PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003
Go to Federal Model Instructions Table of Contents - Go to 11th Circuit Table of Contents

Offenses (OI 71.1 - OI 104)

        OI 71.1  RICO - Substantive Offense (18 USC 1962(c))
        OI 71.2  RICO - Conspiracy Offense (18 USC 1962(d))
        OI 72.1  Bank Robbery (Subsection (a) Only) (18 USC 2113(a))
        OI 72.2  Bank Robbery (Subsections (a) And (d) Alleged In Separate Counts) (18 USC 2113(a) And (d))
        OI 72.3  Bank Robbery (Subsections (a) And (d) Alleged In The Same Count) (18 USC 2113)(a) And (d))
        OI 72.4  Bank Robbery (Subsection (e) Only - - Alleged In Separate Count) (18 USC 2113(e))
        OI 73     Motor Vehicles "Carjacking" (18 USC 2119)
        OI 74     Aggravated Sexual Abuse (By Force Or Threat) (18 USC 2241(a))
        OI 75.1  Transporting Or Shipping Material Involving Sexual Exploitation Of Minors (18 USC 2252(a)(1))
        OI 75.2  Receiving And Distributing Material Involving Sexual Exploitation Of Minors (18 USC 2252(a)(2))
        OI 75.3  Child Pornography Transporting Or Shipping (18 USC 2252A(a)(1))
        OI 75.4  Child Pornography Receiving, Possessing, Distributing (18 USC 2252A(a)(2)(A) and (5)(B))
        OI 76     Interstate Transportation Of A Stolen Motor Vehicle (18 USC 2312)
        OI 77     Sale Or Receipt Of A Stolen Motor Vehicle (18 USC 2313)
        OI 78.1  Interstate Transportation Of Stolen Property (18 USC 2314)
        OI 78.2  Causing Interstate Travel In Execution Of A Scheme To Defraud (18 USC 2314)
        OI 79     Sale Or Receipt Of Stolen Property (18 USC 2315)
        OI 80     Coercion And Enticement Of A Minor To Engage In Sexual Activity (18 USC 2422(b))
        OI 81     Failure To Appear (Bail Jumping) (18 USC 3146)
        OI 82     Unlawful Possession Of Food Stamps (7 USC 2024(b))
        OI 83.1  Bringing In Aliens (8 USC 1324(a)(1)(A)(i))
        OI 83.2  Unlawfully Transporting Aliens (8 USC 1324(a)(1)(A)(ii))
        OI 83.3  Concealing Or Harboring Aliens (8 USC 1324(a)(1)(A)(iii))
        OI 84     Illegal Entry By Deported Alien (8 USC 1326)
        OI 85     Controlled Substances (Possession With Intent To Distribute) (21 USC 841(a)(1))
        OI 86     Controlled Substances (Unlawful Use Of Communications Facility) (21 USC 843(b))
        OI 87     Controlled Substances (Conspiracy) (21 USC 846, 955c And/Or 963)
        OI 88.1  Controlled Substances (Continuing Criminal Enterprise) (21 USC 848)
        OI 88.2  Controlled Substances (Continuing Criminal Enterprise - - Murder) (21 USC 848(e))
        OI 88.3  Controlled Substances (Death Penalty - Supplemental Instructions) (21 USC 848(e) et seq.)
Preliminary Instruction
        OI 88.4  Controlled Substances (Death Penalty - Supplemental Instructions) Substantive Instruction
        OI 89     Possession Of Controlled Substance Near Schools Or Public Housing (21 USC 860)        
        OI 90     Controlled Substances Importation (21 USC 952(a))
        OI 91     Possession Or Transfer Of Non-Tax-Paid Distilled Spirits (26 USC 5604(a)(1) And 5301(d))
        OI 92.1  Possession Of Unregistered Firearm (26 USC 5861(d))
        OI 92.2  Possession Of Firearm Having Altered Or Obliterated Serial Number (26 USC 5861(h))
        OI 93.1  Tax Evasion (General Charge) (26 USC 7201)
        OI 93.2  Net Worth Method
        OI 93.3  Bank Deposits Method
        OI 93.4  Cash Expenditures Method
        OI 94     Failure To File Tax Return (26 USC 7203)
        OI 95     Aiding And Abetting Filing False Return (26 USC 7206(2))
        OI 96     False Tax Return (26 USC 7207)
        OI 97     Impeding Internal Revenue Service (26 USC 7212(a))
        OI 98     Evading Currency Transaction Reporting Requirement (While Violating Another Law) By Structuring Transaction (31 USC 5322(b) and 5324(3))
        OI 99     Fraudulent Receipt Of V. A. Benefits (38 USC 6102(b))
        OI 100   Falsely Representing Social Security Number (42 USC 408(a)(7)(B))
        OI 101   Forceful Intimidation Because Of Race (Occupancy Of Dwelling - - No Bodily Injury) (42 USC 3631)
        OI 102   Controlled Substances (Possession On United States Vessel) (46 USC 1903(a))
        OI 103   Assaulting Or Intimidating Flight Crew Of Aircraft In United States (Without Dangerous Weapon) (49 USC 46504)
        OI 104   Attempting To Board Air Craft With Concealed Weapon Or Explosive Device (49 USC 46505(b))

        Former OI 61.3  RICO - Supplemental Instruction On Forfeiture Issues (After Verdict Of Guilty) (18 USC 1963(a)) [Deleted in 2003 Edition]
        Former OI 77   Forfeiture (21 USC 853) [Deleted in 2003 Edition]

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Count _____ of the indictment charges that from on or about _____ , and continuously thereafter up to and including the date of the filing of the indictment on _____ , the Defendants were persons associated with an "enterprise" engaged in, or the activities of which affected, interstate commerce, and that they knowingly and willfully participated in the conduct of the enterprise's affairs "through a pattern of racketeering activity," in violation of Title 18, United States Code, Section 1961 and 1962(c).

    The term "enterprise" includes any partnership, corporation, association or other legal entity, and any union or group of individuals associated in fact although not a legal entity.

    The term "racketeering activity" includes any act in violation of [e.g., Title 18 of the United States Code relating to mail fraud (section 1341) and wire fraud (Section 1343)].

    The term "pattern of racketeering activity" requires at least two acts of "racketeering activity," sometimes called predicate offenses, which must have been committed within ten years of each other, one of which must have occurred after October 15, 1970.

    So, in order to establish that the Defendants named in Count _____ of the indictment, or any of them, committed the offense charged in that Count, there are five specific facts which must be proved beyond a reasonable doubt:

    First: That the Defendant was associated with an "enterprise" as defined in these instructions;

    Second: That the Defendant knowingly and willfully committed, or knowingly and willfully aided and abetted the commission of at least two of the predicate offenses hereinafter specified;

    Third: That the two predicate offenses allegedly committed by the Defendant were connected with each other by some common scheme, plan or motive so as to be a pattern of criminal activity and not merely a series of separate, isolated or disconnected acts;

    Fourth: That through the commission of two or more connected offenses, the Defendant conducted or participated in the conduct of the "enterprise's" affairs; and

    Fifth: That the enterprise was engaged in, or that its activities affected, interstate commerce.

    With respect to the first specific fact stated above, in order for you to find that the Defendant was "associated" with the enterprise, the Government need only prove beyond a reasonable doubt that the Defendant was aware of the general existence of the enterprise described in the indictment.

    With respect to the second specific fact stated above, the Government must prove beyond a reasonable doubt that the Defendant under consideration knowingly and willfully committed, or aided and abetted the commission of any two of the predicate offenses specifically alleged and described in the indictment [under the headings "Racketeering Act One and "Racketeering Act Two."] [in Counts _____ through _____ , respectively.]

    You are further instructed, however, that you must unanimously agree concerning each Defendant under consideration as to which of the two predicate offenses the Defendant is alleged to have committed, or aided and abetted in committing. It would not be sufficient if some of the jurors should find that a Defendant committed two of the predicate offenses while the remaining jurors found that such Defendant committed two different offenses; you must all agree upon the same two predicate offenses in order to find the Defendant guilty of Count _____ .

    With respect to the fourth specific fact stated above - - that the Defendant conducted or participated in the conduct of the affairs of the enterprise - - the Government must prove beyond a reasonable doubt that the Defendant was something more than an outsider lending aid to the enterprise. It must be proved that the Defendant had some part in either the management or the operation of the affairs of the enterprise itself. Thus, it need not be proved that the Defendant had primary responsibility or even a managerial position; it is enough if the Defendant was involved in conducting the operation of the affairs of the enterprise as a lower level participant.

    With respect to the fifth specific fact - - the requirement that the "enterprise" was engaged in, or that its activities affected, interstate commerce - - the Government contends that in conducting the affairs of the enterprise the Defendants [e.g. utilized interstate communications facilities by engaging in long distance telephone conversations; by traveling in interstate commerce from one state to another; and by causing the transmission of funds by mail or by wire in interstate commerce from one state to another.] You are instructed that if you find beyond a reasonable doubt that these transactions or events occurred, and that they occurred in, or as a direct result of, the conduct of the affairs of the alleged enterprise, the required affect upon interstate commerce has been established. If you do not so find, the required effect upon interstate commerce has not been established.

ANNOTATIONS AND COMMENTS

    18 USC § 1962(c) provides:

    It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity . . . ."

    Maximum Penalty: Twenty (20) years imprisonment and applicable fine. Life imprisonment if the violation is based on racketeering activity for which the maximum penalty includes life imprisonment. (The jury must find that defendant committed such a predicate act beyond a reasonable doubt. See United States v. Nguyen, 255 F.3d 1335 (11th Cir. 2001) (applying Apprendi v. New Jersey, 530 U.S. 466 (2000)).

    In United States v. Kotvas, 941 F.2d 1141 (11th Cir. 1991), the Eleventh Circuit held that this pattern instruction properly instructed the jury on the continuity requirement discussed by the United States Supreme Court in H. J., Inc., v. Northwestern Bell Telephone Co., 492 U.S. 229 (1989).

    In Reves v. Ernst & Young, 507 U.S. 170, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993), the Supreme Court held that a Defendant participates in the conduct of an enterprise's affairs by participating in the "operation or management" of the enterprise. The Eleventh Circuit has held that Reves, a civil RICO action, applies to criminal proceedings as well. See United States v. Starrett, 55 F.3d 1525 (11th Cir. 1995). Starrett nevertheless upheld the district court's refusal to give a proposed instruction that the Defendant must have occupied a "leadership" position in the enterprise.

    If the indictment seeks a forfeiture of property under § 1963(a), see Trial Instruction No. 8.

[For 1997 Version of this instruction, see below]

18 USC 1962(c) provides:

It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity . . . ."

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

In United States v. Kotvas, 941 F.2d 1141 (11th Cir. 1991), the Eleventh Circuit held that this pattern instruction properly instructed the jury on the continuity requirement discussed by the United States Supreme Court in H. J., Inc., v. Northwestern Bell Telephone Co., 492 U.S. 229 (1989).

In Reves v. Ernst & Young, 507 U.S. 170, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993), the Supreme Court held that a Defendant participates in the conduct of an enterprise's affairs by participating in the "operation or management" of the enterprise. The Eleventh Circuit has held that Reves, a civil RICO action, applies to criminal proceedings as well. See United States v. Starrett, 55 F.3d 1525 (11th Cir. 1995). Starrett nevertheless upheld the district court's refusal to give a proposed instruction that the Defendant must have occupied a "leadership" position in the enterprise.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 1962(c), makes it a Federal crime or offense for anyone who is associated with an "enterprise" engaged in, or the activities of which affect, interstate commerce, to participate in conducting the affairs of the enterprise through a "pattern of racketeering activity."

    The meaning of these terms and an explanation of what must be proved in order to establish that offense, is discussed in that part of the instructions covering Count _____ of the indictment.

    However, the Defendants named in Count _____ of the indictment - - the conspiracy count - - are not charged in that Count with violating Section 1962(c); rather, they are charged with knowingly and willfully conspiring to violate that law, the alleged conspiracy itself being a separate crime or offense in violation of Section 1962(d).

    So, under that law a "conspiracy" is a combination or agreement of two or more persons to join together to attempt to accomplish an offense that would be in violation of Section 1962(c) as elsewhere defined in these instructions. It is a kind of "partnership in criminal purposes" in which each member becomes the agent of every other member.

    The evidence in the case need not show that the alleged members of the conspiracy entered into any express or formal agreement; or that they directly discussed between themselves the details of the scheme and its purpose, or the precise ways in which the purpose was to be accomplished. Neither must it be proved that all of the persons charged to have been members of the conspiracy were such, nor that the alleged conspirators actually succeeded in accomplishing their unlawful objectives. 

    What the evidence in the case must show beyond a reasonable doubt is:

    First: That two or more persons, in some way or manner, came to a mutual understanding to try to accomplish a common and unlawful plan, namely, to engage in a "pattern of racketeering activity" as charged in the indictment; and

    Second: That the Defendant knowingly and willfully became a member of such conspiracy; and 

    Third: That at the time the Defendant knowingly and willfully agreed to join in such conspiracy, the Defendant did so with the specific intent either to personally participate in the commission of two "predicate offenses," as elsewhere defined in these instructions, or that the Defendant specifically intended to otherwise participate in the affairs of the "enterprise" with the knowledge and intent that other members of the conspiracy would commit two or more "predicate offenses" as a part of a "pattern of racketeering activity."

     A person may become a member of a conspiracy without full knowledge of all of the details of the unlawful scheme or the names and identities of all of the other alleged conspirators. So, if a Defendant has an understanding of the unlawful nature of a plan and knowingly and willfully joins in that plan on one occasion, that is sufficient to convict for conspiracy even though the Defendant did not participate before, and even though the Defendant played only a minor part.

    Of course, mere presence at the scene of a transaction or event, or the mere fact that certain persons may have associated with each other, and may have assembled together and discussed common aims and interests, does not, standing alone, establish proof of the existence of a conspiracy. Also, a person who has no knowledge of a conspiracy, but who happens to act in a way which advances some purpose of a conspiracy, does not thereby become a conspirator.

ANNOTATIONS AND COMMENTS

    18 USC § 1962(d) provides:

    It shall be unlawful for any person to conspire to violate any of the provisions of subsections (a), (b) or (c) of this section.

    Maximum Penalty: Twenty (20) years imprisonment and applicable fine. Life imprisonment if the violation is based on racketeering activity for which the maximum penalty includes life imprisonment. (The jury must find that defendant committed such a predicate act beyond a reasonable doubt. See United States v. Nguyen, 255 F.3d 1335 (11th Cir. 2001) (applying Apprendi v. New Jersey, 530 U.S. 466 (2000)).

[For 1997 Version of this instruction, see below]

18 USC 1962(d) provides:

It shall be unlawful for any person to conspire to violate any of the provisions of subsections (a), (b) or (c) of this section.

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

United States v. Beale, 921 F.2d 1412 (11th Cir. 1991) discusses the alternate methods of proving a RICO conspiracy.

United States v. Starrett, 55 F.3d 1525 (11th Cir. 1995) observes that no overt act is required under 1962(d).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 2113(a), makes it a Federal crime or offense for anyone to take [or to attempt to take] from the person or presence of someone else [by force and violence] [by intimidation] any property or money in the possession of a federally [insured bank] [insured credit union] [insured savings and loan association].

    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 took from the person or the presence of the person described in the indictment, money or property then in the possession of a federally insured [bank] [credit union] [savings and loan association] as charged; and

    Second: That the Defendant did so [by means of force or violence] [by means of intimidation].

    [A "federally insured bank" means any bank the deposits of which  are insured by the Federal Deposit Insurance Corporation.] [A "federally insured credit union" means any Federal credit union and any State chartered credit union the accounts of which are insured by the National Credit Union Administration Board or any credit union chartered under the laws of a state of the United States, the District of Columbia, or any commonwealth, territory, or possession of the United States.] [A "federally insured savings and loan association" means any savings and loan association the deposits of which are insured by the Federal Savings and Loan Insurance Corporation.] 

    [To take "by means of intimidation" is to say or do something in such a way that a person of ordinary sensibilities would be fearful of bodily harm; it is not necessary to prove that the alleged victim was actually frightened, and neither is it necessary to show that the behavior of the Defendant was so violent that it was likely to cause terror, panic or hysteria. The essence of the offense is the taking of money or property aided and accompanied by intentionally intimidating behavior on the part of the Defendant.]

ANNOTATIONS AND COMMENTS

    18 USC § 2113(a) provides:

    Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another . . . any property or money . . . belonging to . . . or in the possession of, any bank, credit union, or any savings and loan association [shall be guilty of an offense against the United States]. 

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

    The statute creates various modes of committing the offense (force and violence or intimidation) (assault or use of a dangerous weapon) and care must be taken in adapting the instruction to the allegations of the indictment. See United States v. Bizzard, 615 F.2d 1080 (5th Cir. 1980).

    In Carter v. United States, 530 U.S. 255, 120 S.Ct. 2159 (2000), the court held that the bank larceny provision of § 2113(b) is not a lesser included offense of § 2113(a).

    In United States v. King, 178 F.3d 1376 (11th Cir. 1999), the court held, in a prosecution under § 2113(b), that money being transferred in a contractor’s armored vehicle from a bank to the Federal Reserve was money still “in the care, custody, control, management or possession” of the bank because the bank retained legal title to the funds.

    In United States v. Mitchell, 146 F.3d 1338 (11th Cir. 1998), the court upheld arguably inconsistent verdicts finding the Defendant guilty under §2113(d) (armed bank robbery), but acquitting him under § 924(c) (carrying a firearm during a crime
of violence). 

[For 1997 Version of this instruction, see below]

18 USC 2113(a) provides:

Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another . . . any property or money . . . belonging to . . . or in the possession of, any bank, credit union, or any savings and loan association [shall be guilty of an offense against the United States].

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

The statute creates various modes of committing the offense (force and violence or intimidation) (assault or use of a dangerous weapon) and care must be taken in adapting the instruction to the allegations of the indictment. See United States v. Bizzard, 615 F.2d 1080 (5th Cir. 1980).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 2113(a), makes it a Federal crime or offense for anyone to take [or to attempt to take] from the person or presence of someone else [by force and violence] [by intimidation] any property or money in the possession of a federally [insured bank] [insured credit union] [insured savings and loan association].

    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 knowingly took [or attempted to take] from the person or the presence of the person described in the indictment, money or property then in the possession of a federally insured [bank] [credit union] [savings and loan association] as charged; and 

    Second: That the Defendant did so [by means of force or violence] [by means of intimidation; 

    [A "federally insured bank" means any bank the deposits of which are insured by the Federal Deposit Insurance Corporation.] [A "federally insured credit union" means any Federal credit union and any State chartered credit union the accounts of which are insured by the National Credit Union Administration Board.] [A "federally insured savings and loan association" means any savings and loan association the deposits of which are insured by the Federal Savings and Loan Insurance Corporation.]

    [To take "by means of intimidation" is to say or do something in such a way that a person of ordinary sensibilities would be fearful of bodily harm; it is not necessary to prove that the alleged victim was actually frightened, and neither is it necessary to show that the behavior of the Defendant was so violent that it was likely to cause terror, panic or hysteria. The essence of the offense is the taking of money or property aided and accompanied by intentionally intimidating behavior on the part of the Defendant.] 

    Title 18, United States Code, Section 2113(d) makes it a more serious offense for anyone, while in the process of violating subsection (a) of the statute, [to assault] [to put in jeopardy the life of any person by the use of a dangerous weapon or device]. 

    In order to establish that offense as charged in Count _____ of the indictment, the Government must prove beyond a reasonable doubt each of the two specific facts I mentioned a moment ago in discussing Count _____ , and must also prove, beyond a reasonable doubt, a third specific fact, namely:

    That the Defendant knowingly [assaulted] [put in jeopardy the life of a person by the use of a dangerous weapon or device] while engaged in stealing property or money from [the bank] [credit union] [savings and loan association] as charged.

    [An "assault" may be committed without actually striking or injuring another person. So, an assault occurs whenever one person makes an intentional attempt or threat to injure someone else, and also has an apparent, present ability to carry out the threat, such as by flourishing or pointing a dangerous weapon or device.]

    [A "dangerous weapon or device" includes anything capable of being readily operated or wielded by one person to inflict severe bodily harm or injury upon another person.

    To "put in jeopardy the life of any person by the use of a dangerous weapon or device" means, then, to expose someone else to a risk of death by the use of such dangerous weapon or device.]

ANNOTATIONS AND COMMENTS

    18 USC § 2113(a) and (d) provide:

    (a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, . . . any property or money . . . belonging to . . . or in the possession of any bank, credit union, or any savings and loan association [shall be guilty of an offense against the United States].

    (d) Whoever, in committing, or attempting to commit, any offense defined in subsection (a) . . . of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device [shall be punished as provided by law.

    Maximum Penalty: Twenty (20) years imprisonment and applicable fine as to subsection (a); and Twenty-five (25) years imprisonment and applicable fine as to subsection (d).

    The statute creates various modes of committing the offense (force and violence or intimidation) (assault or use of a dangerous weapon) and care must be taken in adapting the instruction to the allegations of the indictment. See United States v. Blizzard, 615 F.2d 1080 (5th Cir. 1980).

    In McLaughlin v. United States, 476 U.S. 16, 19, 106 S.Ct. 1677, 1678, 90 L.Ed.2d 15 (1986) the Supreme Court held that an unloaded gun is a dangerous weapon. One of the three reasons given for this conclusion, each of which the Court characterized as "independently sufficient," was that the display of a gun instills fear in the average citizen and creates an immediate danger of a violent response. Id.

    Citing to McLaughlin v. United States, the Eleventh Circuit held that a toy gun should be considered a dangerous weapon under § 2113(d). United States v. Garrett, 3 F.3d 390, 391 (11th Cir. 1993).

    In United States v. King, 178 F.3d 1376 (11th Cir. 1999), the court held, in a prosecution under § 2113(b), that money being transferred in a contractor’s armored vehicle from a bank to the Federal Reserve was money still “in the care, custody,
control, management or possession” of the bank because the bank retained legal title to the funds.

    In United States v. Mitchell, 146 F.3d 1338 (11th Cir. 1998), the court upheld arguably inconsistent verdicts finding the Defendant guilty under §2113(d) (armed bank robbery), but acquitting him under § 924(c) (carrying a firearm during a crime
of violence).

[For 1997 Version of this instruction, see below]

18 USC 2113(a) and (d) provide:

(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, . . . any property or money . . . belonging to . . . or in the possession of any bank, credit union, or any savings and loan association [shall be guilty of an offense against the United States].

(d) Whoever, in committing, or attempting to commit, any offense defined in subsection (a) . . . of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device [shall be punished as provided by law.

Maximum Penalty: Twenty (20) years imprisonment and applicable fine as to subsection (a); and Twenty-five (25) years imprisonment and applicable fine as to subsection (d).

The statute creates various modes of committing the offense (force and violence or intimidation) (assault or use of a dangerous weapon) and care must be taken in adapting the instruction to the allegations of the indictment. See United States v. Blizzard, 615 F.2d 1080 (5th Cir. 1980).

In McLaughlin v. United States, 476 U.S. 16, 19, 106 S.Ct. 1677, 1678, 90 L.Ed.2d 15 (1986) the Supreme Court held that an unloaded gun is a dangerous weapon. One of the three reasons given for this conclusion, each of which the Court characterized as "independently sufficient," was that the display of a gun instills fear in the average citizen and creates an immediate danger of a violent response. Id.

Citing to McLaughlin v. United States, the Eleventh Circuit held that a toy gun should be considered a dangerous weapon under 2113(d). United States v. Garrett, 3 F.3d 390, 391 (11th Cir. 1993).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Sections 2113(a) and (d), makes it a Federal crime or offense for anyone to take from the person or presence of someone else [by force and violence] [by intimidation] any property or money in the possession of a federally [insured bank] [insured saving and loan association], and in the process of so doing to [assault any person] [put in jeopardy the life of any person by the use of a dangerous weapon or device].

    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 took from the person or the presence of the person described in the indictment, money or property then in the possession of a federally [insured bank] [credit union] [insured savings and loan association], as charged;

    Second: That the Defendant did so [by means of force or violence] [by means of intimidation]; 

    Third: That the Defendant [assaulted] [put in jeopardy the life of some person by the use of a dangerous weapon or device] while engaged in taking the property or money, as charged.

    [A "federally insured bank" means any bank the deposits of which are insured by the Federal Deposit Insurance Corporation.] [A "federally insured credit union" means any Federal credit union and any State chartered credit union the accounts of which are insured by the National Credit Union Administration Board.] [A "federally insured savings and loan association" means any savings and loan association the deposits of which are insured by the Federal Savings and Loan Insurance Corporation.]

    [To take "by means of intimidation" is to say or do something in such a way that a person of ordinary sensibilities would be fearful of bodily harm; it is not necessary to prove that the alleged victim was actually frightened, and neither is it necessary to show that the behavior of the Defendant was so violent that it was likely to cause terror, panic or hysteria. The essence of the offense is the taking of money or property aided and accompanied by intentionally intimidating behavior on the part of the Defendant.]

    [An "assault" may be committed without actually striking or injuring another person. So, an assault occurs whenever one person makes an intentional attempt or threat to injure someone else, and also has an apparent, present ability to carry out the threat such as by flourishing or pointing a dangerous weapon or device at the other.]

    [A "dangerous weapon or device" includes anything capable of being readily operated or wielded by one person to inflict severe bodily harm or injury upon another person. 

    To "put in jeopardy the life of any person by the use of a dangerous weapon or device" means, then, to expose someone else to a risk of death by the use of such dangerous weapon or device.]

    In some cases the law which a Defendant is charged with breaking actually covers two separate crimes - - one is more serious than the second, and the second is generally called a "lesser included offense."

    So, in this case, if you should unanimously find the Defendant "Not Guilty" of the crime charged in the indictment, you must then proceed to determine the guilt or innocence of the Defendant as to a lesser included offense.

    The crime of robbing a bank, accompanied by [an assault] [the putting in jeopardy of the life of another person by the use of a dangerous weapon or device] as charged in the indictment, necessarily includes the lesser offense of robbery of a bank, without [an assault] [putting in jeopardy the life of another by the use of a dangerous weapon or device.]

    With respect to the offense charged in the indictment, then, if you should find the Defendant not guilty as charged, you must then proceed to determine whether the Defendant is guilty or not guilty of the lesser included offense of robbery of a bank without [committing an assault] [putting in jeopardy the life of another by the use of a dangerous weapon or device.]

ANNOTATIONS AND COMMENTS

    18 USC § 2113(a) and (d) provide:

    (a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, . . . any property or money . . . belonging to . . . or in the possession of any bank, credit union, or any savings and loan association [shall be guilty of an offense against the United States].

    (d) Whoever, in committing, or attempting to commit, any offense defined in subsection (a) . . . of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device [shall be punished as provided by law].

    Maximum Penalty: Twenty (20) years imprisonment and applicable fine as to subsection (a); and Twenty-five (25) years imprisonment and applicable fine as to subsection (d).

    The statute creates various modes of committing the offense (force and violence or intimidation) (assault or use of a dangerous weapon) and care must be taken in adapting the instruction to the allegations of the indictment. See United States v. Blizzard, 615 F.2d 1080 (5th Cir. 1980).

    In McLaughlin v. United States, 476 U.S. 16, 19, 106 S.Ct. 1677, 1678, 90 L.Ed.2d 15 (1986), the Supreme Court held that an unloaded gun is a dangerous weapon. One of the three reasons given for this conclusion, each of which the Court characterized as "independently sufficient," was that the display of a gun instills fear in the average citizen and creates an immediate danger of a violent response. Id.

    Citing to McLaughlin v. United States, the Eleventh Circuit held that a toy gun should be considered a dangerous weapon under § 2113(d). United States v. Garrett, 3 F.3d 390, 391 (11th Cir. 1993).

    In United States v. King, 178 F.3d 1376 (11th Cir. 1999), the court held, in a prosecution under § 2113(b), that money being transferred in a contractor’s armored vehicle from a bank to the Federal Reserve was money still “in the care, custody, control, management or possession” of the bank because the bank retained legal title to the funds.

    In United States v. Mitchell, 146 F.3d 1338 (11th Cir. 1998), the court upheld arguably inconsistent verdicts finding the Defendant guilty under §2113(d) (armed bank robbery), but acquitting him under § 924(c) (carrying a firearm during a crime of violence).

[For 1997 Version of this instruction, see below]

18 USC 2113(a) and (d) provide:

(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, . . . any property or money . . . belonging to . . . or in the possession of any bank, credit union, or any savings and loan association [shall be guilty of an offense against the United States].

(d) Whoever, in committing, or attempting to commit, any offense defined in subsection (a) . . . of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device [shall be punished as provided by law].

Maximum Penalty: Twenty (20) years imprisonment and applicable fine as to subsection (a); and Twenty-five (25) years imprisonment and applicable fine as to subsection (d).

The statute creates various modes of committing the offense (force and violence or intimidation) (assault or use of a dangerous weapon) and care must be taken in adapting the instruction to the allegations of the indictment. See United States v. Blizzard, 615 F.2d 1080 (5th Cir. 1980).

In McLaughlin v. United States, 476 U.S. 16, 19, 106 S.Ct. 1677, 1678, 90 L.Ed.2d 15 (1986), the Supreme Court held that an unloaded gun is a dangerous weapon. One of the three reasons given for this conclusion, each of which the Court characterized as "independently sufficient," was that the display of a gun instills fear in the average citizen and creates an immediate danger of a violent response. Id.

Citing to McLaughlin v. United States, the Eleventh Circuit held that a toy gun should be considered a dangerous weapon under 2113(d). United States v. Garrett, 3 F.3d 390, 391 (11th Cir. 1993).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 2113(e), makes it a separate Federal crime or offense for anyone who, [while committing the offense described in Count ____ of the indictment] [in avoiding or attempting to avoid apprehension for the commission of the offense described in Count _____ of the indictment] forces any person to accompany [him/her] without the consent of such person. Count _____ alleges that [in committing] [in avoiding or attempting to avoid apprehension for] the bank robbery offense charged in Count _____ , the Defendant forced a person to accompany the Defendant without the consent of such person. So, if you first find beyond a reasonable doubt that the Defendant committed the bank robbery offense as charged in Count _____ , then the Defendant can be found guilty of this additional offense only if all of the following facts are proved beyond a reasonable doubt:

    First: That while [committing such bank robbery offense] [attempting to avoid apprehension for the commission of a bank robbery offense], the Defendant forced another person or persons to accompany the Defendant, as charged; and

    Second: That such other person or persons did not voluntarily consent to accompany the Defendant.

    To force another person to do something without "voluntary consent" is to compel the person to act against his or her will through the use of intimidation or threats of harm.

    To require someone else to "accompany" a person means that the victim must have been forced to move with the Defendant from one place to another (rather than being forced to move alone or with someone other than the Defendant). It is not necessary, however, for the Government to prove that the forced movement in the company of the Defendant involved leaving the premises of the bank, or that such movement traversed a particular number of feet, or lasted a particular length of time, or produced any particular level of fear or apprehension on the part of the victim. What must be proved beyond a reasonable doubt is that the forced movement in the company of the Defendant was a movement of some substance or significance as distinguished from a wholly insubstantial, trivial or insignificant movement.

ANNOTATIONS AND COMMENTS

    18 USC § 2113 (e) provides:

    (e) Whoever, in committing any offense defined in this section, or in avoiding or attempting to avoid apprehension for the commission of such offense, or in freeing himself from arrest or confinement for such offense . . . forces any person to accompany him [or her] without the consent of such person [shall be guilty of an offense against the United States].

    Maximum Penalty: Mandatory minimum of ten (10) years imprisonment. If death results, then the maximum penalty is death.

    The definition of "accompany," including the enumeration of things that need not be proved, is derived from United States v. Bauer, 956 F.2d 239 (11th Cir. 1992), cert. denied 506 U.S. 976, 113 S.Ct. 469, 121 L.Ed.2d 376 (1992).

[For 1997 Version of this instruction, see below]

18 USC 2113 (e) provides:

(e) Whoever, in committing any offense defined in this section, or in avoiding or attempting to avoid apprehension for the commission of such offense, or in freeing himself from arrest or confinement for such offense . . . forces any person to accompany him [or her] without the consent of such person [shall be guilty of an offense against the United States].

Maximum Penalty: Mandatory minimum of ten (10) years imprisonment. If death results, then the maximum penalty is death.

The definition of "accompany," including the enumeration of things that need not be proved, is derived from United States v. Bauer, 956 F.2d 239 (11th Cir. 1992), cert. denied 506 U.S. 976, 113 S.Ct. 469, 121 L.Ed.2d 376 (1992).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United Sates Code, Section 2119, makes it a Federal crime or offense for anyone to take or attempt to take a motor vehicle that has been transported, shipped or received in interstate or foreign commerce from the person or presence of another, [by force and violence] [by intimidation] with the intent to cause death or serious bodily harm.

    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 [took] [attempted to take] a motor vehicle from the person or presence of another; 

    Second: That the Defendant did so [by force and violence] [by intimidation];

    Third: That the motor vehicle previously had been transported, shipped, or received in interstate or foreign commerce; and

    Fourth: That the Defendant intended to cause death or serious bodily harm when the Defendant took the motor vehicle[; and]

    [Fifth: That [death] [serious bodily injury] resulted from the commission of the offense.]

    The term "by force and violence" means the use of actual physical strength or actual physical violence.

    The term "by intimidation" means the commission of some act or the making of some statement that would put a reasonable person of ordinary sensibilities in fear of bodily harm. It is not necessary for the Government to prove that the alleged victim was actually placed in fear.

    The phrase "transported, shipped or received in interstate or foreign commerce" means the movement of a motor vehicle between any place in one state and any place in another state or another country. It is not necessary for the Government to prove that the Defendant knew that the motor vehicle had moved in interstate or foreign commerce. The Government need only prove that the motor vehicle had moved in interstate or foreign commerce.

    Whether the Defendant "intended to cause death or serious bodily harm" is to be judged objectively from the conduct of the Defendant as disclosed by the evidence and from what one in the position of the alleged victim might reasonably conclude. [In this case the Government contends that the Defendant intended to cause death or serious bodily harm if the alleged victim had refused to turn over the car. If you find beyond a reasonable doubt that the Defendant had such an intent, the Government has satisfied this element of the offense.]

    [The term “serious bodily injury” means bodily injury which involves [a substantial risk of death] [extreme physical pain] [protracted and obvious disfigurement] [protracted loss or impairment of the function of a bodily member, organ, or mental faculty]. [The term “serious bodily injury” also includes [knowingly causing another person to engage in a sexual act by using force against that other person] [or describe the other mode of sexual abuse in violation of §§ 2241 or 2242 as alleged in the indictment.] 

ANNOTATIONS AND COMMENTS

    18 USC § 2119 provides:

    Whoever, with the intent to cause death or serious bodily harm takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall [violate this section].

    Maximum Penalty varies depending on injury to victim.

    1) When no serious bodily injury or death results, the maximum penalty is imprisonment for not more than 15 years and applicable fine. 

    2) When serious bodily injury results, the maximum penalty is imprisonment for not more than 25 years and applicable fine.

    3) When death results, the maximum penalty is death and applicable fine.

    In the context of a violation of 18 USC § 113(c) - - assault with a dangerous weapon with intent to do bodily harm - - "[t]he intent of the defendant `is not to be measured by the secret motive of the actor, or some undisclosed purpose merely to frighten, not to hurt,' but rather `is to be judged objectively from the visible conduct of the actor and what one in the position of the victim might reasonably conclude.'" United States v. Guilbert, 692 F.2d 1340, 1344 (11th Cir. 1982), cert. denied, 103 S.Ct. 1260 (1983) (quoting Shaffer v. United States, 308 F.2d 654, 655 (5th Cir. 1962) (per curiam)). See United States v. Gibson, 896 F.2d 206, (6th Cir. 1990) (citing United States v. Guilbert and explaining that "[a] defendant's state of mind is a question of fact, often determined by objective evaluation of all the surrounding facts and circumstances").

    Holloway v. United States, 526 U.S. 1, 119 S.Ct. 966 (1999) (conditional intent to “cause death or serious bodily harm” only if the victim offers resistance is sufficient to meet the state of mind requirement of the statute.) accord United States v. Fulford, 267 F.3d 1241 (11th Cir. 2001).

    United States v. Lumley, 135 F.3d 758 (11th Cir. 1998). “We decline to interpret section 2119 to require a perpetrator to have ‘the intent to cause death or serious bodily harm’ only as to the person from whom the perpetrator takes the motor vehicle.” (The Defendant shot at an armed guard while fleeing a robbery, then ordered a victim out of her truck and drove off in the vehicle.) 

    The Fifth element should be included under the principle of Apprendi if the indictment triggers the enhanced maximum sentences provided by the statute in cases resulting in serious bodily injury or death.

[For 1997 Version of this instruction, see below]

18 USC 2119 provides:

Whoever, with the intent to cause death or serious bodily harm takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall [violate this section].

Maximum Penalty varies depending on injury to victim.

1) When no serious bodily injury or death results, the maximum penalty is imprisonment for not more than 15 years and applicable fine.

2) When serious bodily injury results, the maximum penalty is imprisonment for not more than 25 years and applicable fine.

3) When death results, the maximum penalty is death and applicable fine.

In the context of a violation of 18 USC 113(c) - - assault with a dangerous weapon with intent to do bodily harm - - "[t]he intent of the defendant `is not to be measured by the secret motive of the actor, or some undisclosed purpose merely to frighten, not to hurt,' but rather `is to be judged objectively from the visible conduct of the actor and what one in the position of the victim might reasonably conclude.'" United States v. Guilbert, 692 F.2d 1340, 1344 (11th Cir. 1982), cert. denied, 103 S.Ct. 1260 (1983) (quoting Shaffer v. United States, 308 F.2d 654, 655 (5th Cir. 1962) (per curiam)). See United States v. Gibson, 896 F.2d 206, (6th Cir. 1990) (citing United States v. Guilbert and explaining that "[a] defendant's state of mind is a question of fact, often determined by objective evaluation of all the surrounding facts and circumstances").

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 2241(a), makes it a Federal crime or offense for anyone in [the special maritime or territorial jurisdiction of the United States] [a Federal Prison] to sexually abuse another person by using force or threats.

    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 caused the person named in the indictment to engage in a sexual act; 

    Second: That the Defendant did so by using force against the person or by threatening or placing the person in fear that such person, or any other person, would be subjected to death, serious bodily injury, or kidnapping;

    Third: That the Defendant did such acts knowingly; and

    Fourth: That the acts occurred within [the special maritime jurisdiction of the United States] [the territorial jurisdiction of the United States] [a Federal prison].

    The term "sexual act" means:

    (a) contact between the penis and the vulva or the penis and the anus, and, for purposes of this subparagraph, contact involving the penis occurs upon penetration however slight; or, 

    (b) contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus; or

    (c) the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade the person named in the indictment, or to arouse or gratify the sexual desire of the Defendant or any other person.

    [(d) the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.]

    The term "serious bodily injury" means bodily injury that involves a substantial risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

    [You are instructed that the location of the alleged offense, as described in the indictment, if you find beyond a reasonable doubt that such offense occurred there, would be within the [special maritime] [territorial] jurisdiction of the United States.]

ANNOTATIONS AND COMMENTS

    18 USC § 2241(a) provides:

    Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, knowingly causes another person to engage in a sexual act - -

    (1) by using force against that other person; or 

    (2) by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping; or attempts to do so, shall be fined under this title, imprisoned for any term of years or life, or both.

    Maximum Penalty: Life in prison and applicable fine.

[For 1997 Version of this instruction, see below]

18 USC 2241(a) provides:

Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, knowingly causes another person to engage in a sexual act - -

(1) by using force against that other person; or

(2) by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping;

or attempts to do so, shall be fined under this title, imprisoned for any term of years or life, or both.

Maximum Penalty: Life in prison and applicable fine.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 2252(a)(1), makes it a Federal crime or offense for any person to knowingly [transport] [ship] [mail] any visual depiction in interstate or foreign commerce by any means [including by computer] if the production of such visual depiction involved the use of a minor engaging in sexually explicit conduct and the visual depiction is of such conduct. 

    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 [transported] [shipped] [mailed] a visual depiction in interstate or foreign commerce by any means [including by computer];

    Second: That the production of such visual depiction involved the use of a minor engaging in sexually explicit conduct;

    Third: That such visual depiction is of a minor engaged in sexually explicit conduct; and

    Fourth: That the Defendant knew that at least one of the performers in such visual depiction was a minor and knew that the visual depiction was of such minor engaged in sexually explicit conduct.

    The term "interstate or foreign commerce" means the movement of property from one state to another state or from one state to another country. The term "State" includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.

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

    The term "sexually explicit conduct" means actual or simulated:

    (a) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal contact, whether between persons of the same or opposite sex;

    (b) bestiality;

    (c) masturbation;

    (d) sadistic or masochistic abuse; or 

    (e) lascivious exhibition of the genitals or pubic area of any person.

    Regarding the last type of sexually explicit conduct - - "lascivious exhibition" - - not every exposure of the genitals or pubic area constitutes a lascivious exhibition. In determining whether a visual depiction constitutes a lascivious exhibition, you should consider the context and setting in which the genitalia or pubic area is being displayed. You may consider the overall content of the material. You may also consider such factors as whether the focal point of the visual depiction is on the minor's genitalia or pubic area, or whether there is some other focal point. You may consider whether the setting of the depiction is such as to make it appear to be sexually inviting or suggestive; for example, in a location or in a pose associated with sexual activity. In addition, you may consider whether the minor appears to be displayed in an unnatural pose or in inappropriate attire. You may also consider whether the minor is partially clothed or nude. You may consider whether the depiction appears to convey sexual coyness or an apparent willingness to engage in sexual activity, and whether the depiction appears to have been designed to elicit a sexual response in the viewer. Of course, a visual depiction need not involve all of these factors to be a lascivious exhibition. 

    [The term "visual depiction" includes undeveloped film and videotape, and data stored on computer disc or by electronic means which is capable of conversion into a visual image.]

    The term "minor" means any person under the age of eighteen years.

ANNOTATIONS AND COMMENTS

    18 USC § 2252(a)(1) provides:

    Any person who - -

    knowingly transports or ships in interstate or foreign commerce by any means including by computer . . . any visual depiction, if - -

    (A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and

    (B) such visual depiction is of such conduct; shall be punished as provided in subsection (b) of this section.

    Maximum Penalty: Fifteen (15) years and applicable fine when Defendant has no prior conviction. Not less than five (5) nor more than thirty (30) years and applicable fine when Defendant has prior conviction.

    Definition of the relevant terms is taken from 18 USC § 2256.

    See United States v. X-citement Video, Inc., 513 U.S. 64, 115 S.Ct. 464, 471-72 (1994), setting out the scienter requirement.

    The explanation of the term "lascivious exhibition" is derived from United States v. Dost, 636 F.Supp. 828, 832 (S.D. Ca. 1986), a decision that has been cited with approval by three circuits and many other district courts.

[For 1997 Version of this instruction, see below]

18 USC 2252(a)(1) provides:

Any person who --

knowingly transports or ships in interstate or foreign commerce by any means including by computer . . . any visual depiction, if --

(i) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and

(ii) such visual depiction is of such conduct; shall be punished as provided in subsection (b) of this section.

Maximum Penalty: Fifteen (15) years and applicable fine when Defendant has prior conviction under this chapter or chapter 109A.

Ten (10) years and applicable fine when Defendant has no prior conviction.

See United States v. X-citement Video, Inc., U.S. , 115 S.Ct. 464, 471-72 (1994).

The explanation of the term "lascivious exhibition" is derived from United States v. Dost, 636 F.Supp. 828, 832 (S.D. Ca. 1986), a decision that has been cited with approval by three circuits and many other district courts.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 2252(a)(2), makes it a Federal crime or offense for any person to knowingly [receive] [distribute] any visual depiction [that has been mailed] [that has been shipped or transported in interstate or foreign commerce by any means] [including by computer], if the production of such visual depiction involved the use of a minor engaging in sexually explicit conduct and the visual depiction is of such conduct.

    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 [received] [distributed] a visual depiction;

    Second: That such visual depiction [was mailed] [was shipped or transported in interstate or foreign commerce by any means] [including computer];

    Third: That the production of such visual depiction involved the use of a minor engaging in sexually explicit conduct;

    Fourth: That such visual depiction is of a minor engaged in sexually explicit conduct; and

    Fifth: That the Defendant knew that at least one of the performers in such visual depiction was a minor and knew that the visual depiction was of such minor engaged in sexually explicit conduct.

    [The term "visual depiction" includes undeveloped film and videotape, and data stored on computer disc or by electronic means which is capable of conversion into a visual image.]

    The term "minor" means any person under the age of eighteen years.

    The term "interstate or foreign commerce" means the movement of property from one state to another state or from one state to another country. The term "State" includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.

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

    The term "sexually explicit conduct" means actual or simulated:

    (a) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal contact, whether between persons of the same or opposite sex; 

    (b) bestiality;

    (c) masturbation;

    (d) sadistic or masochistic abuse; or

    (e) lascivious exhibition of the genitals or pubic area of any person.

    Regarding the last type of sexually explicit conduct - - "lascivious exhibition" - - not every exposure of the genitals or pubic area constitutes a lascivious exhibition. In determining whether a visual depiction constitutes a lascivious exhibition, you should consider the context and setting in which the genitalia or pubic area is being displayed. You may consider the overall content of the material. You may also consider such factors as whether the focal point of the visual depiction is on the minor's genitalia or pubic area, or whether there is some other focal point. You may consider whether the setting of the depiction is such as to make it appear to be sexually inviting or suggestive; for example, in a location or in a pose associated with sexual activity. In addition, you may consider whether the minor appears to be displayed in an unnatural pose or in inappropriate attire. You may also consider whether the minor is partially clothed or nude. You may consider whether the depiction appears to convey sexual coyness or an apparent willingness to engage in sexual activity, and whether the depiction appears to have been designed to elicit a sexual response in the viewer. Of course, a visual depiction need not involve all of these factors to be a lascivious exhibition.

ANNOTATIONS AND COMMENTS

18 USC § 2252(a)(2) provides:

    Any person who - -

    knowingly receives, or distributes, any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, . . . if - -

    (A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and 

    (B) such visual depiction is of such conduct; shall be punished as provided in subsection (b) of this section.

    Maximum Penalty: Fifteen (15) years and applicable fine when Defendant has prior conviction under this chapter or chapter 109A. 

    Ten (10) years and applicable fine when Defendant has no prior conviction under this chapter or chapter 109A.

    Definition of the relevant terms is taken from 18 USC § 2256.

    See United States v. X-citement Video, Inc., 513 U.S. 64, 115 S.Ct. 464, 471-72 (1994).

    The explanation of the term "lascivious exhibition" is derived from United States v. Dost, 636 F.Supp. 828, 832 (S.D. Ca. 1986), a decision that has been cited with approval by three circuits and many other district courts.

[For 1997 Version of this instruction, see below]

18 USC 2252(a)(2) provides:

Any person who --

knowingly receives, or distributes, any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, . . . if --

(i) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and

(ii) such visual depiction is of such conduct; shall be punished as provided in subsection (b) of this section.

Maximum Penalty: Fifteen (15) years and applicable fine when Defendant has prior conviction under this chapter or chapter 109A.

Ten (10) years and applicable fine when Defendant has no prior conviction under this chapter or chapter 109A.

See United States v. X-citement Video, Inc., U.S. , 115 S.Ct. 464, 471-72 (1994).

The explanation of the term "lascivious exhibition" is derived from United States v. Dost, 636 F.Supp. 828, 832 (S.D. Ca. 1986), a decision that has been cited with approval by three circuits and many other district courts.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 75.3
Child Pornography
Transporting Or Shipping
(18 USC 2252A(a)(1))

    Title 18, United States Code, Section 2252A(a)(1), makes it a Federal crime or offense for any person to knowingly [transport] [ship] [mail] any child pornography in interstate or foreign commerce [including by computer].

    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 [transported] [shipped] [mailed] [by computer] in interstate or foreign commerce an item or items of “child pornography,” as charged; and

    Second: That at the time of such [transportation] [shipment] [mailing] [by computer] the Defendant believed that such item[s] constituted or contained “child pornography” as hereafter defined.

    The term “interstate or foreign commerce” means the movement of property from one state to another state or from one state to another country. The term “State” includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.

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

    The term “child pornography” means any visual depiction including any photograph, film, video, picture, or computer or computer generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct where [the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct] [such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct].

    The term “minor” means any person under the age of eighteen (18) years.

    [The term “identifiable minor” means a person [who was a minor at the time the visual depiction was created, adapted, or modified] [whose image as a minor was used in creating, adapting or modifying the visual depiction] and who is recognizable as an actual person by the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature; provided that the Government is not required to prove the actual identity of the identifiable minor.]

    The term “visual depiction” includes undeveloped film and videotape, and data stored on computer disk or by electronic means which is capable of conversion into a visual image.

    The term “sexually explicit conduct” means actual or simulated:

    (a) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal contact, whether between persons of the same or opposite sex;

    (b) bestiality;

    (c) masturbation;

    (d) sadistic or masochistic abuse; or

    (e) lascivious exhibition of the genitals or public area of any person.

    Regarding the last type of sexually explicit conduct - - “lascivious exhibition” - - not every exposure of the genitals or pubic area constitutes a lascivious exhibition. In determining whether a visual depiction constitutes a lascivious exhibition, you should consider the context and setting in which the genitalia or pubic area is being displayed. You may consider the overall content of the material. You may also consider such factors as whether the focal point of the visual depiction is on the minor’s genitalia or pubic area, or whether there is some other focal point. You may consider whether the setting of the depiction is such as to make it appear to be sexually inviting or suggestive; for example, in a location or in a pose associated with sexual activity. In addition you may consider whether the minor appears to be displayed in an unnatural pose or in inappropriate attire. You may also consider whether the minor is partially clothed or nude. You may consider whether the depiction appears to convey sexual coyness or an apparent willingness to engage in sexual activity, and whether the depiction appears to have been designed to elicit a sexual response in the viewer. Of course, a visual depiction need not involve all of these factors to be a lascivious exhibition.

ANNOTATIONS AND COMMENTS

    18 USC § 2252A(a)(1) provides:

    (a) any person who - - (1) knowingly mails, or transports or ships in interstate or foreign commerce by any means, including computer any child pornography [shall be guilty of an offense against the United States].

    Maximum Penalty: Fifteen (15) years and applicable fine when Defendant has no prior conviction; not less than five (5) nor more than thirty (30) years and applicable fine when Defendant has prior conviction.

    Definition of the relevant terms is taken from 18 USC § 2256. However, the key term “child pornography” is limited to the definitions given in 18 USC § 2256(8)(A) and (C). Subsections (B) and (D) of that section were declared to be “overbroad
and unconstitutional” in Ashcroft v. The Free Speech Coalition, ____ U.S. ____ , 122 S.Ct. 1389 (2002).

    Note that 1998 amendment to § 2252A added subsections (c) and (d) allowing certain affirmative defenses.

    United States v. X-Citement Video, Inc., 513 U.S. 64, 111 S.Ct. 464 (1992) held that 18 USC § 2252(a)(1) and (2) requires proof of scienter as to the age of the performer. While the structure of § 2252A(a)(1) and (2) is different (using “child pornography” instead of “visual depiction involving the use of a minor”), § 2252A(a)(1) and (2) also contains as an element scienter the age of the performer. See United States v. Acheson, 195 F.3d 645, 653 (11th Cir. 1999) (the government must show not only that the individual received or distributed the material, but that he did so believing that the material was sexually explicit in nature and that it depicted a person who appeared to him to be, or that he anticipated would be,
under 18 years of age.) 

    The explanation of the term “lascivious exhibition” is derived from United States v. Dost, 636 F.Supp. 828, 832 (S.D. Ca. 1986), a decision that has been cited with approval by three circuits and many other district courts.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 75.4
Child Pornography
Receiving, Possessing, Distributing
(18 USC § 2252A(a)(2)(A) and (5)(B))

    Title 18, United States Code, makes it a Federal crime or offense for any person to knowingly [receive] [possess] [distribute] any child pornography that has been [transported] [shipped] [mailed] in interstate or foreign commerce [including by computer].

    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 [received] [possessed] [distributed] an item or items of child pornography, as charged;

    Second: That such item[s] of child pornography had been [transported] [shipped] [mailed] in interstate or foreign commerce [including by computer], as charged; and

    Third: That at the time of such [reception] [possession] [distribution] the Defendant believed that such item[s] constituted or contained child pornography, as hereafter defined.  

    [To “distribute” something simply means to deliver or transfer possession of it to someone else, with or without any financial interest in the transaction.]

    The term “interstate or foreign commerce” means the movement of property from one state to another state or from one state to another country. The term “State” includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States. It is not necessary for the Government to prove that the Defendant knew that the alleged child pornography had moved in interstate or foreign commerce, only that it had so moved.

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

    The term “child pornography” means any visual depiction including any photograph, film, video, picture, or computer or computer generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct where [the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct] [such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct].

    The term “minor” means any person under the age of eighteen (18) years.

    [The term “identifiable minor” means a person [who was a minor at the time the visual depiction was created, adapted, or modified] [whose image as a minor was used in creating, adapting or modifying the visual depiction] and who is recognizable as an actual person by the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature; provided that the Government is not required to prove the actual identity of the identifiable minor.]

    The term “visual depiction” includes undeveloped film and videotape, and data stored on computer disk or by electronic means which is capable of conversion into a visual image.

    The term “sexually explicit conduct” means actual or simulated:

    (a) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal contact, whether between persons of the same or opposite sex;

    (b) bestiality;

    (c) masturbation;

    (d) sadistic or masochistic abuse; or

    (e) lascivious exhibition of the genitals or public area of any person.

    Regarding the last type of sexually explicit conduct - - “lascivious exhibition” - - not every exposure of the genitals or pubic area constitutes a lascivious exhibition. In determining whether a visual depiction constitutes a lascivious exhibition, you should consider the context and setting in which the genitalia or pubic area is being displayed. You may consider the overall content of the material. You may also consider such factors as whether the focal point of the visual depiction is on the minor’s genitalia or pubic area, or whether there is some other focal point. You may consider whether the setting of the depiction is such as to make it appear to be sexually inviting or suggestive; for example, in a location or in a pose associated with sexual activity. In addition you may consider whether the minor appears to be displayed in an unnatural pose or in inappropriate attire. You may also consider whether the minor is partially clothed or nude. You may consider whether the depiction appears to convey sexual coyness or an apparent willingness to engage in sexual activity, and whether the depiction appears to have been designed to elicit a sexual response in the viewer. Of course, a visual depiction need not involve all of these factors to be a lascivious exhibition.

ANNOTATIONS AND COMMENTS

    18 USC § 2252A(a)(2)(A) and (5)(B) provides:

    (a) any person who - -

    (2) knowingly receives or distributes - -

    (A) any child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer; or

* * * *

    (5) either - -

    * * * *

    (B) knowingly possess any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer, or that was produced using materials that have been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer, [shall be guilty of an offense against the United States].

    Maximum Penalty: Fifteen (15) years and applicable fine when Defendant has no prior conviction; not less than five (5) nor more than thirty (30) years and applicable fine when Defendant has prior conviction.

    Definition of the relevant terms is taken from 18 USC § 2256. However, the key term “child pornography” is limited to the definitions given in 18 USC § 2256(8)(A) and (C). Subsections (B) and (D) of that section were declared to be “overbroad
and unconstitutional” in Ashcroft v. The Free Speech Coalition, ____ U.S. ____, 122 S.Ct. 1389 (2002).

    Note that 1998 amendment to § 2252A added subsections (c) and (d) allowing certain affirmative defenses.

    United States v. X-Citement Video, Inc., 513 U.S. 64, 111 S.Ct. 464 (1992) held that 18 USC § 2252(a)(1) and (2) requires proof of scienter as to the age of the performer. While the structure of § 2252A(a)(1) and (2) is different (using “child pornography” instead of “visual depiction involving the use of a minor”), § 2252A(a)(1) and (2) also contains as an element scienter the age of the performer. See United States v. Acheson, 195 F.3d 645, 653 (11th Cir. 1999) (the government must show not only that the individual received or distributed the material, but that he did so believing that the material was sexually explicit in nature and that it depicted a person who appeared to him to be, or that he anticipated would be, under 18 years of age.)

    The explanation of the term “lascivious exhibition” is derived from United States v. Dost, 636 F.Supp. 828, 832 (S.D. Ca. 1986), a decision that has been cited with approval by three circuits and many other district courts.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 2312, makes it a Federal crime or offense for anyone to transport, or cause to be transported in interstate commerce, a stolen motor vehicle.

    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 transported, or caused to be transported, in interstate commerce, a stolen motor vehicle, as described in the indictment; and

    Second: That the Defendant did so willfully, and with knowledge that the motor vehicle had been stolen.

    The word "stolen" includes any wrongful and dishonest taking of a motor vehicle with the intent to deprive the owner of the rights and benefits of ownership.

    It does not matter whether the Defendant stole the car or someone else did, but, to find the Defendant guilty you must find that the Defendant transported it or caused it to be transported, in interstate commerce, with knowledge that it had been stolen.

    The term "interstate commerce" means commerce between one state and another state, the District of Columbia, or any commonwealth, territory, or possession of the United States. If a motor vehicle is driven under its own power or otherwise transported across state lines from one state to another it has been transported in interstate commerce.

ANNOTATIONS AND COMMENTS

    18 USC § 2312 provides:

    Whoever transports in interstate . . . commerce a motor vehicle . . . knowing the same to have been stolen, [shall be guilty of an offense against the United States].

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

    Definition of State taken from 18 USC § 2313(b), also referred to in definition of interstate commerce 18 USC § 10.

    See 18 USC § 2312 (crime not limited simply to person driving the car across state lines).

[For 1997 Version of this instruction, see below]

18 USC 2312 provides:

Whoever transports in interstate . . . commerce a motor vehicle . . . knowing the same to have been stolen, [shall be guilty of an offense against the United States].

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

Definition of State taken from 18 USC 2313(b), also referred to in definition of interstate commerce 18 USC 10.

See 18 USC 2312 (crime not limited simply to person driving the car across state lines).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 2313, makes it a Federal crime or offense for anyone [to receive] [to possess] [to conceal] [to store] [to sell] [to dispose of] any [motor vehicle] [aircraft] which has crossed a State or United States boundary after being stolen, knowing it to have been stolen.

    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 [received] [possessed] [concealed] [stored] [sold] [disposed of] a stolen motor vehicle, as described in the indictment, with knowledge that the motor vehicle had been stolen; and

    Second: That at the time the Defendant did so, the motor vehicle had crossed a State or United States boundary after having been stolen.

    The indictment alleges that the Defendant received, possessed, concealed, stored, sold and disposed of a certain motor vehicle. The law specifies these several different ways in which the offense can be committed, and it is not necessary for the Government to prove that all of such acts were in fact committed. The Government must prove beyond a reasonable doubt that the Defendant either received, possessed, concealed, stored, sold or disposed of the motor vehicle; but, in order to return a verdict of guilt you must agree unanimously upon the way in which the offense was committed.

    The word "stolen" includes any wrongful and dishonest taking of a motor vehicle with the intent to deprive the owner of the rights and benefits of ownership.

    Also, while it must be proved that the Defendant knew that the vehicle had been stolen, it is not necessary to prove that the Defendant knew that the vehicle had crossed a State or United States boundary after it had been stolen.

    The word "State" includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.

ANNOTATIONS AND COMMENTS

    18 USC § 2313 provides:

    Whoever receives, possesses, conceals, stores, . . . sells or disposes of any motor vehicle . . . which has crossed a State or United States boundary after being stolen, knowing the same to have been stolen, [shall be guilty of an offense against the United States].

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

    The requirement that the jury unanimously agree upon the way in which the offense was committed is mandated by United States v. Gipson, 553 F.2d 453 (5th Cir. 1977).

    Where "concealment" is an issue, see United States v. Casey, 540 F.2d 811 (5th Cir. 1976).

    See definition of "State" at 18 USC § 2313(b).

[For 1997 Version of this instruction, see below]

18 USC 2313 provides:

Whoever receives, possesses, conceals, stores, . . . sells or disposes of any motor vehicle . . . which has crossed a State or United States boundary after being stolen, knowing the same to have been stolen, [shall be guilty of an offense against the United States].

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

The requirement that the jury unanimously agree upon the way in which the offense was committed is mandated by United States v. Gipson, 553 F.2d 453 (5th Cir. 1977).

Where "concealment" is an issue, see United States v. Casey, 540 F.2d 811 (5th Cir. 1976).

See definition of "State" at 18 USC 2313(b).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 2314, makes it a Federal crime or offense for anyone to transport, or to cause to be transported in interstate commerce, property which has been [stolen] [converted] [taken by fraud] and has a value of $5,000 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 [transported] [transmitted] [transferred] or caused to be [transported] [transmitted] [transferred], in interstate commerce, items of [stolen property] [converted property] [property taken by fraud] as described in the indictment;

    Second: That such items had a value of $5,000 or more; and 

    Third: That the Defendant transported the items willfully and with knowledge that the property had been [stolen] [converted] [taken by fraud].

    [The word "stolen" includes any wrongful and dishonest taking of property with the intent to deprive the owner of the rights and benefits of ownership.] [The word "converted" means the unauthorized exercise of control over the property of another inconsistent with the owner's rights.] [The term “taken by fraud” means to deceive or cheat someone out of property by means of false or fraudulent pretenses, representations or promises.]

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

    It does not matter whether the Defendant [stole the property] [converted the property] [took the property by fraud] or someone else did, but to find the Defendant guilty, you must find that the Defendant knew it had been [stolen] [converted] [taken by fraud].

    The term "interstate commerce" includes any movement or transportation of goods, wares, merchandise, securities or money from one state into another state, the District of Columbia, and any commonwealth, territory, or possession of the United States.

ANNOTATIONS AND COMMENTS

    18 USC § 2314 (first paragraph) provides:

    Whoever transports, transmits, or transfers in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud [shall be guilty of an offense against the United States].

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

    The language "or caused to be transported," although not found in the first paragraph of the statute, has been expressly allowed by United States v. Block, 755 F.2d 770 (11th Cir. 1985).

    In United States v. LaSpesa, 956 F.2d 1027, 1035 (11th Cir. 1992), the Eleventh Circuit held that 18 USC § 2314 prohibits interstate wire transfers of stolen money.

    In United States v. Baker, 19 F.3d 605, 614 (11th Cir. 1994), the Eleventh Circuit held that the substitution of "stolen or taken by fraud" for "stolen" in the jury instructions was allowable under the statute, where the property in question was taken by fraud. 

    The definition of State taken from 18 USC § 2313(b).

[For 1997 Version of this instruction, see below]

18 USC 2314 (first paragraph) provides:

Whoever transports, transmits, or transfers in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud [shall be guilty of an offense against the United States].

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

The language "or caused to be transported," although not found in the first paragraph of the statute, has been expressly allowed by United States v. Block, 755 F.2d 770 (11th Cir. 1985).

In United States v. LaSpesa, 956 F.2d 1027, 1035 (11th Cir. 1992), the Eleventh Circuit held that 18 USC 2314 prohibits interstate wire transfers of stolen money.

In United States v. Baker, 19 F.3d 605, 614 (11th Cir. 1994), the Eleventh Circuit held that the substitution of "stolen or taken by fraud" for "stolen" in the jury instructions was allowable under the statute, where the property in question was taken by fraud.

The definition of State taken from 18 USC 2313(b), also referred to in definition of interstate commerce 18 USC 10.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 2314, makes it a Federal crime or offense for anyone to transport someone or induce someone to travel in interstate commerce for the purpose of executing a scheme to defraud that person of money [property]. 

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

    First: That the Defendant transported or caused to be transported, or induced travel by, in interstate commerce, the person named in the indictment;

    Second: That such travel was caused or induced by the Defendant in the execution [concealment] of a scheme to defraud such person as charged in the indictment;

    Third: That the Defendant knew the scheme was fraudulent and acted with intent to defraud; and

    Fourth: That the purpose of the scheme to defraud was to obtain money or property from such person having a value of $5,000 or more.

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

    The term "interstate commerce" includes any movement or transportation of a person or persons from one state into another state, the District of Columbia, or any commonwealth, territory, or possession of the United States.

    The word "scheme" includes any plan or course of action intended to deceive others, and to obtain, by false or fraudulent pretenses, representations, or promises, money or property from persons so deceived.

    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 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 § 2314 (second paragraph) provides:

    Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transports or causes to be transported, or induces any person to travel in, or to be transported in interstate or foreign commerce in the execution or concealment of a scheme or artifice to defraud that person or those persons of money or property having a value of $5,000 or more [shall be guilty of an offense against the United States].

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

[For 1997 Version of this instruction, see below]

18 USC 2314 (second paragraph) provides:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transports or causes to be transported, or induces any person to travel in, or to be transported in interstate or foreign commerce in the execution or concealment of a scheme or artifice to defraud that person or those persons of money or property having a value of $5,000 or more [shall be guilty of an offense against the United States].

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

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 2315, makes it a Federal crime or offense for anyone to knowingly [receive] [possess] [conceal] [dispose of] stolen property which has a value of $5,000 or more and which has crossed a State or United States boundary after being stolen, taken or unlawfully converted.

    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 [received] [possessed] [concealed] [stored] [disposed of] items of stolen property as described in the indictment;

    Second: That such items had crossed a State or United States boundary after having been stolen, unlawfully converted, or unlawfully taken; 

    Third: That the Defendant knew the property had been stolen, unlawfully converted or taken; and 

    Fourth: That such items had a value in excess of $5,000.

    The indictment alleges that the Defendant received, possessed, concealed, stored, sold and disposed of certain stolen property. The law specifies these several different ways in which an offense can be committed, and it is not necessary for the Government to prove that all of those acts were in fact committed. The Government must prove beyond a reasonable doubt that the Defendant either received, possessed, concealed, stored, sold or disposed of the stolen property; and, in order to return a verdict of guilt you must agree unanimously upon the way in which the offense was committed.

    Also, in order to commit the offense charged, a Defendant must know that the property had been stolen, but the Defendant need not know that it had crossed a State or United States boundary after being stolen. The term "State" includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.

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

ANNOTATIONS AND COMMENTS

    18 USC § 2315 (first paragraph) provides:

    Whoever receives, possesses, conceals, stores, barters, sells, or disposes of any goods, wares, merchandise, securities or money of the value of $5,000 or more, . . . which have crossed a State or United States boundary after being stolen, unlawfully converted, or taken, the same to have been stolen, unlawfully converted, or taken [shall be guilty of an offense against the United States].

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

    See United States v. King, 87 F.3d 1255, 1256 (11th Cir. 1996) reciting the elements of the offense as stated in this instruction.

[For 1997 Version of this instruction, see below]

18 USC 2315 (first paragraph) provides:

Whoever receives, possesses, conceals, stores, barters, sells, or disposes of any goods, wares, merchandise, securities or money of the value of $5,000 or more, . . . which have crossed a State or United States boundary after being stolen, unlawfully converted, or taken, the same to have been stolen, unlawfully converted, or taken [shall be guilty of an offense against the United States].

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

See United States v. King, 87 F.3d 1255, 1256 (11th Cir. 1997) reciting the elements of the offense as stated in this instruction.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 80
Coercion And Enticement Of A Minor
To Engage In Sexual Activity
(18 USC § 2422(b))

    Title 18, United States Code, Section 2422(b), makes it a Federal crime or offense for anyone, using [the mail or] any facility of interstate or foreign commerce [including transmissions by computer on the internet], to knowingly [persuade] [induce] [entice] [coerce] anyone under eighteen (18) years of age to engage in [prostitution] any sexual activity for which any person could be charged with a criminal offense.

    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 [the mail] [a computer] [describe other interstate facility as alleged in indictment] to attempt to persuade, induce, entice [or coerce] an individual under the age of eighteen (18) to engage in sexual activity, as
charged;

    Second: That the Defendant believed that such individual was less than eighteen (18) years of age;

    Third: That if the sexual activity had occurred, the Defendant could have been charged with a criminal offense under the law of [identify the state]; and

    Fourth: That the Defendant acted knowingly and willfully.

    It is not necessary for the Government to prove that the individual was in fact less than 18 years of age; but it is necessary for the Government to prove that Defendant believed such individual to be under that age.

    Also, it is not necessary for the Government to prove that the individual was actually persuaded or induced or enticed [or coerced] to engage in sexual activity; but it is necessary for the Government to prove that the Defendant intended to engage in some form of unlawful sexual activity with the individual and knowingly and willfully took some action that was a substantial step toward bringing about or engaging in that sexual activity.

    So, the Government must prove that if the intended sexual activity had occurred, the Defendant could have been charged with a criminal offense under the laws of [state].

    In that regard I instruct you as a matter of law that the following acts are crimes under [state] law. [Describe the applicable state law].

ANNOTATIONS AND COMMENTS

    18 USC § 2422(b) provides:

    (b) Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be [guilty of an offense against the United States].

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

    United States v. Farmer, 251 F.3d 510 (5th Cir. 2001). The Defendant need not know the age of the intended victim so long as he believes that the victim is under eighteen.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 3146, makes it a Federal crime or offense for anyone who has been released on bail in this Court to thereafter [knowingly fail to appear when required to do so] [knowingly fail to surrender for service of sentence pursuant to a Court order].

    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 had been admitted to bail pursuant to an order of a Judge or Magistrate Judge of this Court, as charged;

    Second: That the Defendant thereafter knowingly [failed to appear before a Judge or Magistrate Judge of this Court as required] [failed to surrender for service of sentence pursuant to a Court order]; and

    Third: That the offense charged in the case in which the Defendant had been released on bail was punishable by a term of [state maximum punishment applicable to the charged offense].

    It is an affirmative defense to a prosecution for failure to appear or "bail jumping" - - and the Defendant would not be guilty - - if (a) uncontrollable circumstances prevented the Defendant from appearing; (b) the Defendant did not [himself] [herself] contribute to the creation of such circumstances in reckless disregard of the requirement to appear; and (c) the Defendant then appeared as soon as such circumstances ceased to exist.

ANNOTATIONS AND COMMENTS

    18 USC § 3146 provides:

    (a) Offense. - - Whoever, having been released under this chapter knowingly - -

    (1) fails to appear before a court as required by the conditions of release; or

    (2) fails to surrender for service of sentence pursuant to a court order.

    * * * * *

    (c) Affirmative defense.–It is an affirmative defense to a prosecution under this section that uncontrollable circumstances prevented the person from appearing or surrendering, and that the person did not contribute to the creation of such circumstances in reckless disregard of the requirement to appear or surrender, and that the person appeared or surrendered as soon as such circumstances ceased to exist.

    Maximum Penalty: Varies according to severity of the penalty applicable to the most serious charge made in the underlying case. See 18 USC § 3146(b).

    The third element of the offense is submitted to the jury under the principle of Apprendi.

[For 1997 Version of this instruction, see below]

18 USC 3146 provides:

(a) Offense. - - Whoever, having been released under this chapter knowingly - -

(1) fails to appear before a court as required by the conditions of release; or

(2) fails to surrender for service of sentence pursuant to a court order.

* * * * *

(c) Affirmative defense.--It is an affirmative defense to a prosecution under this section that uncontrollable circumstances prevented the person from appearing or surrendering, and that the person did not contribute to the creation of such circumstances in reckless disregard of the requirement to appear or surrender, and that the person appeared or surrendered as soon as such circumstances ceased to exist.

Maximum Penalty: Varies according to severity of the penalty applicable to the most serious charge made in the underlying case. See 18 USC 3146(b).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 7, United States Code, Section 2024(b), makes it a Federal crime or offense for anyone to knowingly [transfer] [acquire] [possess] United States Department of Agriculture Food Stamp [coupons] [authorization cards] [access devices] in any manner contrary to law or Department regulations, where the Food Stamp [coupons] [authorization cards] [access devices] have a value of $5,000 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 [transferred] or [acquired] the Food Stamp [coupons] [authorization cards] [access devices] in a manner contrary to law or Department of Agriculture regulations, as charged;

    Second: That the Defendant knew that his [transfer] [acquisition] of the Food Stamp [coupons] [authorization cards] [access devices] was in a manner unauthorized by the law; and

    Third: That the Food Stamp coupons had a value of $5,000 or more.

    You are instructed that it is contrary to Department of Agriculture regulations [to sell or purchase Food Stamp [coupons] [authorization cards] [access devices] for cash] [to transfer or acquire Food Stamp [coupons] [authorization cards] [access devices] in exchange for clothes, drugs, cigarettes or liquor].

    For the purpose of determining the value of Food Stamp coupons, you should place a value on them equal to their face value.

ANNOTATIONS AND COMMENTS

    7 USC § 2024(b) provides:

    . . . whoever knowingly uses, transfers, acquires, alters, or possesses coupons, authorization cards, or access devices in any manner contrary to this chapter [7 USC §§ 2011 et seq.] or the regulations issued pursuant to this chapter shall, if such coupons, authorization cards, or access devices are of a value of $5,000 or more, be guilty of a felony.

    Maximum Penalty: Shall be fined not more than $250,000 or imprisoned for not more than twenty (20) years, or both, and [smaller penalties for violations at lower dollar levels]. 7 USC § 2024(b).

    The knowledge element of the statute has been analyzed in Liparota v. United States, 471 U.S. 419, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985); see also United States v. Saldana, 12 F.3d 160, 162-63 (9th Cir. 1993).

    Food Stamps "may not be accepted in exchange for cash, except when cash is returned as change in a transaction in which coupons were accepted in payment for eligible food . . . ." 7 CFR § 278.2(a) (1995).

[For 1997 Version of this instruction, see below]

7 USC 2024(b) provides:

. . . whoever knowingly uses, transfers, acquires, alters, or possesses coupons, authorization cards, or access devices in any manner contrary to this chapter [7 USC 2011 et seq.] or the regulations issued pursuant to this chapter shall, if such coupons, authorization cards, or access devices are of a value of $5,000 or more, be guilty of a felony.

Maximum Penalty: Shall be fined not more than $250,000 or imprisoned for not more than twenty (20) years, or both, and [smaller penalties for violations at lower dollar levels]. 7 USC 2024(b).

The knowledge element of the statute has been analyzed in Liparota v. U. S., 471 U.S. 419, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985); see also U. S. v. Saldana, 12 F.3d 160, 162-63 (9th Cir. 1993).

Food Stamps "may not be accepted in exchange for cash, except when cash is returned as change in a transaction in which coupons were accepted in payment for eligible food . . . ." 7 CFR 278.2(a) (1995).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 83.1
Bringing In Aliens
(8 USC § 1324(a)(1)(A)(i))

    Title 18, United States Code, Section 1324(a)(1)(A)(i), makes it a Federal crime or offense for anyone knowingly to [bring] [attempt to bring] an alien into the United States at a place other than a designated point of entry.

    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 [brought] [attempted to bring] into the United States the person named in the indictment;

    Second: That such person was then an alien; 

    Third: That the Defendant knew such person to be an alien; and 

    Fourth: That entry into the United States was [made] [attempted] at a place other than a designated port of entry.

    An alien is any person who is not a natural-born or naturalized citizen, or a national of the United States. The term “national of the United States” includes not only a citizen, but also a person who, though not a citizen of the United States, owes permanent allegiance to the United States.

ANNOTATIONS AND COMMENTS

    8 USC § 1324 provides:

    1(A) Any person who - -

    (i) knowing that a person is an alien, brings to or attempts to bring to the United States in any manner whatsoever such person at a place other than a designated port of entry or place other than as designated by the Commissioner, regardless of whether such alien has received prior official authorization to come to, enter, or reside in the United States and regardless of any future official action which may be taken with respect to such alien [shall be guilty of an offense against the United States].

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

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 83.2
Unlawfully Transporting Aliens
(8 USC § 1324(a)(1)(A)(ii))

    Title 8, United States Code, Section 1324(a)(1)(A)(ii), makes it a Federal crime or offense for anyone, knowing [or acting in reckless disregard of the fact] that an alien is in the United States illegally, to transport such alien in furtherance of the alien’s illegal presence.

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

    First: That an alien [entered] or [remained in] the United States in violation of law;

    Second: That the Defendant knew, or recklessly disregarded the fact, that the alien was in the United States in violation of the law; [and]

    Third: That the Defendant knowingly transported the alien within the United States in furtherance of the alien’s unlawful purpose. [and] 

    [Fourth: That the Defendant committed such offense for the purpose of commercial advantage or private financial gain.]

    To act with “reckless disregard” means to be aware of, but consciously and carelessly ignore, facts and circumstances clearly indicating that the person transported was an alien who had entered or remained in the United States in violation of law. 

    An alien is any person who is not a natural-born or naturalized citizen, or a national of the United States. The term “national of the United States” includes not only a citizen, but also a person who, though not a citizen of the United States, owes permanent allegiance to the United States.

    In order for transportation to be in furtherance of the alien’s unlawful presence, there must be a direct and substantial relationship between the Defendant’s act of transportation and its furtherance of the alien’s presence in the United States. In other words, the act of transportation must not be merely incidental to a furtherance of the alien’s violation of the law.

ANNOTATIONS AND COMMENTS

    8 USC § 1324(a)(1)(A)(ii) provides:

    (1)(A) Any person who - -

    (ii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law [shall be guilty of an offense against the United States].

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

    There is disagreement among the circuits regarding the mens rea for this offense. In United States v. Barajas-Chavez, 162 F.3d 1285, 1288 (10th Cir. 1999), the court found that a defendant must act “wilfully” in furtherance of an alien’s violation of law. The Fifth Circuit Pattern Instruction 2.03 requires that the “defendant transported the alien . . . with intent to further the alien’s unlawful presence.” As the notes to that instruction explain, the statute does not contain a willfulness requirement and the Fifth Circuit has rejected the argument that “willful transportation” is an element of § 1324(a)(1)(A)(ii). United States v. Rivera, 838 F.2d 1359, 1361 (5th Cir. 1989). The Committee believes that the legislative history supports the conclusion that § 1324(a)(1)(A)(ii) only requires that the Defendant knowingly transport the alien in furtherance of the alien’s violation of law. See H.R.Rep. No. 682(I), 99th Cong., 2d Sess. 65 (1986), reprinted in 1986 U.S. Code Cong. and Adm. News, 5649 at 5669-70.

    The statute describes aggravating factors raising the statutory maximum penalty which, under the principle of Apprendi, must be submitted as additional elements if charged in the indictment. These include: whether the offense was done for the purpose of commercial advantage or private gain, 8 USC § 1324(a)(1)(B)(i); whether the Defendant caused serious bodily injury (as defined in 18 USC § 1365) to a person or placed a person’s life in jeopardy (8 USC § 1324(a)(1)(B)(iii)); or whether death resulted (8 USC § 1324(a)(1)(B)(iv)).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 83.3
Concealing Or Harboring Aliens
(8 USC § 1324(a)(1)(A)(iii))

    Title 8, United States Code, Section 1324(a)(1)(A)(iii), makes it a Federal crime or offense for anyone to [conceal] [harbor] an alien while [knowing] [acting in reckless disregard of the fact] that the alien has [entered] [remained in] the United States in violation of the law. 

    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 alien [entered] [remained in] the United States in violation of law;

    Second: That the Defendant knowingly [concealed] [harbored] [sheltered from detection] the alien within the United States; [and]

    Third: That the Defendant either knew or acted in reckless disregard of the fact that the alien [entered] [remained in] the United States in violation of law. [and]

    [Fourth: That the Defendant committed such offense for the purpose of commercial advantage or private financial gain.]

    An alien is any person who is not a natural-born or naturalized citizen, or a national of the United States. The term “national of the United States” includes not only a citizen, but also a person who, though not a citizen of the United States, owes permanent allegiance to the United States.

    To act with “reckless disregard” means to be aware of, but consciously and carelessly ignore, facts and circumstances clearly indicating that the person transported was an alien who had entered or remained in the United States in violation of law.

    To [conceal] [harbor] [shield from detection] includes any knowing conduct by the Defendant tending to substantially facilitate an alien’s escaping detection thereby remaining in the United States illegally.

ANNOTATIONS AND COMMENTS

    8 USC § 1324(a)(1)(A)(iii) provides:

    (1)(A) Any person who - -

    (iii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation [shall be guilty of an offense against the United States].

    The statute describes aggravating factors raising the statutory maximum penalty which, under the principle of Apprendi, must be submitted as additional elements if charged in the indictment. These include: whether the offense was done for the purpose of commercial advantage or private gain, 8 USC § 1324(a)(1)(B)(i); whether the Defendant caused serious bodily injury (as defined in 18 USC § 1365) to a person or placed a person’s life in jeopardy, 8 USC § 1324(a)(1)(B)(iii); or whether death resulted, 8 USC § 1324(a)(1)(B)(iv).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 8, United States Code, Section 1326, makes it a Federal crime or offense for an alien - - someone who is not a natural-born or naturalized citizen, or a national of the United States - - to [enter] [be found in] the United States after the alien had been [deported] [excluded] [removed] at some earlier time. 

    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 had previously been [deported] [excluded] [removed] from the United States;

    Third: That the Defendant thereafter [knowingly reentered] [was found to be voluntarily in] the United States; and

    Fourth: That the Defendant had not received the consent of the Attorney General of the United States to apply for readmission to the United States.

    An alien is any person who is not a natural-born or naturalized citizen, or a national of the United States. The term “national of the United States” includes not only a citizen, but also a person who, though not a citizen of the United States, owes permanent allegiance to the United States.

ANNOTATIONS AND COMMENTS

    8 USC § 1326(a) provides:

    any alien who - -

    (1) has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter 

    (2) enters, attempts to enter, or is at any time found in, the United States, unless (A) prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien’s reapplying for admission; or (B) with respect to an alien previously denied admission and removed, unless such alien shall establish that he was not required to obtain such advance consent under this chapter or any prior Act, shall be [guilty of an offense against the United States].

    Maximum Penalty: Two years imprisonment and applicable fine.

    Specific intent is not an element of the unlawful reentry offense. United States v. Ramos-Quirarte, 935 F.2d 162, 163 (9th Cir. 1991). For the mistake of law defense see United States v. Espinoza-Leon, 873 F.2d 743, 746-47 (4th Cir.), cert. denied, 492 U.S. 924 (1989); United States v. Miranda-Enriquez, 842 F.2d 1211, 1213 (10th Cir. 1988), cert. denied, 488 U.S. 836 (1988).

    An alien who approaches a port of entry and makes a false claim of citizenship or nonresident alien status has attempted to enter the United States. United States v. Cardenas-Alvarez, 987 F.2d 1129, 1132-33 (5th Cir. 1993).

    Surreptitious reentry is not a prerequisite to prosecution for being "found" in the United States. United States v. Ortiz-Villegas, 49 F.3d 1435, 1436 (9th Cir.), cert. denied, 116 S.Ct. 134 (1995).

    On statute of limitations, "continuing offense" and tolling issues, see United States v. Rivera-Ventura, 72 F.3d 277 (2d Cir. 1995) and United States v. Castrillon-Gonzalez, 77 F.3d 403 (11th Cir. 1996) (discussing when a § 1326 violation commences and is completed).

    Lawfulness of the prior detention is not an element of the § 1326 offense. United States v. Holland, 876 F.2d 1553, 1555 (11th Cir. 1989). According to the Ninth Circuit, “[t]he government merely needs to prove that a deportation proceeding actually occurred with the end result of [the defendant] being deported.” United States v. Medina, 236 F.3d 1028, 1031 (9th Cir. 2001). However, a Defendant can preclude the Government from relying on a prior deportation if the deportation proceeding was so procedurally flawed that it “effectively eliminated the right of the alien to obtain judicial review” Id. (citations omitted). To successfully make this collateral attack, the Defendant must show that the prior deportation was fundamentally unfair and that he or she was prejudiced by the error. Id. (citations omitted).

    Surreptitious reentry is not a prerequisite to prosecution of being “found” in the United States. United States v. Gay, 7 F.3d 200, 202 (11th Cir. 1993).

    For a discussion of how the Government can prove entry and attempted entry see United States v. Barnes, 244 F.2d 331, 334 (2nd Cir. 2001) and United States v. Angeles-Mascote, 206 F.3d 529, 531 (5th Cir. 2000).

    An alien within the United States is not “found in” the United States if he or she approaches a recognized port of entry and produces his identity seeking admission. United States v. Angeles-Mascote 206 F.3d 529 (5th Cir. 2000).

    Proof of the Defendant’s commission of an aggravated felony prior to deportation is not an element of the offense; rather, it is a punishment provision used in addressing recidivism. Almendarez-Torres v. United States, 523 U.S. 224, 247-48 (1998) further discussed but not overruled in Apprendi v. New Jersey, 530 U.S. 446, 484-97 (2000). Until Almendarez-Torres is overruled, the Eleventh Circuit has held that it has the duty to follow it as United States Supreme Court precedent even though it may conflict with the reasoning in Apprendi. United States v. Thomas, 242 F.3d 1028, 1035 (11th Cir. 2001).

[For 1997 Version of this instruction, see below]

8 USC 1326(a) provides:

. . . any alien who -- (1) has been arrested and deported or excluded and deported, and thereafter (2) enters, attempts to enter, or is at any time found in, the United States, unless (A) prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien's reapplying for admission; or (B) with respect to an alien previously excluded and deported, unless such alien shall establish that he was not required to obtain such advance consent under this chapter or any prior Act.

Maximum Penalty: Two years imprisonment and "fined under Title 18 . . . ." 8 USC 1326(a)(2).

Specific intent is not an element of the unlawful reentry offense. U. S. v. Ramos-Quirarte, 935 F.2d 162, 163 (9th Cir. 1991). For the mistake of law defense see U. S. v. Espinoza-Leon, 873 F.2d 743, 746-47 (4th Cir.), cert. Denied, 492 U.S. 924 (1989); U. S. v. Miranda-Enriquez, 842 F.2d 1211, 1213 (10th Cir. 1988), cert. denied, 488 U.S. 836 (1988).

An alien who approaches a port of entry and makes a false claim of citizenship or nonresident alien status has attempted to enter the U. S. U. S. v. Cardenas-Alvarez, 987 F.2d 1129, 1132-33 (5th Cir. 1993).

Surreptitious reentry is not a prerequisite to prosection for being "found" in the U. S. U. S. V. Ortiz-Villegas, 49 F.3d 1435, 1436 (9th Cir.), cert. denied, 116 S.Ct. 134 (1995).

On statute of limitations, "continuing offense" and tolling issues, see U. S. v. Rivera-Ventura, 72 F.3d 277 (2d Cir. 1995) and U. S. v. Castrillon-Gonzalez, 77 F.3d 403 (11th Cir. 1997) (discussing when a 1326 violation commences and is completed).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 21, United States Code, Section 841(a)(1), makes it a Federal crime or offense for anyone to possess a "controlled substance" with intent to distribute it. 

    _____ is a "controlled substance" within the meaning of the law.

    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 possessed _____ as charged;

    Second: That the Defendant possessed the substance with the intent to distribute it; and

    Third: That the weight of the _____ possessed by the Defendant was in excess of _____ as charged. 

    To "possess with intent to distribute" simply means to possess with intent to deliver or transfer possession of a controlled substance to another person, with or without any financial interest in the transaction.

    [The Defendant[s] [is] [are] charged in the indictment with [distributing] [possessing with intent to distribute] a certain quantity or weight of the alleged controlled substance[s]. However, you may find [the] [any] Defendant guilty of the offense if the quantity of the controlled substance[s] for which [he] [she] should be held responsible is less than the amount or weight charged. Thus the verdict form prepared with respect to [the] [each] Defendant, as I will explain in a moment, will require, if you find [the] [any] Defendant guilty, to specify on the verdict your unanimous finding concerning the weight of the controlled substance attributable to the Defendant.]

ANNOTATIONS AND COMMENTS

    21 USC § 841(a) provides:

    . . . it shall be unlawful for any person knowingly or intentionally - - 

    (1) to . . . possess with intent to . . . distribute . . . a controlled substance . . . .

    Maximum Penalty: Depends upon the nature and weight of the substance involved. See 21 USC § 841(b).

    The Committee recognizes - - and cautions - - that sentence enhancing factors subject to the principle of Apprendi, including weights of controlled substances under 21 USC § 841(b), are not necessarily “elements” creating separate offenses for purposes of analysis in a variety of contexts. See United States v. Sanchez, 269 F.3d 1250, 1257 fn. 51 (11th Cir. 2001) en banc, cert. denied, ____ U. S. ____ , 122 S.Ct. 1327 (2002). Even so, the lesser included offense model is an appropriate and convenient procedural mechanism for purposes of submitting sentence enhancers to a jury when required by the principle of Apprendi. This would be especially true in simpler cases involving single Defendants. See Special Instruction 10 and the verdict form provided in the Annotations And Comments following that instruction. If the lesser included offense approach is followed, using Special Instruction 10 and its verdict form, then the bracketed language in this instruction explaining the significance of weights and the use of a special verdict form specifying weights, should be deleted.

    Alternatively, in more complicated cases, if the bracketed language in this instruction concerning weights is made a part of the overall instructions, followed by use of the special verdict form below, then the Third element of the instructions defining the offense should be deleted. The following is a form of special verdict that may be used in such cases.

Special Verdict

    1. We, the Jury, find the Defendant [name of Defendant] _____ as charged in Count [One] of the indictment. [Note: If you find the Defendant not guilty as charged in Count [One], you need not consider paragraph 2 below.]

    2. We, the Jury, having found the Defendant guilty of the offense charged in Count [One], further find with respect to that Count that [he] [she] [distributed] [possessed with intent to distribute] [conspired to possess with intent to distribute] the following controlled substance[s] in the amount[s] shown (place an X in the appropriate box[es]):

    [(a) Marijuana - -

(i) Weighing 1000 kilograms or more [  ] 
(ii) Weighing 100 kilograms or more [  ]
(iii) Weighing less than 100 kilograms [  ] 

[(b) Cocaine - -

(i) Weighing 5 kilograms or more [  ] 
(ii) Weighing 500 grams or more [  ] 
(iii) Weighing less than 500 grams [  ]

[(c) Cocaine base (“crack” cocaine) - -

(i) Weighing 50 grams or more [  ] 
(ii) Weighing 5 grams or more [  ] 
(iii) Weighing less than 5 grams [  ] 

    SO SAY WE ALL.                                                         ___________________
                                                                                            Foreperson
Date:____________

Multiple sets of the two paragraphs in this Special Verdict form will be necessary in the event of multiple counts of drug offenses against the same Defendant.

[For 1997 Version of this instruction, see below]

21 USC 841(a) provides:

. . . it shall be unlawful for any person knowingly or intentionally --

(1) to . . . possess with intent to . . . distribute . . . a controlled substance . . . .

Maximum Penalty: Depends upon the nature of the substance involved. See 21 USC 841(b).

The nature of the controlled substance (e.g. cocaine or cocaine base), like the amount of the substance involved, is not a jury question but rather is determined by the court at sentencing. U. S. v. Trujillo, 959 F.2d 1377, 1383 (7th Cir. 1992), cert. denied, 506 U.S. 897 (1992).

"Mere presence" defense, as interrelated with state of mind and prior bad acts evidence issues, is analyzed in U. S. v. Russo, 717 F.2d 545, 552 (11th Cir. 1983), criticized, U. S. V. Jenkins, 7 F.3d 803, 807 (8th Cir. 1993); see also U. S. v. Thomas, 58 F.3d 1318, 1321-22 (8th Cir. 1995) (examining varying circuit approaches to this issue).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 21, United States Code, Section 843(b), makes it a separate Federal crime or offense for anyone to knowingly use a communication facility in committing, or "facilitating" the commission of, another offense in violation of [Section 841(a)(1) such as the crime charged in Count ____ ].

    The Defendant can be found guilty of the offense of unlawful use of a communication facility as charged in Count ____ only if all of the following facts are proved beyond a reasonable doubt:

    First: That the Defendant used a "communication facility," as charged;

    Second: That the Defendant used the communication facility while in the process of committing, or to "facilitate" the commission of, the offense charged in Count ____ of the indictment; and

    Third: That the Defendant acted knowingly and willfully.

    The term "communication facility" includes all mail, telephone, wire, radio, and computer-based communication systems.

    To "facilitate" the commission of a crime merely means to use a communication facility in a way which aids or assists the commission of the crime. The Government does not have to prove, however, that the other crime - - the facilitated offense - - was successfully carried out or completed.

ANNOTATIONS AND COMMENTS

    21 USC § 843(b) provides:

    It shall be unlawful for any person knowingly or intentionally to use any communication facility in committing or in causing or facilitating the commission of any act or acts constituting a felony under any provision of this subchapter or subchapter II of this chapter.

    Maximum Penalty: Four (4) years imprisonment and $30,000 fine. § 843(c).

    "Each separate use of a communication facility shall be a separate offense under this subsection." § 843(b)

    "Communication facility" means "any and all public and private instrumentalities used or useful in the transmission of writing, signs, signals, pictures, or sounds of all kinds and includes mail, telephone, wire, radio and all other means of communication." § 843(b). In addition to wire-based e-mail (e.g. on the Internet), computers can now communicate via microwave, FM-frequency, infrared and by other non-wire based media. The statute, however, contemplates "any and all" forms of communication facilities.

[For 1997 Version of this instruction, see below]

21 USC 843(b) provides:

It shall be unlawful for any person knowingly or intentionally to use any communication facility in committing or in causing or facilitating the commission of any act or acts constituting a felony under any provision of this subchapter or subchapter II of this chapter.

Maximum Penalty: Four (4) years imprisonment and $30,000 fine. 843(c).

"Each separate use of a communication facility shall be a separate offense under this subsection." 843(b)

"Communication facility" means "any and all public and private instrumentalities used or useful in the transmission of writing, signs, signals, pictures, or sounds of all kinds and includes mail, telephone, wire, radio and all other means of communication." 843(b). In addition to wire-based e-mail (e.g. on the Internet), computers can now communicate via microwave, FM-frequency, infrared and by other non-wire based media. The statute, however, contemplates "any and all" forms of communication facilities.

No plain error by giving jury instruction that did not require the Government to prove that the underlying felony was facilitated by the use of the telephone; the instruction required the Government to prove that Defendant used a communication facility to facilitate the knowing and intentional distribution of a Schedule II controlled substance and that the Defendant did so knowingly and intentionally. U. S. v. Milton, 62 F.3d 1292, 1294-95 (10th Cir. 1995). The Government does not have to prove that the facilitated offense was successfully completed. United States v. Milton, 62 F.3d 1292 (10th Cir. 1995).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 21, United States Code, Section[s] [846] [955c] [963] make it a separate Federal crime or offense for anyone to conspire or agree with someone else to do something which, if actually carried out, would be a violation of [Section 841(a)(1)] [Section 952(a)]. [Section 841(a)(1) makes it a crime for anyone to knowingly possess _____ with intent to distribute it.] [Section 952(a) makes it a crime for anyone to knowingly import _____ into the United States from some place outside the United States.]

    So, under the law, a "conspiracy" is an agreement or a kind of "partnership in criminal purposes" in which each member becomes the agent or partner of every other member. 

    In order to establish a conspiracy offense it is not necessary for the Government to prove that all of the people named in the indictment were members of the scheme, or that those who were members had entered into any formal type of agreement. Also, because the essence of a conspiracy offense is the making of the scheme itself, it is not necessary for the Government to prove that the conspirators actually succeeded in accomplishing their unlawful plan.

    What the evidence in the case must show beyond a reasonable doubt is:

    First: That two or more persons in some way or manner, came to a mutual understanding to try to accomplish a common and unlawful plan, as charged in the indictment;

    Second: That the Defendant, knowing the unlawful purpose of the plan, willfully joined in it; and

    Third: That the object of the unlawful plan was to [possess with intent to distribute] [import] more than _____ of _____ , as charged.

    A person may become a member of a conspiracy without full knowledge of all of the details of the unlawful scheme or the names and identities of all of the other alleged conspirators. So, if a Defendant has a general understanding of the unlawful purpose of the plan (including the nature and anticipated weight of the substance involved) and knowingly and willfully joins in that plan on one occasion, that is sufficient to convict that Defendant for conspiracy even though the Defendant did not participate before and even though the Defendant played only a minor part.

    Of course, mere presence at the scene of a transaction or event, or the mere fact that certain persons may have associated with each other, and may have assembled together and discussed common aims and interests, does not, standing alone, establish proof of a conspiracy.  Also, a person who has no knowledge of a conspiracy, but who happens to act in a way which advances some purpose of one, does not thereby become a conspirator.

    [The Defendant[s] [is] [are] charged in the indictment with [distributing] [conspiracy to possess with intent to distribute] a certain quantity or weight of the alleged controlled substance[s]. However, you may find [the] [any] Defendant guilty of the offense if the quantity of the controlled substance[s] for which [he] [she] should be held responsible is less than the amount or weight charged. Thus the verdict form prepared with respect to [the] [each] Defendant, as I will explain in a moment, will require, if you find [the] [any] Defendant guilty, to specify on the verdict your unanimous finding concerning the weight of the controlled substance attributable to the Defendant.]

ANNOTATIONS AND COMMENTS

    21 USC § 846 provides:

    Any person who attempts or conspires to commit any offense defined in this subchapter [Sections 801 through 904] [shall be guilty of an offense against the United States].

    21 USC § 963 provides:

    Any person who attempts or conspires to commit any offense defined in this subchapter [Sections 951 through 966] [shall be guilty of an offense against the United States].

    Maximum Penalty: Both sections (846 and 963) provide that the penalty shall be the same as that prescribed for the offense which was the object of the conspiracy.

    The "knowledge" elaboration upon the pre-existing version of this pattern charge is taken from United States v. Knowles, 66 F.3d 1146, 1155 (11th Cir. 1995). Unlike 18 USC § 371 (general conspiracy statute), no overt act need be alleged or proved under either § 846 or § 963, United States v. Shabani, ____ U.S. ____ , 115 S.Ct. 382, 385-86 (1994); United States v. Ricardo, 619 F.2d 1124, 1128 (5th Cir.), cert. denied, 449 U.S. 1063 (1980), nor does the absence of that requirement violate the First Amendment. United States v. Pulido, 69 F.3d 192, 209 (7th Cir. 1995).

    Termination of a conspiracy instruction discussed in United States v. Knowles, 66 F.3d 1146, 1157 (11th Cir. 1995) (no plain error in failing to instruct on this point); see also United States v. Belardo-Quinones, 71 F.3d 941, 944 (1st Cir. 1995).

    Acts of concealment are not part of the original conspiracy. United States v. Knowles, 66 F.3d 1146, 1155-56 (11th Cir. 1995).

    For comparative citations analyzing the "mere presence" and "mere association" concepts, see United States v. Lopez-Ramirez, 68 F.3d 438, 440-41 (11th Cir. 1995).

    The distinction between conspiracy to commit crime and aiding and abetting in its commission (they are distinct offenses) is illuminated in United States v. Palazzolo, 71 F.3d 1233, 1237 (6th Cir. 1995).

    For a discussion of the "buyer-seller rule" (one who merely purchases drugs for personal use does not thereby become a member of a drug distribution conspiracy), see United States v. Ivy, 83 F.3d 1266, 1285 (10th Cir. 1996), cert. denied, 519 U.S. 901, 117 S.Ct. 253.

    The Committee recognizes - - and cautions - - that sentence enhancing factors subject to the principle of Apprendi, including weights of controlled substances under 21 USC § 841(b), are not necessarily “elements” creating separate offenses for purposes of analysis in a variety of contexts. See United States v. Sanchez, 269 F.3d 1250, 1257 fn. 51 (11th Cir. 2001) en banc, cert. denied, ____ U. S. ____ ,122 S.Ct. 1327 (2002). Even so, the lesser included offense model is an appropriate and convenient procedural mechanism for purposes of submitting sentence enhancers to a jury when required by the principle of Apprendi. This would be especially true in simpler cases involving single Defendants. See Special Instruction 10 and the verdict form provided in the Annotations And Comments following that instruction. If the lesser included offense approach is followed, using Special Instruction 10 and its verdict form, then the bracketed language in this instruction explaining the significance of weights and the use of a special verdict form specifying weights, should be deleted.

    Alternatively, in more complicated cases, if the bracketed language in this instruction concerning weights is made a part of the overall instructions, followed by use of the special verdict form below, then the Third element of the instructions defining the offense should be deleted. The following is a form of special verdict that may be used in such cases.

Special Verdict

    1. We, the Jury, find the Defendant [name of Defendant] _____ as charged in Count [One] of the indictment. [Note: If you find the Defendant not guilty as charged in Count [One], you need not consider paragraph 2 below.]

    2. We, the Jury, having found the Defendant guilty of the offense charged in Count [One], further find with respect to that Count that [he] [she] [distributed] [possessed with intent to distribute] [conspired to possess with intent to distribute] the following controlled substance[s] in the amount[s] shown (place an X in the appropriate box[es]):

[For 1997 Version of this instruction, see below]

21 USC 846 provides:

Any person who attempts or conspires to commit any offense defined in this subchapter [Sections 801 through 904] [shall be guilty of an offense against the United States].

21 USC 963 provides:

Any person who attempts or conspires to commit any offense defined in this subchapter [Sections 951 through 966] [shall be guilty of an offense against the United States].

Maximum Penalty: Both sections (846 and 963) provide that the penalty shall be the same as that prescribed for the offense which was the object of the conspiracy.

The "knowledge" elaboration upon the pre-existing version of this pattern charge is taken from U. S. v. Knowles, 66 F.3d 1146, 1155 (11th Cir. 1995).

Unlike 18 USC 371 (general conspiracy statute), no overt act need be alleged or proved under either 846 or 963, U. S. v. Shabani, U.S. , 115 S.Ct. 382, 385-86 (1994); U. S. v. Ricardo, 619 F.2d 1124, 1128 (5th Cir.), cert. denied, 449 U.S. 1063 (1980), nor does the absence of that requirement violate the First Amendment. U. S. v. Pulido, 69 F.3d 192, 209 (7th Cir. 1995).

Termination of a conspiracy instruction discussed in U. S. V. Knowles, 66 F.3d 1146, 1157 (11th Cir. 1995) (no plain error in failing to instruct on this point); see also U. S. v. Belardo-Quinones, 71 F.3d 941, 944 (1st Cir. 1995).

Acts of concealment are not part of the original conspiracy. U. S. v. Knowles, 66 F.3d 1146, 1155-56 (11th Cir. 1995).

For comparative citations analyzing the "mere presence" and "mere association" concepts, see U.S. v. Lopez-Ramirez, 68 F.3d 438, 440-41 (11th Cir. 1995).

The distinction between conspiracy to commit crime and aiding and abetting in its commission (they are distinct offenses) is illuminated in U. S. v. Palazzolo, 71 F.3d 1233, 1237 (6th Cir. 1995).

For a discussion of the "buyer-seller rule" (one who merely purchases drugs for personal use does not thereby become a member of a drug distribution conspiracy), see United States v. Ivy, 83 F.3d 1266, 1285 (10th Cir. 1997), cert. denied, U.S. , 117 S.Ct. 253.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 21, United States Code, Section 848, makes it a Federal crime or offense for anyone to engage in what is called a "continuing criminal enterprise" involving controlled substances.

    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 violated [Section 841(a)(1)] [Section 952(a)] the Florida narcotics laws as charged in Counts _____ of the Indictment, respectively;

    Second: That such violations were a part of a "continuing series of violations," as hereafter defined;

    Third: That the Defendant engaged in that "continuing series of violations" in concert or together with at least five (5) or more other persons with respect to whom the Defendant occupied the position of an organizer, supervisor or manager;

    Fourth: That the Defendant obtained substantial income or resources from the "continuing series of violations."

    [Fifth: That the Defendant was a principal administrator, organizer, or leader of the enterprise and [the weight of the _____ involved in the commission of the offense was at least _____ ] [the enterprise received $10 million dollars in gross receipts during any twelve month period of its existence.]

    A "continuing series of violations" means proof of at least three violations of the Federal controlled substances laws, as charged in Counts _____ of the indictment, and also requires a finding that those violations were connected together as a series of related or on-going activities as distinguished from isolated and disconnected acts. In addition, you must unanimously agree about which three [or more] violations the Defendant committed. 

    The Government must prove that the Defendant engaged in the "continuing series of violations" with at least five or more other persons, whether or not those persons are named in the indictment and whether or not the same five or more persons participated in each of the violations, or participated at different times. And, it must prove that the Defendant's relationship with the other five or more persons was that of an organizer, supervisor or manager - - that the Defendant was more than a fellow worker and either organized or directed the activities of the others, whether the Defendant was the only organizer or supervisor or not. Also, the Defendant may be shown to have delegated authority to a subordinate and need not have had personal contact with each of the five or more persons whom [he] [she] organized, supervised or managed through directions given to someone else.

    Finally, the Government must prove that the Defendant obtained "substantial income or resources" from the continuing series of violations, meaning that the Defendant's income from the violations, in money or other property (but not necessarily any profit), must have been significant in size or amount as distinguished from some relatively insubstantial, insignificant or trivial amount.

ANNOTATIONS AND COMMENTS

    21 USC § 848(c) provides:

    . . . a person is engaged in a continuing criminal enterprise if - -

    (1) he violates any provision of [sections 801 through 966] the punishment for which is a felony, and

    (2) such violation is a part of a continuing series of violations of [sections 801 through 966] - -

    (A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and

    (B) from which such person obtains substantial income or resources.

    Maximum Penalty: Not less than twenty (20) years and up to life imprisonment, and applicable fine.

    Mere buyer-seller relationship does not satisfy management requirement; organizer is one who arranges the activities of others into an orderly operation. United States v. Witek, 61 F.3d 819, 821-24 (11th Cir. 1995), cert. denied, 116 S.Ct. 738 (1996).

    The Government must prove at least three felony narcotics violations to establish a continuing series of violations. United States v. Church, 955 F.2d 688, 695 (11th Cir. 1992), cert. denied, ____ U.S. ____ , 113 S.Ct. 233 (1992); United States v. Alvarez-Moreno, 874 F.2d 1402, 1408-09 (11th Cir. 1989), cert. denied, 494 U. S. 1032, 110 S.Ct. 1484, 108 L.Ed.2d 620 (1990).

    The jury, however, “must agree unanimously about which three crimes the defendant committed.” Richardson v. United States, 526 U.S. 813, 818, 119 S.Ct. 1707 (1999) (emphasis added); Santana-Madera v. United States, 260 F.3d 133, 137 (2nd Cir. 2001).

    Failure to instruct on the “Richardson” unanimity requirement has been held to be plain error, but not reversible error, absent prejudice. United States v. Stewart, 256 F.3d 231, 255 (4th Cir. 2001); United States v. Stitt, 250 F.3d 878, 883 (4th Cir. 2001); Monsanto v. United States, 143 F.Supp.2d 273, 280 (S.D. N.Y. 2001).

    How “related” must the three violations be? See United States v. Maull, 806 F.2d 1340, 1343 (8th Cir. 1986) (“Continuing offense” for purpose of continuing criminal enterprise statute is continuous illegal act or series of acts driven by single impulse and operated by unintermittent force ).

    Whether a § 846 conspiracy can count as one of the three required offenses is debated in United States v. Baker, 905 F.2d 1100, 1103 (7th Cir. 1990), cited in 2B Fed. Jury Prac. & Instr. § 66.05 (5th ed. 2000).

    In any event, the use of unindicted offenses is permissible in obtaining a conviction under § 848. The violations need not be charged or even set forth as predicate acts in the indictment. Hence, the law only requires evidence that the defendant committed three substantive offenses to provide the predicate for a § 848 violation, regardless of whether such offenses were charged in counts of the indictment or in separate indictments. What is important is proof that there was indeed a far-flung operation. Whether this has led to other convictions is all but irrelevant to the nature of the CCE offense. United States v. Alvarez-Moreno, 874 F.2d 1402, 1408-09 (11th Cir. 1989).

    The “organizer, supervisor, or manager of a CCE” wording is known as the “management element” and “is given a ‘common sense reading,’ bearing in mind that the statute is intended to reach the leaders of the drug trade.” United States v. Stewart, 256 F.3d 231, 255 (4th Cir. 2001). Hence, “[a] mere buyer-seller 521 relationship does not satisfy § 848's management requirement.” United States v. Witek, 61 F.3d 819, 822 (11th Cir. 1992).

    A defendant who supervises three persons who, in turn, supervise the activities of several others, can be found to have supervised and managed “five or more other persons” under § 848. Thus, if “a defendant personally hires only the foreman, that defendant is still responsible for organizing the individuals hired by the foreman to work as the crew . . . . [M]ere delegation of authority does not detract from [the defendant’s] ultimate status as organizer.” United States v. Rosenthal, 793 F.2d 1214, 1226 (11th Cir. 1986), modified on other grounds, 801 F.2d 378 (11th Cir. 1986); United States v. Heater, 63 F.3d 311, 317 (4th Cir. 1995) (“the Government need not prove that the five individuals were supervised and acted in concert at the same time, or even that [they] were collectively engaged in at least one specific offense”) (quotes and cite omitted; brackets original). Indeed, “the government need not show that the defendant ha[d] personal contact with the five persons because organizational authority and responsibility may be delegated.” Heater, 63 F.3d at 317 (quotes and cite omitted).

    In contrast to the “three-violation” requirement, the jury need not unanimously agree on which five persons the defendant organized, supervised, or managed. United States v. Moorman, 944 F.2d 801, 802-03 (11th Cir. 1991); United States v. Stitt, 250 F.3d 878, 885-86 (4th Cir. 2001); Fifth Cir. Pattern Jury Instr. § 2.90 at 265 (“note”) (2001) (collecting cases).

    Jury instructions must be crafted in light of the double jeopardy considerations addressed in Rutledge v. United States, 517 U.S. 292, 296-307 (1996), as explained in United States v. Escobar-de Jesus, 187 F.3d 148, 152 n.8, 173 n.24 (1st Cir. 1999), cert. denied, 529 U.S. 1176 (2000). For example, a § 846 drug conspiracy is a lesser included offense of the CCE charge, so if the defendant is convicted under § 846, the “in concert” element of an § 848 conviction cannot rest on the same agreement as the § 846 conspiracy. Rutledge, 517 U.S. at 307 (an § 846 “conspiracy is therefore a lesser included offence of CCE”); see also United States v. Vigneau, 2001 WL 273094 at * 1 (1st Cir. 2001) (unpublished) (Convicting defendant of conspiracy to distribute marijuana, based on same conduct that supported conviction for engaging in a continuing criminal enterprise, violated the double jeopardy clause).

[For 1997 Version of this instruction, see below]

21 USC 848(c) provides:

. . . a person is engaged in a continuing criminal enterprise if --

(1) he violates any provision of [sections 801 through 966] the punishment for which is a felony, and

(2) such violation is a part of a continuing series of violations of [sections 801 through 966] - -

(A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and

(B) from which such person obtains substantial income or resources.

Maximum Penalty: Not less than twenty (20) years and up to life imprisonment, and $2 million ($5 million for defendants other than individuals) for first conviction; not less than thirty (30) years and $4 million fine ($10 million for entities) for subsequent convictions under this Title. 21 USC 848(a).

Mere buyer-seller relationship does not satisfy management requirement; organizer is one who arranges the activities of others into an orderly operation. U. S. V. Witek, 61 F.3d 819, 821-24 (11th Cir. 1995), cert. denied, 116 S.Ct. 738 (1997).

The Government must prove at least three felony narcotics violations to establish a continuing series of violations. U. S. V. Church, 955 F.2d 688, 695 (11th Cir. 1992), cert. denied, U.S. , 113 S.Ct. 233 (1992); U. S. V. Alvarez-Moreno, 874 F.2d 1402, 1408-09 (11th Cir. 1989), cert. denied, 494 U. S. 1032, 110 S.Ct. 1484, 108 L.Ed.2d 620 (1990).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 21, United States Code, Section 848(e) makes it a Federal crime or offense to intentionally [kill] [command or procure the intentional killing] of someone while engaging in or working to further a continuing criminal enterprise.

    The Defendant can be found guilty of that offense only if you find the Defendant guilty of engaging in a Continuing Criminal Enterprise as charged in Count _____ , and the following facts are also proved beyond a reasonable doubt:

    First: That the Defendant [intentionally killed the victim] [intentionally commanded, induced, procured or caused the killing of the victim], as charged in Count _____ of the indictment;

    Second: That such killing occurred because of, and as a part of, the Defendant's engaging in or working in furtherance of the continuing criminal enterprise charged in Count _____ of the indictment; and

    Third: The Defendant acted knowingly and willfully.

    ANNOTATIONS AND COMMENTS

    21 USC § 848(e) provides:

    (A) any person engaging in or working in furtherance of a continuing criminal enterprise, or any person engaging in an offense punishable under section 841(b)(1)(A) of this title or section 960(b)(1) of this title who intentionally kills or counsels, commands, induces, procures, or causes the intentional killing of an individual and such killing results, shall be sentenced to any term of imprisonment, which shall not be less than 20 years, and which may be up to life imprisonment, or may be sentenced to death . . . .

    21 USC § 848(e) is a separate, chargeable offense; conviction thereunder requires a connection between the underlying continuing criminal enterprise and the murder. United States v. Chandler, 996 F.2d 1073, 1096-98 (11th Cir. 1993), cert. denied, 512 U.S. 2724, 114 S.Ct. 2724 (1994).

[For 1997 Version of this instruction, see below]

21 USC 848(e) provides:

(A)any person engaging in or working in furtherance of a continuing criminal enterprise, . . . who intentionally kills or counsels, commands, induces, procures, or causes the intentional killing of an individual and such killing results, shall be sentenced to any term of imprisonment, which shall not be less than 20 years, and which may be up to life imprisonment, or may be sentenced to death.

21 USC 848(e) is a separate, chargeable offense; conviction there under requires a connection between the underlying continuing criminal enterprise and the murder. U. S. v. Chandler, 996 F.2d 1073, 1096-98 (11th Cir. 1993), cert. denied, U.S. , 114 S.Ct. 2724 (1994).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    You have unanimously found the Defendant guilty of Count _____ of the indictment, which charged the Defendant with [intentionally killing] [commanding or procuring the intentional killing] of an individual while engaged in or working in furtherance of a continuing criminal enterprise. Title 21, United States Code, Section 848(e), provides that the punishment for that offense may be death.

    You will now hear additional evidence and will then decide whether to recommend a sentence of death. You cannot recommend a sentence of death unless you find certain aggravating factors to exist and, if so, whether those aggravating factors sufficiently outweigh any mitigating factors to justify a sentence of death. Or, in the absence of mitigating factors, whether the aggravating factors alone are sufficient to justify a sentence of death.

    An aggravating factor is a fact or circumstance specified by law which might indicate, or tend to indicate, that a sentence of death may be justified. A mitigating factor is any fact or circumstance that might indicate, or tend to indicate, that a sentence of death may not be justified.

    You will now hear evidence from each party relevant to your determination of whether aggravating and/or mitigating factors exist. After the parties present their evidence, I will give you additional instructions which will guide you during your deliberations.

[For 1997 Version of this instruction, see below]

You have unanimously found the Defendant guilty of Count ____ of the indictment, which charged the Defendant with [intentionally killing] [commanding or procuring the intentional killing] of an individual while engaged in or working in furtherance of a continuing criminal enterprise. Title 21, United States Code, Section 848(e), provides that the punishment for that offense may be death.

You will now hear additional evidence and will then decide whether to recommend a sentence of death. You cannot recommend a sentence of death unless you find certain aggravating factors to exist and, if so, whether those aggravating factors sufficiently outweigh any mitigating factors to justify a sentence of death. Or, in the absence of mitigating factors, whether the aggravating factors alone are sufficient to justify a sentence of death.

An aggravating factor is a fact or circumstance specified by law which might indicate, or tend to indicate, that a sentence of death may be justified. A mitigating factor is any fact or circumstance that might indicate, or tend to indicate, that a sentence of death may not be justified.

You will now hear evidence from each party relevant to your determination of whether aggravating and/or mitigating factors exist. After the parties present their evidence, I will give you additional instructions which will guide you during your deliberations.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    As I told you before, you now must consider whether to recommend a sentence of death for the Defendant. During your deliberations you must consider whether any aggravating factors are present. You must unanimously agree in order to find that an aggravating factor exists.

    The law provides a list of aggravating factors you may consider. The Government has the burden of proving aggravating factors, and it must prove them beyond a reasonable doubt. A "reasonable doubt" is a real doubt, based upon reason and common sense after careful and impartial consideration of all the evidence. Proof beyond a reasonable doubt, therefore, is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important
of your own affairs.

    The fundamental aggravating factor the Government alleges in this case is that the Defendant - -

    [intentionally killed the victim; or]

    [intentionally inflicted serious bodily injury which resulted in the death or the victim; or]

    [intentionally engaged in conduct intending that the victim be killed or that lethal force be employed against the victim, which resulted in the death of the victim; or]

    [intentionally engaged in conduct which - -

    (i) the Defendant knew would create a grave risk of death to a person other than one of the participants in the offense; and

    (ii) which resulted in the death of the victim.]

    If the Government does not satisfy each of you beyond a reasonable doubt that this fundamental aggravating factor exists, then you should return a finding to that effect, and cease further deliberations.

    If you unanimously find beyond a reasonable doubt that the fundamental aggravating factor does exist, then you should determine whether the Government has proved beyond a reasonable doubt that one or more of the following aggravating factors also exists:

    [Choose applicable factors charged in the indictment]    

    (1) The Defendant has previously been convicted of either a Federal offense or a State offense resulting in the death of a person, for which a sentence of life imprisonment or a sentence of death was authorized by statute.

    (2) The Defendant has previously been convicted of two or more State or Federal offenses punishable by a term of imprisonment of more than one year, committed on different occasions, involving the infliction of serious bodily injury upon another person.

    (3) The Defendant has previously been convicted of two or more State or Federal offenses punishable by a term of more than one year, committed on different occasions, involving the distribution of a controlled substance.

    (4) In the commission of the offense or in escaping apprehension for commission of the offense, the Defendant knowingly created a grave risk of death to one or more persons in addition to the victims of the offense.

    (5) The Defendant procured the commission of the offense by payment, or promise of payment, of anything of monetary value.

    (6) The Defendant committed the offense as consideration for the receipt, or in the expectation of the receipt, of anything of monetary value.

    (7) The Defendant committed the offense after substantial planning and premeditation.

    (8) The victim was particularly vulnerable due to old age, youth, or infirmity.

    (9) The Defendant had previously been convicted of violating [21 USC § 801 et seq.] or [21 USC § 951 et seq.] for which a sentence of five or more years may be imposed or had previously been convicted of engaging in a continuing criminal enterprise.

    (10) The violation of this title in relation to which the conduct described in subsection (e) occurred was a violation of 21 USC § 859, which prohibits distribution of a controlled substance to anyone under twenty-one years of age.

    (11) The Defendant committed the offense in an especially heinous, cruel, or depraved manner in that it involved torture or serious physical abuse to the victim.    

    If you do not unanimously find beyond a reasonable doubt that at least one of these additional aggravating factors exists, then you should return a finding to that effect, and no further deliberations will be necessary regardless of whether any mitigating factors exist.

    [If you find the fundamental aggravating factor present, and you find one or more of the above aggravating factors present, you may also find one or more of the following aggravating factors was present: [insert special factors, if any, of which the prosecution gave Defendant notice under 21 USC § 848(k)].]

    You should confine your deliberations to the aggravating factors I have outlined above. If you find any aggravating factors to exist, you should note your finding in the appropriate place on the Verdict Form.

    In addition to aggravating factors, you must also consider any mitigating factors that are present. The finding that mitigating factors are present does not require unanimous or even majority agreement. Any one of you may find, by a preponderance of the evidence, that a mitigating factor or factors exist. "Preponderance of the evidence" simply means an amount of evidence which is enough to persuade you that a mitigating factor is more likely present than not.

    Mitigating factors for you to consider include the following:

    (1) The Defendant's capacity to appreciate the wrongfulness of the Defendant's conduct or to conform conduct to the requirements of law was significantly impaired, regardless of whether the capacity was so impaired as to constitute a defense to the charge.

    (2) The Defendant was under unusual and substantial duress, regardless of whether the duress was of such a degree as to constitute a defense to the charge.

    (3) The Defendant is punishable as a principal in the offense, which was committed by another, but the Defendant's participation was relatively minor, regardless of whether such minor participation would constitute a defense to the charge.

    (4) The Defendant could not reasonably have foreseen that the Defendant's conduct in the course of the commission of murder, or other offense resulting in death for which the Defendant was convicted, would cause, or would create a grave risk of causing, death to any person.

    (5) The Defendant was youthful, even though the Defendant was over the age of eighteen.

    (6) The Defendant did not have a significant prior criminal record.

    (7) The Defendant committed the offense under severe mental or emotional disturbance.

    (8) Another Defendant or Defendants, equally culpable in the crime, will not be punished by death.

    (9) The victim consented to the criminal conduct that resulted in the victim's death.

    (10) That other factors in the Defendant's background or character mitigate against imposition of the death sentence.

    There is a space provided on the Verdict Form to enter which of the mitigating factors you find present. You may write them on the form, but you are not required to. 

    If, after weighing the aggravating and mitigating factors, you determine that the aggravating factors found to exist sufficiently outweigh the mitigating factors; or, in the absence of mitigating factors, if you find that the aggravating factors alone are sufficient, you may exercise your option to recommend that a sentence of death be imposed rather than some lesser sentence. Regardless of your findings with respect to aggravating and mitigating factors, however, you are never required to recommend a sentence of death.

    If you do decide to recommend a sentence of death, you must do so unanimously, and all twelve of you must sign the Recommendation Form to that effect. If you do decide to recommend a sentence of death, the Court is required to impose that sentence.

    In reaching your findings concerning aggravating and mitigating factors in this case, the instructions I gave you prior to your deliberations in the guilt phase of the trial regarding determination of credibility issues apply equally here. In other words, you alone determine the credibility of the witnesses and the weight to give to their testimony and to the other evidence. Also, in determining whether to recommend a sentence of death, you must avoid any influence of passion or prejudice. Your deliberation and verdict should be based upon the evidence you have seen and heard and the law on which I have instructed you. While it is your duty to follow the instructions of the Court, any statement, question, ruling, remark, or other expression that I have made at any time during this trial, during the guilt phase or during the sentencing phase, should not be considered by you as an indication of any opinion I might have on the sentence that should be imposed.

    In deciding what recommendation to make, do not be concerned about what sentence the Defendant might receive if you do not recommend a sentence of death. That is a matter for me to decide in the event you conclude that a sentence of death should not be recommended.

    In considering whether or not to recommend a sentence of death, you shall not consider the race, color, religious beliefs, national origin, or sex of the Defendant or the victim, and you should not recommend a sentence of death unless you conclude that you would recommend a sentence of death for the crime in question no matter what the race, color, religious beliefs, national origin, or sex of the Defendant, or the victim, may be. The verdict form will contain a certification to this effect which each of you must sign.

    The process of weighing aggravating and mitigating factors to determine the proper punishment is not a mechanical process. The law contemplates that different factors may be given different weights or values by different jurors. In your decision making process, you, and you alone, are to decide what weight is to be given to a particular factor.

    Your only interest is to seek the truth from the evidence and to determine in the light of that evidence and the Court's instructions whether to recommend a sentence of death. If you do not recommend a sentence of death, the Court is required by law to impose a sentence other than death, which sentence is to be determined by the Court alone. Let me admonish you again, while you may recommend a sentence of death, you are not required to do so.

    The first thing you should do is elect a foreperson who may be the same one that served you during the guilt phase, or it may be someone else. He or she will preside over your deliberations and will speak for you here in Court.

    A verdict form has been prepared for you.

[Explain Verdict Form]

    When you have reached your decision, the foreperson will fill in the verdict form, and each of you will sign it.

    If you should desire to communicate with me at any time, please write down your message or question and pass the note to the Marshal who will bring it to my attention. I will then respond as promptly as possible, either in writing or by having you returned to the courtroom so that I can address you orally. I caution you, however, with regard to any message or question you might send, that you should not tell me your numerical division at the time.

ANNOTATIONS AND COMMENTS

    21 USC § 848(e) et seq.

    Statute held to be Constitutional. United States v. Chandler, 996 F.2d 1073 (11th Cir. 1993), cert. denied, 512 U.S. 2724, 114 S.Ct. 2724 (1994).

    Jury may find aggravating factors other than those listed in statute only if it finds one aggravating factor listed in 21 USC §848(n)(1) and one or more aggravating factors listed in (n)(2)-(12). 21 USC § 848(k).

    According to the Fourth Circuit, the Eighth Amendment does not require the jury to be instructed that defendant will be sentenced to live in prison without parole if he is not sentenced to death. United States v. Stitt, 250 F.3d 878, 888-89 (4th Cir. 2001); see also id. at 889-93 (In analyzing whether a Simmons instruction on parole ineligibility is required in a particular case, a court must take into account the particular characteristics of the sentencing scheme at issue).

    21 USC § 848(k), which governs the “Return of Findings” (what the jury must specify on its “special findings” verdict form) in sentencing a CCE defendant, does not allow a jury to make a binding recommendation on any sentence other than that of death. Chandler, 996 F.2d at 1084-85; United States v. Flores, 63 F.3d 1342, 1369 (5th Cir. 1995).

    The Second Circuit has held that those who aid and abet the commission of drug related murders are death-penalty eligible. United States v. Walker, 142 F.3d 103, 113 (2ND Cir. 1998). But jury instructing in this area can involve some subtle nuances. See United States v. Wingo, 2001 WL 279755 at * 3 (E.D. Mich. 1/23/01) (unpublished).

    Use of deadly weapon in a murder, the Tenth Circuit has held, may be used as a nonstatutory aggravating factor; but use of a duplicative aggravating factor is error. United States v. McCullah, 76 F.3d 1087 (10th Cir. 1996). “the jury may take into
account as an aggravating factor at sentencing the circumstances of the crime, even if such information necessarily duplicates elements of the underlying offense, so long as that factor is not duplicative of another aggravating factor.” United States v. Johnson, 136 F.Supp.2d 553, 559 (W.D. Va. 2001); see also United States v. McVeigh, 944 F.Supp. 1478, 1490 (D. Colo. 1996); United States v. Bin Laden, 126F.Supp.2d 290, 301 (S.D. N.Y. 2001). 

    Courts also must be mindful of the elements to be submitted to the jury as required by Apprendi v. New Jersey, 530 U.S. 466 (2000). See Fifth Cir Pattern Jury Instr. § 2.90 at 266 (“Note”) (2001) (“When the Government seeks the death penalty under 21 USC § 848(e), the Apprendi doctrine requires the submission of additional elements. Furthermore, the statutory definition of ‘law enforcement officer’ may need to be included. See 21 USC § 848(e)(2)”).

    The Federal Rules of Evidence do not apply to penalty phase hearings under § 848. United States v. Chandler, 996 F.2d 1073, 1090 (11th Cir. 1993) (“although the Federal Rules of Evidence do not govern the admissibility of evidence during a
Section 874(e) sentencing hearing it is helpful to refer to the definition of relevant evidence from the Federal Rules”).

    Unanimity is not required on mitigating factors. See, e.g., United States v. Flores, 63 F.3d 1342, 1375 (5th Cir. 1995)

[For 1997 Version of this instruction, see below]

21 USC 848(e) et seq.

Thoroughly analyzed and held Constitutional. U. S. v. Chandler, 996 F.2d 1073 (11th Cir. 1993), cert. denied, U.S. , 114 S.Ct. 2724 (1994).

Jury may find aggravating factors other than those listed in statute only if it finds one aggravating factor listed in 21 USC 848(n)(1) and one or more aggravating factors listed in (n)(2)-(12). 21 USC 848(k).

Use of deadly weapon in a murder may be used as a nonstatutory aggravating factor; use of duplicative aggravating factors is error. U. S. v. McCullah, F.3d , 1997 WL 44147 (10th Cir. 1997).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 89
Possession Of Controlled Substance Near
Schools Or Public Housing
(21 USC § 860)

    Title 21, United States Code, Section 860, makes it a Federal crime or offense of anyone to possess a “controlled substance” with intent to distribute it within 1,000 feet of [a school] [real property comprising a housing facility owned by a public housing authority].

    _____ is a “controlled substance” within the meaning of the law.

    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 possessed _____ as charged;

    Second: That the Defendant possessed the _____ with the intent to distribute it;

    Third: That the Defendant intended to distribute the substance at some place within 1,000 feet of [a school] [a housing facility owned by a public housing authority]; and

    Fourth: That the weight of the _____ was in excess of _____ as charged.

    To “possess with intent to distribute” simply means to possess with intent to deliver or transfer possession of a controlled substance to another person, with or without any financial interest in the transaction.

ANNOTATIONS AND COMMENTS

    21 USC § 860 provides:

    Any person who violates section 841(a)(1) or section 856 of this title by distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within one thousand feet of, the real property comprising a public or private elementary, vocational, or secondary school or a public or private college, junior college, or university, or a playground, or housing facility owned by a public housing authority [shall be guilty of an offense against the United States].

    Maximum Penalty: Twice the applicable penalty under 21 USC § 841(b).

    Where the indictment alleges a factor that would enhance the possible maximum punishment applicable to the offense, that factor should be stated as an additional element in the instructions under the principle of Apprendi. In such case it may also be appropriate to give a lesser included offense instruction, Special Instruction 10, or use a special verdict form (with associated instructions concerning the use of the verdict). (See Annotations And Comments following Offense Instruction 85.)

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 21, United States Code, Section 952(a), makes it a Federal crime or offense for anyone to knowingly import any controlled substance into the United States.

    _____ is a controlled substance within the meaning of the law.

    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 imported _____ into the United States from a place outside thereof, as charged;

    Second: That the Defendant did so knowingly and willfully; and 

    Third: That the weight of the _____ imported by the Defendant was in excess of _____ as charged.

    To "import" a substance means to bring or transport that substance into the United States from some place outside the United States. 

ANNOTATIONS AND COMMENTS

    21 USC § 952(a) provides:

    It shall be unlawful to import into . . . the United States from any place outside thereof, any controlled substance . . . .

    Maximum Penalty: Varies depending upon weight and nature of substance involved. See 21 USC § 960.

    Belief that the Defendant is importing a controlled substance satisfies knowledge element even if Defendant believes the substance being imported is a different controlled substance. United States v. Rodriguez-Suarez, 856 F.2d 135, 140 (11th Cir. 1988); United States v. Restrepo-Granda, 575 F.2d 524, 527-29 (5th Cir. 1978).

    Importation is a continuing crime and is not complete until the controlled substance reaches its final destination. United States v. Camargo-Vergaga, 57 F.3d 993 (11th Cir. 1995).

    The evidence may warrant a deliberate indifference instruction. United States v. Arias, 984 F.2d 1139 (11th Cir. 1993). See Special Instruction 8.

    Where the indictment alleges a factor that would enhance the possible maximum punishment applicable to the offense, that factor should be stated as an additional element in the instructions under the principle of Apprendi. In such case it may also be appropriate to give a lesser included offense instruction, Special Instruction 10, or use a special verdict form (with associated instructions concerning the use of the verdict). (See Annotations And Comments following Offense Instruction 85.

[For 1997 Version of this instruction, see below]

21 USC 952(a) provides:

It shall be unlawful to import into . . . the United States from any place outside thereof, any controlled substance . . . .

Maximum Penalty: Varies depending upon nature of substance involved. See 21 USC 960.

Belief that the Defendant is importing a controlled substance satisfies knowledge element even if Defendant believes the substance being imported is a different controlled substance. U. S. v. Rodriguez-Suarez, 856 F.2d 135, 140 (11th Cir. 1988); U. S. v. Restrepo-Granda, 575 F.2d 524, 527-29 (5th Cir. 1978).

Importation is a continuing crime and is not complete until the controlled substance reaches its final destination. U. S. v. Camargo-Vergaga, 57 F.3d 993 (11th Cir. 1995).

The evidence may warrant a deliberate indifference instruction. U. S. v. Arias, 984 F.2d 1139 (11th Cir. 1993). See Special Instruction 8.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 26, United States Code Sections 5604(a)(1) and 5301(d) make it a Federal crime or offense for anyone to knowingly [transport] [possess] [buy] [sell] [transfer] any distilled spirits unless the immediate container bears a closure evidencing compliance with the Internal Revenue laws.

    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 [transported] [possessed] [bought] [sold] [transferred] distilled spirits, as charged; and

    Second: That the immediate containers of the distilled spirits did not bear a closure or other device as required by law.

    A "closure or other device as required by law" means a closure that is designed to require breaking in order to gain access to the contents of the container, such as a seal, and was affixed to the container at the time it was withdrawn from bonded premises or from customs custody.

    [The indictment charges that the Defendant [transported] [possessed] [bought] [sold] [transferred] distilled spirits in an unlawful manner. The law specifies those different modes or ways in which the offense can be committed, and it is not necessary for the Government to prove that the Defendant violated the statute in each or all of those ways. It is sufficient if the Government proves beyond a reasonable doubt that the Defendant either [transported] [possessed] [bought] [sold] [transferred] distilled spirits in an unlawful manner; but, in order to return a verdict of guilty, you must agree unanimously upon which way the offense was committed.]

ANNOTATIONS AND COMMENTS

    26 USC § 5604(a) provides:

    Any person who shall - -

    (1) transport, possess, buy, sell, or transfer any distilled spirits unless the immediate container bears the type of closure or other device required by section 5301(d) ["The immediate container of distilled spirits withdrawn from bonded premises, or from customs custody, on determination of tax shall bear a closure or other device which is designed so as to require breaking in order to gain assess to the contents of such container."], [shall be guilty of an offense against the United States.]

    Maximum Penalty: Five (5) years imprisonment and $250,000 fine. See 26 USC § 5604 and 18 USC § 3571.

[For 1997 Version of this instruction, see below]

26 USC 5604(a) provides:

Any person who shall --

(1) transport, possess, buy, sell, or transfer any distilled spirits unless the immediate container bears the type of closure or other device required by section 5301(d) ["The immediate container of distilled spirits withdrawn from bonded premises, or from customs custody, on determination of tax shall bear a closure or other device which is designed so as to require breaking in order to gain assess to the contents of such container."], [shall be guilty of an offense against the United States.]

Maximum Penalty: Five (5) years imprisonment and $250,000 fine. See 26 USC 5604 and 18 USC 3571.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 26, United States Code, Section 5861(d), makes it a Federal crime or offense for anyone to possess certain kinds of firearms that are not registered to [him] [her] in the National Firearms Registration and Transfer Record. 

    Title 26, United States Code, Section 5845, defines "firearm" as including [describe firearm as alleged in the indictment, viz., a shotgun having a barrel of less than 18 inches in length.]

    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 a "firearm," as defined above;

    Second: That the "firearm" was not then registered to the Defendant in the National Firearms Registration and Transfer Record; and

    [Third: That the Defendant knew of the specific characteristics or features of the firearm that caused it to be registrable under the National Firearms Registration and Transfer Record.]

    You will notice that it is not necessary for the Government to prove that the Defendant knew that the item described in the indictment was a "firearm" which the law requires to be registered; it is sufficient if the Government has proved beyond a reasonable doubt that the Defendant knew or was aware of the specific characteristics or features of the firearm that caused it to be within the scope of the Act, namely, [describe essential feature] defined above, and that it was not then registered to the Defendant in the National Firearms Registration and Transfer Record.

ANNOTATIONS AND COMMENTS

    26 USC § 5861(d) provides:

    It shall be unlawful for any person . . . to . . . possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record. . .

    [Note: For the definition of "firearm" within the context of this statute, see 26 USC § 5845].

    Maximum Penalty: Ten (10) years imprisonment and $250,000 fine. See 26 USC § 5871 and 18 USC § 3571.

    In Staples v. United States, 511 U.S. 600, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994), the Court held that in the case of firearms such as fully automatic as distinguished from semiautomatic weapons, where the essential difference between registrable and nonregistrable characteristics is not open and obvious, the Government must prove knowledge on the part of the Defendant with respect to those essential characteristics of the firearm in question. Thus, in such a case, the instruction to the jury must be expanded to so state. Still where the essential characteristics of the firearm making it registerable are known, it is not necessary for the Government to prove that the Defendant also knew that registration was required. United States v. Owens, 103 F.3d 953 (11th Cir. 1997). This instruction has been amended to provide the optional Third element in a case like Staples, and meets the suggestion made in United States v. Moore, 253 F.3d 607 (11th Cir. 2001).

[For 1997 Version of this instruction, see below]

26 USC 5861(d) provides:

It shall be unlawful for any person . . . to . . . possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record. . .

[Note: For the definition of "firearm" within the context of this statute, see 26 USC 5845].

Maximum Penalty: Ten (10) years imprisonment and $250,000 fine. See 26 USC 5871 and 18 USC 3571.

In Staples v. United States, 511 U.S. 600, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994), the Court held that in the case of firearms such as fully automatic as distinguished from semiautomatic weapons, where the essential difference between registrable and nonregistrable characteristics is not open and obvious, the Government must prove knowledge on the part of the Defendant with respect to those essential characteristics of the firearm in question. Thus, in such a case, the instruction to the jury must be expanded to so state. Still, where the essential characteristics of the firearm making it registrable are known, it is not necessary for the Government to prove that the Defendant also knew that registration was required. United States v. Owens, 103 F.3d 953 (11th Cir. 1997).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 26, United States Code, Section 5861(h) makes it a Federal crime or offense for anyone to possess a firearm having an [altered] [obliterated] serial number.

    The term "firearm," as defined by Title 26, United States Code, Section 5845, includes the kind of firearm or weapon described in the indictment.

    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, at the time and place charged in the indictment, knowingly possessed the "firearm" described in the indictment;

    Second: That the "firearm" serial number had been [obliterated] [altered]; and 

    Third: That the Defendant knew that the serial number had been [obliterated] [altered].

ANNOTATIONS AND COMMENTS

    26 USC § 5861(h) provides:

    It shall be unlawful for any person . . . (h) to receive or possess a firearm having the serial number or other identification required by this chapter obliterated, removed, changed, or altered.

    [Note: For the definition of "firearm" within the context of this statute, see 26 USC § 5845.]

    Maximum Penalty: Ten (10) years imprisonment and $250,000 fine. See 26 USC § 5871 and 18 USC § 3571.

[For 1997 Version of this instruction, see below]

26 USC 5861(h) provides:

It shall be unlawful for any person . . . (h) to receive or possess a firearm having the serial number or other identification required by this chapter obliterated, removed, changed, or altered.

[Note: For the definition of "firearm" within the context of this statute, see 26 USC 5845.]

Maximum Penalty: Ten (10) years imprisonment and $250,000 fine. See 26 USC 5871 and 18 USC 3571.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Section 7201 of the Internal Revenue Code (26 USC 7201) makes it a Federal crime or offense for anyone to willfully attempt to evade or defeat the payment of federal income taxes.

    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 owed substantial income tax in addition to that declared in [his] [her] tax return; and

    Second: That the Defendant knowingly and willfully attempted to evade or defeat such tax.

    The proof need not show the precise amount of the additional tax due as alleged in the indictment, but it must be established beyond a reasonable doubt that the Defendant knowingly and willfully attempted to evade or defeat some substantial portion of such additional tax as charged.

    The word "attempt" contemplates that the Defendant had knowledge and an understanding that, during the particular tax year involved, [he] [she] had income which was taxable, and which the Defendant was required by law to report; but that [he] [she] nevertheless attempted to evade or defeat the tax, or a substantial portion of the tax on that income, by willfully failing to report all of the income which [he] [she] knew [he] [she] had during that year.

    Federal income taxes are levied upon income derived from compensation for personal services of every kind and in whatever form paid, whether as wages, commissions, or money earned for performing services. The tax is also levied upon profits earned from any business, regardless of its nature, and from interest, dividends, rents and the like. The income tax also applies to any gain derived from the sale of a capital asset. In short, the term "gross income" means all income from whatever source unless it is specifically excluded by law.

    On the other hand, the law does provide that funds acquired from certain sources are not subject to the income tax. The most common non-taxable sources are loans, gifts, inheritances, the proceeds of insurance policies, and funds derived from the sale of an asset to the extent those funds equal the cost of the asset.

ANNOTATIONS AND COMMENTS

    26 USC §7201 provides:

    Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title [shall be guilty of an offense against the United States.]

    Maximum Penalty: Five (5) years imprisonment and $250,000 fine (or $500,000 in the case of a corporation), plus the costs of prosecution. See 26 USC § 7201 and 18 USC § 3571.

    United States v. Carter, 721 F.2d 1514, (11th Cir. 1984), requires a detailed explanation to the jury concerning the Government's theory-of-proof (Net Worth, Bank Deposits or Cash Expenditures, Instruction Nos. 93.2, 93.3 and 93.4) and it is plain error not to give such an instruction, i.e., no request is necessary. 

    See Special Instruction 9 for instruction on the concept of intentional violation of a known legal duty as proof of willfulness.

[For 1997 Version of this instruction, see below]

26 USC 7201 provides:

Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title [shall be guilty of an offense against the United States.]

Maximum Penalty: Five (5) years imprisonment and $250,000 fine (or $500,000 in the case of a corporation), plus the costs of prosecution. See 26 USC 7201 and 18 USC 3571.

United States v. Carter, 721 F.2d 1514, (11th Cir. 1984), requires a detailed explanation to the jury concerning the Government's theory-of-proof (Net Worth, Bank Deposits or Cash Expenditures, Instruction Nos. 68.2, 68.3 and 68.4) and it is plain error not to give such an instruction, i.e., no request is necessary.

See Special Instruction 9 for instruction on the concept of intentional violation of a known legal duty as proof of willfulness.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    In this case the Government relies upon the so-called "net worth method" of proving unreported income.

    A person's "net worth" at any given date is the difference between such person's total assets and total liabilities on that date. It is the difference between what one owns and what one owes (measuring the value of what one owns by its cost rather than unrealized increases in market value).

    If the evidence establishes beyond a reasonable doubt that the Defendant's net worth increased during a taxable year, then you may infer that the Defendant had receipts of money or property during that year; and if the evidence also establishes that those receipts cannot be accounted for by non-taxable sources, then you may further infer that those receipts were taxable income to the Defendant.

    In addition to the matter of the Defendant's net worth, if the evidence establishes beyond a reasonable doubt that the Defendant spent money during the year on living expenses, taxes and other expenditures, which did not add to the Defendant's net worth at the end of the year, then you may infer that those expenditures also came from funds received during the year; and, again, if the evidence establishes that those receipts cannot be accounted for by non-taxable sources, then you may further infer that those funds were also taxable income to the Defendant (provided, of course, the expenditures were not for items which would be deductible on the Defendant's tax return).

    Because the "net worth method" of proving unreported income involves a comparison of the Defendant's net worth at the beginning of the year and the Defendant's net worth at the end of the year, the result cannot be accepted as correct unless the starting net worth is reasonably accurate. In that regard the proof need not show the exact value of all the assets owned by the Defendant at the starting point so long as it is established that the assets owned by the Defendant at that time were insufficient by themselves to account for the subsequent increases in the Defendant's net worth. So, if you should decide that the evidence does not establish with reasonable certainty what the Defendant's net worth was at the beginning of the year, you should find the Defendant not guilty.

    In determining whether or not the claimed net worth of the Defendant at the starting point (or the beginning of the year) is reasonably accurate, you may consider whether Government agents sufficiently investigated all reasonable "leads" suggested to them by the Defendant, or which otherwise surfaced during the investigation, concerning the existence and value of other assets. If you should find that the Government's investigation has either failed to reasonably pursue, or to refute, plausible explanations advanced by the Defendant or which otherwise arose during the investigation concerning other assets the Defendant had at the beginning of the year (or other non-taxable sources of income the Defendant had during the year), then you should find the Defendant not guilty. Notice, however, that this duty to reasonably investigate applies only to suggestions or explanations made by the Defendant, or to reasonable leads that otherwise turn up; the Government is not required to investigate every conceivable asset or source of non-taxable funds.

    If you decide the evidence in the case establishes beyond a reasonable doubt the maximum possible amount of the Defendant's net worth at the beginning of the tax year, and further establishes that any increase in the Defendant's net worth at the end of that year, together with non-deductible expenditures made during the year, did substantially exceed the amount of income reported on the Defendant's tax return for that year, you should then proceed to decide whether the evidence also establishes beyond a reasonable doubt that such additional funds represented taxable income (that is, income from taxable sources) on which the Defendant willfully attempted to evade and defeat the tax as charged in the indictment.

[For 1997 Version of this instruction, see below]

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    In this case the Government relies upon the so-called "bank deposits method" of proving unreported income.

    This method of proof proceeds on the theory that if a taxpayer is engaged in an income producing business or occupation and periodically deposits money in bank accounts in the taxpayer's name or under the taxpayer's control, an inference arises that such bank deposits represent taxable income unless it appears that the deposits represented re-deposits or transfers of funds between accounts, or that the deposits came from non-taxable sources such as gifts, inheritances or loans. This theory also contemplates that any expenditures by the Defendant of cash or currency from funds not deposited in any bank and not derived from a non-taxable source, similarly raises an inference that such cash or currency represents taxable income.

    Because the "bank deposits method" of proving unreported income involves a review of the Defendant's deposits and cash expenditures that came from taxable sources, the Government must establish an accurate cash-on-hand figure for the beginning of the tax year. The proof need not show the exact amount of the beginning cash-on-hand so long as it is established that the Government's claimed cash-on-hand figure is reasonably accurate. So, if you should decide that the evidence does not establish with reasonable certainty what the Defendant's cash-on-hand was at the beginning of the year, you should find the Defendant not guilty.

    In determining whether or not the claimed cash-on-hand of the Defendant at the starting point (or the beginning of the year) is reasonably accurate, you may consider whether Government agents sufficiently investigated all reasonable "leads" suggested to them by the Defendant, or which otherwise surfaced during the investigation, concerning the existence of other funds at that time. If you should find that the Government's investigation has either failed to reasonably pursue, or to refute, plausible explanations which were advanced by the Defendant, or which otherwise arose during the investigation, concerning the Defendant's cash-on-hand at the beginning of the year, then you should find the Defendant not guilty. Notice, however, that this duty to reasonably investigate applies only to suggestions or explanations made by the Defendant, or to reasonable leads that otherwise turn up; the Government is not required to investigate every conceivable source of non-taxable funds.

    If you decide that the evidence in the case establishes beyond a reasonable doubt that the Defendant's bank deposits together with non-deductible cash expenditures during the year did substantially exceed the amount of income reported on the Defendant's tax return for that year, you should then proceed to decide whether the evidence also establishes beyond a reasonable doubt that such additional deposits and expenditures represented taxable income (that is, income from taxable sources) on which the Defendant willfully attempted to evade and defeat the tax as charged in the indictment.

[For 1997 Version of this instruction, see below]

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    In this case the Government relies upon the so-called "cash expenditures method" of proving unreported income. The theory of this method of proof is that if a taxpayer's expenditures and disbursements for a particular taxable year, together with any increase in net worth exceed the total of the taxpayer's reported income together with non-taxable receipts and available cash at the beginning of the year, then the taxpayer has understated [his] [her] income.

    The "cash expenditures method" necessarily involves not only the examination of the Defendant's expenditures and disbursements during the taxable year, but also an examination of the Defendant's "net worth" at the beginning and at the end of that year. 

    A person's "net worth" at any given date is the difference between such person's total assets and total liabilities on that date. It is the difference between what one owns and what one owes (measuring the value of what one owns by its cost rather than unrealized increases in market value).

    If the evidence establishes beyond a reasonable doubt that the Defendant's net worth increased during a taxable year, then you may infer that the Defendant had receipts of money or property during that year; and if the evidence also establishes that those receipts cannot be accounted for by non-taxable sources, then you may further infer that those receipts were taxable income to the Defendant.

    In addition to the matter of the Defendant's net worth, if the evidence establishes beyond a reasonable doubt that the Defendant spent money during the year on living expenses, taxes and other expenditures, which did not add to the Defendant's net worth at the end of the year, then you may infer that those expenditures also came from funds received during the year; and, again, if the evidence establishes that those receipts cannot be accounted for by non-taxable sources, then you may further infer that those funds were also taxable income to the Defendant (provided, of course, the expenditures were not for items which would be deductible on the Defendant's tax return).

    Because the "net worth method" of proving unreported income involves a comparison of the Defendant's net worth at the beginning of the year and the Defendant's net worth at the end of the year, the result cannot be accepted as correct unless the starting net worth is reasonably accurate. In that regard the proof need not show the exact value of all the assets owned by the Defendant at the starting point so long as it is established that the assets owned by the Defendant at that time were insufficient by themselves to account for the subsequent increases in the Defendant's net worth. So, if you should decide that the evidence does not establish with reasonable certainty what the Defendant's net worth was at the beginning of the year, you should find the Defendant not guilty.

    In determining whether or not the claimed net worth of the Defendant at the starting point (or the beginning of the year) is reasonably accurate, you may consider whether Government agents sufficiently investigated all reasonable "leads" suggested to them by the Defendant, or which otherwise surfaced during the investigation, concerning the existence and value of other assets. If you should find that the Government's investigation has either failed to reasonably pursue, or to refute, plausible explanations advanced by the Defendant or which otherwise arose during the investigation concerning other assets the Defendant had at the beginning of the year (or other non-taxable sources of income the Defendant had during the year), then you should find the Defendant not guilty. Notice, however, that this duty to reasonably investigate applies only to suggestions or explanations made by the Defendant, or to reasonable leads that otherwise turn up; the Government is not required to investigate every conceivable asset or source of non-taxable funds.

    If you decide the evidence in the case establishes beyond a reasonable doubt the maximum possible amount of the Defendant's net worth at the beginning of the tax year, and further establishes that any increase in the Defendant's net worth at the end of that year, together with non-deductible expenditures made during the year, did substantially exceed the amount of income reported on the Defendant's tax return for that year, you should then proceed to decide whether the evidence also establishes beyond a reasonable doubt that such additional funds represented taxable income (that is, income from taxable sources) on which the Defendant willfully attempted to evade and defeat the tax as charged in the indictment.

[For 1997 Version of this instruction, see below]

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 26, United States Code, Section 7203, makes it a Federal crime or offense for anyone to willfully fail to file a federal income tax return when required to do so by the Internal Revenue laws or regulations.

    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 required by law or regulation to make a return of [his] [her] income for the taxable year charged;

    Second: That the Defendant failed to file a return at the time required by law; and

    Third: That the Defendant's failure to file the return was willful.

    A person is required to make a federal income tax return for any tax year in which [he] [she] has gross income in excess of _____ .

    "Gross income" includes the following: [(1) Compensation for services, including fees, commissions and similar items; (2) Gross income derived from business; (3) Gains derived from dealing in property; (4) Interest; (5) Rents; (6) Royalties; (7) Dividends; (8) Alimony and separate maintenance payments; (9) Annuities; (10) Income from life insurance and endowment contracts; (11) Pensions; (12) Income from discharge of indebtedness; (13) Distributive share of partnership gross income; (14) Income in respect of a decedent; and (15) Income from an interest in an estate or trust.]

    The Defendant is a person required to file a return if the Defendant's gross income for any calendar year exceeds _____ even though the Defendant may be entitled to deductions from that income in a sufficient amount so that no tax is due. So, the Government is not required to prove that a tax was due and owing, or that the Defendant intended to evade or defeat payment of taxes, only that the Defendant willfully failed to file the return.

ANNOTATIONS AND COMMENTS

    26 USC § 7203 provides:

    Any person required [by law or regulation] to . . . make a return . . . who willfully fails to . . . make such return . . . at the time . . . required by law or regulations [shall be guilty of an offense against the United States].

    Maximum Penalty: One (1) year imprisonment and $100,000 fine (or $200,000 in the case of a corporation), plus costs of prosecution. See 26 USC § 7203 and 18 USC § 3571.

    See Special Instruction 9 for instruction on the concept of intentional violation of a known legal duty as proof of willfulness.

[For 1997 Version of this instruction, see below]

Title 26, United States Code, Section 7203, makes it a Federal crime or offense for anyone to willfully fail to file a federal income tax return when required to do so by the Internal Revenue laws or regulations.

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 required by law or regulation to make a return of [his] [her] income for the taxable year charged;

Second: That the Defendant failed to file a return at the time required by law; and

Third: That the Defendant's failure to file the return was willful.

A person is required to make a federal income tax return for any tax year in which [he] [she] has gross income in excess of .

"Gross income" includes the following: [(1) Compensation for services, including fees, commissions and similar items; (2) Gross income derived from business; (3) Gains derived from dealing in property; (4) Interest; (5) Rents; (6) Royalties; (7) Dividends; (8) Alimony and separate maintenance payments; (9) Annuities; (10) Income from life insurance and endowment contracts; (11) Pensions; (12) Income from discharge of indebtedness; (13) Distributive share of partnership gross income; (14) Income in respect of a decedent; and (15) Income from an interest in an estate or trust.]

The Defendant is a person required to file a return if the Defendant's gross income for any calendar year exceeds even though the Defendant may be entitled to deductions from that income in a sufficient amount so that no tax is due. So, the Government is not required to prove that a tax was due and owing, or that the Defendant intended to evade or defeat payment of taxes, only that the Defendant willfully failed to file the return.

26 USC 7203 provides:

Any person required [by law or regulation] to . . . make a return . . . who willfully fails to . . . make such return . . . at the time . . . required by law or regulations [shall be guilty of an offense against the United States].

Maximum Penalty: One (1) year imprisonment and $100,000 fine (or $200,000 in the case of a corporation), plus costs of prosecution. See 26 USC 7203 and 18 USC 3571.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 26, United States Code, Section 7206(2), makes it a Federal crime or offense for anyone to willfully aid or assist in the preparation and filing of a Federal income tax return knowing it to be false or fraudulent in some material way.

    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 aided or assisted in the preparation and filing of an income tax return which was false in a material way as charged in the indictment; and

    Second: That the Defendant did so knowingly and willfully.

    A declaration is "false" if it was untrue when made and was then known to be untrue by the person making it. A declaration contained within a document is "false" if it was untrue when the document was used and was then known to be untrue by the person using it. A declaration is "material" if it relates to a matter of significance or importance as distinguished from a minor or insignificant or trivial detail. It is not necessary, however, that the Government be deprived of any tax by reason of the filing of the false return, or that it be shown that additional tax is due, only that the Defendant willfully aided and abetted the filing of a materially false return.

ANNOTATIONS AND COMMENTS

    26 USC § 7206(2) provides:

    [Any person who] [w]illfully aids or assists in, or procures, counsels, or advises the preparation or presentation under, or in connection with any matter arising under, the internal revenue laws, of a return, affidavit, claim, or other document, which is fraudulent or is false as to any material matter, whether or not such falsity or fraud is within the knowledge or consent of the person authorized or required to present such return, affidavit, claim, or document [shall be guilty of an offense against the United States].

    Maximum Penalty: Three (3) years imprisonment and $250,000 fine (or $500,000 in the case of a corporation). See 26 USC § 7206 and 18 USC § 3571.

    The issue of "materiality" is for the jury, not the court. United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310 (1995).

[For 1997 Version of this instruction, see below]

26 USC 7206(2) provides:

[Any person who] [w]illfully aids or assists in, or procures, counsels or advises the preparation or presentation under, or in connection with any matter arising under, the internal revenue laws, of a return, affidavit, claim, or other document, which is fraudulent or is false as to any material matter, whether or not such falsity or fraud is within the knowledge or consent of the person authorized or required to present such return, affidavit, claim, or document [shall be guilty of an offense against the United States].

Maximum Penalty: Three (3) years imprisonment and $250,000 fine (or $500,000 in the case of a corporation). See 26 USC 7206 and 18 USC 3571.

The issue of "materiality" is for the jury, not the court. United States v. Gaudin, U.S., 115 S.Ct. 2310 (1995).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 26, United States Code, Section 7207, makes it a Federal crime or offense for anyone to willfully file a Federal income tax return knowing it to be false in some material way.

    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 filed an income tax return that was false in a material way as charged in the indictment; and

    Second: That the Defendant did so knowingly and willfully, as charged.

    A declaration is "false" if it was untrue when made and was then known to be untrue by the person making it. A declaration contained within a document is "false" if it was untrue when the document was used and was then known to be untrue by the person using it. 

    A declaration is "material" if it relates to a matter of significance or importance as distinguished from a minor, insignificant or trivial detail. It is not necessary, however, that the Government be deprived of any tax by reason of the filing of the false return, or that it be shown that additional tax is due, only that the Defendant willfully filed a materially false return.

ANNOTATIONS AND COMMENTS

    26 USC § 7207 provides:

    Any person who willfully delivers or discloses to the Secretary [of the Treasury] any list, return, account, statement, or other document, known by him to be fraudulent or to be false as to any material matter [shall be guilty of an offense against the United States.]

    Maximum Penalty: One (1) year imprisonment and $100,000 fine (or $200,000 in the case of a corporation). See 26 USC § 7207 and 18 USC § 3571.

    The issue of "materiality" is for the jury, not the Court. United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310 (1995). It is not necessary, however, for the Government to prove that any additional tax was due. In Re Haas, 48 F.3d 1153, 1159 (11th Cir. 1995).

[For 1997 Version of this instruction, see below]

26 USC 7207 provides:

Any person who willfully delivers or discloses to the Secretary [of the Treasury] any list, return, account, statement, or other document, known by him to be fraudulent or to be false as to any material matter [shall be guilty of an offense against the United States.]

Maximum Penalty: One (1) year imprisonment and $100,000 fine (or $200,000 in the case of a corporation). See 26 USC 7207 and 18 USC 3571.

The issue of "materiality" is for the jury, not the Court. United States v. Gaudin, U.S. , 115 S.Ct. 2310 (1995). It is not necessary, however, for the Government to prove that any additional tax was due. In Re Haas, 48 F.3d 1153, 1159 (11th Cir. 1995).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 97
Impeding Internal Revenue Service
(26 USC § 7212(a))

    Title 26, United States Code, Section 7212(a), makes it a federal crime or offense for anyone to [corruptly] [forcibly] [endeavor to intimidate or impede any officer or employee of the United States acting in an official capacity under the Internal Revenue laws] [endeavor to obstruct or impede the due administration of the Internal Revenue laws].

    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 endeavored to obstruct or impede the due administration of the Internal Revenue laws, as charged; and

    Second: That the Defendant did so [corruptly] [forcibly].

    [To act “corruptly” means to act knowingly and dishonestly with the specific intent to secure an unlawful benefit either for oneself or for another.]

    [To act “forcibly” means the actual use of physical force or threats of force, including any threatening letter or communication; and “threats of force” means threats of bodily harm to the Internal Revenue Officer or members of [his] [her] family.] 

    To “endeavor” to obstruct or impede means to engage in some act, or to take some step, in a conscious attempt to obstruct or impede; and to “obstruct or impede” means to hinder or prevent or delay, or make more difficult, the due administration of the Internal Revenue laws. However, it is not necessary for the Government to prove that the administration of the Internal Revenue laws was in fact obstructed or impeded in any way, only that the Defendant corruptly endeavored to do so.

    Neither is it necessary that the Government prove all of the alleged ways and means of committing the charged offense as stated in the indictment. It would be sufficient if the Government proves beyond a reasonable doubt, that the Defendant committed any one of those alleged ways and means with the corrupt intent to obstruct and impede the due administration of the Internal Revenue laws; provided, however, you must unanimously agree upon which of those alleged ways and means the Defendant corruptly committed.

ANNOTATIONS AND COMMENTS

    26 USC § 7212(a) provides:

    Whoever corruptly or by force or threats of force (including any threatening letter or communication) endeavors to intimidate or impede any officer or employee of the United States acting in an official capacity under this title, or in any other way corruptly or by force or threats of force (including any threatening letter or communication) obstructs or impedes, or endeavors to obstruct or impede, the due administration of this title, [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 31, United States Code, Section 5324(3) makes it a Federal crime or offense for anyone, under certain circumstances, to knowingly evade a currency transaction reporting requirement.

    With respect to currency transaction reporting requirements, Title 31, United States Code, Section 5313(a), and the regulations of the Treasury Department under that section, require domestic financial institutions and banks (with certain stated exceptions) to file reports with the Government, called Currency Transaction Reports, Form 4789, disclosing all deposits, withdrawals, transfers or payments involving more than $10,000 in cash or currency.

    So, 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 had knowledge of the currency transaction reporting requirements;

    Second: That with such knowledge, the Defendant knowingly structured or assisted in structuring a currency transaction;

    Third: That the purpose of the structured transaction was to evade the transaction reporting requirements; [and]

    Fourth: That the structured transaction involved one or more domestic financial institutions; [and]

    [Fifth: That the currency transaction with the domestic financial institutions was in furtherance of another violation of federal law.]

    To "structure" a transaction means to deposit or withdraw or otherwise participate in the transfer of a total of more than $10,000 in cash or currency by or through a financial institution or bank by setting up or arranging a series of separate transactions, each involving less that $10,000 individually, thereby intentionally evading the currency reporting requirements that would have applied if the transaction had not been so structured. 

ANNOTATIONS AND COMMENTS

    31 USC § 5313(a) provides:

    (a) When a domestic financial institution is involved in a transaction for the payment, receipt, or transfer of United States coins or currency (or other monetary instruments the Secretary of the Treasury prescribes), in an amount, denomination, or amount and denomination, or under circumstances the Secretary prescribes by regulation, the institution and any other participant in the transaction the Secretary may prescribe shall file a report on the transaction at the time and in the way the Secretary prescribes. A participant acting for another person shall make the report as the agent or bailee of the person and identify the person for whom the transaction is being made.

    31 USC § 5324(a)(3) and (c)(2) provides:

    (a) Domestic coin and currency transactions involving financial institutions. - - No person shall for the purpose of evading the reporting requirements of section 5313(a) or 5325 or any regulation prescribed under any such section - -

* * * *

    (3) structure or assist in structuring, or attempt to structure or assist in structuring, any transaction with one or more domestic financial institutions. 

* * * *

    (c) Criminal penalty. - -

    (1) In general. - - Whoever violates this section shall be fined in accordance with title 18 United States Code, imprisoned for not more than 5 years, or both. 

    (2) Enhanced penalty for aggravated cases. - - Whoever violates this section while violating another law of the United States . . . shall be fined twice the amount provided in subsection (b)(3) (as the case may be) of section 3571 of title 18, United States Code, imprisoned for not more than 10 years, or both.

    In Ratzlaf v. United States, 510 U. S. 135, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994), the Court held that the Government must prove that the Defendant knew that the structuring was unlawful, but Congress then amended § 5324(c) eliminating the word “willfully.” Thus, willfulness is no longer an element of the offense. See Blakely v. United States, 276 F.3d 853, 875 note 10 (6th Cir. 2002).

    When the Fifth element is included in the instructions, see Special Instruction 10, Lesser Included Offense(s) And Sentence Enhancers.

[For 1997 Version of this instruction, see below]

31 USC 5313(a) provides:

(a) When a domestic financial institution is involved in a transaction for the payment, receipt, or transfer of United States coins or currency (or other monetary instruments the Secretary of the Treasury prescribes), in an amount, denomination, or amount and denomination, or under circumstances the Secretary prescribes by regulation, the institution and any other participant in the transaction the Secretary may prescribe shall file a report on the transaction at the time and in the way the Secretary prescribes. A participant acting for another person shall make the report as the agent or bailee of the person and identify the person for whom the transaction is being made.

31 USC 53224(a)(3) and (c)(2) provides:

(a) Domestic coin and currency transactions. -- No person shall for the purpose of evading the reporting requirements of section 5313(a) or 5325 or any regulation prescribed under any such section - -

* * * * *

(3) structure or assist in structuring, or attempt to structure or assist in structuring, any transaction with one or more domestic financial institutions.

* * * * *

(c) Criminal penalty. --

(1) In general. -- Whoever violates this section shall be fined in accordance with title 18 United States Code, imprisoned for not more than 5 years, or both.

(2) Enhanced penalty for aggravated cases. -- Whoever violates this section while violating another law of the United States . . . shall be fined twice the amount provided in subsection (b)(3) (as the case may be) of section 3571 of title 18, United States Code, imprisoned for not more than 10 year, or both.

See Ratzlaf v. United States, 510 U. S. 135, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994), the Government must prove that the Defendant knew that the structuring was unlawful.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 38, United States Code, Section 6102(b), makes it a federal crime or offense for anyone to obtain or receive money from the Veterans Administration without being entitled to it and with intent 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 received, under the laws administered by the V.A., money or a check without being entitled to receive it; and 

    Second: That the Defendant received the funds with intent to defraud the United States.

    To act "with intent to defraud" means to act knowingly and 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. It is not necessary, however, to prove that anyone was in fact deceived or defrauded.

    The evidence need not show the precise amount of the pension benefits received by the Defendant as alleged in the indictment, but it must be established beyond a reasonable doubt that the Defendant knowingly and willfully received some substantial portion of such benefits as charged.

ANNOTATIONS AND COMMENTS

38 USC § 6102(b) provides:

    (b) Whoever obtains or receives any money or check under any of the laws administered by the Secretary without being entitled to it, and with intent to defraud the United States or any beneficiary of the United States, shall be fined in accordance with title 18, or imprisoned not more than one year, or both.

[For 1997 Version of this instruction, see below]

38 USC 6102(b) provides:

(b) Whoever obtains or receives any money or check under any of the laws administered by the Secretary without being entitled to it, and with intent to defraud the United States or any beneficiary of the United States, shall be fined in accordance with title 18, or imprisoned not more than one year, or both.

* See Offense Instruction 10, supra, concerning Presentation of False Declaration Or Certification to the Veterans Administration in violation of 18 USC 289.  

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 100
Falsely Representing Social Security Number
(42 USC § 408(a)(7)(B))

    Title 42, United States Code, Section 408(a)(7)(B), makes it a Federal crime or offense for anyone, with the intent to deceive, to falsely represent a number to be the Social Security account number assigned by the Commissioner of Social Security to [him] [her] when in fact such number is not the Social Security account number assigned to [him] [her] by the Commissioner of Social Security.

    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 represented to someone that the Social Security number described in the indictment had been assigned to [him] [her] by the Commissioner of Social Security;

    Second: That such Social Security number, in fact, had not been assigned at that time to the Defendant by the Commissioner of Social Security; and

    Third: That the Defendant made such representation willfully, and with the intent to deceive, for the purpose of [state purpose as alleged in the indictment].

    To “act with intent to deceive” simply means to act for the deliberate purpose of misleading someone. It is not necessary for the Government to prove, however, that anyone else was in fact misled or deceived.

ANNOTATIONS AND COMMENTS

    42 USC § 408(a)(7)(B) provides:

    Whoever - -

    (B) with intent to deceive, falsely represents a number to be the social security account number assigned by the Commissioner of Social Security to him or to another person, when in fact such number is not the social security account number assigned by the Commissioner of Social Security to him or to such other person [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

    Title 42, United Sates Code, Section 3631, makes it a Federal crime or offense for anyone, by force or threat of force, to willfully intimidate or interfere with someone because of his or her race and because he or she has been occupying any dwelling. 

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

    First: That the Defendant, by force or threat of force, intimated or interfered with, or attempted to intimidate or interfere with the persons named in the indictment, as charged;

    Second: That the Defendant did so because of the race of those persons and because they were occupying a dwelling; and

    Third: That the Defendant did so knowingly and willfully.

    To use "force" is to do something which causes another person to act against his or her will. To use a "threat of force" or to "intimidate" or "interfere with" means to say or do something which, under the same circumstances, would cause another person of ordinary sensibilities to be fearful of bodily harm if he or she did not comply.

    A "dwelling" includes any place where people ordinarily live or reside.

ANNOTATIONS AND COMMENTS

    42 USC § 3631 provides:

    Whoever, whether or not acting under color of law, by force or threat of force willfully injures, intimidates or interferes with . . . (a) any person because of his race . . . and because he is or has been . . . occupying . . . any dwelling [shall be guilty of an offense against the United States].

    Maximum Penalty: One (1) year imprisonment and $100,000 fine without bodily injury; Ten (10) years imprisonment and $250,000 fine with bodily injury and/or use of a dangerous weapon, explosive, or fire; or any term of years up to life imprisonment and $250,000 fine if death results or if such acts include kidnapping, aggravated sexual assault or an attempt to kill. See 42 USC § 3631 and 18 USC § 3571.

[For 1997 Version of this instruction, see below]

42 USC 3631 provides:

Whoever, whether or not acting under color of law, by force or threat of force willfully injures, intimidates or interferes with . . . (a) any person because of his race . . . and because he is or has been . . . occupying . . . any dwelling [shall be guilty of an offense against the United States].

Maximum Penalty: One (1) year imprisonment and $100,000 fine without bodily injury; Ten (10) years imprisonment and $250,000 fine with bodily injury and/or use of a dangerous weapon, explosive, or fire; or any term of years up to life imprisonment and $250,000 fine if death results or if such acts include kidnapping, aggravated sexual assault or an attempt to kill. See 42 USC 3631 and 18 USC 3571.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 46, United States Code, Section 1903(a), makes it a Federal crime or offense for anyone [on board a vessel of the United States] [on board a vessel subject to a jurisdiction of the United States] [who is a citizen of the United States or a resident alien of the United States on board any vessel] to knowingly possess a controlled substance with intent to distribute it.

    _____ is a controlled substance within the meaning of the law.

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

    First: That the Defendant was [on board a vessel of the United States] [on board a vessel subject to jurisdiction of the United States] [is a citizen of the United States or a resident alien of the United States on board any vessel];

    Second: That the Defendant knowingly and willfully possessed _____ , with the intent to distribute it; and 

    Third: That the weight of the _____ exceeded _____ , as charged.

    A "vessel of the United States" means any vessel documented under the laws of the United States, any vessel owned in whole or in part by a citizen or a corporation of the United States and not registered or documented by some foreign nation, or a vessel that was once documented under the laws of the United States and, in violation of the laws of the United States, was either sold to a person not a citizen of the United States or placed under foreign registry or a foreign flag, whether or not the vessel has been granted the nationality of a foreign nation.

    A "vessel subject to jurisdiction of the United States" includes any vessel without nationality, and a vessel which purports to sail under the flags of two or more nations may be treated as a vessel without nationality. A "vessel subject to jurisdiction of the United States" also includes a vessel registered in a foreign nation which has consented or waived objection to the enforcement of United States law by the United States; a vessel located within the customs waters of the United States; and a vessel located in the territorial waters of another nation, where the nation consents to the enforcement of United States law by the United States.

    [The term "customs waters of the United States" includes all water within four leagues or twelve miles of the coast of the United States.]

    To "possess with intent to distribute" simply means to knowingly possess with intent to deliver or transfer possession of a controlled substance to another person, with our without any financial interest in the transaction.

ANNOTATIONS AND COMMENTS

    46 USC § 1903 provides:

    (a) It is unlawful for any person on board a vessel of the United States, on board a vessel subject to the jurisdiction of the United States, or who is a citizen of the United States or a resident alien of the United States on board any vessel, to knowingly or intentionally manufacture or distribute, or possess with intent to manufacture or distribute, a controlled substance.

    19 USC § 1401(j) provides:

    (j) The term "customs waters" means, in the case of a foreign vessel subject to a treaty or other arrangement between a foreign government and the United States enabling or permitting the authorities of the United States to board, examine, search, seize, or otherwise to enforce upon such vessel upon the high seas the laws of the United States, the waters within such distance of the coast of the United States as the said authorities are or may be so enabled or permitted by such treaty or arrangement and, in the case of every other vessel, the waters within four leagues of the coast of the United States.

    46 USC § 1903 was formerly codified at 21 USC § 955a-955d.

    "Vessel of the United States" means any vessel documented under the laws of the United States, or numbered as provided by the Federal Boat Safety Act of 1971, as amended, or owned in whole or in part by the United States or a citizen of the United States, or a corporation created under the laws of the United States, or any State, Territory, District, Commonwealth, or possession thereof, unless the vessel has been granted nationality by a foreign nation in accordance with article 5 of the Convention on the High Seas, 1958. 46 USC §1903(b).

    Maximum Penalty: Varies depending upon nature and weight of substance involved. See 21 USC § 960.

    The offense of Possession of a Controlled Substance on a United States Vessel in Customs Waters, formerly codified at 21 USC § 955a(c) is now codified as part of 46 USC § 1903 by virtue of Congress including "a vessel located within the customs waters of the United States" as part of the definition for a "vessel subject to jurisdiction of the United States." 46 USC § 1903(c)(1)(D).

    Evidence may support a deliberate indifference instruction. See Special Instruction 8.

    Vessel sailing under the flag/authority of two or more states is a "vessel assimilated to a vessel without nationality." United States v. Matute, 767 F.2d 1511, 1512-13 (11th Cir. 1985).

    Where the indictment alleges a factor that would enhance the possible maximum punishment applicable to the offense, that factor should be stated as an additional element in the instructions under the principle of Apprendi. In such case it may also be appropriate to give a lesser included offense instruction, Special Instruction 10.

[For 1997 Version of this instruction, see below]

46 USC 1903 provides:

(a) It is unlawful for any person on board a vessel of the United States, on board a vessel subject to jurisdiction of the United States, or who is a citizen of the United States or a resident alien of the United States on board any vessel, to knowingly or intentionally manufacture or distribute, or possess with intent to manufacture or distribute, a controlled substance.

19 USC 1401(j) provides:

(j) The term "customs waters" means, in the case of a foreign vessel subject to a treaty or other arrangement between a foreign government and the United States enabling or permitting the authorities of the United States to board, examine, search, seize, or otherwise to enforce upon such vessel upon the high seas the laws of the United States, the waters within such distance of the coast of the United States as the said authorities are or may be so enabled or permitted by such treaty or arrangement and, in the case of every other vessel, the waters within four leagues of the coast of the United States.

46 USC 1903 was formerly codified at 21 USC 955a-955d.

"Vessel of the United States"means any vessel documented under the laws of the United States, or numbered as provided by the Federal Boat Safety Act of 1971, as amended, or owned in whole or in part by the United States or a citizen of the United States, or a corporation created under the laws of the United States, or any State, Territory, District, Commonwealth, or possession thereof, unless the vessel has been granted nationality by a foreign nation in accordance with article 5 of the Convention on the High Seas, 1958. 46 USC 1903(b).

Maximum Penalty: Varies depending upon nature of substance involved. See 21 USC 960.

The offense of Possession of a Controlled Substance on a United States Vessel in Customs Waters, formerly codified at 21 USC 955a(c) is now codified as part of 46 USC 1903 by virtue of Congress including "a vessel located within the customs waters of the United States" as part of the definition for a "vessel subject to jurisdiction of the United States." 46 USC 1903(c)(1)(D).

Evidence may support a deliberate indifference instruction. Id. at 1028-29. See Special Instruction 8.

Vessel sailing under the flag/authority of two or more states is a "vessel assimilated to a vessel without nationality." U. S. v. Matute, 767 F.2d 1511, 1512-13 (11th Cir. 1985).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 103
Assaulting Or Intimidating Flight Crew Of Aircraft
In United States (Without Dangerous Weapon)
(49 USC § 46504)

    Title 49 of the United States Code, Section 46504, makes it a Federal crime or offense for anyone to [assault] [intimidate] a flight crew member of attendant on an aircraft in flight in 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 on an aircraft in flight in the United States;

    Second: That the Defendant knowingly [assaulted] [intimidated] a flight crew member or flight attendant of the aircraft; and

    Third: That such [assault] [intimidation] interfered with the performance of the duties of the flight crew member or flight attendant of the aircraft or lessened the ability of the member or attendant to perform those duties.

    The phrase “aircraft in flight” means an aircraft from the moment all external doors are closed following boarding through the moment when one external door is opened to allow passengers to leave the aircraft; therefore, an aircraft does not have to be airborne in order to be deemed an aircraft in flight within the meaning of the applicable law.

    [The term “assault” is any intentional and voluntary act or attempt or threat to do injury to the person of another, when coupled with the apparent present ability to do so sufficient to put the person against whom the act or attempt or threat is directed in fear of immediate bodily harm.]

    [The term “intimidate” has several meanings: It means the use of words or actions to place another person in reasonable apprehension of bodily harm either to that person or to another. It also means the use of words or actions to make another person fearful or make that person refrain from doing something that the person would otherwise do, or do something that the person would otherwise not do.]

ANNOTATIONS AND COMMENTS

    49 USC § 46504 provides:

    An individual on an aircraft in the special aircraft jurisdiction of the United States who, by assaulting or intimidating a flight crew member or flight attendant of the aircraft, interferes with the performance of the duties of the member or attendant or lessens the ability of the member or attendant to perform those duties, shall be fined under title 18, imprisoned for not more than 20 years, or both.

    Maximum Penalty: Twenty (20) years imprisonment and $250,000 fine.

    “Aircraft in flight” and other definitions are set forth in 49 USC § 46501. Note that the definition of the “special aircraft jurisdiction of the United States” varies depending upon whether the aircraft is owned by the United States and whether the aircraft is in or outside the United States. This charge is based upon the aircraft not being owned by the United States but being in the United States. 

    This statute does not require any showing of specific intent. United States v. Grossman, 131 F.3d 1449 (11th Cir. 1997).

    If venue problems are raised, see United States v. Hall, 691 F.2d 48 (1st Cir. 1982). Further, this case held the offense was committed so long as the crew was responding to defendant’s behavior in derogation of their ordinary duties.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 49, United States Code, Section 46505(b), makes it a Federal crime or offense for anyone to willfully attempt [to board an aircraft involved in air transportation having on or about one's person a concealed deadly or dangerous weapon] [to have placed aboard an aircraft involved in air transportation any bomb or similar explosive or incendiary device].

    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 attempted to board an aircraft involved in air transportation, as charged;

    Second: That the Defendant knowingly had on or about [his] [her] person [a concealed dangerous weapon which would have been accessible to [him] [her] in flight had [he] [she] boarded the aircraft] [attempted to have placed aboard the aircraft an explosive device]; and

    Third: That the Defendant acted willfully and with reckless disregard for the safety of human life.

    To "attempt" an act means to knowingly do something which leads toward the accomplishment or fulfillment of the act.

    An item is "concealed" if it is hidden from ordinary observation.

ANNOTATIONS AND COMMENTS

    49 USC § 46505(b) provides that “[a]n individual shall be fined under title 18, imprisoned for not more than ten years, or both, if the individual - -

    (1) when on, or attempting to get on, an aircraft in, or intended for operation in, air transportation, has on or about the individual or the property of the individual a concealed dangerous weapon that is or would be accessible to the individual in flight; 

    (2) has placed, attempted to place, or attempted to have placed a loaded firearm on that aircraft in property not accessible to passengers in flight; or

    (3) has on or about the individual, or has placed, attempted to place, or attempted to have placed on that aircraft, an explosive or incendiary device.

    Maximum Penalty: Ten years imprisonment and $250,000 fine. See 49 USC § 4605(b) and 18 USC § 3571. If an individual violates subsection (b) “willfully and without regard for the safety of human life, or with reckless disregard for the safety of human life, “ the maximum term of imprisonment is 20 years and, if death results to any person, any term of imprisonment including life. See 49 USC § 46505(c).

[For 1997 Version of this instruction, see below]

49 USC 46505(b) provides:

[With respect to any aircraft in air transportation, any individual who,]

(1) when on, or attempting to get on [such aircraft] has on or about the individual or property of the individual a concealed dangerous weapon that is or would be accessible to the individual in flight; or . . .

(3) has . . . attempted to have place on that aircraft an explosive or incendiary device [and who does so willfully and without regard for the safety of human life, or with reckless disregard for the safety of human life] [shall be guilty of an offense against the United Sates].

Maximum Penalty: Five (5) years imprisonment and $250,000 fine. See 49 USC 46505(c) and 18 USC 3571.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

NOTE: This instruction was deleted from the 2003 edition.  

Re: forfeiture, see Trial Instruction 8 [Forfeiture Proceedings (To be given before supplemental evidentiary proceedings and/or supplemental arguments of counsel).] 

[For 1997 Version of this instruction, see below]

18 USC 1963(a) provides:

Whoever violates any provision of section 1962 of this chapter . . . shall forfeit to the United States (1) any interest the person has acquired or maintained in violation of section 1962; (2) any interest in; security of; claim against; or property or contractual right of any kind affording a source of influence over any enterprise which the person has established, operated, controlled, conducted, or participated in the conduct of, in violation of section 1962; and (3) any property constituting, or derived from, any proceeds which the person obtained, directly or indirectly, from racketeering activity . . . in violation of section 1962.

Rule 31(e), F. R. Cr. P., provides that if the indictment alleges that an interest or property is subject to criminal forfeiture, a special verdict shall be returned as to the extent of the interest or property subject to forfeiture, if any.

The usual practice is to sever the forfeiture issues and submit them to the jury by special verdict only if (and after) the jury convicts the Defendant(s) of violating Section 1962. See United States v. L'Hoste, 609 F.2d 796, 813-14 (5th Cir. 1980); United States v. Marion, 681 F.2d 952 (5th Cir. 1982) (en banc).

Reasonable doubt, rather than preponderance of the evidence, remains the standard for criminal forfeiture under section 1963. See United States v. Kramer, 73 F.3d 1067, 1076 n.22 (11th Cir. 1994).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

Note: This instruction was deleted in the 2003 Edition.

Re: forfeiture, see Trial Instruction 8 [Forfeiture Proceedings (To be given before supplemental evidentiary proceedings and/or supplemental arguments of counsel).] 

[For 1997 Version of this instruction, see below]

21 USC 853(a) provides:

Any person convicted of a violation of this subchapter of subchapter II of this chapter [21 USC 951 et seq.] punishable by imprisonment for more than one year shall forfeit to the United States, irrespective of any provision of State law --

(1) any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation;

(2) any of the person's property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation; and

(3) in the case of a person convicted of engaging in a continuing criminal enterprise [the defendant forfeits any interest in the enterprise itself]

The preponderance of the evidence standard applies. U. S. v. Elgersma, 971 F.2d 690, 697 (11th Cir. 1992) (en banc).

There is a rebuttable presumption that the property of a convicted person is subject to forfeiture. 21 USC 853(d).

An eighth Amendment ("excessive fines") challenge was rejected in U. S. v. One Parcel Property, 74 F.3d 1165 (11th Cir. 1997), a civil forfeiture case.

The innocent owner defense under the due process and takings clauses was rejected in Bennis v. Michigan, U. S. , 116 S.Ct. 994, 132 L.Ed.2d 279, 1997 WL 88269 (Mar. 4, 1997); see also U. S. v. One Parcel (Etc.), 41 F.3d 1448 (11th Cir. 1995) (innocent owner defense analyzed and under 21 USC 881(a)).

For the imputation of an individual's knowledge and actions to a corporation in forfeiture cases, see U. S. v. Route 2 (Etc.), 60 F.3d 1523 (11th Cir. 1995).