a drug trafficking offense] [a crime of violence] and [possessed a firearm in furtherance of [a drug trafficking offense] [crime of violence]. It is charged, in other words, that the Defendant violated the law as charged in Count _____ in two separate ways. It is not necessary, however, for the Government to prove that the Defendant violated the law in both of those ways. It is sufficient if the Government proves, beyond a reasonable doubt, that the Defendant knowingly violated the law in either way; but, in that event, you must unanimously agree upon the way in which the Defendant committed the violation.]

ANNOTATIONS AND COMMENTS

    Title 18 USC 924(c)(1) provides:

    (c)(1)(A) . . . [a]ny person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime - -

    (i) be sentenced to a term of imprisonment of not less than 5 years;

    (ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and 

    (iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.

    (B) If the firearm possessed by a person convicted of a violation of this subsection - -

    (i) is a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon, the person shall be sentenced to a term of imprisonment of not less than 10 years; or 

    (ii) is a machinegun or a destructive device, or is equipped with a firearm silencer or firearm muffler, the person shall be sentenced to a term of imprisonment of not less than 30 years.

    Maximum Penalty: As stated in statute above and applicable fine. Sentence must be consecutive.

    In Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501 (1995), The Court held that “uses” within the meaning of 924(c)(1) means more than mere possession and more than proximity and accessibility; it requires, instead, active employment of the weapon as by brandishing or displaying it in some fashion.

    In 1998, in direct response to Bailey (see H.R. Rep. No. 105-344, Oct. 24, 1997, 1997 WL 668339), Congress amended the statute in several respects (Pub. L. 105-386, Nov. 13, 1998, 112 Stat. 3469) including the insertion of the phrase “or who, in furtherance of any such crime, possesses a firearm. . .” The stated purpose and effect of this amendment was to overcome the Bailey court’s constrictive interpretation of the scope of the statute and to extend its reach to any drug trafficking or violent crime in which the Defendant merely possesses a firearm “in furtherance of any such crime.”

    The Committee therefore anticipates that present and future indictments brought under 924(c)(1)(A) will allege either (or perhaps both) “carrying a firearm during and in relation to” or “possession of a firearm in furtherance of” a drug trafficking offense or crime of violence, and that the “use” prong of the statute will be avoided in view of Bailey. See United States v. Timmons, 283 F.3d 1246 (11th Cir. 2002), in which both carrying and possessing were charged. This instruction was prepared for use when either, or both, carrying and possessing are charged in the same count. Timmons is also the primary source of the definitions contained in this instruction.

    In Harris v. United States, U.S. , S.Ct. (2002) (2002 WL 1357227), the Court held that the provisions of the statute requiring enhanced mandatory minimum sentences if the firearm is brandished or discharged (924(c)(1)(A)(ii) and (iii)) are sentencing factors for the sentencing judge and are not elements of the offense that must be charged in the indictment and submitted to the jury under the principle of Apprendi which applies to factors that would increase the maximum sentence allowable. See also United States v. Pounds, 230 F.3d 1317, 1319 (11th Cir. 2000). Because the decision in Harris rested in part upon the structure of 924, it is an open question as to whether the decision applies to the sentence enhancing provisions of 924(c)(1)(B)(i) and (ii). If the indictment alleges one of those factors, the Committee recommends that the issue be submitted to the jury by modifying the instruction to include that factor as a Fourth Element of the offense.

    Whether a crime is a crime of violence is a question of law, not of fact. United States v. Amparo, 68 F.3d 1222 (9th Cir. 1995); United States v. Moore, 38 F.3d 977 (8th Cir. 1994); United States v. Weston, 960 F.2d 212 (1st Cir. 1992); United States v. Adkins, 937 F.2d 947 (4th Cir. 1991). But see, United States v. Jones, 993 F.2d 58 (5th Cir. 1993).

[For 1997 Version of this instruction, see below]

18 USC 924(c)(1) provides:

Whoever, during and in relation to any crime of violence or drug trafficking crime . . . for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime [be sentenced to a term of imprisonment as provided by law].

In Bailey v. United States, U.S. , 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), the Supreme Court held that "use" within the meaning of 924(c)(1) means more than proximity and accessibility but, instead, requires "active employment" of the firearm. The definition and examples of use set forth in the instruction are taken directly from Bailey.

The definition of "carry" used in this instruction is primarily derived from United States v. Cardenas, 864 F.2d 1528 (10th Cir.),cert. denied, 491 U.S. 909, 109 S.Ct. 3197, 105 L.Ed.2d 705 (1989). See United States v. Spring, 80 F.3d 1450, (10th Cir. 1997), cert. denied, U.S. , 117 S.Ct. 385, 136 L.Ed.2d 302 (1997) (relying on Cardenas); see also United States v. Baker, 78 F.3d 1241 (7th Cir. 1997) (it is the possession of a firearm coupled with the affirmative act of transporting it that violates the carry prong of 924(c)(1)); but see United States v. Moore, 76 F.3d 111 (6th Cir. 1997) (carry means immediate availability and physical transportation); United States v. Hernandez, 80 F.3d 1253 (9th Cir. 1997)(carry means to transport on or about one's person and to have immediately available for use).

In Smith v. United States, 508 U.S. 223, 113 S.Ct. 2050, 124 L.Ed.2d 138, 150-51 (1993), the Supreme Court held that the phrase "during and in relation to" means that the firearm must facilitate or further the purpose of the crime.

Whether a crime is a crime of violence is a question of law, not of fact. United States v. Amparo, 68 F.3d 1222 (9th Cir. 1995); United States v. Moore, 38 F.3d 977 (8th Cir. 1994); United States v. Weston, 960 F.2d 212 (1st Cir. 1992); United States v. Adkins, 937 F.2d 947 (4th Cir. 1991). But see, United States v. Jones, 993 F.2d 58 (5th Cir. 1993)

Maximum Penalty: Mandatory sentence of five (5) years imprisonment. If the firearm used was a short-barreled rifle or short-barreled shotgun, mandatory sentence of ten (10) years imprisonment.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 1001, makes it a Federal crime or offense for anyone to willfully make a false or fraudulent statement to a department or agency 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 [made the statement] [made or used the document], as charged; 

    Second: That the [statement] [document] was false;

    Third: That the falsity related to a material matter;

    Fourth: That the Defendant acted willfully and with knowledge of the falsity; and

    Fifth: That the [false statement] [false document] was made or used in relation to a matter within the jurisdiction of a department or agency of the United States, as charged.

    A [statement] [document] is "false" when [made] [used] if it is untrue and is then known to be untrue by the person [making] [using] it. It is not necessary to show, however, that the Government agency was in fact deceived or misled.

    [A false “no” in response to Government agents conducting an investigation is a false statement as it concerns the first two things the Government must prove as previously stated.]

    [The Immigration and Naturalization Service, Department of Justice, is an "agency of the United States," and the filing of
documents with that agency to effect a change in the immigration status of an alien is a matter within the jurisdiction of that agency.]

    The [making of a false statement] [use of a false document] is not an offense unless the falsity relates to a "material" fact. A
misrepresentation is "material" if it has a natural tendency to affect or influence, or is capable of affecting or influencing, the exercise of a government function. The test is whether the false statement has the capacity to impair or pervert the functioning of a governmental agency. In other words, a misrepresentation is material if it relates to an important fact as distinguished from some unimportant or trivial detail.

ANNOTATIONS AND COMMENTS

    18 USC 1001 provides:

    Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies . . . a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry [shall be guilty of an offense against the United States.]

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

    The enumeration of the elements of the offense is taken from United States v. Calhoon, 97 F.3d 518, 523 (11th Cir. 1996).

    Arthur Pew Const. Co. v. Lipscomb, 965 F.2d 1559, 1576 (11th Cir. 1992), misrepresentation for purposes of 1001 must be deliberate, knowing and willful, or at least have been made with a reckless disregard of the truth and a conscious
purpose to avoid telling the truth.

    In United States v. Gaudin 515 U.S. 506, 115 S.Ct. 2310 (1995), 132 L.Ed.2d 444 (1995), the Supreme Court held that the materiality of a false statement under this section is a jury question, and that failure to submit the question of materiality to the jury constitutes reversible error. See United States v. Klais, 68 F.3d 1282, 1283 (11th Cir. 1995) (recognizing holding).

    Materiality definition is adopted from Gaudin, 115 S.Ct. at 2313; United States v. Grizzle, 933 F.2d 943, 948 (11th Cir. 1991); United States v. Herring, 916 F.2d 1543, 1547 (11th Cir. 1990); United States v. Gafyczk, 847 F.2d 685, 691 (11th Cir. 1988).

    The “exculpatory no” doctrine as an exception to the scope of the offense (see United States v. Payne, 750 F.2d 844, 861 (11th Cir. 1985)) was repudiated by the Supreme Court in Brogan v. United States, 522 U.S. 398, 118 S.Ct. 805 (1998).

[For 1997 Version of this instruction, see below]

18 USC 1001 provides:

Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies . . . a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry [shall be guilty of an offense against the United States.]

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

Arthur Pew Const. Co. v. Lipscomb, 965 F.2d 1559, 1576 (11th Cir. 1992), misrepresentation for purposes of 1001 must be deliberate, knowing and willful, or at least have been made with a reckless disregard of the truth and a conscious purpose to avoid telling the truth.

In United States v. Gaudin, U.S. , 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), the Supreme Court held that the materiality of a false statement under this section is a jury question, and that failure to submit the question of materiality to the jury constitutes reversible error. See United States v. Klais, 68 F.3d 1282, 1283 (11th Cir. 1995) (recognizing holding).

Materiality definition is adopted from Gaudin, 115 S.Ct. at 2313; United States v. Grizzle, 933 F.2d 943, 948 (11th Cir. 1991); United States v. Herring, 916 F.2d 1543, 1547 (11th Cir. 1990); United States v. Gafyczk, 847 F.2d 685, 691 (11th Cir. 1988).

For a discussion of the "exculpatory no" doctrine under 18 USC 1001, see United States v. Payne, 750 F.2d 844, 861-865 (11th Cir. 1985).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 1005, makes it a Federal crime or offense for anyone to make a false entry in any book or record of a federally insured bank.

    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 made or caused to be made a false entry in a book or record of an insured bank;

    Second: That such entry was “material;” and 

    Third: That the Defendant made such entry, or caused it to be made, willfully, with knowledge of its falsity and with the intent of defrauding or deceiving, as charged.

    An "insured bank" means any bank the deposits of which are insured by the Federal Deposit Insurance Corporation.

    An entry in a book or record is "false" when made if it is untrue and is then known to be untrue by the person making it.

    An entry in a book or record is “material” if it has a natural tendency to affect or influence, or is capable to affecting or influencing, the operations of the bank. In other words, an entry in a book or record is material if it relates to an important fact as distinguished from some unimportant or trivial detail.

    To act "with intent to defraud" means to act willfully with intent to deceive or cheat, ordinarily for the purpose of causing financial loss to another or bringing about financial gain to one's self.

    The essence of the offense is the willful making of a material false entry with intent to defraud, and it is not necessary to prove that anyone was in fact deceived or defrauded.

ANNOTATIONS AND COMMENTS

    18 USC 1005 (third paragraph) provides:

    Whoever makes any false entry in any book, report, or statement of [an insured bank] with intent to injure or defraud such bank . . . or to deceive any officer of such bank, or the Comptroller of the Currency, or the Federal Deposit Insurance Corporation, or any agent or examiner appointed to examine the affairs of such bank, or the Board of Governors of the Federal Reserve System [shall be guilty of an offense against the United States].

    Maximum Penalty: Thirty (30) years imprisonment and $1,000,000 fine.

    United States v. Rapp, 871 F.2d 957, 963 (11th Cir. 1989), statute requires knowing and willful making of a false entry with knowledge of its falsity and with intent to deceive or defraud a bank.

    There are no decisions in the Eleventh Circuit as to whether materiality is an element of this offense. However, because the statute expressly requires that the false entry be made “with intent to defraud,” 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” 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.

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

[For 1997 Version of this instruction, see below]

Annotations and Comments

18 USC 1005 (third paragraph) provides:

Whoever makes any false entry in any book, report, or statement of [an insured bank] with intent to injure or defraud such bank . . . or to deceive any officer of such bank, or the Comptroller of the Currency, or the Federal Deposit Insurance Corporation, or any agent or examiner appointed to examine the affairs of such bank, or the Board of Governors of the Federal Reserve System [shall be guilty of an offense against the United States].

Maximum Penalty: Thirty (30) years imprisonment and $1,000,000 fine.

United States v. Rapp, 871 F.2d 957, 963 (11th Cir. 1989), statute requires knowing and willful making of a false entry with knowledge of its falsity and with intent to deceive or defraud a bank.

United States v. Wells, U.S. , 117 S.Ct. 421 (1997), materiality was held not to be an essential element of the offense proscribed by 18 USC 1014, and the holding would seem to apply with equal force to 1005.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 38
False Statements In Department Of Housing And Urban Development And 
Federal Housing Administration Transactions
(18 USC  1010)

    Title 18, United States Code, Section 1010, makes it a Federal crime or offense for anyone to [make a false statement] [to forge or counterfeit any document] [to pass as true any forged or counterfeited document] [willfully overvalue any asset or income] [for the purpose of obtaining any loan with the intent that such loan be offered to or accepted by the Department of Housing and Urban Development for insurance] [for the purpose of obtaining any extension or renewal of any loan or mortgage insured by the Department of Housing and Urban Development.]

    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 [made a false statement] [forged or counterfeited a document] [passed as true a forged or counterfeited document] [willfully overvalued an asset or income] as charged;

    Second: That the Defendant did so [for the purpose of obtaining a loan with the intent that such loan be offered to or accepted by] [for the purpose of obtaining any extension or renewal of any loan or mortgage insured by] the Department of Housing and Urban Development; and 

    Third: That the Defendant acted knowingly and willfully.

    A [statement] [document] is “false” when made it if is untrue and is then known to be untrue by the person making it.

ANNOTATIONS AND COMMENTS

    18 USC 1010 provides:

    Whoever for the purpose of obtaining any loan or advance of credit with the intent that such loan or advanced of credit shall be offered to or accepted by the Department of Housing and Urban Development for insurance, or for the purpose of obtaining any extension or renewal of any loan, advance of credit, or mortgage insured by such Department, or the acceptance, release, or substitution of any security on such a loan, advance of credit, or for the purpose of influencing in any way the action of such Department, makes, passes, utters, or publishes any statement, knowing the same to be false, or alters, forges, or counterfeits any instrument, paper, or document, or utters, publishes, or passes as true any instrument, paper, or document, knowing it to have been altered, forged, or counterfeited, or willfully overvalues any security, asset, or income. . . . [shall beguilty of an offense against the United States].

    Maximum Penalty: Two (2) years imprisonment and applicable fine.

    United States v. DeCastro, 113 F.3d 176 (11th Cir. 1997), materiality is not an element of the offense under 18 USC 1010. Although DeCastro was decided before Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827 (1999), the decision is
in harmony with Neder because 1010 does not require proof of fraud or fraudulent intent. Accord, United States v. Wells, 419 U.S. 482, 117 S.Ct. 921 (1997).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 1014, makes it a Federal crime or offense for anyone to willfully make a false statement to a federally insured financial 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 knowingly made a false statement or report to the financial institution described in the indictment;

    Second: That the deposits of the institution were insured by the Federal Deposit Insurance Corporation; and

    Third: That the Defendant made the false statement or report willfully and with intent to influence the action of the institution upon an application, advance, commitment or loan, or any change or extension thereof.

    A statement or report is "false" when made if it is untrue and is then known to be untrue by the person making it.

    It is not necessary, however, to prove that the institution involved was, in fact, influenced or misled. The gist of the offense is an attempt to influence such an institution by willfully making a false statement or report concerning the matter.

ANNOTATIONS AND COMMENTS

    18 USC 1014 provides:

    Whoever knowingly makes any false statement or report, or willfully overvalues any land, property or security, for the purpose of influencing in any way the action of . . . any institution the accounts of which are insured by the Federal Deposit Insurance Corporation,... [or] the Resolution Trust Corporation . . . upon any application, advance, . . . commitment, or loan, or any change or extension of any of the same [shall be guilty of an offense against the United States].

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

    United States v. Key, 76 F.3d 350, 353 (11th Cir. 1996), a defendant need not know of the victim institution's insured status to be guilty of this offense; rather, it is sufficient that the defendant knowingly directed conduct at a bank that the
government proves was insured.

    United States v. Greene, 862 F.2d 1512, 1514 (11th Cir. 1989), section applies to representations made in connection with conventional loan or related transactions.

    United States v. Wells, 419 U.S. 482, 117 S.Ct. 921 (1997), materiality is not an element of this offense.

[For 1997 Version of this instruction, see below]

Annotations and Comments

18 USC 1014 provides:

Whoever knowingly makes any false statement or report, or willfully overvalues any land, property or security, for the purpose of influencing in any way the action of . . . any institution the accounts of which are insured by the Federal Deposit Insurance Corporation, . . . the Federal Deposit Insurance Corporation, [or] the Resolution Trust Corporation . . . upon any application, advance, . . . commitment, or loan, or any change or extension of any of the same [shall be guilty of an offense against the United States].

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

United States v. Key, 76 F.3d 350, 353 (11th Cir. 1997), a defendant need not know of the victim institution's insured status to be guilty of this offense; rather, it is sufficient that the defendant knowingly directed conduct at a bank that the government proves was insured.

United States v. Greene, 862 F.2d 1512, 1514 (11th Cir. 1989), section applies to representations made in connection with conventional loan or related transactions.

United States v. Wells, U.S. , 117 S.Ct. 921 (1997), materiality is not an element of this offense.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 40.1
False Identification Documents
(18 USC 1028(a)(3))

    Title 18, United States Code, Section 1028(a)(3), makes it a Federal crime or offense for anyone to knowingly possess with intent to transfer unlawfully five or more false identification documents, such possession being in or affecting interstate or foreign commerce.

    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 five or more false identification documents;

    Second: That the Defendant did so knowingly and willfully with the intent to unlawfully transfer the false identification documents; and

    Third: That the Defendant’s possession of the false identification documents was in or affecting interstate or foreign commerce.

    The intent to transfer false identification documents unlawfully is the intent to sell, pledge, distribute, give, loan or otherwise transfer false identification documents knowing that such documents were produced without lawful authority.

    A “false identification document” means a document of a type commonly accepted for purposes of identification of individuals that is not issued by or under the authority of a governmental entity, but appears to be issued by or under the authority of [the United States Government] [a State or a political subdivision of a State].

    [The term “interstate commerce” refers to any transaction or event that involves travel or transportation between a place in one state and a place in another state.] [The term “foreign commerce” refers to any transaction or event that involves travel or transportation between a place in the United States and a place outside the United States.]

ANNOTATIONS AND COMMENTS

    18 USC 1028(a)(3) provides:

    (a) Whoever - -

    (3) knowingly possess with intent to use unlawfully or transfer unlawfully five or more identification documents (other than those issued lawfully for the use of the possessor) or false identification documents [shall be guilty of an offense against the United States].

    Maximum penalty: depends on the use of the documents and can be as many as 25 years and applicable fine.

    United States v. Alejandro, 118 F.3d 1518 (11th Cir. 1997), the Eleventh Circuit affirmed the trial court’s use of this instruction.

    If the indictment alleges one of the sentencing enhancing circumstances listed in 2326 (telemarketing, victimizing 10 or more persons over age 55, or targeting persons over age 55), that factor should be stated as an additional element under the principle of Apprendi and consideration should be given to a lesser included offense instruction, Special Instruction 10.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 40.2
False Identification Documents
(18 USC 1028(a)(4))

    Title 18, United States Code, Section 1028(a)(4) makes it a federal crime or offense for anyone to knowingly possess a false identification document with the intent that such document be used to defraud 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 knowingly possessed a false identification document as described in the indictment; and

    Second: That the Defendant possessed the false identification document with the intent that such document be used to defraud the United States.

    The term “identification document” means a document made or issued by or under the authority of the United States Government which, when completed with information concerning a particular individual, is of a type intended or commonly accepted for the purpose of identification of individuals.

    A “false identification document” means a document of a type commonly accepted for purposes of identification of individuals that is not issued by or under the authority of a Governmental entity, but appears to be issued by or under the authority of the United States.

    The phrase “with intent . . . to defraud the United States” means a specific intent to mislead or deceive an officer or employee of the United States in carrying out his or her official duties. It is not necessary for the Government to prove, however, that any Government employee or officer was in fact misled or deceived.

ANNOTATIONS AND COMMENTS

    18 USC 1028(a)(4) provides:

    (a) Whoever, in a circumstance described in subsection (C) of this section - -

* * * *

    (4) knowingly possesses an identification document (other than one issued lawfully for the use of the possessor) or a false identification document, with the intent such document be used to defraud the United States [shall be guilty of an offense against the United States].

    * * * *

    (C) The circumstance referred to in subsection (a) of this section is that - -

    (1) the identification document or false identification document is or appears to be issued by or under the authority of the United States or the document-making implement is designed or suited for making such an identification document or false identification document;

    (2) the offense is an offense under subsection (a)(4) of this section . . .

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

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 1029(a)(1), makes it a Federal crime or offense for anyone to [produce] [use] [traffic in] counterfeit credit cards or other access devices.

    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 [produced] [used] [trafficked in] a counterfeit access device;

    Second: That the Defendant so acted willfully, with knowledge of the counterfeit nature of the access device, and with the intent of defrauding or deceiving, as charged; and

    Third: That the Defendant's conduct affected interstate or foreign commerce.

    The term "access device" means any credit card, plate, code, account number, electronic serial number, mobile identification number, personal identification number, or other means of account access that can be used, alone or in conjunction with another access device, to obtain money, goods, services, or any other thing of value, or that can be used to initiate a transfer of funds (other than a transfer originated solely by paper instrument).

    The term "counterfeit access device" means any access device that is counterfeit, fictitious, altered, or forged, or an identifiable component of an access device or a counterfeit access device.

    [The term "produced" includes the design, alteration, authentication, duplication, or assembly of a counterfeit access device.]

    [The term "used" includes any effort to obtain money, goods, services, or any other thing of value, or to initiate a transfer of funds with a counterfeit access device.]

    [The term "trafficked in" means the transfer, or other disposal of, a counterfeit access device to another, or the possession or control of a counterfeit device with the intent to transfer or dispose of it to another.]

    To act "with intent to defraud" means to act willfully with intent to deceive or cheat, ordinarily for the purpose of causing financial loss to another or bringing about financial gain to one's self.

    The essence of the offense is the willful use of a counterfeit access device with intent to defraud, and it is not necessary to prove that anyone was in fact deceived or defrauded.

    While it is not necessary to prove that the Defendant specifically intended to interfere with or affect interstate commerce, the Government must prove that the natural consequences of the acts alleged in the indictment would be to affect "interstate commerce," which means the flow of commerce or business activities between two or more states. If you find beyond a reasonable doubt that [the device was used to order goods from another state] [the device was used to purchase goods manufactured outside of this state] you may find that the requisite affect upon interstate commerce has been proved.

ANNOTATIONS AND COMMENTS

    18 USC 1029(a)(1) provides:

    (a) Whoever - -

    (1) knowingly and with intent to defraud produces, uses, or traffics in one or more counterfeit access devices [shall be guilty of an offense against the United States] if the offense affects interstate commerce or foreign commerce.

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

    United States v. Sepulveda, 115 F.3d 882 (11th Cir. 1997) (Unprogrammed ESNMIN combinations constitute access devices within the meaning of 1029).

    United States v. Dabbs, 134 F.3d 1071 (11th Cir. 1998) (A merchant account number constitutes an access device).

    If the indictment alleges one of the sentencing enhancing circumstances listed in 2326 (telemarketing, victimizing 10 or more persons over age 55, or targeting persons over age 55), that factor should be stated as an additional element under the principle of Apprendi and consideration should be given to a lesser included offense instruction, Special Instruction 10.

[For 1997 Version of this instruction, see below]

18 USC 1029(a)(1) provides:

(a) Whoever --

(1) knowingly and with intent to defraud produces, uses, or traffics in one or more counterfeit access devices [shall be guilty of an offense against the United States] if the offense affects interstate commerce or foreign commerce.

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

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 41.2 
Fraud In Connection With Unauthorized Credit 
Cards Or Other Access Devices
(18 USC 1029(a)(2))

    Title 18, United States Code, Section 1029(a)(2), makes it a Federal crime or offense for anyone during any one year period to [use] [traffic in] unauthorized access devices, including ordinary credit cards, if by such conduct a person obtains anything of value aggregating $1,000 or more during that period.

    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 [used] [trafficked in] an unauthorized access device during a one year period, and by such use obtained things of value totaling more than $1,000 during that time period;

    Second: That the Defendant so acted willfully, with knowledge of the unauthorized nature of the access device, and with the intent of defrauding or deceiving, as charged; and

    Third: That the Defendant's conduct affected interstate or foreign commerce.

        The term "access device" means any credit card, plate, code, account number, electronic serial number, mobile identification number, personal identification number, or other means of account access that can be used, alone or in conjunction with another access device, to obtain money, goods, services, or any other thing of value, or that can be used to initiate a transfer of funds (other than a transfer originated solely by paper instrument).

    The term "unauthorized access device" means any access device that is lost, stolen, expired, revoked, canceled, or obtained with intent to defraud.

    [The term "used" includes any effort to obtain money, goods, services, or any other thing of value, or to initiate a transfer of funds with an unauthorized access device.]

    [The term "trafficked" means the transfer, or other disposal of, a counterfeit access device to another, or the possession or control of an unauthorized access device with the intent to transfer or dispose of it to another.]

    To act "with intent to defraud" means to act willfully with intent to deceive or cheat, ordinarily for the purpose of causing financial loss to another or bringing about financial gain to one's self.

    The essence of the offense is the willful use of an unauthorized access device with intent to defraud, and it is not necessary to prove that anyone was in fact deceived or defrauded.

    While it is not necessary to prove that the Defendant specifically intended to interfere with or affect interstate commerce, the Government must prove that the natural consequences of the acts alleged in the indictment would be to affect "interstate commerce," which means the flow of commerce or business activities between two or more states.

ANNOTATIONS AND COMMENTS

    18 USC 1029(a)(2) provides:

    (a) Whoever - -

    (2) knowingly and with intent to defraud traffics in or uses one or more unauthorized access devices during any one-year period, and by such conduct obtains anything of value aggregating $1,000 or more during that period [shall be guilty of an offense against the United States] if the offense affects interstate commerce or foreign commerce.

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

    United States v. Sepulveda, 115 F.3d 882 (11th Cir. 1997) (Unprogrammed ESNMIN combinations constitute access devices within the meaning of 1029).

    United States v. Dabbs, 134 F.3d 1071 (11th Cir. 1998) (A merchant account number constitutes an access device).

    If the indictment alleges one of the sentencing enhancing circumstances listed in 2326 (telemarketing, victimizing 10 or more persons over age 55, or targeting persons over age 55), that factor should be stated as an additional element under the principle of Apprendi and consideration should be given to a lesser included offense instruction, Special Instruction 10.

[For 1997 Version of this instruction, see below]

18 USC 1029(a)(2) provides:

(a) Whoever --

(2) knowingly and with intent to defraud traffics in or uses one or more unauthorized access devices during any one-year period, and by such conduct obtains anything of value aggregating $1,000 or more during that period [shall be guilty of an offense against the United States] if the offense affects interstate commerce or foreign commerce.

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

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 1030(a)(1), makes it a Federal crime or offense for anyone to knowingly access a computer without authorization to obtain secret information to be used to the injury of the United States or to the advantage of any foreign nation.

    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 accessed a computer [without authorization] [in excess of the Defendant's authorization];

    Second: That the Defendant thereby obtained [information that had been determined by the United States Government to require protection against unauthorized disclosure for reasons of national defense or foreign relations] [data regarding the design, manufacture or use of atomic weapons]; and

    Third: That the Defendant obtained such [information] [data] with the intent, or reason to believe, that it was to be used to the injury of the United States or to the advantage of any foreign nation.

    The term "computer" means an electric, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device.

    [The term "exceeds authorized access" means to access a computer with authorization and to use such access to obtain or alter information in the computer that the person gaining access is not entitled so to obtain or alter.]

    If it is proved beyond a reasonable doubt that the Defendant knowingly obtained the [secret information] [restricted data] without authorization and with the intent or reason to believe that it would be used to the injury of the United States or to the advantage or any foreign nation, then the crime is complete. The Government does not have to prove that such [information] [data] was in fact thereafter used to the injury of the United States or to the advantage of any foreign nation.

ANNOTATIONS AND COMMENTS

    18 USC 1030(a)(1) provides:

    (a) Whoever - -

    (1) knowingly accesses a computer without authorization or exceeds authorized access, and by means of such conduct obtains information that has been determined by the United States Government pursuant to an Executive order or statute to require protection against unauthorized disclosure for reasons of national defense or foreign relations, or any restricted data, as defined in paragraph y of section 11 of the Atomic Energy Act of 1954, with the intent or reason to believe that such information so obtained is to be used to the injury of the United States, or to the advantage of any foreign nation [shall be punished as provided in subsection (C) of this section].

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

    The Atomic Energy Act defines "Restricted Data" as "all data concerning (1) design, manufacture, or utilization of atomic weapons; (2) the production of special nuclear material; or (3) the use of special nuclear material in the production of energy, but shall not include data declassified or removed from the Restricted Data category pursuant to section 2162 of this title." 42 USC 2014(y). 

    The Senate Judiciary Committee emphasized that "obtains information" in this context includes mere observation of the data. "Actual asportation, in the sense of physically removing the data from its original location or transcribing the data, need not be proved in order to establish a violation of this subsection." S.Rep. 99-432, at 6-7 (1986), reprinted in 1986 U.S.C.C.A.N. 2479, 2484.

[For 1997 Version of this instruction, see below]

Annotations and Comments

18 USC 1030(a)(1) provides:

(a) Whoever --

(1) knowingly accesses a computer without authorization or exceeds authorized access, and by means of such conduct obtains information that has been determined by the United States Government pursuant to an Executive order or statute to require protection against unauthorized disclosure for reasons of national defense or foreign relations, or any restricted data, as defined in paragraph y of section 11 of the Atomic Energy Act of 1954, with the intent or reason to believe that such information so obtained is to be used to the injury of the United States, or to the advantage of any foreign nation [shall be punished as provided in subsection (c) of this section].

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

The Atomic Energy Act defines "Restricted Data" as "all data concerning (1) design, manufacture, or utilization of atomic weapons; (2) the production of special nuclear material; or (3) the use of special nuclear material in the production of energy, but shall not include data declassified or removed from the Restricted Data category pursuant to section 2162 of this title." 42 USC 2014(y).

The Senate Judiciary Committee emphasized that "obtains information" in this context includes mere observation of the data. "Actual asportation, in the sense of physically removing the data from its original location or transcribing the data, need not be proved in order to establish a violation of this subsection." S.Rep. 99-432, at 6-7 (1986), reprinted in 1986 U.S.C.C.A.N. 2479, 2484.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 1030(a)(2) makes it a Federal crime or offense for anyone to intentionally access a computer [without authorization] [in excess of authorized access] and thereby obtain information contained in a financial record of [a financial institution] [the issuer of a credit card] [a consumer reporting agency concerning a consumer].

    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 accessed a computer [without authorization] [in excess of the Defendant's authorization]; and 

    Second: That the Defendant thereby obtained information contained [in a financial record of a financial institution] [in a financial record of the issuer of a credit card] [in a file of a consumer reporting agency concerning a consumer]; and

    Third: The offense was committed [for purposes of commercial advantage or private financial gain] [in furtherance of any criminal or tortious act] [to obtain information having a value exceeding $5,000.]

    The term "computer" means an electric, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device.

    [The term "exceeds authorized access" means to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.]

    [The term "financial record" means information derived from any record held by [a financial institution] [an issuer of a credit card] pertaining to a customer's relationship with it.] 

    [The term "financial institution" means [an institution with deposits insured by the Federal Deposit Insurance Corporation] [a credit union with accounts insured by the National Credit Union Administration] [a broker-dealer registered with the Securities and Exchange Commission pursuant to section 15 of the Securities Exchange Act of 1934.]

    [The term "consumer reporting agency" means any person or corporation which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports.]

    A “criminal or tortious act” would include [describe the crime or tort intended to be furthered by the offense].

ANNOTATIONS AND COMMENTS

    18 USC 1030(a)(2) provides:

    (a) Whoever - -

* * * * *

    (2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains information contained in a financial record of a financial institution, or of a card issuer as defined in section 1602(n) of Title 15, or contained in a file of a consumer reporting agency on a consumer, as such terms are defined in the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.) [shall be punished as provided in subsection (C) of this section].

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

    15 USC 1681a(c) defines "consumer" to mean "an individual," and 15 USC 1681a(f) defines "consumer reporting agency." 15 USC 1602(n) defines "card issuer" to mean "any person who issues a credit card, or the agent of such person
with respect to such card." 

    The Senate Judiciary Committee emphasized that "obtains information" in this context includes mere observation of the data. "Actual asportation, in the sense of physically removing the data from its original location or transcribing the data, need not be proved in order to establish a violation of this subsection." S.Rep. 99-432, at 6-7 (1986), reprinted in 1986 U.S.C.C.A.N. 2479, 2484.

[For 1997 Version of this instruction, see below]

18 USC 1030(a)(2) provides:

(a) Whoever --

* * * * *

(2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains information contained in a financial record of a financial institution, or of a card issuer as defined in section 1602(n) of Title 15, or contained in a file of a consumer reporting agency on a consumer, as such terms are defined in the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.) [shall be punished as provided in subsection (c) of this section].

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

15 USC 1681a(c) defines "consumer" to mean "an individual," and 15 USC 1681a(f) defines "consumer reporting agency." 15 USC 1602(n) defines "card issuer" to mean "any person who issues a credit card, or the agent of such person with respect to such card."

The Senate Judiciary Committee emphasized that "obtains information" in this context includes mere observation of the data. "Actual asportation, in the sense of physically removing the data from its original location or transcribing the data, need not be proved in order to establish a violation of this subsection." S.Rep. 99-432, at 6-7 (1986), reprinted in 1986 U.S.C.C.A.N. 2479, 2484.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 42.3 
Computer Fraud Causing Damage To Computer Or Program
(18 USC 1030(a)(5)(A) and (B))

    Title 18, United States Code, Section 1030(a)(5), makes it a Federal crime or offense for anyone, through means of a computer used in interstate commerce or communications, to knowingly and without authorization, cause the transmission of any program, code or command to another computer or computer system [with intent to] [with reckless disregard of a substantial and unjustifiable risk that the transmission will] [damage the receiving computer, computer system, network, information, data or program] [withhold or deny, or cause the withholding or denial, of the use of a computer, computer services, system or network, information, data or program]. 

    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, through means of a computer used in interstate commerce or communications, knowingly caused the transmission of a program, information, code or command to another computer or computer system, as charged; 

    Second: That the Defendant, by causing the transmission [intended to] [acted with reckless disregard of a substantial and unjustifiable risk that the transmission would] [damage the receiving computer, computer system, information, data or program] [withhold or deny, or cause the withholding or denial, of the use of a computer, computer services, system or network, information, data or program];

    Third: That the Defendant so acted without the authorization of the persons or entities who own or are responsible for the computer system receiving the program, information, code or command; and 

    Fourth: That the Defendant's acts [caused loss or damage to one or more other persons of value aggregating$1,000 or more during any one year period] [modified or impaired, or potentially modified or impaired, the medical examination, medical diagnosis, medical treatment, or medical care of one or more individuals].

    The term "computer" means an electric, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device.

ANNOTATIONS AND COMMENTS

    18 USC 1030(a)(5)(A) provides:

    (a) Whoever - -

    * * * * *

    (5)(A) through means of a computer used in interstate commerce or communications, knowingly causes the transmission of a program, information, code, or command to a computer or computer system if - -

    (i) the person causing the transmission intends that such transmission will - -

    (I) damage, or cause damage to, a computer, computer system, network, information, data, or program; or (II) withhold or deny, or cause the withholding or denial, of the use of a computer, computer services, system or network, information, data or program; and

    (ii) the transmission of the harmful component of the program, information, code, or command --

    (I) occurred without the authorization of the persons or entities who own or are responsible for the computer system receiving the program, information, code, or command; and 

    (II)(aa) causes loss or damage to one or more other persons of value aggregating $1,000 or more during any 1-year period; or 

(bb) modifies or impairs, or potentially modifies or impairs, the medical examination, medical diagnosis, medical treatment, or medical care of one or more individuals. 

[shall be punished as provided in subsection (c) of this section].

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

    18 USC 1030(a)(5)(B) provides:

    (a) Whoever - -

    * * * * *

    (5)(B) through means of a computer used in interstate commerce or communication, knowingly causes the transmission of a program, information, code, or command to a computer or computer system - -

    (i) with reckless disregard of a substantial and unjustifiable risk that the transmission will - -

    (I) damage, or cause damage to, a computer, computer system, network, information, data or program; or

    (II) withhold or deny or cause the withholding or denial of the use of a computer, computer services, system, network, information, data or program; and

    (ii) if the transmission of the harmful component of the program, information, code, or command - -

    (I) occurred without the authorization of the persons or entities who own or are responsible for the computer system receiving the program, information, code, or command; and

    (II)(aa) causes loss or damage to one or more other persons of a value aggregating $1,000 or more during any 1-year period; or 

    (bb) modifies or impairs, or potentially modifies or impairs, the medical examination, medical diagnosis, medical treatment, or medical care of one or more individuals.

    [shall be punished as provided in subsection (c) of this section].

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

[For 1997 Version of this instruction, see below]

18 USC 1030(a)(5)(A) provides:

(a) Whoever --

* * * * *

(5)(A) through means of a computer used in interstate commerce or communications, knowingly causes the transmission of a program, information, code, or command to a computer or computer system if --

(i) the person causing the transmission intends that such transmission will - -

(I) damage, or cause damage to, a computer, computer system, network, information, data, or program; or

(II) withhold or deny, or cause the withholding or denial, of the use of a computer, computer services, system or network, information, data or program; and

(ii) the transmission of the harmful component of the program, information, code, or command - -

(I) occurred without the authorization of the persons or entities who own or are responsible for the computer system receiving the program, information, code, or command; and

(II)(aa) causes loss or damage to one or more other persons of value aggregating $1,000 or more during any 1-year period; or

(bb) modifies or impairs, or potentially modifies or impairs, the medical examination, medical diagnosis, medical treatment, or medical care of one or more individuals.

[shall be punished as provided in subsection (c) of this section].

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

18 USC 1030(a)(5)(B) provides:

(a) Whoever --

* * * * *

(5)(B) through means of a computer used in interstate commerce or communication, knowingly causes the transmission of a program, information, code, or command to a computer or computer system --

(i) with reckless disregard of a substantial and unjustifiable risk that the transmission will --

(I) damage, or cause damage to, a computer, computer system, network, information, data or program; or

(II) withhold or deny or cause the withholding or denial of the use of a computer, computer services, system, network, information, data or program; and

(ii) if the transmission of the harmful component of the program, information, code, or command - -

(I) occurred without the authorization of the persons or entities who own or are responsible for the computer system receiving the program, information, code, or command; and

(II)(aa) causes loss or damage to one or more other persons of a value aggregating $1,000 or more during any 1-year period; or

(bb) modifies or impairs, or potentially modifies or impairs, the medical examination, medical diagnosis, medical treatment, or medical care of one or more individuals.

[shall be punished as provided in subsection (c) of this section].

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

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 42.4 
Computer Fraud Trafficking In Passwords
(18 USC 1030(a)(6)(A) or (B))

    Title 18, United States Code, Section 1030(a)(6)(A), makes it a Federal crime or offense for anyone, knowingly and with intent to defraud, to traffic in any password through which a computer may be accessed without authorization.

    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 trafficked in a password, or similar information through which a computer may be accessed, without authorization, as charged;

    Second: That the Defendant acted with intent to defraud; and

    Third: That the Defendant's acts [affected interstate commerce] [involved access to a computer used by or for the Government of the United States].

    The term "computer" means an electric, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device.

    To "traffic" in something means to transfer, deliver or otherwise dispose of it to another, or to obtain control of it with intent to transfer, deliver or dispose of it to another, either with or without any financial interest in the transaction.

    To act "with intent to defraud" means to act knowingly and with the specific intent to deceive someone, ordinarily for the purpose of causing some financial loss to another or bringing about some financial gain to one's self.

    The term "interstate commerce" means the movement or transmission of something in commerce from one state into another state. The Government claims that the Defendant's acts affected interstate commerce because the Defendant [used interstate telephone facilities in committing the alleged offense]. If you find that this claim has been proved beyond a reasonable doubt, then you may find that the requisite affect on interstate commerce has been established.

ANNOTATIONS AND COMMENTS

    18 USC 1030(a)(6)(A) provides:

    (a) Whoever - -

    * * * * * *

    (6) knowingly and with intent to defraud traffics (as defined in section 1029) in any password or similar information through which a computer may be accessed without authorization, if - -

    (A) such trafficking affects interstate or foreign commerce [shall be punished as provided in subsection (C) of this section]; or

    (B) such computer is used by or for the Government of the United States [shall be punished as provided in subsection (c) of this section].

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

[For 1997 Version of this instruction, see below]

18 USC 1030(a)(6)(A) provides:

(a) Whoever --

* * * * * *

(6) knowingly and with intent to defraud traffics (as defined in section 1029) in any password or similar information through which a computer may be accessed without authorization, if --

(A) such trafficking affects interstate or foreign commerce [shall be punished as provided in subsection (c) of this section]; or

(B) such computer is used by or for the Government of the United States [shall be punished as provided in subsection (c) of this section].

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

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 43
Major Fraud Against The United States
(18 USC 1031)

    Title 18, United States Code, Section 1031, makes it a Federal crime or offense for anyone to knowingly execute, or attempt to execute, any scheme or artifice with the intent to defraud the United States or to obtain money or property by means of false or fraudulent pretenses, representations, or promises, in any procurement of property or services as a prime contractor with the United States, or as a subcontractor or supplier on a contract in which there is a prime contract with the United States, if the value of the contract is $1,000,000 or more.

    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 executed or attempted to execute a scheme or artifice with the intent to defraud the United States, or to obtain money or property by means of materially false or fraudulent pretenses, representations, and promises, as charged;

    Second: That the scheme took place as a part of the procurement or acquisition of [property] [services] [money] as a contractor with the United States or as a subcontractor or a supplier on a contract with the United States; and

    Third: That the value of the contract was one million dollars or more.

    The value of the contract is the value of the amount to be paid under the contract.

    The false or fraudulent pretenses, representations, or promises violate the law if they occur [prior to the creation of the contract] [at the same time as the creation of the contract] [during the execution of the contract].

    The term “scheme to defraud” includes any plan or course of action intended to deceive or cheat someone out of money or property by means of false or fraudulent pretenses, representations, or promises.

    A statement or representation is “false” or “fraudulent” if it relates to a material fact and is known to be untrue or is made with reckless indifference as to its truth or falsity, and is made or caused to be made with intent to defraud. A statement or representation may also be “false” or “fraudulent” when it constitutes a half truth, or effectively conceals a material fact, with intent to defraud.

    A “material fact” is a fact that would be important to a reasonable person in deciding whether to engage or not to engage in a particular transaction.

    To act with “intent to defraud” means to act knowingly and with the specific intent to deceive someone, 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 1031 provides:

    Whoever knowingly executes, or attempts to execute, any scheme or artifice with the intent - -

    (1) to defraud the United States; or

    (2) to obtain money or property by means of false or fraudulent pretenses, representations or promises, in any procurement of property or services as a prime contractor with the United States . . . if the value of the contract . . . for such property or services is $1,000,000 or more, shall [be guilty of an offense against the United States].

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

    In United States v. Nolan, 223 F.3d 1311 (11th Cir. 2000), the Eleventh Circuit approved a substantially similar instruction.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 1084, makes it a Federal crime or offense for anyone engaged in betting or wagering as a business to use a wire communication facility for the interstate transmission of a bet or betting information on any sporting event. 

    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 was engaged in the business of betting or wagering, as charged;

    Second: That, as a part of such business, the Defendant knowingly used a wire communication facility to transmit in interstate [or foreign] commerce bets or wagers, or information assisting in the placing of bets or wagers, on any sporting event or contest; and 

    Third: That the Defendant did so willfully.

    To be "engaged in the business of betting or wagering" it is not necessary that making bets or wagers, or dealing in wagering information, constitutes a person's primary source of income, nor must it be shown that such person has made any specific number of bets; or that such person has made a specific dollar volume of bets, or has actually earned a profit.

    What must be shown beyond a reasonable doubt is that the Defendant engaged in a regular course of conduct or series of transactions involving time, attention and labor devoted to betting or wagering for profit, rather than casual, isolated or sporadic transactions.

    A "wire communication facility" would include long distance telephone facilities; and information conveyed or received by telephone from one state into another state [or between the United States and a foreign country], would constitute a transmission in interstate [or foreign] commerce.

ANNOTATIONS AND COMMENTS

    18 USC 1084(a) provides:

    Whoever being engaged in the business of betting or wagering knowingly uses a wire communication facility for the transmission in interstate or foreign commerce of bets or wagers or information assisting in the placing of bets or wagers on any sporting event or contest [shall be guilty of an offense against the United States].

    Maximum Penalty: Two (2) years imprisonment and applicable fine.

    The "use" of a wire communication facility for the transmission of gambling information includes either the transmission or receipt of such information. United States v. Sellers, 483 F.2d 37 (5th Cir. 1974), cert. denied, 417 U.S. 908, 94 S.Ct. 2604, 41 L.Ed.2d 212 (1974), overruled on other grounds by United States v. McKeever, 905 F.2d 829 (5th Cir. 1990). Also, the Defendant need not have personal knowledge of the interstate character of the transmission. United States v. Miller, 22 F.3d 1075 (11th Cir. 1994).

[For 1997 Version of this instruction, see below]

18 USC 1084(a) provides:

Whoever being engaged in the business of betting or wagering knowingly uses a wire communication facility for the transmission in interstate or foreign commerce of bets or wagers or information assisting in the placing of bets or wagers on any sporting event or contest [shall be guilty of an offense against the United States].

Maximum Penalty: Two (2) years imprisonment and applicable fine.

The "use" of a wire communication facility for the transmission of gambling information includes either the transmission or receipt of such information. United States v. Sellers, 483 F.2d 37 (5th Cir. 1974), cert. denied, 417 U.S. 908, 94 S.Ct. 2604, 41 L.Ed.2d 212 (1974), overruled on other grounds by United States v. McKeever, 905 F.2d 829 (5th Cir. 1990). Also, the Defendant need not have personal knowledge of the interstate character of the transmission. United States v. Miller, 22 F.3d 1075 (11th Cir. 1993).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 1111, makes it a Federal crime or offense for anyone to murder another human being within the [special maritime] [territorial] jurisdiction of the United States. Murder is the unlawful killing of a human being with malice aforethought.

    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 victim named in the indictment was killed;

    Second: That the Defendant caused the death of the victim with "malice aforethought," as charged;

    Third: That the Defendant did so with "premeditated intent;" and

    Fourth: That the killing occurred within the [special maritime] [territorial] jurisdiction of the United States.

    To kill with "malice aforethought" means an intent at the time of the killing to take the life of another person, either deliberately and intentionally, or to willfully act with callous and wanton disregard for human life. The Government need not prove that the Defendant hated the person killed or felt ill will toward the victim at the time, but the evidence must establish beyond a reasonable doubt that the Defendant acted either with the intent to kill or to willfully do acts with callous and wanton disregard for the consequences and which the Defendant knew would result in a serious risk of death or serious bodily harm.

    Killing with "premeditated intent" is required in addition to proof of malice aforethought in order to establish the offense of first degree murder. Premeditation is typically associated with killing in cold blood and requires a period of time in which the accused deliberates, or thinks the matter over, before acting. The law does not specify or require any exact period of time that must pass between the formation of the intent to kill and the killing itself. It must be long enough for the killer, after forming the intent to kill, to be fully conscious of that intent.

    [It is not necessary, however, for the Government to prove that the person killed - - the victim - - was the person whom the Defendant intended to kill. If a person forms a premeditated intent to kill one person and in attempting to kill that person actually kills another person, the killing is premeditated.]

    If you find beyond a reasonable doubt that the offense occurred at the location alleged and described in the indictment, you are instructed that the location would be within the [special maritime] [territorial] jurisdiction of the United States.

ANNOTATIONS AND COMMENTS

    (See Annotations and Comments following Offense Instruction 45.3, infra.)

    In the appropriate case, the instructions for a Lesser Included Offense, for Second Degree Murder, and for Voluntary or Involuntary Manslaughter may need to be incorporated.

    If there is evidence that the Defendant acted lawfully, such as in self defense, a fifth element should be added and explained. For example: “The Defendant did not act in self defense,” with a definition or explanation of what constitutes self defense. The absence of self defense in such circumstances must be proven beyond a reasonable doubt by the Government. United States v. Alvarez, 755 F.2d 830, 842-43, 846 (11th Cir. 1985).

[For 1997 Version of this instruction, see below]

(See Annotations and Comments following Offense Instruction 38.3, infra.)

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 1111, makes it a Federal crime or offense for anyone to murder another human being during [the perpetration of] [an attempt to perpetrate] the crime of [arson] [escape] [murder] [kidnapping] [treason] [espionage] [sabotage] [aggravated sexual abuse] [sexual abuse] [burglary] [robbery] within the [special maritime] [territorial] jurisdiction 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 victim named in the indictment was killed;

    Second: That the Defendant caused the death of the victim, as charged;

    Third: That the death of the victim occurred as a consequence of and while the Defendant was knowingly and willfully engaged [in perpetrating] [in attempting to perpetrate] the crime of [arson, etc.] as charged; and

    Fourth: That the killing occurred within the [special maritime] [territorial] jurisdiction of the United States.

    The crime charged here is known as a "felony murder" - - that is, a killing that occurs during the knowing and willful commission of some other, specified felony offense. It is not necessary, therefore, for the Government to prove that the Defendant had any premeditated design or intent to kill the victim. It is sufficient if the Government proves beyond a reasonable doubt that the Defendant knowingly and willfully [committed] [attempted to commit] the crime of [arson, etc.] as charged in the indictment, and that the killing of the victim occurred during, and as a consequence of, the Defendant's [commission of] [attempt to commit] that crime.

    If you find beyond a reasonable doubt that the offense occurred at the location alleged and described in the indictment, you are instructed that the location would be within the [special maritime] [territorial] jurisdiction of the United States.

ANNOTATIONS AND COMMENTS

    (See Annotations and Comments following Offense Instruction 45.3, infra.)

    In the case of felony murder the malice aforethought requirement of Section 1111 is satisfied if the murder results from the perpetration of the enumerated crime. United States v. Thomas, 34 F.3d 44, 49 (2d Cir.), cert. denied, 513 U.S. 1007, 115
S.Ct. 527, 130 L.Ed.2d 431 (1994). The felony murder statute “reflects the English common law principle that one who caused another’s death while committing or attempting to commit a felony was guilty of murder even though he did not intend
to kill the deceased.” United States v. Tham, 118 F.3d 1501, 1508 (11th Cir. 1997). It applies to the accidental, self-inflicted death of a co-conspirator. Id. Second degree murder is not a lesser included offense of felony murder under Section 1111(a) because the malice aforethought elements are different. Unlike second degree murder, malice aforethought for felony murder is satisfied only by commission of a felony enumerated in Section 1111(a). United States v. Chanthadara, 230 F.3d 1237, 1258 (10th Cir. 2000).

[For 1997 Version of this instruction, see below]

Annotations and Comments

(See Annotations and Comments following Offense Instruction 38.3, infra.)

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 1111, makes it a Federal crime or offense for anyone to murder another human being within the [special maritime] or [territorial] jurisdiction of the United States. Murder is the unlawful killing of a human being with malice aforethought. 

    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 victim named in the indictment was killed;

    Second: That the Defendant caused the death of the victim with "malice aforethought," as charged; and

    Third: That the killing occurred within the [special maritime] [territorial] jurisdiction of the United States.

    To kill with "malice aforethought" means an intent at the time of the killing to take the life of another person either deliberately and intentionally, or to willfully act with callous and wanton disregard for human life. The Government need not prove that the Defendant hated the person killed or felt ill will toward the victim at the time, but the evidence must establish beyond a reasonable doubt that the Defendant acted either with the intent to kill or to willfully do acts with callous and wanton disregard for the consequences and which the Defendant knew would result in a serious risk of death or serious bodily harm.

    The difference between second degree murder, which is the charge you are considering, and first degree murder, is that second degree murder does not require premeditation. Premeditation is typically associated with killing in cold blood and requires a period of time in which the accused deliberates, or thinks the matter over before acting.

    The crime charged here is second degree murder, and it is sufficient if the Government proves beyond a reasonable doubt that the Defendant killed the victim deliberately and intentionally (but without premeditation), or that the Defendant killed the victim by acting with callous and wanton disregard for human life.

    If you find beyond a reasonable doubt that the offense occurred at the location alleged and described in the indictment, you are instructed that the location would be within the [special maritime] [territorial] jurisdiction of the United States. 

ANNOTATIONS AND COMMENTS

    18 USC 1111 provides:

    (a) Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnaping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, burglary, or robbery; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.

    Any other murder is murder in the second degree.

    (b) Within the special maritime and territorial jurisdiction of the United States, 

    Whoever is guilty of murder in the first degree shall be punished by death or by imprisonment for life; 

    Whoever is guilty of murder in the second degree, shall be imprisoned for any term of years or for life.

    First degree murder under Section 1111 (including murder by transferred intent) requires both a finding of malice aforethought and premeditation (or felony murder). United States v. Weise, 89 F.3d 502, 505 (8th Cir. 1996) ("first degree murder is a killing with malice aforethought and premeditation, second degree murder is a killing with malice aforethought. . ."); United States v. Shaw, 701 F.2d 367, 392 (5th Cir. 1983), cert. denied, 465 U.S. 1067, 104 S.Ct. 1419, 79 L.Ed.2d 744 (1984) ("Section 1111 retains the common law distinction between second degree murder, which requires a killing with malice aforethought, and first degree murder, which in addition to malice aforethought requires a killing with premeditation and
deliberation.")

    Malice aforethought is a term of art which has several definitions. United States v. Pearson, 159 F.3d 480, 485 (10th Cir. 1998). Under both the common law and the federal murder statute, malice aforethought encompasses three distinct mental states: (1) intent to kill; (2) intent to do serious bodily injury; and (3) extreme recklessness and wanton disregard for human life (i.e. a "depraved heart"). Lara v. U. S. Parole Commission, 990 F.2d 839, 841 (5th Cir. 1993); United States v. Browner, 889 F.2d 549, 551-52 (5th Cir. 1989); see also United States v. Harrelson, 766 F.2d 186, 189 n.5 (5th Cir.) ("`Malice aforethought' means an intent, at the time of the killing, willfully to take the life of a human being, or an intent willfully to act in callous and wanton disregard of the consequences to human life. . . .") (quoting 2 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions 215 (1977)), cert. denied, 474 U.S. 908, 106 S.Ct. 277, 88 L.Ed.2d 241 (1985). In United States v. Milton, 27 F.3d 203, 206-207 (6th Cir. 1994), and United States v. Sheffey, 57 F.3d 1419, 1430 (6th Cir. 1995), cert. denied 516 U.S. 1065, 116 S.Ct. 749, 133 L.Ed.2d 697 (1996), the Sixth Circuit adopted essentially the same definition of malice aforethought: malice aforethought may be established by (1) "evidence of conduct which is `reckless and wanton, and a gross deviation from a reasonable standard of care, of such nature that a jury is warranted in inferring that defendant was aware of a serious risk of death or serious bodily harm.'" United States v. Black Elk, 579 F.2d 49, 51 (8th Cir. 1978) (citing United States v. Cox, 509 F.2d 390, 392 (D.C. Cir. 1974)); (2) evidence that the defendant "intentionally commit[ted] a wrongful act without legal justification or excuse." United States v. Celestine, 510 F.2d 457, 459 (9th Cir. 1975); or (3) "circumstances which show `a wanton and deprived spirit, a mind bent on evil mischief without regard to its consequences.'" Id. To prove that the Defendant acted with malice aforethought, “the government must show that he engaged in ‘conduct which is reckless and wanton, and a gross deviation from a reasonable standard of care, of such a nature that a jury is warranted in inferring that defendant was aware of a serious risk of death or serious bodily harm.’” United States v. Tan, 254 F.3d 1204, 1207 (10th Cir. 2001) (addressing second degree murder) (quoting United States v. Wood, 207 F.3d 1222, 1228 (10th Cir. 2000)). In other words, “the government must show that Defendant knew that his conduct posed a serious risk of death or harm to himself or others, but did not care.” Id. Malice aforethought also may be established by showing evidence that the defendant “intentionally commit[ted] a wrongful act without legal justification or excuse” or by “circumstances which show a wanton and deprived spirit, a mind bent on evil mischief without regard to its consequences.” United States v. Celestine, 510 F.2d 457, 459 (9th Cir. 1975) (quoting Government of Virgin Islands v. Lake, 362 F.2d 770 (3d Cir. 1966)); see also United States v. Sheffey, 57 F.3d 1419, 1430 (6th Cir. 1995), cert. denied, 516 U.S. 1065, 116 S.Ct. 749, 133 L.Ed.2d 697 (1996); United States v. Milton, 27 F.3d 203, 206-07 (6th Cir. 1994), cert. denied, 513 U.S. 1085, 115 S.Ct. 741, 130 L.Ed.2d 642 (1995).

    In the case of a felony murder, the malice aforethought requirement of section 1111 is satisfied if the murder results from the perpetration of the enumerated crime. See United States v. Thomas, 34 F.3d 44, 49 (2d Cir.), cert. denied, ____ U.S. ____, 115 S.Ct. 527, 130 L.Ed.2d 431 (1994).

[For 1997 Version of this instruction, see below]

18 USC 1111 provides:

(a) Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnaping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, burglary, or robbery; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.

Any other murder is murder in the second degree.

(b) Within the special maritime and territorial jurisdiction of the United States,

Whoever is guilty of murder in the first degree shall be punished by death or by imprisonment for life;

Whoever is guilty of murder in the second degree, shall be imprisoned for any term of years or for life.

First degree murder under Section 1111 (including murder by transferred intent) requires both a finding of malice aforethought and premeditation (or felony murder). United States v. Weise, 89 F.3d 502, 505 (8th Cir. 1997) ("first degree murder is a killing with malice aforethought and premeditation, second degree murder is a killing with malice aforethought. . ."); United States v. Shaw, 701 F.2d 367, 392 (5th Cir. 1983), cert. denied, 465 U.S. 1067, 104 S.Ct. 1419, 79 L.Ed.2d 744 (1984) ("Section 1111 retains the common law distinction between second degree murder, which requires a killing with malice aforethought, and first degree murder, which in addition to malice aforethought requires a killing with premeditation and deliberation.")

Malice aforethought is "a term of art that bears little if any relationship to the ordinary meaning of the word." United States v. Browner, 889 F.2d 549, 551 (5th Cir. 1989). Under both the common law and the federal murder statute, malice aforethought encompasses three distinct mental states: (1) intent to kill; (2) intent to do serious bodily injury; and (3) extreme recklessness and wanton disregard for human life (i.e. a "depraved heart"). Lara v. U. S. Parole Commission, 990 F.2d 839, 841 (5th Cir. 1993); United States v. Browner, supra, 889 F.2d at 551-52; see also United States v. Harrelson, 766 F.2d 186, 189 n.5 (5th Cir.) ("`Malice aforethought' means an intent, at the time of the killing, willfully to take the life of a human being, or an intent willfully to act in callous and wanton disregard of the consequences to human life. . . .") (quoting 2 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions 215 (1977)), cert. denied, 474 U.S. 908, 106 S.Ct. 277, 88 L.Ed.2d 241 (1985). In United States v. Milton, 27 F.3d 203, 206-207 (6th Cir. 1994), and United States v. Sheffey, 57 F.3d 1419, 1430 (6th Cir. 1995), cert. denied, U.S. , 116 S.C. 749, 133 L.Ed.2d 697 (1997), the Sixth Circuit recently adopted essentially the same definition of malice aforethought: malice aforethought may be established by (1) "evidence of conduct which is `reckless and wanton, and a gross deviation from a reasonable standard of care, of such nature that a jury is warranted in inferring that defendant was aware of a serious risk of death or serious bodily harm.'" United States v. Black Elk, 579 F.2d 49, 51 (8th Cir. 1978) (citing United States v. Cox, 509 F.2d 390, 392 (D.C. Cir. 1974)); (2) evidence that the defendant "intentionally commit[ted] a wrongful act without legal justification or excuse." United States v. Celestine, 510 F.2d 457, 459 (9th Cir. 1975); or (3) "circumstances which show `a wanton and deprived spirit, a mind bent on evil mischief without regard to its consequences.'" Id.

In the case of a felony murder, the malice aforethought requirement of section 1111 is satisfied if the murder results from the perpetration of the enumerated crime. See United States v. Thomas, 34 F.3d 44, 49 (2d Cir.), cert. denied, ____ U.S. ____, 115 S.Ct 527, 130 L.Ed.2d 431 (1994).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 1112, makes it a Federal crime or offense for anyone to commit voluntary manslaughter - - that is, the unlawful and intentional killing of a human being without malice upon a sudden quarrel or heat of passion - - whenever the offense occurs within the [special maritime] [territorial] jurisdiction 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 victim named in the indictment is dead;

    Second: That the Defendant caused the death of the victim, as charged;

    Third: That the Defendant so acted intentionally, but without malice and in the heat of passion caused by adequate provocation; and 

    Fourth: That the killing occurred within the [special maritime] [territorial] jurisdiction of the United States.

    Manslaughter is an unlawful killing of a human being without malice, and it is voluntary when it occurs intentionally and upon a sudden quarrel or in the heat of passion. The phrase "in the heat of passion" means an emotional state that is generally provoked or induced by anger, fear, terror, or rage. In order for this provocation to be an "adequate provocation," it must be of a kind that would naturally cause a reasonable person to temporarily lose self control and to commit the act upon impulse and without reflection but which did not justify the use of deadly force.

    If you find beyond a reasonable doubt that the offense occurred at the location alleged and described in the indictment, you are instructed that the location would be within the [special maritime] [territorial] jurisdiction of the United States.

ANNOTATIONS AND COMMENTS

    (See Annotations and Comments following Offense Instruction 46.2, infra.)

[For 1997 Version of this instruction, see below]

(See Annotations and Comments following Offense Instruction 39.2, infra.)

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 1112, makes it a Federal crime or offense for anyone to commit involuntary manslaughter - - that is, the unlawful but unintentional killing of a human being [during the commission of an unlawful act not amounting to a felony] [as a result of an act in wanton and reckless disregard for human life] - - whenever the offense occurs within the [special maritime] or [territorial] jurisdiction 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 victim named in the indictment is dead;

    Second: That the Defendant caused the death of the victim, or inflicted injuries upon the victim from which the victim died, as charged;

    Third: That the death of the victim occurred as a consequence of and while the Defendant was engaged in committing an unlawful act not amounting to a felony, namely [describe unlawful act], or in committing a lawful act in an unlawful manner or with wanton and reckless disregard for human life;

    Fourth: That the Defendant knew that his [her] conduct was a threat to the lives of others or had knowledge of such circumstances as could have enabled him [her] to reasonably foresee the peril to which his [her] act might subject others; and

    Fifth: That the killing occurred within the [special maritime] [territorial] jurisdiction of the United States.

    Manslaughter is an unlawful killing of a human being without malice, and it is involuntary if it was not done intentionally, but occurs in the commission of an unlawful act not amounting to a felony, or in the commission of a lawful act in an unlawful manner or without due caution and circumspection of a lawful action which might produce death. In order to establish the offense of involuntary manslaughter the Government need not prove that the Defendant specifically intended to cause the death of the victim, but it must prove more than mere negligence or a failure to use reasonable care by the Defendant; it must, instead, prove gross negligence amounting to "wanton and reckless disregard for human life."

    If you find beyond a reasonable doubt that the offense occurred at the location alleged and described in the indictment, you are instructed that the location would be within the [special maritime] [territorial] jurisdiction of the United States.

ANNOTATIONS AND COMMENTS

    18 USC 1112 provides:

    (a) Manslaughter is the unlawful killing of a human being without malice. It is of two kinds:

    Voluntary - - Upon a sudden quarrel or heat of passion.

    Involuntary - - In the commission of an unlawful act not amounting to a felony, or in the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death.

    (b) Within the special maritime and territorial jurisdiction of the United States,

    Whoever is guilty of voluntary manslaughter [shall be guilty of an offense against the United States].

    Whoever is guilty of involuntary manslaughter [shall be guilty of an offense against the United States].

    The fact that distinguishes manslaughter from murder is the absence of malice. See 18 USC 112(a). In the case of voluntary manslaughter, the existence of a sudden quarrel or heat of passion is deemed to demonstrate the absence of malice. United States v. Pearson, 203 F.3d 1243, 1271 (10th Cir. 2000); United States v. Collins, 690 F.2d 431, 437 (5th Cir. 1982), cert. denied, 460 U.S. 1046, 103 S.Ct. 1447, 75 L.Ed.2d 801 (1983). “A ‘heat of passion’ is a passion of fear or rage in which the defendant loses his normal self-control as a result of circumstances that would provoke such a passion in an ordinary person, but which did not justify the use of deadly force.” Lizama v. United States Parole Comm’n., 245 F.3d 503, 506 (5th Cir. 2001). The government is not required to prove the absence of sudden provocation or heat of passion for a voluntary manslaughter conviction to stand in a murder trial. However, once evidence is presented that the defendant’s capacity for self-control was impaired by an extreme provocation, “the burden is on the Government to prove beyond a reasonable doubt the absence of sudden quarrel or heat of passion before a conviction for murder can be sustained. See United States v. Quintero, 21 F.3d 885, 890 (9th Cir. 1994) (citing Mullaney v. Wilbur, 421 U.S. 684, 704, 95 S.Ct. 1881, 1892, 44 L.Ed.2d 508 (1975).

    "A proper instruction on an involuntary manslaughter charge requires the jury to find that the defendant (1) act with gross negligence, meaning a wanton or reckless disregard for human life, and (2) have knowledge that his or her conduct was a threat to the life of another or knowledge of such circumstances as could reasonably have enabled the defendant to foresee the peril to which his or her act might subject another." United States v. Fesler, 781 F.2d 384, 393 (5th Cir.), cert. denied 476 U.S. 1118, 106 S.Ct. 1977, 90 L.Ed.2d 661 (1986); see also, United States v. Paul, 37 F.3d 496, 499 (9th Cir. 1994) ("involuntary manslaughter is an unintentional killing that `evinces a wanton or reckless disregard for human life but not of the extreme nature that will support a finding of malice'" sufficient to justify a conviction for second degree murder). The intent element of involuntary manslaughter is not satisfied by a showing of simple negligence. United States v. Gaskell, 985 F.2d 1056, 1064 (11th Cir. 1993).

    These elements are based upon United States v. Sasnett, 925 F.2d 392 (11th Cir. 1991), and United States v. Schmidt, 626 F.2d 616 (8th Cir. 1980), cert. denied 449 U.S. 904, 101 S.Ct. 278, 66 L.Ed.2d (1981), but there may be some confusion regarding the third element in the Sasnett opinion. The third element set out here is intended to encompass the statutory distinction between lawful and unlawful acts, but should be tailored to fit the specific case. See also United States v. Browner, 889 F.2d 549 (5th Cir. 1989).

[For 1997 Version of this instruction, see below]

18 USC 1112 provides:

(a) Manslaughter is the unlawful killing of a human being without malice. It is of two kinds:

Voluntary - - Upon a sudden quarrel or heat of passion.

Involuntary - - In the commission of an unlawful act not amounting to a felony, or in the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death.

(b) Within the special maritime and territorial jurisdiction of the United States,

Whoever is guilty of voluntary manslaughter [shall be guilty of an offense against the United States].

Whoever is guilty of involuntary manslaughter [shall be guilty of an offense against the United States].

The fact that distinguishes manslaughter from murder is the absence of malice. See 18 USC 112(a). In the case of voluntary manslaughter, the existence of a sudden quarrel or heat of passion is deemed to demonstrate the absence of malice. United States v. Collins, 690 F.2d 431, 437 (5th Cir. 1982), cert. denied, 460 U.S. 1046, 103 S.Ct. 1447, 75 L.Ed.2d 801 (1983). "A proper instruction on an involuntary manslaughter charge requires the jury to find that the defendant (1) act with gross negligence, meaning a wanton or reckless disregard for human life, and (2) have knowledge "that his or her conduct was a threat to the life of another or knowledge" of such circumstances as could reasonably have enabled the defendant to foresee the peril to which his or her act might subject another." United States v. Fesler, 781 F.2d 384, 393 (5th Cir.), cert. denied, 476 U.S. 1118, 106 S.Ct. 1977, 90 L.Ed.2d 661 (1986); see also, United States v. Paul, 37 F.3d 496, 499 (9th Cir. 1994) ("involuntary manslaughter is an unintentional killing that `evinces a wanton or reckless disregard for human life but not of the extreme nature that will support a finding of malice'" sufficient to justify a conviction for second degree murder).

See also United States v. Browner, 889 F.2d 549 (5th Cir. 1989).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 47 
Attempted Murder 
(18 USC  1113)

    Title 18, United States Code, Section 1113, makes it a Federal crime or offense for anyone to attempt to murder another human being within the [special maritime] [territorial] jurisdiction 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 did something that was a substantial step toward killing _____ , as charged;

    Second: That the Defendant intended to kill _____ , when the Defendant took that substantial step; and

    Third: That the attempted killing occurred within the [special maritime] [territorial] jurisdiction of the United States.

    The “substantial step” required to establish an attempt must be something beyond mere preparation; it must be an act which, unless frustrated by some condition or event, would have resulted, in the ordinary and likely course of things, in the commission of the crime being attempted.

    The Government may have presented evidence of several acts taken by the Defendant, each of which may constitute a “substantial step.” In that event, you must all unanimously agree upon which act constituted the substantial step.

ANNOTATIONS AND COMMENTS

    18 USC §1113 provides:

    Except as provided in section 113 of this title, whoever, within the special maritime and territorial jurisdiction of the United States, attempts to commit murder or manslaughter, shall, for an attempt to commit murder be imprisoned not more than twenty years or fined under this title, or both, and for an attempt to commit manslaughter be imprisoned not more than seven years or fined under this title, or both.

    Attempted murder requires proof of a specific intent to kill the victim. Recklessness and wanton conduct, grossly deviating from a reasonable standard of care such that the Defendant was aware of the serious risk of death, will not suffice as proof of an intent to kill. Braxton v. United States, 500 U.S. 344, 351 n.1, 111 S.Ct. 1854, 1859 n.1, 114 L.Ed.2d 385 (1991) (“Although a murder may be committed without an intent to kill, an attempt to commit murder requires a specific intent to kill.”); United States v. Kwong, 14 F.3d 189, 194-95 (2nd Cir. 1994).

    Whether a Defendant’s conduct amounts to a “substantial step” depends in large part on the facts of each case. United States v. Neal, 78 F.3d 901, 906 (4th Cir. 1996). “‘A substantial step is an appreciable fragment of a crime and an action of such substantiality that, unless frustrated, the crime would have occurred.’” United States v. Smith, 264 F.3d 1012, 1016 (10th Cir. 2001) (quoting United States v. DeSantiago-Flores, 107 F.3d 1472, 1478-79 (10th Cir. 1997)).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 48
Killing Or Attempting To Kill Federal
Officer Or Employee
(18 USC 1114)

Note: If a Defendant is charged with murder, manslaughter, or attempted murder of an officer or employee of the United States in violation of 18 USC 1114, the appropriate murder, manslaughter, or attempted murder instruction set out supra should be used, but modified to require the jury to find that the victim was a federal officer or employee. The jurisdictional element set out in those instructions is not necessary here.

ANNOTATIONS AND COMMENTS

    18 USC 1114 provides:

    Whoever kills or attempts to kill any officer or employee of the United States or of any agency in any branch of the United States Government (including any member of the uniformed services) while such officer or employee is engaged in or on account of the performance of official duties, or any person assisting such an officer or employee in the performance of such duties or on account of that assistance, shall be punished - -

    (1) in the case of murder, as provided under section 1111;

    (2) in the case of manslaughter, as provided under section 1112; or

    (3) in the case of attempted murder or manslaughter, as provided in section 1113.

    See United States v. Alvarez, 755 F.2d 830 (11th Cir. 1985).