MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006 (Updated 2008)
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Chapter 6 Final Instructions: Elements Of Offenses (updated 1/2008)

    6.18.152(1)     Bankruptcy - Fraudulent Concealment of Assets - Elements of the Offense (10/2007)
    6.18.201B1     Bribery of a Public Official (18 USC 201(b)(1)) (1/2008)
    6.18.201B1-1  Bribery of a Public Official – "Public Official" Defined (1/2008)
    6.18.201B1-2  Bribery of a Public Official – "Official Act" Defined (1/2008)
    6.18.201B1-3  Bribery of a Public Official – "Corruptly" Defined (1/2008)
    6.18.201B2     Receiving Bribe by Public Official (18 USC 201(b)(2)) (1/2008)
    6.18.201B2-1  Receiving Bribe by Public Official – "Corruptly" Defined (1/2008)
    6.18.201B3     Bribery of a Witness (18 USC 201(b)(3)) (1/2008)
    6.18.201B4     Soliciting Bribe by Witness (18 USC 201(b)(4)) (1/2008)
    6.18.201C1A  Illegal Gratuity to a Public Official (18 USC 201(c)(1)(A)) (1/2008)
    6.18.201C1B  Receiving Illegal Gratuity by a Public Official (18 USC 201(c)(1)(B)) (1/2008)
    6.18.371A      Conspiracy to Commit an Offense Against the United States – Basic Elements 
                           (approved by Model Criminal Jury Instruction Committee 4/07)
    6.18.371B      Conspiracy to Defraud the United States – Basic Elements (4/07)
    6.18.371C      Conspiracy – Existence of an Agreement (4/07)
    6.18.371D      Conspiracy – Membership in the Agreement (4/07)
    6.18.371E       Conspiracy – Mental States (4/07)
    6.18.371F       Conspiracy – Overt Acts (4/07)
    6.18.371G      Conspiracy – Success Immaterial (4/07)
    6.18.371H      Conspiracy – Single or Multiple Conspiracies (4/07)
    6.18.371I       Conspiracy – Duration (4/07)
    6.18.371J       Conspiracy – Withdrawal Before the Commission of an Overt Act as 
                           a Defense to Conspiracy (4/07)
    6.18.371K     Conspiracy – Withdrawal as Defense to Conspiracy Based on Statute 
                          of Limitations (4/07)
    6.18.371L      Conspiracy – Acts and Statements of Co-Conspirators (4/07)
    6.18.656         Misapplication of Bank Funds (18 USC 656) (12/2007)
    6.18.656-1     Misapplication of Bank Funds - Intent to Defraud Defined (12/2007)
    6.18.922A      False Statement in Purchase of a Firearm (18 USC 922(a)(6)) (8/07)
    6.18.922A-1   Firearm Offenses – Dealer Defined (8/07)
    6.18.922A-2   Firearm Offenses – Firearm Defined (8/07)
    6.18.922A-3   Firearm Offenses – Material Defined (8/07)
    6.18.922D      Sale of Firearm to Convicted Felon (18 USC 922(d)(1)) (8/07)
    6.18.922D-1   Firearm Offenses – Reasonable Cause to Believe Defined (8/07)
    6.18.922G      Felon In Possession of Firearm (18 USC 922(g))(non-bifurcated 
                           proceeding) (8/07)
    6.18.922G-1   Felon In Possession of Firearm (18 USC 922(g))(bifurcated 
                           proceeding) (8/07)
    6.18.922G-2   Proof of Prior Conviction (8/07)
    6.18.922G-3   Evidence of Prior Conviction of Defendant Charged with Possession of 
                           a Firearm by a Convicted Felon (18 USC 922(g)) (8/07)
    6.18.922G-4   Firearm Offenses – Knowing Possession Defined (8/07)
    6.18.922G-5   Firearm Offenses – In or Affecting Interstate or Foreign Commerce 
                           Defined (8/07)
    6.18.922J        Possession of Stolen Firearm (18 USC 922(j)) (8/07)
    6.18.922K      Possession of Firearm With Serial Number Removed, Obliterated, or 
                           Altered (18 USC 922(k)) (8/07)
    6.18.924A       Possession of a Firearm In Furtherance of Crime of Violence or Drug 
                            Trafficking Crime (18 USC 924(c)(1)) (8/07)
    6.18.924A-1    "In Furtherance of" Defined (8/07)
    6.18.924B        Using or Carrying a Firearm During Any Crime of Violence or Drug 
                            Trafficking Crime (18 USC 924(c)(1)) (8/07)
    6.18.1341        Mail Fraud – Elements of the Offense (10/2007)
    6.18.1341-1     Mail, Wire, or Bank Fraud – "Scheme to Defraud or to Obtain Money or Property" 
                             Defined (10/2007)
    6.18.1341-2     Mail, Wire, or Bank Fraud- Unanimity Required (10/2007)
    6.18.1341-3     Mail or Wire Fraud – Protected Interests: Honest Services (10/2007)
    6.18.1341-4     Mail or Wire Fraud – "Intent to Defraud" Defined (10/2007)
    6.18.1341-5     Mail Fraud – "Use of the Mails" Defined (10/2007)
    6.18.1341-6     Mail Fraud – Each Use of the Mails a Separate Offense (10/2007)
    6.18.1343        Wire Fraud – Elements of the Offense (10/2007)
    6.18.1343-1     Wire Fraud – "Transmits by means of wire, radio, or television communication in interstate 
                             commerce" - Defined (10/2007)
    6.18.1343-2     Wire Fraud – Each Transmission by Wire Communication a Separate Offense (10/2007)
    6.18.1344        Bank Fraud - Elements of the Offense (10/2007)
    6.18.1344-1     Bank Fraud – "Intent to Defraud" Defined (10/2007)
    6.18.1347        Health Care Fraud - Elements of the Offense (10/2007)
    6.18.1347-1    Health Care Fraud – "Intent to Defraud" Defined (10/2007)
    6.18.1347-2    Health Care Fraud - Affecting Interstate Commerce (10/2007)
    6.18.1951        Hobbs Act - Elements of the Offense (18 USC 1951) (1/2008)
    6.18.1951-1     Hobbs Act - Robbery Defined (1/2008)
    6.18.1951-2     Hobbs Act - Extortion by Force, Violence, or Fear (1/2008)
    6.18.1951-3     Hobbs Act - "Unlawful Taking by Force, Violence or Fear" Defined (1/2008)
    6.18.1951-4     Hobbs Act - "Fear of Injury" Defined (1/2008)
    6.18.1951-5     Hobbs Act - Property Defined (1/2008)
    6.18.1951-6     Hobbs Act - Extortion Under Color of Official Right (1/2008)
    6.18.1951-7     Hobbs Act - Affecting Interstate Commerce
    6.18.1956A      Money Laundering - Elements of the Offense (18 USC 1956(a)(1)) (9/07)
    6.18.1956-1     Money Laundering - Conducting a Financial Transaction Defined (9/07)
    6.18.1956-2     Money Laundering - Interstate Commerce Defined (9/07)
    6.18.1956-3     Money Laundering - Proceeds of a Specified Unlawful Activity Defined (9/07)
    6.18.1956-4     Money Laundering - Knowledge that Property Represents Proceeds 
                            of Some Form of Unlawful Activity Defined (9/07)
    6.18.1956-5     Money Laundering - Intent to Promote, Intent to Conceal or Disguise, 
                             Intent to Avoid Reporting Requirement Defined (9/07)
    6.18.1956-6     Money Laundering - Unanimity Required (9/07)
    6.21.841A       Controlled Substances – Possession with Intent to (Manufacture) (Distribute) 
                            (21 USC 841(a) & (b)) (9/2007)
    6.21.841-1      Controlled Substances – Possession Defined (9/2007)
    6.21.841-2      Controlled Substances – Distribute Defined (9/2007)
    6.21.841-3      Controlled Substances – Controlled Substance Defined (9/2007)
    6.21.841-4      Controlled Substances – Knowingly or Intentionally Defined (9/2007)
    6.21.841-5      Controlled Substances – Intent to Manufacture or Distribute Defined (9/2007)
    6.21.841B      Controlled Substances – (Manufacture) (Distribute) a Controlled Substance 
                           (21 USC 841(a) & (b)) (9/2007)
    6.21.841C      Controlled Substances – Special Interrogatories and Verdict Forms With Respect to Weight (9/2007)
    6.21.844         Controlled Substances – Possession (21 USC 844) (9/2007)
    6.21.846A      Controlled Substances – Attempt to (Distribute) (Possess with Intent to Manufacture / Distribute) 
                           (Manufacture) (Possess) (21 USC 846) (9/2007)
    6.21.846B      Controlled Substances – Conspiracy to (Distribute) (Possess with Intent to Manufacture / Distribute) 
                          (Manufacture) (Possess) (21 USC 846) (9/2007)
    6.21.853        Criminal Forfeiture of Property (Controlled Substances) (21 USC 853) (1/2008)
    6.26.5861       Possession of an Unregistered Firearm (26 USC 5861) (8/07)

(Please note that this chapter is not complete. As new instructions are approved by the Model Criminal Jury Instruction Committee, they will be added.)

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

6.18.152(1)
Bankruptcy - Fraudulent Concealment of Assets - Elements of the Offense

Count (number) of the indictment charges the defendant (name) with bankruptcy fraud, which is a violation of federal law.

In order to find (name) guilty of this offense, you must find that the government proved each of the following four elements beyond a reasonable doubt:

First: That a bankruptcy case was pending on or about (specify time alleged in the indictment) in which (name of debtor) was the Debtor;

Second: That (describe the property alleged in the indictment) was a part of the bankruptcy estate of the Debtor;

Third: That (name) concealed (describe the property alleged in the indictment) from the [(custodian)(trustee)(Marshal)(person)] charged with the custody and control of that property; and

Fourth: That (name) acted knowingly and with the intent to defraud.

The term "debtor" means the (person) (business) for whom a bankruptcy case has been commenced. When a debtor files a petition seeking protection from creditors under the bankruptcy laws, a "bankruptcy estate" is created. The bankruptcy estate is comprised of all property belonging to the debtor as of the time the bankruptcy case is filed, regardless of where that property is located or who holds the property. [The "bankruptcy estate" also includes proceeds, products, rents, or profits of or from the property of the estate, but it does not include earnings from services performed by an individual after the case is filed.]

Property may be concealed in a number of different ways. "Concealment" can mean hiding property or assets. It also includes preventing the discovery of assets, transferring property, or withholding information that is required to be made known. Concealment of property of the bankruptcy estate may include transferring property to a third party or entity, destroying the property, withholding knowledge concerning the existence or whereabouts of the property, or knowingly doing anything else by which the defendant acts to hinder, unreasonably delay or defraud any creditors. The government need not prove that the concealment was successful.

An act is done knowingly if it is done voluntarily and intentionally, and not because of mistake, accident or other innocent reason.

An act is done with intent to defraud if it is done with the intent to deceive any creditor, trustee or bankruptcy judge.

See Eighth Circuit § 6.18.152A, Fifth Circuit § 2.10; Sand 15-7.

18 USC 152(1) provides:

A person who (1) knowingly and fraudulently conceals from a custodian, trustee, marshal, or other officer of the court charged with the control or custody of property, or, in connection with a case under title 11, from creditors or the United States Trustee, any property belonging to the estate of a debtor; * * * shall be fined under this title, imprisoned not more than 5 years, or both.

This instruction should be given only if the defendant is charged under this section. It does not apply to other violations of Section 152.

In United States v. Zerbach, 47 F.3d 1252, 1261 (3d Cir. 1995), the Third Circuit noted that "[t]he statutory requirement that the underlying acts be performed ‘knowingly’ requires only that the act be voluntary and intentional and not that a person knows that he is breaking the law." Good faith belief in the lawfulness of the conduct is not a defense to bankruptcy fraud. See Zerbach, 47 F.3d at 1261.

In United States v. Thayer, 201 F.3d 214, 224-25 (3d Cir. 1999), the Third Circuit held that the following charge adequately informed the jurors of the elements of the offense, including the intent to conceal:

Counts 28 through 37 charge[ ] willful concealment of assets from the Bankruptcy Court. The law provides whoever knowingly and fraudulently conceals from the custodians, trustee, marshal or other officer of the bankruptcy [court] charged with the control or custody of property, or from creditors in any case in bankruptcy shall be guilty of a felony.

The elements are: One, on or about the date alleged in the indictment, the proceeding in bankruptcy was in existence. That's not in dispute. Two, the defendant fraudulently concealed the property described in the indictment from creditors in the bankruptcy proceedings. And, three, that such property belonged to the estate of the debtor.

A person fraudulently conceals property of the estate of a debtor when that person knowingly withholds information or property or knowingly acts for the purpose of preventing the discovery of such property, intending to deceive or cheat a creditor, a trustee, or a custodian or a bankruptcy judge.

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

The act of concealment does not depend on the amount or value of the property involved. It is sufficient if a substantial amount of property was knowingly and fraudulently concealed or transferred by the accused as charged in the indictment . . . .

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

Count (number) of the indictment charges the defendant (name) with bribery of a public official, which is a violation of federal law.

In order to find the defendant guilty of this offense, you must find that the government proved each of the following three elements beyond a reasonable doubt:

First: That (name) gave, offered, or promised something of value, that is (specify thing of value) to (name of official);

Second: That (name of official) was, at that time, a public official; and

Third: That (name) did so corruptly with the intent to influence an official act, that is, (name) intended to give (specify thing of value) in exchange for an official act.

Comment

O’Malley, § 27.03.

18 USC 201(b)(1) provides that anyone who

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

(A) to influence any official act; or

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

(C) to induce such public official or such person who has been selected to be a public official to do or omit to do any act in violation of the lawful duty of such official or person.

commits a federal offense. In some cases, the court may want to modify the instruction to inform the jury that the bribe may be direct or indirect, that the defendant may be convicted of the offense based on an offer or promise to bribe, or that the conviction may be based on the intent defined in § 201(b)(1)(B) or (C). In addition to the elements instruction, the court should give Instruction 6.18.201B1-1 (Bribery of a Public Official – "Public Official" Defined), Instruction 6.18.201B1-3 (Bribery of a Public Official – "Corruptly" Defined), and, if appropriate, Instruction 6.18.201B1-2 (Bribery of a Public Official – "Official Act" Defined). Giving an illegal gratuity to a public official in violation of 18 USC 201(c)(1)(A) may be a lesser included offense. See Instruction 6.18.201C.

The statute requires proof that the defendant intended to influence an official act. "In other words, for bribery there must be a quid pro quo-a specific intent to give or receive something of value in exchange for an official act." United States v. Sun-Diamond Growers of California, 526 U.S. 398, 404-05 (1999).

A quid pro quo may be implicit as well as explicit. Evans v. United States, 504 U.S. 255, 268 (1992). The improper benefit may consist of money, property, services, or any other act which advances the official's personal or business interests, including a loan. See United States v. Kemp, ___ F.3d ___, 2007 WL 2410132, *17-18 (3d Cir. Aug. 27, 2007).

In addition, a conviction under this section may be based on a stream of benefits to the public official or to a third party whom the official favors, and the government does not need to establish that any specific benefit was given in exchange for a specific official act. Payments in violation of the statute may be made with the intent to retain the official's services on an "as needed" basis, so that whenever the opportunity presents itself the official will take specific action on the payor's behalf. See Kemp, ___ F.3d at ___.

To violate the statute, the defendant’s act of bribery need not be calculated to induce unlawful conduct by the public official. In United States v. Labovitz, 251 F.2d 393 (3d Cir. 1958), the Third Circuit stated:

[E]ither an intention to influence official behavior or an intention to induce unlawful action will supply the culpability which the statute requires. * * * "The statute is violated when a bribe is given or an offer to bribe is made regardless of the occasion therefor, provided it is done with the requisite intent and provided the acceptor or the offeree of the bribe is a person of the sort described in the statute."

251 F.2d at 394 (citations omitted).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

6.18.201B1-1
Bribery of a Public Official – "Public Official" Defined

The term "public official" means (a Member of Congress, or) an officer or employee or person acting (for) (on behalf of) the United States, or any department, agency or branch of the United States Government, in any official function, under or by authority of any such department, agency, or branch of government.

The term "public official" includes any employee of the United States government as well as any person who is performing work for or acting on behalf of the United States government.

O’Malley § 27.07.

18 USC 201(a)(1)provides:

the term "public official" means Member of Congress, Delegate, or Resident Commissioner, either before or after such official has qualified, or an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof, including the District of Columbia, in any official function, under or by authority of any such department, agency, or branch of Government, or a juror.

In some cases, the court may want to define "public official " for the jury.

In Dixson v. United States, 465 U.S. 482 (1984), the Supreme Court concluded that "[t]he term public official is not limited to persons in a formal employment or agency relationship with the Government." 465 U.S. at 494. The Court identified the appropriate inquiry as "whether the person occupies a position of public trust with official federal responsibilities." 465 U.S. at 496.

To clarify, the Court explained, "[t]o be a public official under section 201(a), an individual must possess some degree of official responsibility for carrying out a federal program or policy." 465 U.S. at 499.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

6.18.201B1-2
Bribery of a Public Official – "Official Act" Defined

The term "official act" means any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official's official capacity, or in such official's place of trust. The government must prove that (name) intended to influence a specific act or acts.

The term "official act" includes the decisions or actions generally expected of the public official. These decisions or actions do not need to be specifically described in any law, rule, or job description to be considered to be an "official act."

O’Malley § 27.08; United States v. Sun-Diamond Growers of California, 526 U.S. 398,

405-06 (1999).

18 USC 201(a)(3) provides:

the term "official act" means any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official's official capacity, or in such official's place of trust or profit.

In some cases, the court may want to define "official act" for the jury.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

6.18.201B1-3
Bribery of a Public Official – "Corruptly" Defined

A person offers a thing of value to a public official "corruptly" if the person acts knowingly and intentionally with the purpose either of accomplishing an unlawful end or unlawful result or of accomplishing some otherwise lawful end or lawful result influenced by the offer of the thing of value to the public official.

Corrupt acts are ordinarily motivated by a hope or expectation of either financial gain or other benefit to one's self, or some aid or profit to another.

[It is not necessary for the government to prove that the public official was actually influenced, or actually performed an official act, or was even aware of the bribe. What the government must prove beyond a reasonable doubt is that the defendant acted with corrupt intent to bribe a public official, regardless whether the act was successful.]

O’Malley § 27.09.

In United States v. Traitz, 871 F.2d 368 (3d Cir. 1989), the Third Circuit explained:

This statute has been said to require that the alleged briber offer the bribe with a "corrupt intent" to influence official conduct. This requires the government to show that the "money was knowingly offered to an official with the intent and expectation that, in exchange for the money, some act of a public official would be influenced." Provided that the money is offered with corrupt intent, "the official does not necessarily even need to be aware of the bribe ... so long as a bribe is offered or promised with the required intent to influence any official act the crime is committed."

871 F.2d at 396 (citations omitted).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

6.18.201B2 
Receiving Bribe by Public Official (18 USC201(b)(2))

Count (number) of the indictment charges the defendant (name) with demanding, seeking, or receiving a bribe while a public official, which is a violation of federal law.

In order to find the defendant guilty of this offense, you must find that the government proved each of the following three elements beyond a reasonable doubt:

First: That (name) demanded, sought, or received something of value, that is, (specify item described in the indictment);

Second: That (name) was, at that time, a public official of the United States (or was acting on behalf of the United States); and

Third: That (name) did so corruptly in return for being influenced in the performance of an official act, that is, (name) intended to perform an official act in exchange for (specify thing of value).

O’Malley § 27.06

18 USC 201(b)(2) provides that whoever

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

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

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

(C) being induced to do or omit to do any act in violation of the official duty of such official or person

commits a federal offense. In some cases, the court may want to modify the instruction to inform the jury that the bribe may be direct or indirect, that the defendant may be convicted of the offense based on an agreement to accept a bribe, or that the conviction may be based on the intent defined in § 201(b)(1)(B) or (C). In addition to the elements instruction, the court should also give Instruction 6.18.201B1-1 (Bribery of a Public Official – "Public Official" Defined), Instruction 6.18.201B1-3 (Bribery of a Public Official – "Corruptly" Defined), and, if appropriate, Instruction 6.18.201B1-2 (Bribery of a Public Official – "Official Act" Defined).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

6.18.201B2-1
Receiving Bribe by Public Official – "Corruptly" Defined

A public official demands, seeks, or receives a thing of value corruptly if the official accepts the item knowingly and intentionally with the purpose either of accomplishing an unlawful end or unlawful result or of accomplishing some otherwise lawful end or lawful result influenced by the receipt of the thing of value.

Corrupt acts are ordinarily motivated by a hope or expectation of either financial gain or other benefit to one's self, or some aid or profit to another.

O’Malley § 27.09.

In United States v. Traitz, 871 F.2d 368 (3d Cir. 1989), the Third Circuit explained:

This statute has been said to require that the alleged briber offer the bribe with a "corrupt intent" to influence official conduct. This requires the government to show that the "money was knowingly offered to an official with the intent and expectation that, in exchange for the money, some act of a public official would be influenced." Provided that the money is offered with corrupt intent, "the official does not necessarily even need to be aware of the bribe ... so long as a bribe is offered or promised with the required intent to influence any official act the crime is committed."

871 F.2d at 396 (citations omitted).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

6.18.201B3 
Bribery of a Witness 
(18 USC201(b)(3))

Count (number) of the indictment charges the defendant (name) with (briefly describe charged offense; e.g., with offering a bribe to a witness), which is a violation of federal law.

In order to find the defendant guilty of this offense, you must find that the government proved each of the following three elements beyond a reasonable doubt:

First: That (name of witness) was to be a witness under oath or affirmation at (describe proceeding, e.g., a trial before the United States District Court for the Eastern District of Pennsylvania);

Second: That (name) [(gave) (offered) (promised)] something of value to (name of witness); and

Third: That (name) did this act corruptly, that is, with the intent to influence [(name of witness's) testimony] [(name of witness) to be absent from the proceeding described].

Eighth Circuit § 6.18.201C.

18 USC201(b)(3) provides that whoever

directly or indirectly, corruptly gives, offers, or promises anything of value to any person, or offers or promises such person to give anything of value to any other person or entity, with intent to influence the testimony under oath or affirmation of such first-mentioned person as a witness upon a trial, hearing, or other proceeding, before any court, any committee of either House or both Houses of Congress, or any agency, commission, or officer authorized by the laws of the United States to hear evidence or take testimony, or with intent to influence such person to absent himself therefrom

commits a federal offense. The court should also modify and give Instruction 6.18.201B1-3 (Bribery of a Public Official – "Corruptly" Defined). In some cases, the court may want to modify this instruction to inform the jury that the bribe may be direct or indirect or that the defendant may be convicted of the offense based on an offer or promise to bribe.

Section 201(d) provides:

Paragraphs (3) and (4) of subsection (b) and paragraphs (2) and (3) of subsection (c) shall not be construed to prohibit the payment or receipt of witness fees provided by law, or the payment, by the party upon whose behalf a witness is called and receipt by a witness, of the reasonable cost of travel and subsistence incurred and the reasonable value of time lost in attendance at any such trial, hearing, or proceeding, or in the case of expert witnesses, a reasonable fee for time spent in the preparation of such opinion, and in appearing and testifying.

18 USC 201(d).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

6.18.201B4 
Soliciting Bribe by Witness 
(18 USC201(b)(4))

Count (number) of the indictment charges the defendant (name) with (briefly describe charged offense; soliciting a bribe while a witness), which is a violation of federal law.

In order to find the defendant guilty of this offense, you must find that the government proved each of the following three elements beyond a reasonable doubt:

First: That (name) was to be a witness under oath or affirmation at (specify proceeding, e.g., a trial before the United States District Court for the Eastern District of Pennsylvania);

Second: That (name) [(asked for) (demanded) (accepted) (agreed to receive)] something of value (personally) (for (specify person or entity)); and

Third: That (name) did so corruptly, that is, in return for [(being influenced in (his)(her) testimony at) (absenting (himself) (herself) from)] (specify proceeding).

Eighth Circuit § 6.18.201D.

18 USC201(b)(4) provides that whoever

directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity in return for being influenced in testimony under oath or affirmation as a witness upon any such trial, hearing, or other proceeding, or in return for absenting himself therefrom

commits a federal offense. The court should also modify and give Instruction 6.18.201B2-1 (Receiving Bribe by Public Official – "Corruptly" Defined).

Section 201(d) provides:

Paragraphs (3) and (4) of subsection (b) and paragraphs (2) and (3) of subsection (c) shall not be construed to prohibit the payment or receipt of witness fees provided by law, or the payment, by the party upon whose behalf a witness is called and receipt by a witness, of the reasonable cost of travel and subsistence incurred and the reasonable value of time lost in attendance at any such trial, hearing, or proceeding, or in the case of expert witnesses, a reasonable fee for time spent in the preparation of such opinion, and in appearing and testifying.

18 USC 201(d).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

6.18.201C1A 
Illegal Gratuity to a Public Official 
(18 USC 201(c)(1)(A))

Count (number) of the indictment charges the defendant (name) with giving an illegal gratuity to a public official, which is a violation of federal law.

In order to find the defendant guilty of this offense, you must find that the government proved each of the following three elements beyond a reasonable doubt:

First: That (name of official) was a public official or a former public official;

Second: That (name) knowingly directly or indirectly (gave) (offered) (promised) something of value to (name of official),and that this was not provided by law for the proper discharge of (name of official’s) official duty; and

Third: That (name) did so (for) (because of) an official act (performed) (that was going to be performed) by (name of official). To establish this element, the government must prove that there was a link between the offer or giving of the thing of value and a specific official act for or because of which it was offered or given. It is not sufficient that the gratuity was offered or given because (name of public official) had authority over matters in which (name) had an interest, or that the gratuity was offered or given solely for social reasons or friendship. The government, however, does not need to show that the gratuity influenced or was intended to influence the official act; it is sufficient if the gratuity was a reward for some future act that the public official would later take (and may already have determined to take), or for a past act that (he)(she) had already taken.

Fifth Circuit § 2.14.

18 USC 201(c)(1) provides that whoever, otherwise than as provided by law for the proper discharge of official duty,

(A) directly or indirectly gives, offers, or promises anything of value to any public official, former public official, or person selected to be a public official, for or because of any official act performed or to be performed by such public official, former public official, or person selected to be a public official

commits a federal offense. The court should also give Instruction 6.18.201B1-1 (Bribery of a Public Official – "Public Official" Defined), Instruction 6.18.201B1-2 (Bribery of a Public Official – "Official Act" Defined), and Instruction 5.02 (Knowingly). Giving an illegal gratuity to a public official in violation of 18 USC 201(c)(1)(A) may be a lesser included offense of the crime of bribing a public official in violation of 18 USC 201(b)(1). See Instruction 6.18.201B1.

In United States v. Niederberger, 580 F.2d 63 (3d Cir. 1978), the Third Circuit described the requirements of the statute:

What is proscribed, simply put, is a public official's receipt of a gratuity, to which he was not legally entitled, given to him in the course of his everyday duties, for or because of any official act performed or to be performed by such public official, and he was in a position to use his authority in a manner which could affect the gift-giver.

580 F.2d at 69.

This provision of § 201 "requires a showing that something of value was given, offered, or promised to a public official . . . ‘for or because of any official act performed or to be performed by such public official.’" United States v. Sun-Diamond Growers of California, 526 U.S. 398, 404 (1999). In Sun-Diamond, the Court explained the difference between bribery and giving an illegal gratuity:

The distinguishing feature of each crime is its intent element. Bribery requires intent "to influence" an official act or "to be influenced" in an official act, while illegal gratuity requires only that the gratuity be given or accepted "for or because of" an official act. In other words, for bribery there must be a quid pro quo-a specific intent to give or receive something of value in exchange for an official act. An illegal gratuity, on the other hand, may constitute merely a reward for some future act that the public official will take (and may already have determined to take), or for a past act that he has already taken.

526 U.S. at 404-05.

Merely giving a gratuity to an official to foster good will does not violate the statute. The government must prove that the defendant gave the gratuity to the official "for or because of" the official’s position, and "not solely for reasons of friendship or social purposes." United States v. Standefer, 610 F.2d 1076, 1080 (3d Cir. 1979). Furthermore, the gratuity must be linked to a specific official act or acts. See Sun-Diamond Growers of California, 526 U.S. at 407-08. "[I]n order to establish a violation of 18 USC 201(c)(1)(A), the Government must prove a link between a thing of value conferred upon a public official and a specific ‘official act’ for or because of which it was given." Sun-Diamond Growers of California, 526 U.S. at 414.

In United States v. Holck, 398 F.Supp.2d 338 (E.D.Pa. 2005), aff’d sub nom. United States v. Kemp, ___ F.3d ___, 2007 WL 2410132 (3d Cir. Aug. 27, 2007), the district court discussed whether Sun-Growers requires a specific temporal relationship between the gratuity and the official act. The district court focused on the decision of the D.C. Circuit in United States v. Schaffer, 183 F.3d 833 (D.C. Cir. 1999), which the defendants cited as requiring proof of such a relationship:

On the surface, it might appear that Schaffer provides some persuasive authority for [the defendants’] temporal attenuation argument. However, there are two main reasons why this Court does not take it as such.

First, as the D.C. Circuit recognized, the U.S. Supreme Court has clearly left the magnitude of the necessary link "in doubt." Schaffer is a D.C. Circuit opinion, which is obviously not binding in the courts of the Third Circuit. Moreover, research indicates that no other courts (including the Third Circuit) have cited to Schaffer for a specific principle related to "temporal attenuation;" nor have any courts generally opined on an appropriate temporal benchmark. As such, Schaffer is not only inapposite on the facts, it stands on its own in the legal landscape, and is far from "established" law that would control here.

Second, and perhaps more important, a more nuanced reading of Schaffer than that offered by counsel for [defendants] suggests that Schaffer is better understood as a case about the knowledge--rather than the mere time frame--required to establish the required link. Schaffer was acquitted of the gratuity charges not simply because there was a long period of time between the gifts and the USDA's policy revisions, but, rather, because of a finding that there was no evidence that Schaffer knew or anticipated anything about those policy revisions (or any other decisions affecting Tyson within Espy's purview) at the time of the gift giving. See Schaffer, 183 F.3d at 833. If evidence had demonstrated that Schaffer had actually known about the potential USDA policy revisions, nothing in Schaffer says that the D.C. Circuit would have refused to affirm the jury's verdict merely because of significant temporal attenuation between the gifts and the actual policy revisions. Knowledge may or may not be a product of temporal attenuation (i.e., one could easily conceive of a situation where a lack of knowledge was due to something other than an issue of timing). The factual scenario in Schaffer happened to involve a question of knowledge that hinged on the timing of an outside event, but a case could just as easily turn on something else.

398 F.Supp.2d at 353-54.

The court continued:

[T]he appropriate question under conspiracy and bribery jurisprudence is not whether the favorable loans and [the public official’s] official actions were greatly attenuated in time, but, rather, whether [the defendants] knew or anticipated anything when they made the favorable loans with regard to future acts of [the public official] (e.g., the NTI line of credit), or did [the public official’s] actions regarding the NTI line of credit evidence a payback as consideration for their having made the loans. The actions of [the defendants] were not so temporally attenuated that the jury could not find their conduct with regard to both the loans and the NTI line of credit evidenced the scheme to corrupt [the public official].

398 F.Supp.2d at 354.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

6.18.201C1B 
Receiving Illegal Gratuity by a Public Official 
(18 USC 201(c)(1)(B))

Count (number) of the indictment charges the defendant (name) with receiving a gratuity while a public official, which is a violation of federal law.

In order to find the defendant guilty of this offense, you must find that the government proved each of the following three elements beyond a reasonable doubt:

First: That (name) was a public official (or a former public official);

Second: That (name) knowingly directly or indirectly (demanded) (sought) (received) (accepted) (agreed to receive or accept) something of value, and that this was not provided by law for the proper discharge of (name’s) official duty; and

Third: That (name) did so (for) (because of) an official act (name) (had performed) (was going to perform). To establish this element, the government must prove that there was a link between the thing of value sought or received and a specific official act for or because of which it was sought or received. It is not sufficient that the gratuity was sought or received because (name) had authority over matters in which (name of donor) had an interest, or that the gratuity was offered or given solely for social reasons or friendship. The government, however, does not need to show that the gratuity influenced or was intended to influence the official act; it is sufficient if the gratuity was a reward for some future act that (name) would later take (and may already have determined to take), or for a past act that (he)(she) had already taken.

Sand, Form Instruction 16-14.

18 USC 201(c)(1)(B) provides that whoever, otherwise than as provided by law for the proper discharge of official duty,

being a public official, former public official, or person selected to be a public official, otherwise than as provided by law for the proper discharge of official duty, directly or indirectly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally for or because of any official act performed or to be performed by such official or person

commits a federal offense. The court should also instruct the jury on the meaning of knowingly. See Instruction 5.02 (Knowingly). In some cases, the court may also wish to give Instruction 6.18.201B1-1 (Bribery of a Public Official – "Public Official" Defined) and Instruction 6.18.201B1-2 (Bribery of a Public Official – "Official Act" Defined). Receiving an illegal gratuity while a public official in violation of 18 USC 201(c)(1)(B) may be a lesser included offense of the crime of receiving a bribe by a public official in violation of 18 USC 201(b)(2). See Instruction 6.18.201B2.

In United States v. Niederberger, 580 F.2d 63 (3d Cir. 1978), the Third Circuit described the requirements of the statute:

What is proscribed, simply put, is a public official's receipt of a gratuity, to which he was not legally entitled, given to him in the course of his everyday duties, for or because of any official act performed or to be performed by such public official, and he was in a position to use his authority in a manner which could affect the gift-giver.

580 F.2d at 69.

In United States v. Sun-Diamond Growers of California, 526 U.S. 398, 404 (1999). In Sun-Diamond, the Court explained the difference between bribery and giving an illegal gratuity:

The distinguishing feature of each crime is its intent element. Bribery requires intent "to influence" an official act or "to be influenced" in an official act, while illegal gratuity requires only that the gratuity be given or accepted "for or because of" an official act. In other words, for bribery there must be a quid pro quo-a specific intent to give or receive something of value in exchange for an official act. An illegal gratuity, on the other hand, may constitute merely a reward for some future act that the public official will take (and may already have determined to take), or for a past act that he has already taken.

526 U.S. at 404-05. The gratuity must be linked to a specific official act or acts. See Sun-Diamond Growers of California, 526 U.S. at 407-08. "[I]n order to establish a violation of 18 USC 201(c)(1)(A), the Government must prove a link between a thing of value conferred upon a public official and a specific ‘official act’ for or because of which it was given." Sun-Diamond Growers of California, 526 U.S. at 414.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

6.18.371A
Conspiracy To Commit An Offense Against The United States
Basic Elements (18 USC 371)

See O’Malley §§ 31.01 - 31.03. For variations in other Circuits, see First Circuit § 4.03; Fifth Circuit § 2.20; Sixth Circuit §§ 3.01A & 3.01B; Seventh Circuit § 5.08; Eighth Circuit § 5.06A; Ninth Circuit § 8.16.

The general federal conspiracy statute,18 USC 371 provides: "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both. If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor."

This instruction is for conspiracies to commit an offense against the United States. Instruction 6.18.371B should be used when the indictment charges a conspiracy to defraud the United States. In addition to instructing on the elements of conspiracy to commit an offense against the United States, the trial judge must also instruct on the elements of the substantive offense(s) that is (are) the object of the conspiracy. See, e.g., United States v. Yasbin, 159 F.2d 705 (3d Cir. 1947) ("An examination of the record in this case discloses that while the trial judge charged the jury as to the elements of the crime of conspiracy he did not instruct them as to the elements of the substantive offense involved in the conspiracy. Consequently the judgment of the conviction is reversed . . . ."). If the defendant is also charged with the substantive offense(s), the trial judge will already be explaining those elements in the instructions; if the substantive offense(s) is (are) not charged, the court must define the elements of the object offense(s) here.

There are also specific federal statutes covering conspiracies to commit specific offenses. Some of these specific statutes do not require proof of an overt act. See in particular 21 USC 846 (conspiracy to commit federal drug offenses; no overt act required). Instructions on these specific conspiracy statutes are in Chapter 6 of these model instructions. See Instructions ___.

The Third Circuit has used a variety of words to describe the elements of a section 371 conspiracy, but these different articulations state essentially the same elements. Compare United States v. Rankin, 870 F.2d 109, 113 (3d Cir. 1989); United States v. Shoup, 608 F.2d 950, 956 (3d Cir. 1979) with United States v. Uzzolino, 651 F.2d 207, 214 (3d Cir. 1981); United States v. Small, 472 F.2d 818, 819 (3d Cir. 1971).

The elements and consequences of a conspiracy charge are defined in fair detail by the case law, because of the significant number of conspiracy prosecutions in the federal courts generally and within the Third Circuit more specifically. As a result, many aspects of conspiracy law need their own instruction, and we have addressed that need in the instructions that follow. In those instructions, alternative language is included to use depending on whether the conspiracy is to commit a federal offense or to defraud the United States.

Conspiracy also has consequences with respect to criminal responsibility for substantive offenses, as well as the admissibility of acts and statements of co-conspirators. See Instructions 7.03 (Responsibility for Substantive Offenses Committed by Co-Conspirators (Pinkerton Liability), 7.04 (Withdrawal as a Defense to Substantive Offenses Committed by Co-Conspirators), and 6.18.371L (Acts and Statements of Co-Conspirators).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

This should be the first instruction on conspiracy when the charge is conspiracy to defraud the United States under 18 USC 371. See the Comment to Instruction 6.18.371A.

For cases discussing the broad interpretation of "defraud the United States" stated in this instruction, see, e.g., Hass v. Henkel, 216 U.S. 462, 479 (1910); Hammerschmidt v. United States, 265 U.S. 182, 188 (1924); Glasser v. United States, 315 U.S. 60, 66 (1942); Bridges v. United States, 346 U.S. 209, 221, n. 19 (1953). Except under unusual circumstances, see Bridges v. United States, 346 U.S. at 215-224, fraud is an essential element of the offense. United States v. Vazquez, 319 F.2d 381, 384 (3d Cir. 1963).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

See O’Malley § 31.04. For variations in other Circuits, see Sixth Circuit § 3.02; Eighth Circuit § 5.06B.

Agreement is the essential element of conspiracy and the evil at which the crime of conspiracy is directed. See, e.g., Iannelli v. United States, 420 U.S. 770, 777 n. 10 (1975); United States v. Kelly, 892 F.2d 255, 258 (3d Cir. 1989). Numerous Third Circuit cases have discussed what the government is and is not required to prove in order to establish the existence of an agreement. See, e.g., United States v. Basroon, 38 Fed. Appx. 772 (3d Cir. 2002); United States v. Appelwhaite, 195 F.3d 679 (3d Cir. 1999); United States v. Messerlian, 832 F.2d 778 (3d Cir. 1987); United States v. Addonizio, 449 F.2d 100 (3d Cir. 1971); United States v. Frank, 290 F.2d 195 (3d Cir. 1961); United States v. Lester, 282 F.2d 750 (3d Cir. 1960).

If the indictment charges an agreement to commit several offenses, the bracketed final paragraph should be given.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

See O’Malley § 31.05. For variations in other Circuits, see Sixth Circuit § 3.03; Eighth Circuit § 5.06B.

Some cases have suggested that once the existence of a conspiracy is established, only "slight evidence" is needed to allow the jury to find that the defendant was a member. See, e.g., United States v. Kates, 508 F.2d 308, 310 n. 4 (3d Cir. 1975); United States v. Weber, 437 F.2d 327, 336 (3d Cir. 1970). This idea is not included in the instruction because of concern that it would dilute the government’s burden of proving beyond a reasonable doubt that the defendant was a member of the conspiracy. Also see United States v. Cooper, 567 F.2d 252, 255 (3d Cir. 1977) ("One may not be convicted of conspiracy solely for keeping bad company.").

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

Neither O’Malley nor the other Circuits include a separate instruction on the required state of mind element for conspiracy. The trial judge may feel that it is not necessary to give this instruction, in addition to instructions on the Basic Elements (Instructions 6.18.371A and 6.18.371B), Existence of an Agreement (Instruction 6.18.371C), and Membership in the Agreement (Instruction 6.18.371D), all of which reference the mental state requirements.

In United States v. Korey, 472 F.3d 89 (3d Cir. 2007) (conspiracy to distribute a controlled substance under 18 USC 846), the Third Circuit stated that, "‘[o]ne of the requisite elements the government must show in a conspiracy case is that the alleged conspirators shared a "unity of purpose", the intent to achieve a common goal, and an agreement to work together toward the goal.’ " 472 F.3d at 93 (quoting United States v. Cartwright, 359 F.3d 281, 286 (3d Cir. 2004), in turn quoting United States v. Wexler, 838 F.2d 88, 90-91 (3d Cir.1988)). In Korey, the court held that the trial judge erred by instructing the jury that it could convict if it found merely that the defendant agreed to accept cocaine in payment for killing the victim, without clearly instructing that the jury must find that the government proved a unity of purpose between defendant and his alleged conspirator.

The Supreme Court noted in United States v. United States Gypsum Co., 438 U.S. 422, 443 n. 20 (1978), that, "[i]n a conspiracy, two different types of intent are generally required – the basic intent to agree, which is necessary to establish the existence of the conspiracy, and the more traditional intent to effectuate the object of the conspiracy. See W. LaFave & A. Scott, Criminal Law 464- 465 (1972)." Also see, e.g., United States v. Shoup, 608 F.2d 950, 956 n. 9 (3d Cir. 1979) (quoting United States Gypsum). Knowingly facilitating a conspiracy or the commission of the objective of a conspiracy is not enough alone to make one guilty of conspiracy. United States v. Carlucci, 288 F.2d 691 (3d Cir 1961); United States v. Giuliano, 263 F.2d 582, 583 (3d Cir. 1959) (a legitimate vendor’s sale of supplies to conspirators was insufficient to convict the vendor of conspiracy). However, intent or purpose may be inferred from knowledge if the inference is reasonable under the circumstances. Ingram v. United States, 360 U.S. 672, 680 (1959) ("What was said in Direct Sales Co. v. United States on behalf of a unanimous Court is of particular relevance here: ‘Without the knowledge, the intent cannot exist. . . . Furthermore, to establish the intent, the evidence of knowledge must be clear, not equivocal. . . . This, because charges of conspiracy are not to be made out by piling inference upon inference, thus fashioning . . . a dragnet to draw in all substantive crimes," quoting Direct Sales Co. v. United States, 319 U.S. 703, 711 (1943).); United States v. Falcone, 311 U.S. 205 (1940); People v. Lauria, 251 Cal App.. 471, 59 Cal. Rptr. 628 (1967). Courts have also observed that receiving a benefit from or having a stake in the object of a conspiracy is evidence of intent, but is not necessary to prove intent. See, e.g., Direct Sales Co. v. United States, 319 U.S. 703, 713 (1943); United States v. Pedroni, 45 Fed. Appx. 103, 108 (3d Cir. 2002) (not precedential); United States v. Shoup, 608 F.2d at 957.

In United States v. Brodie, 403 F. 3d 123, 147 (3d Cir. 2005), the Third Circuit also stated that, "the government, in proving a conspiracy under 18 USC 371, was required to prove at least the degree of criminal intent necessary for the underlying substantive offense of violating the American Cuban embargo. See United States v. Feola, 420 U.S. 671, 686. . . ." The mental state required for the underlying offense in Brodie was specific intent, which "[i]n the context of [that] offense ... demands that the government prove that a defendant had general knowledge of the law which forbade his actions and acted with the specific intent to circumvent that law." Brodie, 403 F.3d at 147.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

See O’Malley § 31.07. For variations in other Circuits, see Sixth Circuit § 3.04; Eighth Circuit § 5.06D.

A failure to act or an omission can be an overt act, where the co-conspirator who failed to act had a legal duty to perform the act and he or she omitted performance in order to further the achievement of the objectives of the conspiracy. See, e.g., United States v. Curran, 20 F.3d 560 (3d Cir. 1994) (conspiracy conviction vacated where jury misled into believing defendant acted unlawfully by omitting performance of an act that he was under no legal duty to perform). When the indictment alleges failure to act or omission as an overt act, Instruction 5.10 should be given.

Commission of an overt act is an element of an 18 USC 371 conspiracy, but there are other, specific conspiracy statutes that do not require an overt act. See, e.g., 21 USC 846 (conspiracy to commit federal drug offenses). A single overt act by any member of the conspiracy is sufficient to satisfy this element, United States v. Nelson, 852 F.2d 706, 713 (3d Cir. 1988 ); United States v. Kapp, 781 F.2d 1008, 1012 (3d Cir. 1986), as long as the act was committed to further the conspiracy and tended towards that end. See, e.g., United States v. Small, 472 F.2d 818, 819 (3d Cir. 1972). The Pinkerton rule of co-conspirator responsibility applies to overt acts, as it does to substantive offenses. See Instruction 5.06D. Acts as innocent as writing a letter or talking on the telephone may constitute sufficient overt acts. United States v. Nelson, 852 F.2d at 706, 713. Also see, e.g., United States v. Braverman, 317 U.S. 49, 53 (1942); United States v. Adamo, 534 F.2d 31, 39 (3d Cir. 1976).

The overt acts must have been committed during the existence of the conspiracy. When the defense argues that this temporal connection has not been proved, the court should be careful to instruct that the overt act must have been committed during the conspiracy, not before its formation or after its termination.

The government may satisfy the overt act element by proving "overt acts not listed in the indictment, so long as there is no prejudice to the defendants thereby." United States v. Schurr, 794 F.2d 903, 908 n. 4 (3d Cir. 1986); United States v. Adamo, 534 F.2d at 39 (slight differences in the dates of overt acts as proven compared to those alleged).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

See O’Malley § 31.08. For variations in other Circuits, see Sixth Circuit § 3.13; Eighth Circuit § 5.06E.

"The crime of conspiracy is separate and distinct from the related substantive offense." United States v. Watkins, 339 F.3d 167, 178 (3d Cir. 2003). See United States v. Uzzolino, 651 F.2d 207 (3d Cir. 1981) (defendant acquitted of embezzlement but convicted of conspiracy to embezzle pension funds). Commission of the substantive offense that was the objective of the conspiracy is not a prerequisite to conviction of conspiracy. United States v. Shoup, 608 F.2d 950, 956 (3d Cir. 1979). Although there are no Third Circuit cases on this precise point, the same would be true for defrauding the United States; that is, a defendant can be convicted of conspiracy to defraud the United States even though the United States was not defrauded.

The Model Jury Instructions in the Sixth Circuit include the following instruction, but there are no Third Circuit cases on this point:

§ 3.13 Impossibility Of Success

One last point about conspiracy. It is no defense to a conspiracy charge that success was impossible because of circumstances that the defendants did not know about. This means that you may find the defendants guilty of conspiracy even if it was impossible for them to successfully complete the crime that they agreed to commit.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

See O’Malley § 31.09. For variations in other Circuits, see Fifth Circuit § 2.21; Sixth Circuit §§ 3.08 & 3.09; Eighth Circuit § 5.06G; Ninth Circuit § 8.17.

Defendants charged in an indictment alleging a single conspiracy often argue that the evidence actually proved multiple conspiracies and that they were a member of some conspiracy other than the one charged. Where a single conspiracy is alleged in the indictment, there may be a fatal variance if the evidence at trial proves only the existence of multiple, separate and independent conspiracies. See, e.g., United States v. Kotteakos, 328 U.S. 750, 757-58 (1946); United States v. Perez, 280 F.3d 318, 345-46 (3d Cir. 2002); United States v. Kelly, 892 F.2d 255, 258 (3d Cir.1989) (citing United States v. Smith, 789 F.2d 196, 200 (3d Cir. 1986)). Whether a variance between the evidence and the indictment requires reversal of a conviction depends on whether the variance prejudiced the defendant. See, e.g., United States v. Kotteakos, 328 U.S. at 757-58; United States v. Daraio, 445 F.3d 253, 259-64 (3d Cir. 2006) (discussing the similarities and differences between a constructive amendment of an indictment and a variance).

Defendants may request an instruction on multiple conspiracies based on the "rim-less wheel" metaphor used by the Supreme Court in United States v. Kotteakos, 328 U.S. 750, 754-55 (1946). In Kotteakos, the indictment charged one single conspiracy among the defendants, but the Court held that there was a fatal variance between the evidence and the indictment, because the evidence proved multiple, separate conspiracies (which the government had conceded), and the defendant was prejudiced by the variance (which the government did not concede). The evidence against the alleged co-conspirators was similar, showing that they had all transacted illegal business with the same person, but it also showed that the defendants had no relationship with or connection to each other except for their similar, but independent illegal business dealings with the same person. The Supreme Court agreed with the conclusion of the Court of Appeals that the evidence showed "at least eight, and perhaps more, separate and independent groups, none of which had any connection with any other, though all dealt independently with Brown as their agent." The pattern shown was "that of separate spokes meeting at a common center [or hub]," but without the rim of the wheel to enclose the spokes and prove one overall conspiracy. 328 U.S. at 755.

In Blumenthal v. United States, 332 U.S. 539 (1948), however, the Supreme Court distinguished Kotteakos and held that the evidence in the case before it did prove that all five defendants joined a single conspiracy. The Court in Blumenthal reasoned:

We think that in the special circumstances of this case the two agreements were merely steps in the formation of the larger and ultimate [sic] more general conspiracy. In that view it would be a perversion of justice to regard the salesmen's ignorance of the unknown owner's participation as furnishing adequate ground for reversal of their convictions. Nor does anything in the Kotteakos decision require this. The scheme was in fact the same scheme; the salesmen knew or must have known that others unknown to them were sharing in so large a project; and it hardly can be sufficient to relieve them that they did not know, when they joined the scheme, who those people were or exactly the parts they were playing in carrying out the common design and object of all. By their separate agreements, if such they were, they became parties to the larger common plan, joined together by their knowledge of its essential features and broad scope, though not of its exact limits, and by their common single goal.

The case therefore is very different from the facts admitted to exist in the Kotteakos case.... [In that case] no two of those agreements were tied together as stages in the formation of a large all-inclusive combination, all directed to achieving a single unlawful end or result. On the contrary each separate agreement had its own distinct, illegal end. Each loan was an end in itself, separate from all others, although all were alike in having similar illegal objects. Except for Brown, the common figure, no conspirator was interested in whether any loan except his own went through.... The conspiracies therefore were distinct and disconnected, not parts of a larger general scheme, both in the phase of agreement with Brown and also in the absence of any aid given to others as well as in specific object and result. There was no drawing of all together in a single, over-all, comprehensive plan.

Here the contrary is true. All knew of and joined in the overriding scheme. All intended to aid the owner ... to sell the whiskey unlawfully, though the two groups of defendants differed on the proof in knowledge and belief concerning the owner's identity. All by reason of their knowledge of the plan's general scope, if not its exact limits, sought a common end, to aid in disposing of the whiskey. True, each salesman aided in selling only his part. But he knew the lot to be sold was larger and thus that he was aiding in a larger plan. He thus became a party to it and not merely to the integrating agreement with Weiss and Goldsmith.

We think therefore that in every practical sense the unique facts of this case reveal a single conspiracy of which the several agreements were essential and integral steps....

332 U.S. at 557-59.

In United States v. Smith, 82 F.3d 1261 (3d Cir. 1996), the Third Circuit held that, for Double Jeopardy purposes, the evidence showed not one single conspiracy but multiple, separate conspiracies. The Third Circuit compared Kotteakos and Blumenthal, and then stated, "Following the law established in Kotteakos and Blumenthal, in numerous variance cases we have drawn a distinction between multiple and single conspiracies based upon the existence of a commitment to a single set of objectives." 789 F.2d at 1270 (citations omitted).

The ultimate [question] is ... whether two groups of conspirators alleged by the government to have entered separate agreements are actually all committed to the same set of objectives in a single conspiracy. [Proof] of a single conspiracy will be made when the record reveals a degree of participant overlap, which together with other factors, permits an inference that members of each alleged conspiracy were aware of the activities and objectives of the other conspiracy and had some interest in the accomplishment of those objectives. When, as here, [the government] claims that there was a single hub and spoke conspiracy despite the presence of spoke conspirators who lacked knowledge of each other's activities, a factfinder will be unable to infer the existence of but one conspiracy in the absence of evidence that the activities of the spoke participants were, to some degree, interdependent or mutually supportive.

789 F.2d at 1271 (citations omitted). The Third Circuit also noted Justice Stevens’ observation in United States v. Broce, that "the fact that there may be an ongoing, core conspiracy is not inconsistent with the prosecution of a member of that conspiracy for separate illegal agreements with others entered into in furtherance of the overall objective of the core conspiracy." Id. at 1272-73, citing 488 U.S. 563, 580-81 (Stevens, J., concurring). Also see, e.g., United States v. Castro, 776 F.2d 1118, 1124 n. 4 (3d Cir. 1985) (noting that, "[t]he ‘wheel’ conspiracy describes an arrangement of co-conspirators around a central figure, or ‘hub,’ who deals separately with peripheral figures, or ‘spokes.’ Each of the spokes is a member of the conspiracy even though they may not have any direct relations with one another. These peripherial [sic] members must have been aware of one another and have done something in furtherance of a single, illegal enterprise, however, or it is said that the conspiracy alleged lacks ‘the rim of the wheel to enclose the spokes.’" Citing Kotteakos and Blumenthal).

In United States v. Boyd, 595 F.2d 120 (3d Cir. 1978), the Third Circuit explained:

The gist of a criminal conspiracy, the agreement between co-conspirators, may continue over an extended period of time and involve numerous transactions. Parties may join the conspiracy after its inception, and may withdraw and terminate their relationship with the conspiracy prior to its completion. The fact that conspirators individually or in groups perform different tasks in pursuing the common goal does not, by itself, necessitate a finding of several distinct conspiracies. And even if a small group of co-conspirators are at the heart of an unlawful agreement, others who knowingly participate with the core members and others to achieve a common goal may be members of a single conspiracy.

It follows from these basic principles that the government, without committing a variance between a single conspiracy charged in an indictment and its proof at trial, may establish the existence of a continuing core conspiracy which attracts different members at different times and which involves different sub-groups committing acts in furtherance of the overall plan.

595 F.2d at 123 (citations omitted). See also United States v. Lee, 359 F.3d 194, 207 (3d Cir. 2004), quoting United States v. Kelly, 892 F.2d 255, 258 (3d Cir. 1989), and United States v. Smith, 789 F.2d 196, 200 (3d Cir. 1986) ("[A] finding of a master conspiracy with subschemes does not constitute a finding of multiple, unrelated conspiracies."); United States v. Salerno, 485 F.2d 260, 262 (3d Cir. 1973) (defendants who provided counterfeit securities on only a few occasions to a core conspiracy which engaged in persistent securities fraud could be convicted of aiding and abetting the conspiracy).

In United States v. Kelly, 892 F.2d 255, 258 (3d Cir.1989), the Third Circuit discussed the analysis to use in determining a single rather than multiple, separate conspiracies:

We will employ a three-step inquiry to determine whether a series of events constitutes a single conspiracy or separate and unrelated conspiracies. United States v. DeVarona, 872 F.2d 114 (5th Cir.1989). First, we examine whether there was a common goal among the conspirators. DeVarona, 872 F.2d at 118. Second, we look at the nature of the scheme to determine whether "the agreement contemplated bringing to pass a continuous result that will not continue without the continuous cooperation of the conspirators. DeVarona, 872, F.2d at 119 (quoting United States v. Perez, 489 F.2d 51, 62 (5th Cir.1973), cert. denied, 417 U.S. 945 (1974)). Third, we examine the extent to which the participants overlap in the various dealings. DeVarona, 872 F.2d at 118.

Also see, e.g., United States v. Sourlis, 953 F. Supp. 568, 573-74 (D. N.J. 1996) (stating that the Third Circuit "has developed the following factors for variance cases to determine whether a single conspiracy exists: 1) whether there existed common or similar goals; 2) whether there existed common or similar methods; and 3) whether there existed an overlapping of participants.... Sometimes, although not always, the court of appeals has considered a fourth factor: whether the agreement or scheme contemplated a continuity in purpose, performance, and result." Citations omitted).

Compare United States v. DiPasquale, 740 F.2d 1282 (3d Cir. 1984) (single conspiracy to collect debts through extortion, although multiple extortionate acts committed by varying extortionists over extended period of time, where defendants pooled resources, shared a common space, and used stories of each others’ actions to persuade later victims); United States v. Lester, 282 F.2d 750, 753 (3d Cir. 1960) (single conspiracy to transport stolen property in interstate commerce, where defendant agreed to buy stolen geophysical map with a kick back for successful wells after original conspirator stole it and then original conspirator stole additional maps; conspiracy "committed whether or not the parties comprehend its entire scope, whether they act separately or together, by the same or different means, known or unknown to some of them.") with United States v. Camiel, 689 F.2d 31 (3d Cir. 1982) (no single unitary patronage scheme involving successive chairs of a political party though both used same techniques to secure no-show jobs for party loyalists; reasonable to infer separate conspiracies defined by each chair’s period in the position).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

For variations in other Circuits, see Sixth Circuit § 3.12.

This instruction ordinarily is not necessary in a conspiracy case. It should be given only where the facts present the possibility that a conspiracy terminated before events at issue in the case.

In United States v. DiPasquale, 740 F.2d 1282 (3d Cir. 1984), extortionate collections of claimed debts arising out of the conspirators’ drug transactions demonstrated "a continuity of purpose and a continued performance of acts," and the lapse of a year's time between incidents was not sufficient to prove that the conspiracy had ended. 740 F.2d at 1290, citing United States v. Steele, 685 F. 2d 793, 801 (3d Cir.), cert. denied, 459 U.S. 908 (1982) (where the purpose of a conspiracy to bribe and defraud could not continue after the scheme was disclosed, the conspiracy terminated conclusively on the date when it was disclosed to officials with authority to order a prosecution) and United States v. Mayes, 512 F.2d 637, 642-43 (6th Cir.) (Sixth Circuit stated, "Nor does the fact that the conspiracy continued over a long period of time and contemplated the commission of many illegal acts transform the single conspiracy into several conspiracies.... A conspiracy is completed when the intended purpose of the conspiracy is accomplished. But where a conspiracy contemplates a continuity of purpose and continued performance of acts, it is presumed to exist until there has been an affirmative showing that it has terminated; and its members continue to be conspirators until there has been an affirmative showing that they have withdrawn." citations omitted.).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

O’Malley § 31.11. For variations in other Circuits, see Sixth Circuit §§ 3.11A-C; Seventh Circuit §§ 5.12, 5.13; Eighth Circuit § 5.06H; Ninth Circuit § 8.19.

Withdrawal can be a defense in different ways:

(1) A defense to conspiracy if, although the jury finds that defendant joined the agreement with the required mental state, the evidence shows that the defendant withdrew before the commission of an overt act; or

(2) A defense to conspiracy and to substantive offenses committed by other co-conspirators where, although the evidence proves that a conspiracy existed, the defendant joined the conspiracy with the required mental state, and an overt act was committed while defendant was a member, the evidence also proves that defendant withdrew and thereafter the statutes of limitation ran before the government obtained an indictment; or

(3) As a defense to substantive offenses committed by other co-conspirators, if the evidence proves that the defendant withdrew before the substantive offenses were committed (see Instruction 7.04 (Withdrawal as a Defense to Substantive Offense Committed by Co-Conspirators)).

See, e.g., United States v. Kushner, 305 F.3d 194, 198 (3d Cir. 2002); United States v. Boone, 279 F.3d 163, 192 (3d Cir. 2002); United States v. Antar, 53 F.3d 568, 582 (3d Cir. 1995); United States v. Steele, 685 F.2d 793, 803 (3d Cir. 1982); United States v. Lowell, 649 F.2d 950, 955 (3d Cir. 1981).

This instruction should be given when the defendant makes a prima facie showing of withdrawal before the commission of an overt act. It should also be given when the defendant makes a prima facie showing of withdrawal after which the period of limitations ran, by using the bracketed alternative, "before / after (date)" language. The Third Circuit has recognized that withdrawal from the conspiracy starts the running of the statute of limitations as to the withdrawing defendant. See, e.g., United States v. Kushner, 305 F. 3d 194, 198 (3d Cir. 2002), citing United States v. Read, 658 F.2d 1225, 1233 (7th Cir.1981) ("Withdrawal becomes a complete defense only when coupled with the defense of the statute of limitations."); United States v. Antar, 53 F.3d 568, 582 (3d Cir. 1995) ("However, if a defendant properly and adequately terminates his or her involvement with the conspiracy, he or she no longer can be held responsible for acts of his or her co-conspirators and the statute of limitations begins to run in his behalf."); United States v. Lowell, 649 F.2d 950, 958 (3d Cir. 1981) (Third Circuit approved the trial court’s instruction that, "If this withdrawal occurs more than five years before the defendant was indicted, he may not be convicted of the conspiracy, even though he at one time was part of it. Unless, within five years of the day on which he was indicted the defendant rejoined the conspiracy and participated in furtherance of it.")

If the trial court is not satisfied that the defendant made a prima facie showing of withdrawal, the court need not give a withdrawal instruction. See, e.g., United States v. Boone, 279 F.3d at 192-93 (holding defendant did not make the prima facie showing required under Antar to warrant an instruction on withdrawal). See discussion below.

Withdrawal Standard.  In United States v. Antar, 53 F.3d 568 (3d Cir. 1995), the Third Circuit held that the trial judge properly refused to dismiss charges of conspiracy and substantive offenses committed by co-conspirators because of the statutes of limitations, finding that the defendant failed to make out a prima facie case of withdrawal. Although Antar involved an 18 USC 1962(d) RICO conspiracy, not a section 371 conspiracy, the Third Circuit noted that, "[i]n this regard, section 1962(d) long has been interpreted against the backdrop of traditional conspiracy law and thus the same analysis applies both to the RICO and section 371 conspiracies." Id. at 582. With respect to the standard for withdrawal, the court stated (id.):

The Supreme Court long ago set forth a rigorous standard for demonstrating withdrawal. In 1912 in Hyde v. United States, 225 U.S. 347, 32 S.Ct. 793, 56 L.Ed. 1114 (1912), the Court explained:

Having joined in an unlawful scheme, having constituted agents for its performance, scheme and agency to be continuous until full fruition be secured, until he does some act to disavow or defeat the purpose he is in no situation to claim the delay of the law. As the offense has not been terminated or accomplished, he is still offending. And, we think, consciously offending, offending as certainly ... as at the first moment of his confederation, and continuously through every moment of its existence.... Until he does withdraw there is conscious offending....

Id. at 369-70, 32 S.Ct. at 803 (emphasis added). Thus, we have held that "[m]ere cessation of activity in furtherance of an illegal conspiracy does not necessarily constitute withdrawal." United States v. Steele, 685 F.2d 793, 803 (3d Cir.1982), cert. denied, 459 U.S. 908, 103 S.Ct. 213, 74 L.Ed.2d 170 (1982). Rather, "[t]he defendant must present evidence of some affirmative act of withdrawal on his part, typically either a full confession to the authorities or communication to his co-conspirators that he has abandoned the enterprise and its goals. " Id. at 803-04 (emphasis added); see also United States v. Heckman, 479 F.2d 726, 729 (3d Cir.1973). Of course, there is no single way withdrawal can be established; in large part whether a particular action constitutes withdrawal depends on context. Thus, the Supreme Court has cautioned against placing "confining blinders" on the jury's consideration of evidence of withdrawal and has held that "[a]ffirmative acts inconsistent with the object of the conspiracy and communicated in a manner reasonably calculated to reach co-conspirators have generally been regarded as sufficient to establish withdrawal or abandonment." United States v. United States Gypsum Co., 438 U.S. 422, 464-65, 98 S.Ct. 2864, 2887, 57 L.Ed.2d 854 (1978).

In United States v. United States Gypsum Co., 438 U.S. 422, 463-64 (1978), the Supreme Court held it was error to instruct the jury that, "In order to find that a defendant abandoned or withdrew from a conspiracy ... you must find, from the evidence, that he or it took some affirmative action to disavow or defeat its purpose. Mere inaction would not be enough to demonstrate abandonment. To withdraw, a defendant either must have affirmatively notified each other member of the conspiracy he will no longer participate in the undertaking so they understand they can no longer expect his participation or acquiescence, or he must make disclosures of the illegal scheme to law enforcement officials." The Court reasoned that, "The charge, fairly read, limited the jury's consideration to only two circumscribed and arguably impractical methods of demonstrating withdrawal from the conspiracy." Id.

Burden of Proof. In addition to articulating the standard for establishing withdrawal, the Third Circuit in United States v. Antar, 53 F.3d at 582, discussed the "two-stage burden of proof" with respect to withdrawal:

We have divided the standard for showing withdrawal into two stages. First, the defendant must come forward with evidence evincing a prima facie showing of withdrawal. If the defendant makes this prima facie showing, the burden then shifts to the government to rebut the prima facie case, "either by impeaching the defendant's proof or by going forward with evidence of some conduct in furtherance of the conspiracy subsequent to the act of withdrawal." United States v. Local 560, 974 F.2d 315, 338 (3d Cir.1992) (citing Steele, 685 F.2d at 804).

Also, see, e.g., United States v. Jannotti, 729 F.2d 213, 221 (3d Cir. 1984); United States v. Steele, 685 F.2d 793, 803-04 (3d Cir.1982). More specifically, the Antar court stated:

When seen through the lens of a two-stage burden of proof, we believe the cases establish that if the defendant completely severs his or her relationship with the enterprise, he or she has established a prima facie showing of withdrawal from the conspiracy without showing any other affirmative act inconsistent with the conspiracy and without giving any further notice to his or her co-conspirators. Once the defendant makes this showing, the burden shifts to the government either to rebut the defendant's showing or to establish that the defendant continued to participate as a co-conspirator. However, if the defendant has not completely severed his ties with the enterprise, then in order to establish a prima facie case, he must demonstrate either that he gave notice to his co-conspirators that he disavows the purpose of the conspiracy or that he did acts inconsistent with the object of the conspiracy.

53 F.3d at 583.

Generally, the Circuits are split as to whether the defendant has the burden of proving withdrawal (based on the traditional characterization of withdrawal as an "affirmative defense") or whether, as stated in Antar, the government has the ultimate burden of disproving withdrawal after the defendant satisfies a burden of production (makes a prima facie showing). See Sand, Inst 19-10, at 19-71. Prior to the first publication of this instruction in 2007, Sand included the Third Circuit with the Circuits that adhere to the traditional view that the defendant bears the burden of proving withdrawal, citing United States v. Gillen, 599 F.2d 541, 548 (3d Cir. 1979), and a district court case United States v. Gatto, 746 F.Supp 432 (D.N.J. 1990), which relied on Gillen. In its one paragraph discussion of the issue in Gillen (decided before Antar and Steele), the Third Circuit did state that the burden was on the defendant to prove withdrawal, citing United States v. United States Gypsum Co., 438 U.S. at 463-64, in which the Supreme Court articulated the standard for withdrawal but did not discuss the burden of proof. 599 F.2d at 548. Also see United States v. Heckman, 479 F.2d 726, 729 (3d Cir.1973) (quoting United States v. Borelli, 336 F.2d 376, 388 (2d Cir. 1964), in which Judge Friendly quoted United States v. Hyde, 225 U.S. at 369, for the proper withdrawal standard, but then added that the defendant has the burden of proof, a statement not found in the Hyde opinion).

The Third Circuit’s discussion of the government’s burden of proof in Antar may be dicta, because the court concluded that the defendant had not made a prima facie showing of withdrawal, and the court in Antar did not explicitly state that the government’s burden to disprove withdrawal was beyond a reasonable doubt. However, the Third Circuit’s detailed discussion of the "two-stage burden of proof" seems quite clear and followed the court’s earlier decision in United States v. Steele, 685 F.2d 793, 803 (3d Cir.1982), reversing convictions because "[t]he government failed to produce evidence to rebut [defendant’s] prima facie showing of withdrawal prior to the period of limitations. . . ." The Third Circuit stated in Steele, as it later reiterated in Antar: "When a defendant has produced sufficient evidence to make a prima facie case of withdrawal, however, the government cannot rest on its proof that he participated at one time in the illegal scheme; it must rebut the prima facie showing either by impeaching the defendant's proof or by going forward with evidence of some conduct in furtherance of the conspiracy subsequent to the act of withdrawal." 685 F.2d at 804.

The Third Circuit’s "two-stage burden of proof" with respect to withdrawal is also consistent with modern burden of proof principles. Withdrawal is a "defense" because it negates an element of the offense, the defendant’s continued membership in the conspiracy at a critical time – either at a time before an overt act was committed, or before a co-conspirator committed the substantive offense charged, or more than the period of the statute of limitations before indictment. In order to sustain its burden of proving each element beyond a reasonable doubt, the government has the burden of disproving all properly raised "defenses" that would negate an element. See, e.g., Dixon v. United States, 126 S.Ct 2437, 2441-43 (2006) (burden of proof on duress can be placed on defendant because duress does not negate an element of the offense); Cheek v. United States, 498 U.S. 192, 202 (1991) ("[I]f the Government proves actual knowledge of the pertinent legal duty, the prosecution, without more, has satisfied the knowledge component of the willfulness requirement. But carrying this burden requires negating a defendant's claim of ignorance of the law or a claim that because of a misunderstanding of the law, he had a good-faith belief that he was not violating any of the provisions of the tax laws. . . . In the end, the issue is whether, based on all the evidence, the Government has proved that the defendant was aware of the duty at issue, which cannot be true if the jury credits a good-faith misunderstanding and belief submission, whether or not the claimed belief or misunderstanding is objectively reasonable."); Patterson v. New York, 432 U.S. 197 (1977) (where the state legislature redefined murder, eliminating the common law element malice, and added an extreme emotional disturbance defense to reduce murder to manslaughter, the burden of proof on this defense could be placed on the defendant because the defense did not negate an element of murder). Under Antar, as is often the case with respect to such "defenses," the defendant does have the initial burden of production on (the burden to make out a prima facie showing of) withdrawal.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

For variations in other Circuits, see Sixth Circuit § 3.11C; Seventh Circuit § 5.13.

The Third Circuit has recognized that withdrawal from the conspiracy starts the running of the statute of limitations as to the withdrawing defendant. United States v. Antar, 53 F.3d 568, 582 (3d Cir. 1995) ("However, if a defendant properly and adequately terminates his or her involvement with the conspiracy, he or she no longer can be held responsible for acts of his or her co-conspirators and the statute of limitations begins to run in his behalf."). In United States v. Lowell, 649 F.2d 950, 958 (3d Cir. 1981), the Third Circuit approved the trial court’s instruction that, "If this withdrawal occurs more than five years before the defendant was indicted, he may not be convicted of the conspiracy, even though he at one time was part of it. Unless, within five years of the day on which he was indicted the defendant rejoined the conspiracy and participated in furtherance of it." Also see United States v. Kushner, 305 F. 3d 194, 198 (3d Cir. 2002), citing United States v. Read, 658 F.2d 1225, 1233 (7th Cir.1981) ("Withdrawal becomes a complete defense only when coupled with the defense of the statute of limitations.").

For further information about the withdrawal defense generally, see the Comment to Instruction 6.18.371J (Withdrawal Before the Commission of an Overt Act as a Defense to Conspiracy).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

6.18.371L
Conspiracy – Acts And Statements Of Co-Conspirators

O’Malley, § 31.06; Sand, §19-9; Sixth Circuit § 3.14; Eighth Circuit § 5.06I..

Federal Rule of Evidence 801 provides: "(d) (Statements which are not hearsay) A statement is not hearsay if– (2) Admission by party-opponent. The statement is offered against a party and is ... (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy." FRE 801(d)(2)(E). In accordance with Federal Rule of Evidence 104(a) ( "Preliminary questions concerning ... the admissibility of evidence shall be determined by the court."), the Supreme Court held in Bourjaily v. United States, 483 U.S. 171, 175 (1987), that the trial judge, not the jury, decides whether the prerequisites for admissibility of co-conspirator statements are satisfied, and the judge must be able to find these requirements by a preponderance of the evidence. Thus, in United States v. McGlory, 968 F.2d 309, 333 (3d Cir. 1992), the Third Circuit stated with respect to co-conspirator statements, "Four requirements must be met before statements can be admitted under this exception. It must appear: (1) that a conspiracy existed; (2) the declarant and the party against whom the statement is offered were members of the conspiracy; (3) the statement was made in the course of the conspiracy; and (4) the statement was made in furtherance of the conspiracy. The district court must be able to find these requirements by a preponderance of the evidence. Bourjaily v. United States...."

Rule 801(d)(2)(E), also provides that, "The contents of the [co-conspirator] statement shall be considered but are not alone sufficient to establish ... the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E)." FRE 801(d)(2)(E). Also, see, e.g., Bourjaily v. United States, 483 U.S. at 181 (where the Supreme Court stated, before this language was added to Rule 801(d)(2)(E), "It is sufficient for today to hold that a court, in making a preliminary factual determination under Rule 801(d)(2)(E), may examine the hearsay statements sought to be admitted. As we have held in other cases concerning admissibility determinations, ‘the judge should receive the evidence and give it such weight as his judgment and experience counsel.’ United States v. Matlock, 415 U.S. [164 ], at 175 [1974 ].").

The court need not instruct regarding each prerequisite of admissibility of a co-conspirator statement, after the court has deemed such a statement admissible. The Third Circuit explained:

[W]e have never "condemned" the practice of giving jury instructions on the admissibility of co-conspirator's statements against individual defendants. In Continental Group, we suggested in dicta that jury instructions concerning the factual foundation required for application of the co-conspirator exception to the hearsay rule are best omitted, as they give the jury the "opportunity to second-guess the court's decision to admit coconspirator declarations." 603 F.2d at 459. We observed, however, that such instructions could not give rise to reversible error because, if anything, they inure to the benefit of the defendant. Id.

United States v. Pungitore, 910 F.2d 1084, 1147 (3d Cir. 1990), quoting United States v. Continental Group, 603 F.2d 444, 459 (3d Cir. 1979). The model instruction provides some explanation to the jury of the permitted use of co-conspirator statements without providing unnecessary explication of the basis of admissibility.

In United States v. Jannotti, 729 F.2d 213, 221 (3d Cir. 1984), the Third Circuit noted, "The Supreme Court has held that ‘the declarations and acts of the various members, even though made or done prior to the adherence of some to the conspiracy, become admissible against all as declarations or acts of co-conspirators in aid of the conspiracy.’ United States v. United States Gypsum Co., 333 U.S. 364, 393, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948). See also United States v. Lester, 282 F.2d 750, 753 (3d Cir.1960); Lefco v. United States, 74 F.2d 66, 68 (3d Cir.1934)."

The admissibility of co-conspirator statements appears to be unaffected by the Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct.1354 (2004) (holding that testimonial, out-of-court statements are inadmissible under the Confrontation Clause, unless the declarant is unavailable to testify at trial and the defendant had an opportunity to cross-examine the declarant). Although Crawford did not precisely define "testimonial" statements, it recognized that where, "[a] witness makes a formal statement to government officers [it] bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." Crawford, 541 U.S. at 51, 124 S.Ct. at 1364. The Court also noted that "[m]ost of the hearsay exception covered statements that by their nature were not testimonial – for example, business records or statements in furtherance of a conspiracy." Id. at 56.

In United States v. Hendricks, 395 F.3d 173 (3d Cir. 2005), the Third Circuit held that conversations between co-conspirators that were intercepted by law enforcement through authorized Title III wiretaps and co-conspirator statements in conversations recorded by a confidential informant were not testimonial statements. 395 F.3d at 180-84, citing, cf. United States v. Robinson, 367 F.3d 278, 292 n. 20 (5th Cir. 2004); United States v. Reyes, 362 F.3d 536, 541 n. 4 (8th Cir. 2004); People v. Cook, 815 N.E.2d 879, 893 (Ill. App. 2004). The Third Circuit noted, "Indeed, the Crawford Court referenced Bourjaily as an example of a case in which nontestimonial statements were correctly admitted against the defendant despite the lack of a prior opportunity for cross-examination. See Crawford, 541 U.S. at 58, 124 S.Ct. at 1368 (citing Bourjaily, 483 U.S. at 181-84, 107 S.Ct. 2775)." 395 F.3d at 183. Bourjaily had upheld the admissibility of admissions made unwittingly by a purported coconspirator to an informant. Id. It is rare that a testimonial co-conspirator statement (e.g., a statement knowingly made by a co-conspirator to the authorities, describing criminal activity) would be admissible, except where the object of the conspiracy is to obstruct justice by making false statements to law enforcement. See United States v. Stewart, 433 F.3d 273, 293 (2d Cir. 2006) ("[W]hen the object of a conspiracy is to obstruct justice, mislead law enforcement officers, or commit similar offenses by making false statements to investigating officers, truthful statements made to such officers designed to lend credence to the false statements and hence advance the conspiracy are not rendered inadmissible by the Confrontation Clause.").

O’Malley includes the following language in its instruction on "Acts and Declarations of Co-Conspirators:" "Since these acts may have been performed and these statements may have been made outside the presence of Defendant and even done or said without the defendant’s knowledge, these acts or statements should be examined with particular care by you before considering them against the defendant who did not do the particular act or make the particular statement." O’Malley § 31.06. There are no Third Circuit decisions that discuss the need for this additional admonition, which is contrary to the general rule that a co-conspirator is responsible for the acts of his confederates. See United States v. Pecora, 798 F.2d 614, 628-29 (3d Cir. 1986) (statement is admissible regardless of whether the defendant who is being spoken about is a party to the conversation, and regardless of whether the declarant is on trial). The general rule of admission rests on the theory that when a person joins a conspiracy, his co-conspirators become his agents and each is responsible for the acts and statements of the others. The rationale of the hearsay exception "is the common sense appreciation that a person who has authorized another to speak or to act to some joint end will be held responsible for what is later said or done by his agent, whether in his presence or not." United States v. Trowery, 542 F.2d 623, 626 (3d Cir. 1976).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

6.18.656 
Misapplication of Bank Funds (18 USC 656)

Count (number) of the indictment charges the defendant (name) with wilful misapplication of bank funds, which is a violation of federal law.

In order to find the defendant guilty of this offense, you must find that the government proved each of the following five elements beyond a reasonable doubt:

First: That (name) was (specify defendant’s connection with bank; e.g., an employee) of (name of bank);

Second: That (name of bank) was (specify basis for finding national character of bank; e.g.,"a bank whose deposits are insured by the Federal Deposit Insurance Corporation");

Third: That (name) embezzled or wilfully misapplied the moneys, funds, assets, securities, or credits [(belonging to) (intrusted to the custody or care of)] (name of bank);

Fourth: That (name) did so with the intent to (injure or) defraud the bank; and

Fifth: That the amount embezzled or misapplied was more than $1,000.00.

[The term "embezzle" means to knowingly and deliberately take (or convert to one's own use) money or property that belongs to another and came into the embezzler’s possession lawfully, by virtue of the embezzler’s (office) (employment) (position of trust).]

[To "wilfully misapply" money or property means to intentionally convert such money or property for one's own use and benefit, or for the use and benefit of another, knowing that one had no right to do so.]

O’Malley, §§ 33.03, 33.04; Fifth Circuit § 2.34.

18 USC 656 provides:

Whoever, being an officer, director, agent or employee of, or connected in any capacity with any Federal Reserve bank, member bank, depository institution holding company, national bank, insured bank, branch or agency of a foreign bank, or organization operating under section 25 or section 25(a) of the Federal Reserve Act, or a receiver of a national bank, insured bank, branch, agency, or organization or any agent or employee of the receiver, or a Federal Reserve Agent, or an agent or employee of a Federal Reserve Agent or of the Board of Governors of the Federal Reserve System, embezzles, abstracts, purloins or willfully misapplies any of the moneys, funds or credits of such bank, branch, agency, or organization or holding company or any moneys, funds, assets or securities intrusted to the custody or care of such bank, branch, agency, or organization, or holding company or to the custody or care of any such agent, officer, director, employee or receiver, shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both; but if the amount embezzled, abstracted, purloined or misapplied does not exceed $1,000, he shall be fined under this title or imprisoned not more than one year, or both.

As used in this section, the term "national bank" is synonymous with "national banking association"; "member bank" means and includes any national bank, state bank, or bank and trust company which has become a member of one of the Federal Reserve banks; "insured bank" includes any bank, banking association, trust company, savings bank, or other banking institution, the deposits of which are insured by the Federal Deposit Insurance Corporation; and the term "branch or agency of a foreign bank" means a branch or agency described in section 20(9) of this title. For purposes of this section, the term "depository institution holding company" has the meaning given such term in section 3 of the Federal Deposit Insurance Act

In United States v. Thomas, 610 F.2d 1166 (3d Cir. 1979), the Third Circuit set out the four elements of the offense:

1. The bank must have been national in character;

2. The defendant must have been an officer of the bank;

3. The defendant must have willfully misapplied bank funds, credits, or moneys;

4. The defendant must have acted with intent to defraud the bank.

610 F.2d at 1174. See also United States v. Schoenhut, 576 F.2d 1010, 1024 (3d Cir. 1978). The instruction includes as a fifth element the requirement that the amount of the misapplication exceeded $1,000, the statutory threshold for a felony conviction under the statute. Where it is unclear whether the amount at issue exceeded $1,000, this instruction may be altered; one alternative is to provide the jury with a special interrogatory which allows the possibility of a lesser misdemeanor conviction. See [cross-reference to drug quantity instruction].

The first two elements address the relationship of the defendant to the bank and the national character of the bank. The court should specify the way in which the government seeks to satisfy these two statutory requirements.

The third element is misapplication or embezzlement of funds. The court should instruct the jury on the meaning of embezzle or misapply. In United States v. Northway, 120 U.S. 327 (1886), the Supreme Court considered the meaning of embezzlement:

In respect to the counts for embezzlement, it is quite clear that the allegation is sufficient, as it distinctly alleges that the moneys and funds charged to have been embezzled were at the time in the possession of the defendant as president and agent. This necessarily means that they had come into his possession in his official character, so that he held them in trust for the use and benefit of the association. In respect to those funds, the charge against him is that he embezzled them by converting them to his own use. This we think fully and exactly describes the offense of embezzlement under the act by an officer or agent of the association.

120 U.S. at 331.

In United States v. Britton, 107 U.S. 655, 666-67 (1883), the Court addressed the meaning of wilful misapplication:

We think the willful misapplication made an offense by this statute means a misapplication for the use, benefit, or gain of the party charged, or of some company or person other than the association. Therefore, to constitute the offense of willful misapplication, there must be a conversion to his own use or the use of some one else of the moneys and funds of the association by the party charged.

In United States v. Krepps, 605 F.2d 101 (3d Cir. 1979), the Third Circuit considered the meaning of the term:

Of the various substantive offenses named by the statute, willful misapplication is the most flexible in its meaning, inasmuch as it has no common law ancestry. This Court has previously surmised that the term "willfully misapplies" was incorporated in the statute as "an attempt to enlarge the common law definition of embezzlement," and accordingly, the offense of willful misapplication has been described loosely as "a conversion by a bank employee even though he does not take the money for himself."

605 F.2d at 103. See also Gallagher, 576 F.2d at 1044. In Thomas, the Third Circuit stated:

The element of misapplication requires proof of conversion of bank funds, credits, or moneys. It is not necessary to prove, however, that the defendant himself was the beneficiary of the misapplication.

610 F.2d at 1174 (citations omitted); see also Moore v. United States, 160 U.S. 268, 269–70 (1895). The government is not required to prove loss under this section. See United States v. Gallagher, 576 F.2d 1028, 1038 n. 5 (3d Cir. 1978).

The fourth element is an intent to defraud. The court should give Instruction 6.18.656-1 (Intent to Defraud Defined).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

6.18.656-1 
Misapplication of Bank Funds - Intent to Defraud Defined

To act with intent to (injure or) defraud means to act knowingly and with the specific intent to deceive for the purpose of causing some financial or property loss. In deciding whether (name) had the requisite intent, you should consider what (he)(she) knew with respect to (briefly describe transaction which the prosecution alleges to be willful misapplication of bank funds; e.g., the loans to John Doe). If you find that (name) knowingly participated in deceptive or fraudulent act(s) which had the natural tendency to injure the bank, you may, but are not required to, find that (he)(she) acted with intent to (injure or) defraud the bank.

You may also consider whether (name) acted in reckless disregard of the bank's interests. You may find intent to defraud from acts knowingly done with a reckless disregard for the interests of the bank.

The government is not required to prove that (name) intended to permanently deprive the bank of its property, or that the bank suffered a loss from the misapplication of funds, or that (name) personally profited by (his)(her) acts.

Sand, Form Instruction 24-7.

In Thomas, the court elaborated on the intent requirement:

It is well-settled that intent to defraud the bank exists if the officer "‘acts knowingly and if the natural result of his conduct would be to injure and defraud the bank even though this may not have been his motive,’ and . . . ‘(s)uch intent may be inferred from facts and circumstances shown at trial and is basically a fact question for the jury.’" Moreover, "‘(r)eckless disregard of the interests of the bank is equivalent to intent to injure or defraud,’ and a conviction may be returned notwithstanding the fact that the bank has suffered no actual injury."

610 F.2d at 1174 (citations omitted). See also Valansi v. Ashcroft, 278 F.3d 203, 211 (3d Cir. 2002) ("a conviction may be established under 18 USC 656 by proving that the defendant acted with either an intent to injure or an intent to defraud"); United States v. Krepps, 605 F.2d 101, 103-04 (3d Cir. 1979); Schoenhut, 576 F.2d at 1024.

If the prosecution is based on the issuance of improper loans, the court should modify the instruction to clearly convey that the jury should not convict unless convinced that the bank employee knew the recipients could not or did not intend to repay the loans. See United States v. Gallagher, 576 F.2d 1028, 1046 (3d Cir. 1978). However, if the beneficiary of the loan is the defendant-bank officer, the government need not prove that the recipient was unable or did not intend to repay the loan. Krepps, 605 F.2d at 102.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

Count (number) of the indictment charges the defendant (name) with making a false statement in connection with the purchase (acquisition) of a firearm, which is a violation of federal law.

In order to find the defendant guilty of this offense, you must find that the government proved each of the following four elements beyond a reasonable doubt:

First: That (seller) was a licensed [(dealer) (collector) (importer) (manufacturer)];

Second: That (name) [(made a false statement) (used false identification)] while acquiring a firearm from (seller);

Third: That (name) knew that [(the statement) (the identification)] was false; and

Fourth: That the false (statement) (identification) was intended or likely to deceive (seller) with respect to any fact material to the lawfulness of the sale of the firearm.

See Ninth Circuit § 8.52, Eleventh Circuit § 34.3, 2 Sand et al., supra, 35-34.

18 USC 922(a)(6) provides that it is unlawful:

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

In large part, the instruction adapts the language of the statute. The prosecution must establish that seller was a licensed dealer, that the item purchased was a firearm, and that the false statement related to a material fact. See United States v. Letky, 371 F. Supp. 1286 (W.D. Pa. 1974) (dismissing charge because prosecution introduced no evidence the seller was a licensed dealer). The definitions of these terms are found in Instructions 6.18.922A-1 (Firearm Offenses – Dealer Defined), 6.18.922A-2 (Firearm Offenses – Firearm Defined), and 6.18.922A-3 (Firearm Offenses – Material Defined).

The term "acquisition" used in the statute includes both sales and other types of transactions, such as the redemption of a firearm from a pawnshop. See Huddleston v. United States, 415 U.S. 814, 819-20 (1974).

The statute includes the mental state requirement that the defendant knew the statement or identification was false. The Third Circuit has not addressed the precise mental state required under this section of the statute. Other courts agree that the false statement must be made knowingly. In United States v. Wright, 537 F.2d. 1144, 1145-46 (1st Cir. 1976), the First Circuit noted that the statute requires that the false statements be made knowingly and went on to note that the required knowledge could be demonstrated by proof of the defendant's reckless disregard for the truth. See also United States v. Rahman, 83 F.3d 89, 92 (4th Cir. 1996); United States v. Petijean, 883 F.2d 1341, 1345 (7th Cir. 1989). Proof that the defendant acted with "deliberate disregard for whether it was true or false or with a conscious purpose to avoid learning the truth" will establish this element of the offense. See United States v. Thomas, 484 F.2d 909, 913 (3d Cir. 1973); see also United States v. Hester, 880 F.2d 799, 802-03 (4th Cir. 1989) (summarizing authority). See Chapter 5 for instructions on mental states. In an appropriate case, the court may want to give Instruction 5.06 (Willful Blindness).

In addition, the false statement must be intended to deceive or likely to deceive a federally licensed firearms dealer. In Rahman, the court upheld a jury instruction stating that the requirements of 922(a)(6) could be satisfied if the government demonstrated that the defendant's false statement was "intended or likely to deceive" a federally licensed firearms dealer. 83 F.3d at 92. In United States v. Ortiz-Loya, 777 F.2d 973, 979 (5th Cir. 1985), the Fifth Circuit stated that in order to determine whether the defendant had violated §922(a)(6) the government must demonstrate that the statements in question "either (1) were given with the intent to deceive [the dealer] or (2) were "likely to deceive" [the dealer]. See also Petijean, 883 F.2d at 1345. The courts have also held that §922(a)(6) does not require specific intent. See, e.g., United States v. Elias, 917 F.2d 1514, 1518 (10th Cir 1991); United States v. Petitjean, 883 F.2d at 1346; United States v. Lawrence, 680 F.2d 1126, 1128 (6th Cir.1982) (per curiam); United States v. Behenna, 552 F.2d 573, 573 (4th Cir. 1977).

A question may arise concerning whether the defendant properly responded ''no'' to the question of whether the defendant has a prior felony conviction where the prior conviction was expunged or the defendant’s civil rights had been restored. Section 921(a)(20) provides:

What constitutes a conviction shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

In Beecham v. United States, 511 U.S. 368 (1994), the Supreme Court held that the defendants did not qualify under Section 921(a)(20) as having their civil rights restored even though their civil rights had been restored under state law. The Court concluded that the defendants, who had been convicted under federal law, could only qualify if their civil rights were restored under federal law and that restoration of rights under state law did not bring the defendants within the provision. In United States v. LeUSC hen, 395 F.3d 155 (3d Cir. 2005), the court considered this question in the context of a challenge to the defendant’s conviction under 18 USC 922(g)(1) for being a felon in possession of a firearm. The Third Circuit concluded that the defendant’s civil rights had not been restored within the meaning of section 921(a)(20) where the Pennsylvania conviction had stripped the defendant of the right to serve on a jury - a core civil right - and that right had not been restored. The fact that Pennsylvania imposed no restrictions on the defendant’s firearm rights as a result of the conviction was irrelevant where his core civil right had not been restored. See also United States v. Essig, 10 F.3d 968 (3d Cir. 1993). In Caron v. United States, 524 U.S. 308 (1998), the defendant's civil rights had been restored but the Court held that the "unless" clause applied because state law forbad the defendant to possess handguns outside his home or business. The Court concluded that the "unless" clause operates if the state restricts the defendant’s possession of firearms in any way.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

18 USC 921(a)(11) provides:

The term "dealer" means (A) any person engaged in the business of selling firearms at wholesale or retail, (B) any person engaged in the business of repairing firearms or of making or fitting special barrels, stocks, or trigger mechanisms to firearms, or (C) any person who is a pawnbroker. The term "licensed dealer" means any dealer who is licensed under the provisions of this chapter.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

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

18 USC 921(a)(3) defines the term "firearm" for offenses falling within Title 18 as:

(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.

For purposes of Title 26 of the United States Code, firearm is defined differently. See Instruction 6.26.5861 (Possession of an Unregistered Firearm (26 USC 5861)).

To establish that the defendant used or possessed a firearm, the government need not produce the actual gun but can meet its burden of proof with testimony concerning the firearm. See United States v. Beverly, 99 F.3d 570 (3d Cir. 1996).

The Eighth Circuit makes the following suggestion for simplifying the instructions and limiting the number of definition instructions:

The most effective way to avoid definitions relating to firearms is to use the most specific designation available. For example, assume that a defendant is being tried for transporting a rocket having a propellant charge of more than four ounces in violation of 18 USC 922(a)(4). Examples of the ways the judge might instruct the jury on one of the elements are as follows:

(1) "The defendant transported a firearm." It will then be necessary to have an additional instruction that a rocket having a propellant charge of more than four ounces is a firearm. See 18 USC 921(a)(4)(A)(iii); or

(2) "The defendant transported a destructive device." Even here, it will then be necessary to instruct that a rocket having a propellant charge of more than four ounces is a destructive device. Id.; or

(3) "The defendant transported a rocket having a propellant charge of more than four ounces." Using the third alternative, no additional instruction is necessary.

Eighth Circuit, § 843.

18 USC 921(a)(4) defines the term "destructive device" for purposes of offenses falling within Title 18 as:

(A) any explosive, incendiary, or poison gas–

(i) bomb,

(ii) grenade,

(iii) rocket having a propellant charge of more than four ounces,

(iv) missile having an explosive or incendiary charge of more than one-quarter ounce,

(v) mine, or

(vi) device similar to any of the devices described in the preceding clauses;

(B) any type of weapon (other than a shotgun or a shotgun shell which the Attorney General finds is generally recognized as particularly suitable for sporting purposes) by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, and which has any barrel with a bore of more than one-half inch in diameter; and

(C) any combination of parts either designed or intended for use in converting any device into any destructive device described in subparagraph (A) or (B) and from which a destructive device may be readily assembled.

The term "destructive device" shall not include any device which is neither designed nor redesigned for use as a weapon; any device, although originally designed for use as a weapon, which is redesigned for use as a signaling, pyrotechnic, line throwing, safety, or similar device; surplus ordnance sold, loaned, or given by the Secretary of the Army pursuant to the provisions of section 4684(2), 4685, or 4686 of title 10; or any other device which the Attorney General finds is not likely to be used as a weapon, is an antique, or is a rifle which the owner intends to use solely for sporting, recreational or cultural purposes.

If the firearm providing the basis for the offense charged is a destructive device as defined in section 921(a)(4), the Government may be required to prove that the defendant intended to use the components as a weapon. In United States v. Urban, 140 F.3d 229, 233 (3d Cir. 1998), the Third Circuit addressed the proof necessary to establish possession of an unregistered destructive device in violation of 26 USC 5861 and held that "intent is a required element when the components are commercial in nature and are not designed or redesigned for use as a weapon." However, the court also made it clear that if there is no ambiguity concerning the nature of the device, the government need not prove that the defendant intended to use the components as a weapon. 140 F.3d at 234. For example, in Urban, where it was "undisputed that the parts were clearly designed to create a grenade," the trial court was not required to instruct on intent to use the components as a weapon. 140 F.3d at 234.

In United States v. Hull, 456 F.3d 133, 143-44 (3d Cir. 2006), the Third Circuit further clarified the intent requirement under section 5861. The court rejected the defendant’s argument for additional intent instructions and explained:

The Government was required to prove that Hull knew of the features that made what he was making, possessing, or transferring, a "firearm," . . . and indeed the District Court instructed the jury accordingly. However, Hull claims that the Government also had to prove that he intended for the unassembled parts of the pipe bomb to be assembled into a fully functioning pipe bomb. This is simply not an element of 26 USC 5861.* * * Accordingly, we discern no error in the District Court's refusal to instruct the jury that the Government must prove Hull intended that the parts be converted into a destructive device. (Citations omitted.)

The statute does not apply to antique firearms, which are defined in 18 USC 921(a)(16) as follows:

(A) any firearm (including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system) manufactured in or before 1898; or

(B) any replica of any firearm described in subparagraph (A) if such replica--

(i) is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition, or

(ii) uses rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the United States and which is not readily available in the ordinary channels of commercial trade; or

(C) any muzzle loading rifle, muzzle loading shotgun, or muzzle loading pistol, which is designed to use black powder, or a black powder substitute, and which cannot use fixed ammunition. For purposes of this subparagraph, the term "antique firearm" shall not include any weapon which incorporates a firearm frame or receiver, any firearm which is converted into a muzzle loading weapon, or any muzzle loading weapon which can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock, or any combination thereof.

The government does not initially bear the burden of establishing that the firearm is not an antique firearm. That a weapon qualifies as an antique falling within the exemption is an affirmative defense in the sense that the defendant bears the burden of production. United States v. Lawrence, 349 F.3d 109, 122 (3d Cir. 2003). Thus, the defendant must introduce some evidence that the weapon qualifies for the exemption before the government has the burden of establishing beyond a reasonable doubt that it is not an antique; it is not enough for the defendant to raise merely the possibility that the firearm is an antique. 349 F.3d at 123.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

A material fact is one which would reasonably be expected to be of concern to a reasonable and prudent person in connection with the sale of the firearm. In determining whether a fact was material to the lawfulness of the sale of the firearm, you may consider that

[Include language that applies:

(the law prohibits any person who has been convicted of a felony, that is, a crime punishable by a term of imprisonment exceeding one year, from possessing any firearm. (Name the felony of which the defendant was proven to have been convicted) is a crime punishable by imprisonment for a term exceeding one year.)

(a firearm sale is unlawful unless the seller records, among other matters, the name and age of the buyer. The fact that the buyer could lawfully obtain a firearm under (his)(her) true name and age does not make (his)(her) giving a false name and age immaterial. It is no defense with respect to this element that the buyer may have been eligible to acquire the firearm. A buyer who is eligible to lawfully acquire a firearm must nonetheless properly identify (himself)(herself) by name and age, among other matters.)]

2 Sand et al., supra, 44-4.

This instruction treats the question of "materiality" as a question for the jury and includes language to guide it in assessing materiality. In United States v. Gaudin, 515 U.S. 506 (1995), the Supreme Court held that the question of materiality in false statement cases under 18 USC 1001 is for the jury. In United States v. Klais, 68 F.3d 1282 (11th Cir. 1995), the Eleventh Circuit distinguished Gaudin and held that the question of materiality under § 922(a)(6) is for the court. However, in United States v. McLaughlin, 386 F.3d 547, 552 (3d Cir. 2004), the Third Circuit held that the trial court committed error when it treated materiality as a question of law in a prosecution for perjury and for violation of the Labor-Management Reporting and Disclosure Act. The court concluded that materiality was an element of the offense because the statute "expressly requires that the fact allegedly withheld be ‘material.’" 386 F.3d at 552. Because § 922(a)(6) expressly requires materiality, the court should treat it as a question for the jury, unless the statement is clearly not material as a matter of law.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

Count (number) of the indictment charges the defendant (name) with selling a firearm to (a convicted felon) (a person who was under indictment for a felony), which is a violation of federal law.

In order to find the defendant guilty of this offense, you must find that the government proved each of the following three elements beyond a reasonable doubt:

First: That (name) knowingly sold a firearm to (name of buyer);

Second: That (name of buyer) was [(convicted of a felony) (a person who was under indictment for a felony)], that is, a crime punishable by imprisonment for a term exceeding one year; and

Third: That at the time of the sale, (name) knew or had reasonable cause to believe that (name of buyer) was [(a convicted felon) (a person who was under indictment for a felony)].

See Fifth Circuit § 2.46.

18 USC 922(d)(1) provides:

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

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

The court should also instruct the jury on the definition of firearm Instruction 6.18.922A-2 (Firearm Offenses – Firearm Defined).

The instruction is based on the statutory language. In United States v. Xavier, 2 F.3d 1281, 1286 (3d Cir. 1993), the Third Circuit noted that a defendant cannot be convicted under § 922(d)(1) "without knowledge or reason to know of the transferee's status." The Third Circuit has not addressed the other requirements of the statute. Instruction 6.18.922D-1 (Firearms Offenses – Reasonable Cause to Believe Defined) defines reasonable cause to believe.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

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

See Eleventh Circuit § 34.5.

This instruction should be given when the defendant is charged with a violation of 18 USC 922(d)(1) (sale of a firearm to a convicted felon) or § 922(j) (possession of a stolen firearm). Section 922(d)(1) requires proof that the defendant knew or had reasonable cause to believe that the defendant was a convicted felon or was under indictment for a felony. Section 922(j) requires proof that the defendant knew or had reasonable cause to believe that the firearm was stolen. The instruction should be tailored to the charges in the case.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

Count (number) of the indictment charges the defendant (name) with being a felon in possession of a firearm, which is a violation of federal law.

In order to find the defendant guilty of this offense, you must find that the government proved each of the following three elements beyond a reasonable doubt:

First: That (name) has been convicted of a felony, that is, a crime punishable by imprisonment for a term exceeding one year;

Second: That after this conviction, (name) knowingly (possessed)(received) the firearm described in Count (number) of the indictment; and

Third: That (name)’s (possession)(receipt) was in or affecting interstate or foreign commerce.

In some cases, the court may bifurcate a trial involving charges under 18 USC 922(g). See Instruction 6.18.922G-1 (Felon In Possession of Firearm (18 USC 922(g) (bifurcated proceeding) and accompanying comment). Instruction 6.18.922G-1 should be given if the proceeding is not bifurcated. In addition, the court should give Instructions 6.18.922A-2 (Firearm Offenses – Firearm Defined), 6.18.922G-5 (Firearm Offenses – In or Affecting Interstate or Foreign Commerce Defined), 6.18.922G-4 (Firearm Offenses – Possession Defined), 6.18.922G-2 (Proof of Prior Conviction), and 5.02 (Knowingly).

To obtain a conviction under Section 922(g), the government must prove beyond a reasonable doubt that (1) the defendant had previously been convicted of a crime punishable by imprisonment for a term exceeding one year; (2) the defendant knowingly possessed a firearm; and (3) the firearm had previously passed in interstate commerce. See United States v. Dodd, 225 F.3d 340, 344 (3d Cir. 2000).

The first element under Section 922(g) is that the defendant is a convicted felon. Evidence that the defendant is a convicted felon tends to prejudice the defendant, generating a risk that the jury will conclude that the defendant is more likely to have committed the offense(s) for which the defendant is on trial simply because the defendant has previously been convicted. Despite this risk of prejudice, of course, the government must be allowed to prove the felony conviction at some point. If the trial is not bifurcated, the court should give Instruction 2.13 (Prior Conviction of Defendant Charged with Possession of a Firearm by a Convicted Felon (18 USC 922(g))) during the trial and Instruction 6.18.922G-3 (Evidence of Prior Conviction of Defendant Charged with Possession of a Firearm by a Convicted Felon (18 USC 922(g))) in the concluding instructions to mitigate the risk of prejudice.

Because of this risk of prejudice, defendants generally request bifurcation of the issues to reduce the prejudicial impact of the prior conviction, seeking to have evidence of the prior conviction withheld until the jury has resolved the other issues in the case. A defendant who is charged only with violating Section 922(g)) is not entitled to bifurcation of the issues. See United States v. Jacobs, 44 F.3d 1219 (3d Cir. 1995). However, if the felon in possession charge under § 922(g) is joined with other charges, the court should strongly consider bifurcating the trial. If the court does not bifurcate the trial, the Third Circuit has expressed a preference for severance, unless the evidence of the prior conviction would be admissible even if the counts were tried separately. See United States v. Busic, 587 F.2d 577, 585 (3d Cir. 1978). The defendant is not entitled to severance if the trial court bifurcates the trial. See United States v. Joshua, 976 F.2d 844 (3d Cir. 1992). If the defense does not request bifurcation, the judge may want to colloquy the defendant and defense counsel to establish on the record that they do not desire bifurcation.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

Alternative 1: Bifurcation as to prior conviction only.  Instruction to be included in first phase of trial:

In addition to your verdict on Count(s) (numbers of the other counts of the indictment) the verdict form asks you to answer two special interrogatories or questions. Those two questions are:

One, did the defendant, (name), on or about (date), knowingly possess (describe firearm charged in the indictment)?

and

Two, did the defendant, (name), possess that firearm in or affecting interstate or foreign commerce, as defined in these instructions?

Please be aware that, after you complete your deliberations, there may be some additional evidence presented and an additional matter about which you will have to deliberate.

Instruction to be given after the jury completes initial deliberations if, but only if, the jury answers both special interrogatories in the affirmative:

Now that you have completed your initial deliberations, there is one additional matter for you to consider: Count (number) of the indictment. Count (number) of the indictment charges the defendant (name) with being a felon in possession of a firearm, which is a violation of federal law.

In order to find the defendant guilty of this offense, you must find that the government proved each of the following three elements beyond a reasonable doubt:

First: That (name) was previously convicted of a felony, that is, a crime punishable by imprisonment for a term exceeding one year;

Second: That after this conviction, (name) knowingly [(possessed)(received)] (describe firearm); and

Third: That (name)’s (possession)(receipt) was in or affecting interstate or foreign commerce.

By answering the two special interrogatories on the verdict form in the affirmative, you have already determined that the government has satisfied its burden of proving the second and third elements of this offence. The only remaining issue for you to decide with respect to Count (number) is whether the government has satisfied its burden of proving the first element of the offense beyond a reasonable doubt, that is, whether (name) had been convicted of a crime punishable by imprisonment for a term exceeding one year prior to the date charged in the indictment. The government may now present evidence to you on that question.

Alternative 2: Bifurcation as to entire charge under Section 922(g). Instruction to be included in first phase of trial:

Please be aware that, after you complete your deliberations, there may be some additional evidence presented and an additional matter about which you will have to deliberate.

Instruction to be given after the jury completes initial deliberations:

Now that you have completed your initial deliberations, you must consider Count (number) of the indictment. [The court should then give the jury the preliminary instructions on Section 922(g) before taking evidence on that charge.]

18 USC 922(g) provides in part:

It shall be unlawful for any person--

(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

(2) who is a fugitive from justice;

(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 USC 802));

* * *

(6) who has been discharged from the Armed Forces under dishonorable conditions;

* * *

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

See also 18 USC 924(a)(1)(B) (prescribing the penalty for a knowing violation of § 922(g)). This instruction addresses only the most commonly prosecuted violation of Section 922(g), being a felon in possession of a firearm. The instruction may be modified as required for violations of the other provisions of Section 922(g). For the reasons discussed below, the court may bifurcate the proceeding. The appropriate instructions (Alternative 1 or Alternative 2) will depend on how the trial is bifurcated. Instruction 6.18.922G-1 should be given if the proceeding is not bifurcated. If the trial is bifurcated, the court should give the instructions outlined above. In addition, the court should give Instructions 6.18.922A-2 (Firearm Offenses – Firearm Defined), 6.18.922G-5 (Firearm Offenses – In or Affecting Interstate or Foreign Commerce Defined), 6.18.922G-4 (Firearm Offenses – Possession Defined), and 6.18.922G-2 (Proof of Prior Conviction). The timing of these instructions depends on whether the second phase of the trial addresses all three elements of the felon in possession charge or only the question of the defendant’s prior conviction

To obtain a conviction under Section 922(g), the government must prove beyond a reasonable doubt that (1) the defendant had previously been convicted of a crime punishable by imprisonment for a term exceeding one year; (2) the defendant knowingly possessed a firearm; and (3) the firearm had previously passed in interstate commerce. See United States v. Dodd, 225 F.3d 340, 344 (3d Cir. 2000).

The first element under Section 922(g) is that the defendant is a convicted felon. Evidence that the defendant is a convicted felon tends to prejudice the defendant, generating a risk that the jury will conclude that the defendant is more likely to have committed the offense(s) for which the defendant is on trial simply because the defendant has previously been convicted. Despite this risk of prejudice, of course, the government must be allowed to prove the felony conviction at some point. If the trial is not bifurcated, the court should give Instruction 2.13 (Prior Conviction of Defendant Charged with Possession of a Firearm by a Convicted Felon (18 USC 922(g))) during the trial and Instruction 6.18.922G-3 (Evidence of Prior Conviction of Defendant Charged with Possession of a Firearm by a Convicted Felon (18 USC 922(g))) in the concluding instructions to mitigate the risk of prejudice.

Because of this risk of prejudice, defendants generally request bifurcation of the issues to reduce the prejudicial impact of the prior conviction, seeking to have evidence of the prior conviction withheld until the jury has resolved the other issues in the case. A defendant who is charged only with violating Section 922(g) is not entitled to bifurcation of the issues. See United States v. Jacobs, 44 F.3d 1219 (3d Cir. 1995). However, if the felon in possession charge under § 922(g) is joined with other charges, the court should strongly consider bifurcating the trial. If the court does not bifurcate the trial, the Third Circuit has expressed a preference for severance, unless the evidence of the prior conviction would be admissible even if the counts were tried separately. See United States v. Busic, 587 F.2d 577, 585 (3d Cir. 1978). The defendant is not entitled to severance if the trial court bifurcates the trial. See United States v. Joshua, 976 F.2d 844 (3d Cir. 1992). If the defense does not request bifurcation, the judge may want to colloquy the defendant and defense counsel to establish on the record that they do not desire bifurcation.

If the court agrees to bifurcate the trial, the court may bifurcate only the question of the defendant’s prior conviction (Alternative 1) or the entire felon in possession charge (Alternative 2). The court should give the corresponding instructions above.

Alternative 1: If the court bifurcates only the question of the defendant’s prior conviction, the jury should first hear evidence concerning the other counts of the indictment as well as the questions of knowing possession of the firearm and whether it was in or affecting interstate or foreign commerce. The jury should then deliberate on the other counts of the indictment and answer special interrogatories concerning those two elements of the felon in possession charge. [FOOTNOTE] If the jury answers the special interrogatories in the affirmative, the court would then proceed to the question of the defendant’s prior conviction, giving the additional instructions included in Alternative 1 above. After the presentation of evidence on the question of the defendant’s prior conviction, the court should instruct the jury on proof of prior conviction, Instruction 6.18.922G-2 (Proof of Prior Conviction).

Alternative 2: If the court bifurcates the entire felon in possession charge, the jury should first hear evidence and deliberate concerning the other counts of the indictment, and only then hear evidence and instruction and deliberate concerning the count charging a violation of Section 922(g). See, e.g., United States v. Joshua, 976 F.2d 844 (3d Cir. 1992). In the first phase of the trial, the court should give the instruction indicated above, informing the jury that there may be a further proceeding. Once the jury completes its initial deliberation, the court should then give the instruction set out above, followed by the preliminary instructions on the felon in possession charge. The court should then receive evidence relating to the felon in possession charge, followed by final instructions on that charge. See Instruction 6.18.922G-1 (Felon In Possession of Firearm (18 USC 922(g))(bifurcated proceeding)).

The second element under Section 922(g) is the knowing possession of a firearm. Section 924(a)(1)(B) provides that to obtain a conviction under Section 922(g) the government must prove the defendant acted "knowingly." The government is not required to prove the defendant knew that possession or receipt of a firearm was unlawful or that the firearm possessed or received had traveled in interstate commerce. The government must prove that the defendant knew that he possessed or received a firearm. In United States v. Dodd, 225 F.3d 340, 344 (3d Cir. 2000), the Third Circuit stated:

The requirement that the government must show that the defendant "knowingly possessed a firearm" means only that the government must prove the defendant's awareness that he possessed the firearm; the government need not demonstrate that the defendant possessed the firearm with an intent to cause harm, or with knowledge that such possession was unlawful.

If there is a question concerning the defendant’s knowledge, the court may want to add language elaborating on the knowledge requirement.

Simultaneous possession or receipt of multiple firearms constitutes a single violation of Section 922(g). See United States v. Frankenberry, 696 F.2d 239 (3d Cir. 1982). In some cases, the court may wish to instruct the jury on willful blindness. See Instruction 5.06 (Willful Blindness).

The defendant may establish the defense of justification to the charge of being a felon in possession of a firearm by establishing the following four elements:

(1) he was under unlawful and present threat of death or serious bodily injury;

(2) he did not recklessly place himself in a situation where he would be forced to engage in criminal conduct;

(3) he had no reasonable legal alternative (to both the criminal act and the avoidance of the threatened harm); and

(4) there is a direct causal relationship between the criminal action and the avoidance of the threatened harm.

United States v. Paolello, 951 F.2d 537, 540 (3d Cir. 1991). The defendant has the burden of establishing these elements by a preponderance of the evidence. United States v. Dodd, 225 F.3d 340, 348 (3d Cir. 2000). An instruction on justification is found at 8.08 (Legal Justification). The Third Circuit has not adopted the innocent transitory possession defense. See United States v. Daniels, 2005 WL 2218139 (W.D. Pa. 2005).

FOOTNOTE:  

Verdict Form

1. On Count (include for each count other than the felon in possession charge) of the indictment, we, the jury, find the defendant (name):

________ Guilty
________ Not guilty

1. Did the defendant, (name), on or about (date), knowingly possess (describe firearm charged in the indictment)?

_______ Yes
_______ No

If your answer is yes, go on to Special Interrogatory No. 2. If you answer is no skip Special Interrogatory No. 2 and have your foreperson sign and date this verdict form.

2. Was the firearm described in Special Interrogatory No. 1 possessed in or affecting interstate or foreign commerce?

_______ Yes
_______ No

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

6.18.922G-2
Proof of Prior Conviction

In order to find the defendant guilty of this offense, you must find that the government proved that before the date (name) is charged with possessing (or receiving or transporting) the firearm, (name) had been convicted of a crime punishable by imprisonment for a term exceeding one year.

The government contends that the defendant was convicted of (insert crime) in state (federal) court. I charge you that as a matter of law, (insert crime) is a crime punishable by imprisonment for a term exceeding one year. However, you must determine beyond a reasonable doubt if (name) was convicted of this crime.

To satisfy this (first) element, you need only find beyond a reasonable doubt that (name) was, in fact, convicted of that crime and that the conviction was prior to the possession of the weapon as charged in the indictment. It is not necessary that the government prove that (name) knew that the crime was punishable by imprisonment for more than one year, nor is it necessary for (name) to have been sentenced to imprisonment for more than one year. (A plea of guilty has the same consequences as a conviction after trial.)

[If the parties stipulate, substitute: The parties have stipulated that (name) was convicted of a crime in state (federal) court and that this crime is punishable by imprisonment for a term exceeding one year. The parties have also stipulated that this felony conviction occurred prior to the time that (name) is alleged to have possessed the firearm charged in the indictment.]

See 2 Sand et al., supra, 35-48.

This instruction includes language for cases in which the defendant’s prior conviction is the subject of proof at trial and alternative language for cases in which the parties stipulate to the prior conviction. The instruction should be modified accordingly.

The first element under Section 922(g) is that the defendant is a convicted felon. [FOOTNOTE] In United States v. Small, 544 U.S. 385 (2005), the Supreme Court held that the government must establish that the defendant was convicted in a domestic court; the statute does not extend to foreign convictions.

In some cases, a defendant may be able to argue that state law has removed the status of being a convicted felon under the statute. 18 USC 921(a)(20) provides:

What constitutes a conviction shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

In Beecham v. United States, 511 U.S. 368 (1994), the Supreme Court held that the defendants did not qualify under Section 921(a)(20) as having their civil rights restored even though their civil rights had been restored under state law. The Court concluded that the defendants, who had been convicted under federal law, could only qualify if their civil rights were restored under federal law and that restoration of rights under state law did not bring the defendants within the provision. In United States v. LeUSC hen, 395 F.3d 155 (3d Cir. 2005), the Third Circuit concluded that the defendant was properly convicted of being a felon in possession. The court held that defendant’s civil rights had not been restored within the meaning of section 921(a)(20) where the Pennsylvania conviction had stripped the defendant of the right to serve on a jury - a core civil right - and that right had not been restored. The fact that Pennsylvania imposed no restrictions on the defendant’s firearm rights as a result of the conviction was irrelevant where his core civil right had not been restored. See also United States v. Essig, 10 F.3d 968 (3d Cir. 1993). In Caron v. United States, 524 U.S. 308 (1998), the defendant's civil rights had been restored but the Court held that the "unless" clause applied because state law forbad the defendant to possess handguns outside his home or business. The Court concluded that the "unless" clause operates if the state restricts the defendant’s possession of firearms in any way.

FOOTNOTE:

Specified misdemeanor convictions involving domestic abuse may also bring a defendant within the statute. See 18 USC 921(33)(A) and 922(g)(9).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

You heard evidence (through a stipulation) that the defendant was convicted before this incident in (name of court; e.g., a court of the Commonwealth of Pennsylvania) of a crime punishable by imprisonment for a term exceeding one year. This prior conviction was brought to your attention only because it tends to establish one of the elements of the crime of possession of a firearm by a convicted felon as set forth in the indictment. You are not to speculate as to the nature of the conviction. You may not consider the prior conviction in deciding whether (name of defendant) was in knowing possession of the firearm that (he) (she) is charged in this case with possessing, which is a disputed issue in this case.

The fact that the defendant was found guilty of another crime on another occasion does not mean that (he)(she) committed this crime on (date of offense charged in indictment), and you must not use (his)(her) guilt of the other crime as proof of the crime charged in this case except for the one element of this crime which I have mentioned. You may find the defendant guilty of this crime only if the government has proved beyond a reasonable doubt all of the elements of this crime.

This instruction is based on the instruction approved in United States v. Belk, 346 F.3d 305, 309 n.4 (2d Cir. 2003).

This instruction should be given in the final charge to the jury if the government introduced evidence that the defendant is a convicted felon as required to prove a violation of 18 USC 922(g). Evidence of the prior conviction tends to prejudice the defendant, generating a risk that the jury will conclude that the defendant is more likely to have committed the offense(s) for which the defendant is on trial simply because the defendant has previously been convicted. Despite this risk of prejudice, the government must be allowed to prove the felony conviction.

When the defendant is charged only with a violation of Section 922(g), the defendant is not entitled to bifurcation of the issues. See United States v. Jacobs, 44 F.3d 1219 (3d Cir. 1995). The court should give Instruction 2.13 (Prior Conviction of Defendant Charged with Possession of a Firearm by a Convicted Felon (18 USC 922(g))) when the evidence of the prior conviction is introduced and should include this instruction in the final charge to the jury.

If the felon in possession charge under § 922(g) is joined with other charges, the court should consider bifurcating the trial. In the bifurcated trial, the jury should first hear evidence and deliberate concerning the other counts of the indictment and the determination of knowing possession of a firearm. Of course, if the trial is bifurcated, voir dire cannot include any questions related to the prior conviction, and the government must not mention that element in its opening statement. Only if the jury finds knowing possession of the firearm at the end of the first phase of the trial will it hear evidence of the defendant's criminal record and deliberate concerning the final element of the Section 922(g) charge. See, e.g., United States v. Joshua, 976 F.2d 844 (3d Cir. 1992). In a bifurcated proceeding, Instruction 2.13 (Prior Conviction of Defendant Charged with Possession of a Firearm by a Convicted Felon (18 USC 922(g))) should be given when the prior conviction is introduced, and this instruction should be included in the final charge to the jury.

There are additional steps that the court should take to reduce the prejudice. In Old Chief v. United States, 519 U.S. 172 (1997), the Supreme Court recognized the risk of prejudice and held that, where the defendant offered to stipulate that he was a convicted felon, it was reversible error to admit evidence of the name and nature of the offense of which the defendant was convicted. In United States v. Smith, 104 Fed. Appx. 266, 275, 2004 WL 1778268 (3d Cir. 8/10/2004), a non-precedential decision, the Third Circuit noted that "careful voir dire can help insure that jurors who would be influenced by knowledge of the element of a prior felony conviction are not chosen for the jury."

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

To establish the second element of the offense, the government must prove that (name) possessed the firearm in question. To "possess" means to have something within a person's control. The government does not have to prove that (name) physically held the firearm, that is, had actual possession of it. As long as the firearm was within (name)’s control, (he)(she) possessed it. If you find that (name) either had actual possession of the firearm or had the power and intention to exercise control over it, even though it was not in (name)’s physical possession - that is, that (name) had the ability to take actual possession of the object when (name) wanted to do so - you may find that the government has proven possession. Possession may be momentary or fleeting.

[The law also recognizes that possession may be sole or joint. If one person alone possesses a firearm, that is sole possession. However, more than one person may have the power and intention to exercise control over a firearm. This is called joint possession. If you find that (name) had such power and intention, then (he)(she) possessed the firearm even if (he)(she) possessed it jointly with another.]

[Mere proximity to the firearm or mere presence on the property where it is located or mere association with the person who does control the firearm or the property, is insufficient to support a finding of possession.]

Proof of ownership of the firearm is not required.

The government must prove that (name) knowingly possessed the firearm described in the indictment. This means that (name) possessed the firearm purposely and voluntarily, and not by accident or mistake. It also means that (name) knew the object was a firearm.

See 2 Sand et al., supra, 35-49; United States v. Mercado, 412 F.3d 243, 251 (1st Cir. 2005).

The government must establish that the defendant possessed the firearm. Possession may be actual or constructive. To establish constructive possession the government must prove that the defendant knew of the object and had control over it. In United States v. Brown, 3 F.3d 673 (3d Cir. 1993), a case involving possession of drugs, the Third Circuit stated:

Although the government need not show proof of actual possession, to show "constructive" possession of an illegal substance the government must submit sufficient evidence to support an inference that the individual "knowingly has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons. Constructive possession necessarily requires both 'dominion and control' over an object and knowledge of that object's existence."

3 F.3d at 680 (citing United States v. Iafelice, 978 F.2d 92 (3d Cir. 1992)). See also United States v. Brightwell, 104 Fed. Appx. 823 (3d Cir. 2004) (affirming conviction for possessing a firearm in relation to a drug trafficking crime on basis of constructive possession); United States v. Garth, 188 F.3d 99, 112 (3d Cir.1999) (holding that prosecution had failed to establish that defendant had constructive possession).

If the government’s case rests heavily on the defendant’s presence in combination with other circumstances, the court may wish to include the optional language instructing the jury that mere presence or association is not sufficient to establish possession. It is clear that mere presence or association is insufficient to prove possession. See United States v. Davis, 461 F.2d 1026, 1036 (3d Cir. 1972) (addressing possession of drugs). In United States v. Stewart, 131 Fed. Appx. 350, 354 (3d Cir. 2005), a non-precedential decision, however, the court held that the defendant was not entitled to a "mere presence" instruction because the jury instructions given adequately conveyed the requirements for constructive possession:

The instructions concerning actual and constructive possession were legally correct and complete. The District Court made clear that, in order to have actual possession of an object, a person must have direct physical control or authority over the object, such as the control one has when one holds an object in one's hands. And in order to have "constructive" possession over an object, the District Court explained, a person must have the ability to take actual possession of the object when the person wants to do so. Because mere proximity, mere presence, or mere association is not enough for even constructive possession, these instructions adequately conveyed to the jury that constructive possession is not established by mere proximity, mere presence, or mere association.

The instruction does not use the terms "constructive possession" or "dominion," which are commonly used by the courts when discussing the legal concept of possession. Jurors cannot be expected to understand these terms. However, if the attorneys have used either or both of these terms during the trial, the court may choose to modify the instruction accordingly.

Section 922(g) requires proof of that the possession was "knowing." See United States v. Dodd, 225 F.3d 340, 344 (3d Cir. 2000). The Supreme Court has held that to establish a violation of 26 USC 5861(d), the Government must prove beyond a reasonable doubt that the defendant knowingly possessed the item and also knew "the item he possessed had the characteristics that brought it within the statutory definition of a firearm" but need not prove that the defendant knew that the item fell within the statutory definition. See Rogers v. United States, 522 U.S. 252, 254-55 (1998); Staples v. United States, 511 U.S. 600, 619 (1994). Section 922(g) thus appears to require that the government prove both that the defendant possessed the firearm purposely and that the defendant knew the object was a firearm. See United States v. Tomlinson, 67 F.3d 508, 513 ( 4th Cir. 1995) (holding Staples scienter requirement applies to prosecutions under 922(g) and requires proof that defendant was aware of character of firearm possessed); see also United States v. Field, 39 F.3d 15, 17 (1st Cir. 1994).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

The (specify which element; i.e., second) element that the government must prove beyond a reasonable doubt is that the firearm specified in the indictment

[For 18 USC 922(g)(1) use the following language:

was in or affecting interstate (foreign) commerce. This means that the government must prove that at some time before the defendant's possession, the firearm had traveled in interstate commerce.

For 18 USC § 922(j) and (k) use the following language:

had at some time traveled in interstate commerce.]

It is sufficient for the government to satisfy this element by proving that at any time prior to the date charged in the indictment, the firearm crossed a state line (the United States border). The government does not need to prove that (name) (himself)(herself) carried it across a state line (the border), or to prove who carried it across or how it was transported. It is also not necessary for the government to prove that (name) knew that the firearm had traveled in interstate commerce.

In this regard, there has been evidence that the firearm in question was manufactured in a different state (country) than the state where (name) is charged with possessing it. You are permitted to infer from this fact that the firearm traveled in interstate commerce; however, you are not required to do so.

See 2 Sand et al., supra, 35-50.

18 USC 921(a)(2) provides:

The term "interstate or foreign commerce" includes commerce between any place in a State and any place outside of that State, or within any possession of the United States (not including the Canal Zone) or the District of Columbia, but such term does not include commerce between places within the same State but through any place outside of that State. The term "State" includes the District of Columbia, the Commonwealth of Puerto Rico, and the possessions of the United States (not including the Canal Zone).

The government must prove the connection to interstate commerce to establish a violation of 18 USC 922(g)(1), (j) or (k). The government must meet that obligation regardless of whether it charges the defendant with possessing, receiving or transporting the firearm. United States v. Bass, 404 U.S. 336 (1971).

The government need only show that the firearm has been, at some time, in interstate commerce, a minimal nexus. In Scarborough v. United States, 431 U.S.563 (1977), the Court held that the defendant was properly convicted of being a felon in possession of a firearm even though he had acquired the firearm before his conviction and it had not moved in interstate commerce since that time. In United States v. Singletary, 268 F.3d 196, 200 (3d Cir. 2001), the Third Circuit noted:

[T]he Scarborough Court established the proposition that the transport of a weapon in interstate commerce, however remote in the distant past, gives its present intrastate possession a sufficient nexus to interstate commerce to fall within the ambit of the statute.

In Singletary, the court affirmed the defendant’s conviction, rejecting a constitutional challenge to Section 922(g). In that case, the defendant was charged on the basis of his possession of a gun that was manufactured in Brazil and shipped to Texas, but could not be traced beyond that point until it was found in Pennsylvania. The trial court gave the following instruction on the question of interstate or foreign commerce:

To prove that the firearm was possessed in or affecting interstate or foreign commerce, the Government must prove that at some time prior to defendant's possession of the firearm, the firearm had traveled in interstate or foreign commerce ... that at any time prior to the date charged in the Indictment, the firearm crossed a state line.

268 F.3d at 198.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

Count (number) of the indictment charges (name) with possession of a stolen firearm, which is a violation of federal law.

In order to find (name) guilty of this offense, you must find that the government proved each of the following three elements beyond a reasonable doubt.

First: That (name) knowingly possessed the firearm described in the indictment. This means that (name) possessed the firearm purposely and voluntarily, and not by accident or mistake. It also means that (name) knew the object was a firearm.

Second: That at the time (name) possessed it, the firearm was stolen and (name) knew or had reasonable cause to believe that the firearm was stolen. However, the government is not required to prove that (name) knew (he)(she) was breaking the law.

Third: That the firearm had at some time traveled in interstate commerce.

See 2 Sand et al., supra, 35-53, 35-56.

18 USC 922(j) provides:

It shall be unlawful for any person to receive, possess, conceal, store, barter, sell, or dispose of any stolen firearm or stolen ammunition, or pledge or accept as security for a loan any stolen firearm or stolen ammunition, which is moving as, which is a part of, which constitutes, or which has been shipped or transported in, interstate or foreign commerce, either before or after it was stolen, knowing or having reasonable cause to believe that the firearm or ammunition was stolen.

In addition to this instruction, the court should also give Instruction 5.02 (Knowingly), Instruction 6.18.922A-2 (Firearm Offenses – Firearm Defined), Instruction 6.18.922G-4 (Firearm Offenses – Possession Defined), and Instruction 6.18.922G-5 (Firearm Offenses – In or Affecting Interstate or Foreign Commerce Defined).

In United States v. Howard, 214 F.3d 361, 363 (2d Cir.), cert. denied, 531 U.S. 909 (2000), the Second Circuit explained the knowledge requirement:

The government did not have to establish that appellant knew that possessing a stolen firearm was unlawful or "adduce specific evidence to prove that 'an evil-meaning mind' directed the 'evil-doing hand' "; rather, the government had merely to show that appellant knew or had reason to know that the gun that he possessed was stolen. (Citations omitted.)

The Third Circuit has not addressed the knowledge requirement under Section 922(j). In other contexts, the court has held that circumstantial evidence may be sufficient to establish that the defendant knew or should have known that property was stolen. See United States v. Clemmons, 892 F.2d 1153, 1159 (3d Cir. 1989).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

Count (number) of the indictment charges (name) with possessing a firearm which had the serial number removed or altered, which is a violation of federal law. In order to find (name) guilty of this charge, you must find that the government has proved each of the following four elements beyond a reasonable doubt:

First: That (name) knowingly possessed the firearm described in the indictment. This means that (name) possessed the firearm purposely and voluntarily, and not by accident or mistake. It also means that (name) knew that the object was a firearm.

Second: That the serial number of the firearm in question had been removed, obliterated, or altered;

Third: That (name) knew that the serial number had been removed, obliterated, or altered. However, the government is not required to prove that (name) (himself)(herself) removed, obliterated or altered the serial number.

Fourth: That the firearm had at some time traveled in interstate commerce.

See Ninth Circuit § 8.62, 2 Sand et al., supra, 35-59, 35-62.

18 USC 922(k) provides in part:

It shall be unlawful for any person knowingly . . . to possess or receive any firearm which has had the importer's or manufacturer's serial number removed, obliterated, or altered and has, at any time, been shipped or transported in interstate or foreign commerce.

In addition to this instruction, the court should also give Instruction 5.02 (Knowingly), Instruction 6.18.922A-2 (Firearm Offenses – Firearm Defined), Instruction 6.18.922G-4 (Firearm Offenses – Possession Defined), and Instruction 6.18.922G-5 (Firearm Offenses – In or Affecting Interstate or Foreign Commerce Defined).

The Third Circuit does not appear to have considered the knowledge requirement under Section 922(k). Other courts have held that in addition to knowingly possessing the firearm, the defendant must know that the serial number has been removed. See United States v. Moore, 54 F.3d 92 (2d Cir. 1995), cert. denied, 516 U.S. 1081 (1996); United States v. Lanoue, 71 F.3d 966 (1st Cir. 1995).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

6.18.924A
Possession of a Firearm in Furtherance of Crime of Violence or Drug Trafficking Crime (18 USC 924(c)(1))

Count (number) of the indictment charges (name of defendant) with possessing a firearm in furtherance of a (crime of violence) (drug trafficking crime), which is a violation of federal law. The offense alleged in Count (number of count charging predicate crime) is a (crime of violence)(drug trafficking crime).

In order to find (name) guilty of this offense, you must find that the government proved each of the following two elements beyond a reasonable doubt:

First: That (name) committed the crime of (name of crime) as charged in Count (number of count charging predicate crime) of the indictment; and

Second: That (name of defendant) knowingly possessed a firearm in furtherance of this crime. If you find (name of defendant) possessed the firearm, you must consider whether the possession was in furtherance of (name of crime).

See Tenth Circuit § 2.45.1.

18 USC 924(c)(1)(A) provides in part:

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

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

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

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

This instruction should be used if the defendant is charged with possessing the firearm in furtherance of the crime. Instruction 6.18.924B (Using or Carrying a Firearm During Any Crime of Violence or Drug Trafficking Crime (18 USC 924(c)(1))) should be used if the defendant is charged with using or carrying the firearm. [FOOTNOTE 1] In addition to this instruction, the court should also give Instruction 5.02 (Knowingly), Instruction 6.18.922A-2 (Firearm Offenses – Firearm Defined), Instruction 6.18.922G-4 (Firearm Offenses – Possession Defined), and Instruction 6.18.924A-1 ("In Furtherance of" Defined).

The question of whether the predicate offense qualifies as a crime of violence [FOOTNOTE 2] or a drug trafficking offense [FOOTNOTE 3] is a question of law for the court. See United States v. Moore, 38 F.3d 977 (8th Cir. 1994); United States v. Weston, 960 F.2d 212 (1st Cir. 1992). If the predicate crime is not charged in the indictment, the court must instruct the jury concerning the elements of the predicate crime.

Even though a particular defendant did not personally possess the firearm, the defendant may be found guilty of violating § 924(c) under the theory of Pinkerton v. United States, 328 U.S. 640 (1946), which holds defendants liable for the foreseeable actions of their coconspirators in furtherance of the conspiracy. See United States v. Ramos, 147 F.3d 281, 286 (3d Cir.1998); United States v. Casiano, 113 F.3d 420, 427 (3d Cir. 1997). To impose liability under Pinkerton, the jury must find that the coconspirator possessed a firearm during and in relation to the conspiracy, in furtherance of or as a natural, foreseeable consequence of the conspiracy, and that the defendant was a member of the conspiracy at the time. See United States v. Goines, 988 F.2d 750, 774 (7th Cir. 1993). See Instruction 7.03 (defining Pinkerton liability).

Under 18 USC 924(c)(1)(A), the defendant may receive a higher sentence for brandishing or discharging the firearm. In Harris v. United States, 536 U.S. 545 (2002), the Supreme Court held that brandishing the firearm is a sentencing factor rather than an element of the offense. The ongoing viability of Harris has been questioned in light of United States v. Booker, 543 U.S. 220 (2005), and Blakely v. Washington, 542 U.S. 296 (2004), which built on Apprendi v. New Jersey, 530 U.S. 466 (2000), defining the defendant’s right under the Sixth Amendment to have issues submitted to the jury rather than determined by the court. However, Harris has not been overruled, and the Third Circuit has held that Harris remains binding, absent action of the Supreme Court. United States v. Williams, 464 F.3d 443, 449 (3d Cir. 2006). As a result, the determination of whether a defendant brandished the firearm is for the court and need not be submitted to the jury. Nevertheless, the court may prefer to submit an interrogatory to the jury on whether the firearm was brandished.

 Section 924(c) separately provides for higher mandatory penalties where certain types of weapons, such as a machine gun, are involved. Addressing an earlier version of the statute, the Supreme Court held that those provisions state additional elements, which must be charged in the indictment and found by the jury beyond a reasonable doubt. Castillo v. United States, 530 U.S. 120 (2000). The court should therefore offer special interrogatories regarding those provisions.

FOOTNOTE 1:  18 USC 924 was amended in 1998 to expand the bases of criminal liability. The statute now makes it a crime to possess a firearm in furtherance of as well as to use or carry a firearm in relation to any crime of violence or drug trafficking crime. Although most future prosecutions are likely to be brought under the possession in furtherance prong of the statute, we have included both instructions.

FOOTNOTE 2:  18 USC 924(c)(3) provides:

For purposes of this subsection the term "crime of violence" means an offense that is a felony and--

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

FOOTNOTE 3: 18 USC 924(c)(2) provides:

For purposes of this subsection, the term "drug trafficking crime" means any felony punishable under the Controlled Substances Act (21 USC 801 et seq.), the Controlled Substances Import and Export Act (21 USC 951 et seq.), or the Maritime Drug Law Enforcement Act (46 USC App. 1901 et seq.).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

Possession "in furtherance of" means for the purpose of assisting in, promoting, accomplishing, advancing, or achieving the goal or objective of (name of crime).

Mere presence of a firearm at the scene is not enough to find possession in furtherance of a (crime of violence)(drug trafficking crime). The firearm's presence may be coincidental or entirely unrelated to the underlying crime. Some factors that may help you determine whether possession of a firearm furthers a (crime of violence)(drug trafficking crime) include, but are not limited to:

See United States v. Sparrow, 371 F.3d 851 (3d Cir. 2004).

The offense of possessing a firearm in furtherance of a crime of violence or drug trafficking offense is intended to reach situations not covered by the crimes of using or carrying a firearm during and in relation to any crime of violence or drug trafficking crime. In Bailey v. United States, 516 U.S. 137, 143 (1995), the Supreme Court construed "use" narrowly under the statute, holding that the term connotes more than mere possession of a firearm by a person who commits a drug offense and concluding that the government must show "active employment of the firearm." 516 U.S. at 144. In 1998, in direct response to Bailey (see H.R. Rep. No. 105-344, Oct. 24, 1997, 1997 WL 668339), Congress amended the statute and added the phrase "or who, in furtherance of any such crime, possesses a firearm . . . ." Pub. L. 105-386, Nov. 13, 1998, 112 Stat. 3469. The stated purpose and effect of this amendment was to overcome the Bailey court's restrictive interpretation of the scope of the statute and to extend its reach to any drug trafficking or violent crime in which the defendant merely possesses a firearm "in furtherance of any such crime."

In United States v. Sparrow, 371 F.3d 851, 853 (3d Cir. 2004), the Third Circuit stated:

Under § 924(c), the ‘mere presence’ of a gun is not enough. ‘What is instead required is evidence more specific to the particular defendant, showing that his or her possession actually furthered the drug trafficking offense.’ Put another way, the evidence must demonstrate that possession of the firearm advanced or helped forward a drug trafficking crime. In making this determination, the following nonexclusive factors are relevant: the type of drug activity that is being conducted, accessibility of the firearm, the type of the weapon, whether the weapon is stolen, the status of the possession (legitimate or illegal), whether the gun is loaded, proximity to drugs or drug profits, and the time and circumstances under which the gun is found. (Citations omitted).

The firearm need not be immediately accessible to the defendant during the crime. Sparrow, 371 F.3d at 853. In Sparrow, the court noted that the firearm "was strategically located." The firearm was in a compartment under the floor with the defendant’s cache of drugs and money, so the defendant was able to access the firearm whenever he reached into the compartment for drugs or money. The court concluded that it was "reasonable to assume the firearm was placed in the floor compartment for that purpose and was possessed in furtherance of [the defendant]’s drug activities." 371 F.3d at 854. The Third Circuit has repeatedly relied on Sparrow in non-precedential decisions to affirm convictions under this prong of § 924. See, e.g., United States v. Lloyd, 2006 WL 1360156 (3d Cir. 2006); United States v. Northcutt, 2006 WL 1360164 (3d Cir. 2006).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

Count (number) of the indictment charges (name of defendant) with (using)(carrying) a firearm during (a crime of violence)(a drug trafficking crime), which is a violation of federal law. The offense alleged in Count (number of count charging predicate crime) is a (crime of violence)(drug trafficking crime).

In order to find (name) guilty of the offense charged in the indictment, you must find that the government proved each of the following three elements beyond a reasonable doubt.

First: That (name) committed the crime of (name of crime) as charged in Count (number of count charging predicate crime) of the indictment, and

Second: That during and in relation to the commission of that crime, (name) knowingly (used)(carried) a firearm. The phrase "uses or carries a firearm" means having a firearm, or firearms, available to assist or aid in the commission of the crime of (name of crime). "Use" means more than mere possession of a firearm by a person who commits a crime; to establish use, the government must show active employment of the firearm. If the defendant did not either disclose or mention the firearm or actively employ it, the defendant did not use the firearm. "Carry" means that the defendant (had the firearm on (his)(her) person) (possessed the firearm).

Third: That (name) (used)(carried) the firearm during and in relation to the crime of (name of crime). During and in relation to means that the firearm must have had some purpose or effect with respect to (name of crime). The firearm must have at least facilitated or had the potential of facilitating (name of crime).

In determining whether (name) used or carried a firearm in relation to the (name of crime), you may consider all of the factors received in evidence in the case including the nature of the underlying crime, (name of crime), how close (name) was to the firearm in question, the usefulness of the firearm to (name of crime), and the circumstances surrounding the presence of the firearm.

The government is not required to show that (name) actually displayed or fired the weapon. However, the government must prove beyond a reasonable doubt that the firearm was in (name)’s possession or under (his)(her) control at the time that the crime of (name of crime) was committed and that the firearm facilitated or had the potential of facilitating the (name of crime).

See Eleventh Circuit 35.2; O’Malley § 39.20; United States v. Williams, 344 F.3d 365 (3d Cir. 2003).

18 USC 924(c)(1)(A) provides in part:

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

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

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

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

This instruction should be used if the defendant is charged with using or carrying the firearm. Instruction 6.18.924A (Possession of a Firearm In Furtherance of Crime of Violence or Drug Trafficking Crime (18 USC 924(c)(1))) should be used if the defendant is charged with possessing the firearm in furtherance of the crime. For instructions defining the legal terms of the offense, see Instructions 6.18.922A-2 (Firearm Offenses – Firearm Defined) and 5.02 (Knowingly).

The question of whether the predicate offense qualifies as a crime of violence [FOOTNOTE 1] or a drug trafficking offense [FOOTNOTE 2] is a question of law for the court. See United States v. Moore, 38 F.3d 977 (8th Cir. 1994); United States v. Weston, 960 F.2d 212 (1st Cir. 1992). While the government must prove the predicate offense, that offense need not be separately charged in the indictment. United States v. Lake, 150 F.3d 269, 275 (3d Cir. 1998). If the court’s charge to the jury covers the elements of the predicate offense elsewhere, the court need not reiterate those elements in the instruction on § 924. Lake, 150 F.3d at 274. However, if the predicate crime is not charged in the indictment and therefore not covered elsewhere in the instructions, the court must instruct the jury concerning the elements of the predicate crime as part of the instructions on § 924.

The courts have been called upon to clarify what constitutes using or carrying a firearm under the statute. The two terms are not interchangeable. "Use" is the narrower of the two terms. In Bailey v. United States, 516 U.S. 137, 143 (1995), the Supreme Court stated that "‘use’ must connote more than mere possession of a firearm by a person who commits a drug offense." [FOOTNOTE 3] The Court concluded that the government must show "active employment of the firearm." 516 U.S. at 144. The Court also stated:

Under the interpretation we enunciate today, a firearm can be used without being carried, e.g., when an offender has a gun on display during a transaction, or barters with a firearm without handling it; and a firearm can be carried without being used, e.g., when an offender keeps a gun hidden in his clothing throughout a drug transaction. 516 U.S. at 146.

In United States v. Garth, 188 F.3d 99, 110 (3d Cir.1999), the Third Circuit explained:

"[T]he active employment understanding of 'use' certainly includes brandishing, bartering, striking with, and most obviously, firing or attempting to fire, a firearm." However, "if the gun is not disclosed or mentioned by the offender, it is not actively employed and it is not 'used.' " Accordingly, "[i]t is no longer enough that the weapon be available to the defendant; rather, it must have played an active role in the perpetration of the predicate offense beyond emboldening the perpetrator." (Citations omitted.)

Trading a firearm for drugs constitutes use of the firearm in connection with drug trafficking in violation of the statute. See Smith v. United States, 508 U.S. 223 (1993); United States v. Sumler, 294 F.3d 579 (3d Cir. 2002).

In MUSC arello v. United States, 524 U.S. 125 (1998), the Supreme Court considered whether having a firearm in the locked glove compartment or the trunk of a car ready for use in a drug transaction could constitute carrying the firearm within the meaning of the statute. The Court concluded that the statute did not require that the firearm be carried on the defendant’s person. The Court nevertheless stated that the term "implies personal agency and some degree of possession." 524 U.S. at 134. The Court further stated that "having construed ‘use’ narrowly in Bailey, we cannot also construe ‘carry’ narrowly without undercutting the statute's basic objective." 524 U.S. 136. In Garth, 188 F.3d at 110, the court also discussed the definition of "carrying," quoting from MUSC arello but acknowledging that it was not clear what type of possession would constitute and expressly reserving judgment on whether constructive possession would satisfy this requirement.

In United States v. Williams, 344 F.3d 365, 369-70 (3d Cir. 2003), the Third Circuit rejected the defendant’s challenge to his conviction for carrying a firearm in relation to a crime of violence. The evidence showed that the defendant had a gun in the getaway car with him as he fled from the police after a bank robbery. The court also discussed whether the defendant carried the gun "in relation to" the robbery, since he had not had it with him during the robbery. The court emphasized that "in relation to" requires "some purpose or effect" as to, and must have at least " 'facilitate[d], or [had] the potential of facilitating,' " the underlying offense. 344 F.3d at 371 (citations omitted).

In Williams, the court also considered the jury instructions and concluded that the trial court did not commit reversible error by instructing the jury that it could find the defendant carried the firearm if, inter alia, it was available "to aid or embolden the defendant in making his escape." 344 F.3d at 377. Nevertheless, the court did not approve that language. Rather, the court emphasized that the trial court’s instructions on the term "carry" were lengthy and pointed to other language in the court’s instructions:

Importantly, the trial judge also instructed the jury that:

If you find that the defendant carried a firearm, you must determine whether the carrying of the firearm was during and in relation to the unarmed bank robbery. During and in relation to means that the firearm must have had some purpose or effect with respect to the unarmed bank robbery. The firearm must have at least facilitated or had the potential of facilitating the unarmed bank robbery.

344 F.3d at 377 (noting also that instruction tracked the language of Smith v. United States, 508 U.S. 223, 237 (1993)). 

Under 18 USC 924(c)(1)(A), the defendant may receive a higher sentence for brandishing or discharging the firearm. In Harris v. United States, 536 U.S. 545 (2002), the Supreme Court held that brandishing the firearm is a sentencing factor rather than an element of the offense. The ongoing viability of Harris has been questioned in light of United States v. Booker, 543 U.S. 220 (2005), and Blakely v. Washington, 542 U.S. 296 (2004), which built on Apprendi v. New Jersey, 530 U.S. 466 (2000), defining the defendant’s right under the Sixth Amendment to have issues submitted to the jury rather than determined by the court. However, Harris has not been overruled, and the Third Circuit has held that Harris remains binding, absent action of the Supreme Court. United States v. Williams, 464 F.3d 443, 449 (3d Cir. 2006). As a result, the determination of whether a defendant brandished the firearm is for the court and need not be submitted to the jury. Nevertheless, the court may prefer to submit an interrogatory to the jury on whether the firearm was brandished.

Section 924(c) separately provides for higher mandatory penalties where certain types of weapons, such as a machine gun, are involved. Addressing an earlier version of the statute, the Supreme Court held that those provisions state additional elements, which must be charged in the indictment and found by the jury beyond a reasonable doubt. Castillo v. United States, 530 U.S. 120 (2000). The court should therefore offer special interrogatories regarding those provisions.

FOOTNOTE 1:  18 USC 924(c)(3) provides:

FOOTNOTE 2:  18 USC 924(c)(2) provides:

6.18.1951 
Hobbs Act - Elements of the Offense (18 USC 1951)

In order to sustain its burden of proof for the crime of interfering with interstate commerce by (robbery)(extortion) as charged in Count (number) of the indictment, the government must prove the following three (3) essential elements beyond a reasonable doubt:

First: That Defendant (name) took from (the victim alleged in the indictment) the property described in Count (number) of the indictment;

Second: That (name) did so knowingly and willfully by (robbery) (extortion); and

Third: That as a result of (name)’s actions, interstate commerce (an item moving in interstate commerce) was obstructed, delayed, or affected.

See O’Malley § 53.03 (2000).

18 USC 1951(a) provides:

Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.

If the defendant is charged with attempt the court should adapt this instruction and should also give Instruction 7.01 (Attempt).

Likewise, if the defendant is charged with conspiracy to violate this statute, the appropriate instructions on conspiracy should be given. See Instruction 6.18.371A et seq. It should be noted that a Hobbs Act conspiracy does not require proof of an overt act. See Ladner v. United States, 168 F.2d 771, 773 (5th Cir. 1948); United States v. Facciolo, 753 F.Supp. 449 (S.D.N.Y. 1990). The Third Circuit has not addressed this question, but has held that drug conspiracies and RICO conspiracies do not require proof of an overt act. See Comment to Instruction 6.18.1962D (discussing RICO conspiracies) and Instruction 6.21.846B (discussing drug conspiracies).

In United States v. Traitz, 871 F.2d 368, 380-81 (3d Cir. 1989), the trial court gave the following instruction:

In order to meet its burden of proving that the defendants committed extortion under the Hobbs Act, the Government must prove each of the following elements:

First, that the defendants induced or attempted to induce others to part with their property;

Second, that the defendants did so with the victims' consent, but that this consent was compelled by the wrongful use or threat of force, violence or fear;

Third, that interstate commerce or an item moving in interstate commerce was delayed, obstructed or affected in any way or degree; and

Fourth, that the defendants acted knowingly and willfully.

The Third Circuit quoted the instructions but remarked only that the defendants did not challenge the trial court’s "general recitation of the essential elements of the Hobbs Act." 871 F.2d at 381. See also United States v. Driggs, 823 F.2d 52 (3d Cir. 1987). In Driggs, the court noted:

The essential elements that the government must prove are that the defendant obstructed, delayed or affected commerce or attempted to do so; by extortion ("the obtaining of property from another, with his consent, ... under color of official right"); and that the defendant acted knowingly and willfully.

823 F.2d at 54.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

Count (number) of the indictment charges defendant, (name), with money laundering, which is a federal crime.

In order to find (name) guilty of this offense, you must find that the government proved each of the following four elements beyond a reasonable doubt:

First: That on or about the dates alleged in the indictment, (name) conducted (or attempted to conduct) a financial transaction, which affected interstate commerce;

Second: That (name) conducted the financial transaction with the proceeds of a specified unlawful activity, that is, (describe unlawful activity alleged in the indictment);

Third: That (name) knew the transaction involved the proceeds of some form of unlawful activity; and

Fourth: That (name) [include appropriate language to describe charges:

intended to promote the carrying on of the specified unlawful activity, that is (describe unlawful activity alleged in the indictment)

or conducted the financial transaction with knowledge that the transaction was designed in whole or in part to conceal or disguise the nature, location, source, ownership or control of the proceeds of (describe unlawful activity alleged in the indictment)

or conducted the financial transaction with knowledge that the transaction was designed in whole or in part to avoid a transaction reporting requirement under (State)(Federal) law.]

See Fifth Circuit § 2.76.

18 USC 1956(a)(1) provides that:

Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity--

(A)(i) with the intent to promote the carrying on of specified unlawful activity; ... or

(B) knowing that the transaction is designed in whole or in part--

(i) to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity; or

(ii) to avoid a transaction reporting requirement under State or Federal law commits a crime.

The court should also give Instruction 5.02 (Knowingly).

In United States v. Morelli, 169 F.3d 798, 804 (3d Cir. 1999), the Third Circuit enumerated the elements of money laundering under section 1956(a)(1):

(1) an actual or attempted financial transaction (2) involving the proceeds of specified unlawful activity; (3) knowledge that the transaction involves the proceeds of some unlawful activity; and (4) either (a) an intent to promote the carrying on of specified unlawful activity, or (b) knowledge that the transaction is designed to promote the underlying specified unlawful activity or "to conceal or disguise the nature [or] the source ... of the proceeds of specified unlawful activity."

In Morelli, the court noted that the government may properly charge both promotion and concealment in the same count. 169 F.3d at 804.

In United States v. Grasso, 381 F.3d 160, 168 (3d Cir. 2004), the Third Circuit explained the breadth of the money laundering statute:

To be sure, 18 USC 1956 criminalizes financial transactions that satisfy the conventional understanding of money laundering-namely, transactions intended "to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity." 18 USC 1956(a)(1)(B)(I). But it is equally unlawful under the statute to engage in a financial transaction, knowing that the property involved represents the proceeds of unlawful activity, "with the intent to promote the carrying on of specified unlawful activity." 18 USC 1956(a)(1)(A)(I). In other words, the money laundering statute prohibits not only the concealment of proceeds, but also the promotion of illegal activity.

In United States v. Paramo, 998 F.2d 1212, 1218 (3d Cir. 1993), the court held that the law does not require that the defendant "plow back" the proceeds into the unlawful activity. The court concluded that "a defendant can engage in financial transactions that promote not only ongoing or future unlawful activity, but also prior unlawful activity" and rejected the defendant’s "claim that the district court erred by instructing the jury that they could convict [the defendant] if he promoted the carrying on of a ‘past mail fraud.’"

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

The first element the government must prove beyond a reasonable doubt is that (name) conducted (or attempted to conduct) a financial transaction.

The term "conducts" includes initiating, concluding, or participating in initiating or concluding a transaction.

The term "transaction" means (a purchase, sale, loan, pledge, gift, transfer, delivery, or other disposition of property)(with respect to a financial institution, the deposit, withdrawal, transfer between accounts, or any other payment, transfer, or delivery by, through, or to a financial institution by whatever means effected).

The term "financial transaction" means any "transaction," as I just explained that term [include language that applies:

which in any way or degree affects interstate (or foreign) commerce and (involves the movement of funds by wire or other means) (involves one or more monetary instruments) (involves the transfer of title to any real property, vehicle, vessel or aircraft),

or

involves the use of a financial institution which is engaged in, or the activities of which affect, interstate or foreign commerce in any way or degree].

3 Sand et al., supra, 50A-3.

18 USC 1956(c) provides that, as used in this section:

(2) the term "conducts" includes initiating, concluding, or participating in initiating, or concluding a transaction;

(3) the term "transaction" includes a purchase, sale, loan, pledge, gift, transfer, delivery, or other disposition, and with respect to a financial institution includes a deposit, withdrawal, transfer between accounts, exchange of currency, loan, extension of credit, purchase or sale of any stock, bond, certificate of deposit, or other monetary instrument, use of a safe deposit box, or any other payment, transfer, or delivery by, through, or to a financial institution, by whatever means effected;

(4) the term "financial transaction" means (A) a transaction which in any way or degree affects interstate or foreign commerce (I) involving the movement of funds by wire or other means or (ii) involving one or more monetary instruments, or (iii) involving the transfer of title to any real property, vehicle, vessel, or aircraft, or (B) a transaction involving the use of a financial institution which is engaged in, or the activities of which affect, interstate or foreign commerce in any way or degree;

(6) the term "financial institution" includes--

(A) any financial institution, as defined in section 5312(a)(2) of title 31, United States Code, or the regulations promulgated thereunder; and

(B) any foreign bank, as defined in section 1 [FN1] of the International Banking Act of 1978 (12 USC 3101);

31 USC 5312(a)(2) and 31 C.F.R. § 103.11 define the term "financial institution."

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

The term "interstate commerce," as used in these instructions, means commerce between any combination of states, territories or possessions of the United States (including the District of Columbia).

[The government is not required to prove that (name)’s transactions with a financial institution, that is, with (specify financial institution), themselves affected interstate (or foreign) commerce. The government is required to prove only that the financial institutions or banks through which the financial transactions were conducted were engaged in or had other activities which affected interstate (or foreign) commerce in any way or degree.]

[Further, the government is not required to prove that the defendant knew of or intended the effect on interstate commerce, merely that such an effect occurred.]

See 3 Sand et al., supra, 50A-3.

The money laundering statute requires that the government plead and prove effect on interstate commerce. In United States v. Goodwin, 141 F.3d 394, 401 (2d Cir. 1997), the Second Circuit explained the nature of the interstate commerce requirement:

[T]he government must allege in the indictment that the financial transactions in question had some de minimis effect on interstate commerce. Such a conclusion is required by the plain language of the money laundering statute. Section 1956(a)(1) prohibits persons from conducting certain "financial transactions." The statute provides that "the term ‘financial transaction’ means (A) a transaction which in any way or degree affects interstate or foreign commerce ... or (B) a transaction involving the use of a financial institution which is engaged in, or the activities of which affect, interstate or foreign commerce in any way or degree." 18 USC 1956(c)(4). Thus, proof of a nexus with interstate commerce is necessary to establish the existence of a financial transaction, and proof of a financial transaction is needed to establish a violation of the statute.

See also United States v. Ables, 167 F.3d 1021, 1029-31 (6th Cir. 1999) (holding government need only establish de minimis effect on interstate commerce).

The court may include the second paragraph of the instruction if the alleged money laundering transaction involves a financial institution.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

The term "proceeds," as used in these instructions, means any property, or any interest in property, that someone acquires or retains as a result of criminal activity. Proceeds may be derived from an already completed offense or from a completed phase of an ongoing offense (include appropriate example; e.g., such as a mail fraud scheme).

The government is not required to prove that all of the funds involved in the charged transactions were the proceeds of the specified unlawful activity. (A financial transaction involves "proceeds" of a specified unlawful activity even when proceeds of a specified unlawful activity are commingled in an account with funds obtained from legitimate sources.) It is sufficient if the government proves beyond a reasonable doubt that at least part of the funds involved in a transaction represents such proceeds of specified unlawful activity.

I instruct you, as a matter of law, that the term "specified unlawful activity" includes a violation of (specify relevant statute; e.g., the mail fraud statute) as charged in this case. I have explained (will explain) the elements of (specify alleged unlawful activity).

18 USC 1956(c)(7) provides a list of specified unlawful activities.

Proceeds "means gross receipts rather than profits." See United States v. Grasso, 381 F.3d 160, 167 (3d Cir. 2004). In United States v. Morelli, 169 F.3d 798 (3d Cir. 1999), the Third Circuit stated that "[p]roceeds are `[t]hat which results, proceeds, or accrues from some possession or transaction.’" 169 F.3d at 805 (citing Black's Law Dictionary). See also United States v. Omoruyi, 260 F.3d 291, 294-96 (3d Cir. 2001) (holding that money became proceeds once it was credited to an account over which defendant had control). The government does not need to trace the proceeds to a particular criminal transaction provided the evidence establishes that the proceeds derived from the alleged unlawful activity. See United States v. Carr, 25 F.3d 1194, 1205 (3d Cir. 1994).

In Morelli, the court concluded that money is not the proceeds of wire fraud if it comes into the defendant’s hands before the wiring takes place. 169 F.3d at 805-06. The court expressly disagreed with the Seventh Circuit’s view that a defendant could accrue proceeds from a mail or wire fraud before the mailing or wiring occurred. 169 F.3d at 806 n.9. See also United States v. Conley, 37 F.3d 970, 980 (3d Cir. 1994) ("proceeds are derived from an already completed offense, or a completed phase of an ongoing offense, before they can be laundered"). However, the court went on to conclude that "the money was the proceeds of the entire ongoing fraudulent venture" and that "this venture was a wire fraud scheme." The court explained that "[a]lthough each series [of transactions] may have included discrete acts of wire fraud that followed the creation of the proceeds related to that series, the fact is that the entire program, encompassing all of the acts charged in the indictment, constituted one large, ongoing wire fraud scheme. Each wiring in each series furthered the execution of each and every individual act of tax fraud, and helped to create the proceeds involved in each succeeding series of transactions. This is primarily because each wiring, whether it occurred before or after a given act of tax fraud, served to promote and conceal each individual embezzlement of taxes, either ex ante or ex post. More precisely, each wiring, including those that occurred before a particular transaction, made it more difficult for the government to detect the entire fraudulent scheme or any particular fraudulent transaction or series of transactions. In sum, the money gained in each series of transactions (save the initial one) was the proceeds of wire fraud because the money was the proceeds of a fraud that was furthered by the prior wirings." 169 F.3d at 806-07.

The government does not have to trace all of the property involved in the money laundering transactions charged to a specified unlawful activity. It is sufficient if the government proves that some of the funds in a commingled account derived from the unlawful activity. See United States v. Sokolow, 91 F.3d 396, 409 (3d Cir. 1996) (discussing conviction under § 1957 and concluding that government is not required to "trace the funds constituting criminal proceeds when they are commingled with funds obtained from legitimate sources"); see also United States v. Jackson, 935 F.2d 832 (7th Cir. 1991) (transactions drawn on account containing commingled funds "involve" proceeds of specified unlawful activity).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

The third element that the government must prove beyond a reasonable doubt is that in conducting a financial transaction (name) knew that the property involved in the financial transaction represented the proceeds of some form of unlawful activity. To satisfy this element, the government must prove that (name) knew the property involved in the transaction represented proceeds from some form of unlawful activity that is a felony offense under state, federal, or foreign law. The government is not required to prove that (name) knew what the unlawful activity was.

In this case, the government claims that (name) knew that the proceeds were derived from unlawful activity which constitutes (describe criminal activity alleged; e.g., mail fraud) which is a felony under (federal)(state)(foreign) law.

3 Sand et al., supra, 50A-18.

18 USC 1956(c)(1) provides that, as used in this section

the term "knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity" means that the person knew the property involved in the transaction represented proceeds from some form, though not necessarily which form, of activity that constitutes a felony under State, Federal, or foreign law, regardless of whether or not such activity is specified in paragraph (7).

In United States v. Wert-Ruiz, 228 F.3d 250, 253 n. 2 (3d Cir. 2000), the Third Circuit noted that "[t]hough knowledge that the funds have been obtained illegally is required, knowledge of what the specified unlawful activity is not." See also United States v. Carr, 25 F.3d 1194, 1205 (3d Cir. 1994) (holding government could establish defendant’s knowledge of the criminal nature of the proceeds through circumstantial evidence).

In Wert-Ruiz, 228 F.3d at 254-55, the trial court gave the following "willful blindness" instruction:

When knowledge of the existence of a particular fact is an essential part of an offense, such knowledge may be established if a defendant is aware of a high probability of its existence, unless she actually believes that it does not exist.

So with respect to the issue of a defendant's knowledge in this case, if you find from all the evidence beyond a reasonable doubt that the defendant deliberately and consciously tried to avoid learning that certain currency was the proceeds of some form of illegal activity, and that the defendants deliberately and consciously tried to avoid learning that the transaction was designed in whole or in part to conceal or disguise the nature, location, source, ownership or control of the proceeds of the unlawful activity, you may treat such deliberate avoidance of positive knowledge as the equivalent of knowledge.

I must emphasize, however, that the requisite proof of knowledge on the part of a defendant cannot be established by demonstrating she was negligent, careless or foolish.

The Third Circuit concluded that the instruction was proper even though the government also contended that the defendant had actual knowledge. 228 F.3d at 256-57. See also 5.06 (Willful Blindness).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

The final element that the government must prove beyond a reasonable doubt is that (name), in conducting the financial transactions, [insert appropriate language:

intended to promote the carrying on of the specified unlawful activity, that is (describe unlawful activity alleged in the indictment; e.g., mail fraud),

or intended to conceal or disguise the nature, the source, the ownership, or the control of the proceeds of the specified unlawful activity, that is, (describe criminal activity alleged; e.g., mail fraud),

or conducted the financial transaction with knowledge that the transaction was designed in whole or in part to avoid a transaction reporting requirement under (state)(federal) law.]

Whether (name) [insert appropriate language:

intended to promote the carrying on of (describe specified unlawful activity alleged in the indictment),

or knew that the purpose of the financial transaction (attempted financial transaction) was to conceal or disguise the nature, location, source, ownership or control of the proceeds of (the specified criminal activity),

or knew that the transaction was designed in whole or in part to avoid a transaction reporting requirement under (State)(Federal) law]

may be established by proof of (name)’s actual knowledge; by circumstantial evidence; or by the defendant’s willful blindness (or purposeful ignorance). In other words, you are entitled to find from the circumstances surrounding the financial transactions or attempted financial transactions the purpose of that activity and (name)’s knowledge.

3 Sand et al., supra, 50A-5.

The court should also give Instruction 5.03 (Intentionally). In appropriate cases, the court should also give Instruction 5.06 (Willful Blindness).

In United States v. Navarro, 145 F.3d 580, 585 (3d Cir. 1998), the Third Circuit explained:

to constitute a violation of [1956(a)(1)] the defendant must undertake a financial transaction involving proceeds known to be from a specified unlawful activity:

1) With the intent to promote the carrying on of a specified unlawful activity (the promotion prong); or

2) Knowing that the transaction was designed in whole or in part to conceal the nature, location, ownership, etc. of the proceeds (the conceal or disguise prong); or

3) Knowing that the transaction was designed to avoid a transaction reporting requirement under state or federal law (the reporting requirement prong).

In United States v. Paramo, 998 F.2d 1212 (3d Cir. 1993), the court concluded that the evidence established the defendant’s intent. The court summarized the evidence as follows:

In the present case, Paramo understood that the embezzled checks would have been worthless unless cashed at a bank or otherwise exchanged for negotiable currency. Given this fact, the jury rationally could have found that the cashing of each check contributed to the growth and prosperity of each preceding mail fraud by creating value out of an otherwise unremunerative enterprise. Accordingly, the jury rationally could have concluded that cashing the checks promoted each antecedent fraud, and was specifically intended by Paramo to do so.

998 F.2d at 1218. See also United States v. Omoruyi, 260 F.3d 291, 295-96 (3d Cir. 2001) (holding that evidence established defendant’s intent to conceal nature, source, location, ownership, and control of proceeds of mail fraud where he deposited the money in bank accounts under false names and used false identification to withdraw it); United States v. Carr, 25 F.3d 1194, 1202-03 (3d Cir. 1994) (concluding evidence including trips to travel agency and large amount of currency in small bills was sufficient to establish money laundering through intent to conceal nature, source, location, ownership, and control of proceeds of unlawful activity).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

Count (number) of the indictment, charging (name) with money laundering, alleges more than one purpose for the money laundering offense(s), that is, that the transaction(s) (was)(were) [include appropriate language: intended to promote the carrying on of (specify the unlawful activity), or (was)(were) designed in whole or in part to conceal or disguise the nature, location, source, ownership or control of the proceeds of (specify the unlawful activity) or (was)(were) designed in whole or in part to avoid a transaction reporting requirement].

The government is not required to prove each of the purposes alleged. It is sufficient for the government to prove, beyond a reasonable doubt, that (name) committed each transaction for one of those purposes.

However, each of you must agree with each of the other jurors as to which purpose or purposes (name) intended to serve by engaging in the transaction. In other words, if you unanimously agree that (name) committed the alleged transaction to promote the carrying on of (specify unlawful activity alleged) or if you unanimously agree that (name) committed the alleged transaction to conceal or disguise the nature, location, source, ownership or control of the proceeds of that unlawful activity, or both, you may find the defendant guilty. You need not unanimously agree on each purpose, but, in order to convict, must unanimously agree upon at least one such purpose.

Unless each of you agrees that the government has proven the same purpose for an alleged transaction beyond a reasonable doubt, you must find the defendant not guilty of that money laundering transaction.

If the indictment charges multiple purposes for a money laundering transaction, the jurors should be instructed that they cannot convict unless they unanimously agree on the particular purpose for the money laundering transaction. See United States v. Navarro, 145 F.3d 580 (3d Cir. 1998).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

6.21.841A 
Controlled Substances – Possession with Intent to (Manufacture) (Distribute) 
(21 USC 841(a) & (b))

Count (number) of the indictment charges (name of defendant) with possessing [X grams or more of] a mixture or substance containing a controlled substance, specifically (identity of controlled substance), with the intent to (manufacture) (distribute) the controlled substance, which is a violation of federal law.

In order to find (name) guilty of this offense, you must find that the government proved each of the following four [five – see Alternative 2 below] elements beyond a reasonable doubt:

First, that (name) possessed a mixture or substance containing a controlled substance;

Second, that (name) possessed the controlled substance knowingly or intentionally;

Third, that (name) intended to (manufacture) (distribute) the controlled substance; and

Fourth, that the controlled substance was (identity of controlled substance).

[When the indictment alleges one of the weight thresholds authorizing increased maximum penalties under 21 USC 841(b) or the government otherwise seeks the increased maximum penalties based on the weight thresholds, use one of the following alternatives:

Alternative 1

Use the appropriate Verdict Form with Special Interrogatories With Respect to Substance Identity and Weight, as provided in Instruction 6.21.841C.

Alternative 2

Give the following additional instruction, and also consider giving a lesser included offense instruction on possession with intent to (distribute) (manufacture) a weight meeting a lower maximum penalty threshold:

Fifth, that the weight of the mixture or substance containing the controlled substance was (approximate weight) (X grams or more).]

O’Malley § 64.07; First Circuit § 4.22; Fifth Circuit § 2.87; Eighth Circuit § 6.21.841A & § 6.21.841A1 (Apprendi-Affected, Short & Long Forms); Ninth Circuit § 9.13; Eleventh Circuit § 85.

21 USC 841(a) provides, "(a) Unlawful acts. Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally – (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or

(2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance." This instruction should be used when the offense charged is possession with intent to manufacture or distribute a controlled substance. Instruction 6.21.841B should be used when the offense charged is manufacture or distribution of a controlled substance.

21 USC 841(b) sets forth the authorized penalties for violation of (a)(1) and (2).

These penalties vary depending on the identity and, in some cases, the weight of the controlled substance manufactured, distributed or possessed with the intent to manufacture or distribute. See the Drug Penalties Chart in the Comment to Instruction 6.21.841C. If the government does not prove a specific type of controlled substance, the maximum authorized sentence is, by default, one year in prison. 21 USC 841(b)(3). See, e.g., United States v. Barbosa, 271 F.3d 438 (3d Cir. 2001); United States v. Vasquez, 271 F.3d 93 (3d Cir. 2001).

Ordinarily, the government will charge and prove a specific type of controlled substance; this element is covered in the Fourth paragraph of the instruction. If the government proves and the jury finds that the controlled substance is, for example, heroin, cocaine, cocaine base, or methamphetamine, the maximum penalty is 20 years in prison and $1 million fine regardless of the weight of the substance.

Alternatives With Respect to Weight Thresholds. In cases in which the indictment alleges or the government otherwise seeks to prove a weight threshold that would authorize higher maximum penalties under 21 USC 841(b), different practices are followed in different districts. In some districts, trial judges include, in the section 841(a) instruction, weight of the substance as an element of the offense. In other districts, a weight element is not included in the offense instruction, but instead the jury is asked to make a finding on weight by answering special interrogatories after it has found the defendant guilty of the offense. This instruction provides for flexibility in handling this issue by providing bracketed alternatives with respect to the weight of the substance. See discussion of Apprendi below. If special interrogatories are used, see Instruction 6.21.841C.

Identity and Weight of Controlled Substance as Elements. With respect to the offenses defined by 21 USC 841(a), the Third Circuit has held that, if the government seeks a penalty of more than the one year default maximum, the identity of the controlled substance alleged must be treated as an element of the offense that must be found by the jury beyond a reasonable doubt under Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). United States v. Barbosa, 271 F.3d 438 (3d Cir. 2001). In Apprendi, the Supreme Court held that, "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490. In United States v. Vasquez, 271 F.3d 93 (3d Cir. 2001), the Third Circuit also held that weight of the controlled substance must be treated as an element when the weight exceeds the thresholds for the different maximum penalties authorized under 21 USC 841(b).

The Third Circuit summarized its decisions on this point in United States v. Henry, 282 F.3d 242, 246-47 (3d Cir 2002):

We recently addressed the quantity and identity issues, respectively, in United States v. Vazquez, 271 F.3d 93 (3d Cir.2001) (en banc), and United States v. Barbosa, 271 F.3d 438 (3d Cir.2001). In Vazquez we held that "an Apprendi violation . . . occurs if the drug quantity is not found by a jury beyond a reasonable doubt and the defendant's sentence under § 841 exceeds [the statutory maximum]." Vazquez, 271 F.3d at 98 (emphasis added). Similarly, in Barbosa we held that drug identity must be found by a jury beyond a reasonable doubt when the "defendant would be exposed to greater punishment depending upon ... the identity of the controlled substance." Barbosa, 271 F.3d at 454. Although neither Vazquez nor Barbosa established a bright line rule that drug quantity and/or identity is always an element that must be found beyond a reasonable doubt by a jury, inasmuch as both identity and quantity are relevant to determining what the statutory maximum is when the sentence imposed is greater than the "catch-all" maximum of one year, we conclude that, under Vazquez and Barbosa, Apprendi has been violated in this case.

In reasoning that refers explicitly to the identity of the controlled substance, but is equally applicable to the weight, the court in Henry explained further (282 F.3d at 248):

Recognizing that prior cases had concluded that drug identity was a sentencing factor, not an element of the crime that had to be submitted to the jury, we did not go so far as to decide that identity is always an element. Cf. Vazquez, 271 F.3d at 108 (Becker, C.J., concurring) ("[D]rug type and quantity are always elements of an offense under § 841, and therefore must always be submitted to the jury for proof beyond a reasonable doubt.") (emphasis in original). Rather, we reaffirmed that "even after Apprendi, drug identity will not always be an element of a § 841(a) offense.... So long as the resulting, and possibly enhanced, sentence is below the statutory maximum authorized by the jury's factual findings, no Apprendi problem exists." Barbosa, 271 F.3d at 456-57 (emphasis added). However, what we did conclude in Barbosa is that in cases where drug identity is not known or found by the jury, "drug identity would not be an element [only] in those cases where the sentence imposed is below the lowest 'catch-all' maximum of one year found in § 841(b)(3)...." Id. at 457. This result was driven by our observation that, without a jury determination on the particular substance, we cannot assume the identity and, thereby, the provision under which the individual should be sentenced. Thus, the rule of Barbosa is that when the jury's factual findings do not include a finding as to the identity of the drug beyond a reasonable doubt, Apprendi will be violated when the sentence exceeds the lowest "catch-all" statutory maximum of one year. See 21 USC 841(b)(3).

The weight thresholds also trigger mandatory minimum penalties under 21 USC 841(b). The Supreme Court held in Harris v. United States, 536 U.S. 545 (2002), that facts which create mandatory minimum penalties need not be found by the jury beyond a reasonable doubt and may be determined by the judge at sentencing, although the status of the decision may be questioned after Booker v. United States, 543 U.S. 220 (2005). See, e.g., United States v. Barragan-Sanchez, 165 Fed. Appx.758, 760 (11^th Cir. 2006) (not precedential); United States v. Ezell, 417 F. Supp 2d 667, 670 (E.D. Pa.2006).

Lesser Included Offenses. Simple possession, possession with intent to distribute (or manufacture) a weight meeting a lower maximum penalty threshold, and possession with intent to distribute (or manufacture) an unspecified amount of controlled substance are lesser included offenses of possession with intent to distribute (or manufacture) a specific amount of controlled substance. United States v. Lacy, 446 F.3d 448 (3d Cir. 2006). The trial judge should, therefore, consider Instruction No. 3.11 (Lesser Included Offenses). The trial judge should also consider the need to give an instruction on attempt to possess with intent to distribute (or manufacture). See Instructions Nos. 7.01 and 6.21.846A; FRCP 31(c) (Jury Verdict – Lesser Included Offense or Attempt).

Resulting Death or Serious Bodily Injury. Under 21 USC 841(b), the maximum penalties available are also increased "if death or serious bodily injury results from the use of such substance." When the indictment alleges or the government otherwise seeks to prove resulting death or serious bodily injury, the jury must find "death or serious bodily injury" beyond a reasonable doubt under Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). See Jones v. United States, 526 U.S. 227, 230 (1999) (predecessor to Apprendi; addressing the federal carjacking statute, which provides three different maximum penalties depending on the extent of harm to the victim, including 25 years if there was serious bodily injury and life in prison if death resulted, the Court "concluded that the harm to the victim was an element of the crime. . . ." United States v. Booker, 543 U.S. 220, 230 (2005)).

As with the weight issue, the trial judge may ask the jury to consider resulting death or serious bodily injury by way of special interrogatories answered after it finds the defendant guilty of the offense. See Instruction 6.21.841C. Alternatively, the trial judge may include in the offense instruction a "death or serious bodily injury" element, as follows: "[(Fifth) (Sixth), that death or serious bodily injury resulted from the use of the controlled substance.]" Under this alternative, the judge should also consider instructing on the lesser included offense of possession with intent not resulting in death or serious injury.

Additional Controlled Substance Offenses. Congress has supplemented the core offenses under 21 USC 841 with several additional offenses carrying increased maximum penalties, when the core section 841 crimes are committed under certain specified circumstances. For example, 21 USC 860 provides that the penalties for manufacturing, distributing, and possessing with intent to distribute are doubled or tripled when the offense is committed within a specified distance of a school or other facility regularly used by children. Specifically, 21 USC 860(a) provides:

Any person who violates section 841(a)(1) 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, or within 100 feet of a public or private youth center, public swimming pool, or video arcade facility, is (except as provided in subsection (b) of this section) subject to (1) twice the maximum punishment authorized by section 841(b) of this title; and (2) at least twice any term of supervised release authorized by section 841(b) of this title for a first offense. A fine up to twice that authorized by section 841(b) of this title may be imposed in addition to any term of imprisonment authorized by this subsection. Except to the extent a greater minimum sentence is otherwise provided by section 841(b) of this title, a person shall be sentenced under this subsection to a term of imprisonment of not less than one year. The mandatory minimum sentencing provisions of this paragraph shall not apply to offenses involving 5 grams or less of marihuana.

Also see, e.g., 21 USC 860(c) (Employing children to distribute drugs near schools and playgrounds); 21 USC 859 (Distribution to persons under age of twenty-one); 21 USC 861 (Employment or use of persons under 18 years of age in drug operations).

The Third Circuit has held that these statutes create separate substantive offenses in addition to the core section 841 offenses, and are not merely sentence enhancement provisions. See, e.g., United States v. McQuilkin, 78 F.3d 105, 108 (3d Cir. 1996) ("21 USC 860 is a separate substantive offense, not a sentence enhancement provision."). Therefore, if the defendant is charged with one of these separate offenses, the trial judge must give a separate instruction on that offense. For example, if the indictment includes a charge of distributing or possessing with intent to distribute a controlled substance within the prescribed distance of a school or other specified, youth related facility, the trial judge should give the following additional instruction:

Count (no.) of the indictment charges (name) with (distributing) (possessing with intent to distribute) a controlled substance in or near a (school) (playground) (public housing facility) (youth center, or [specify the other type of facility charged]). This is a separate violation of federal law in addition to the offense of (distributing) (possessing with intent to distribute) a controlled substance generally, which is charged in Count (no.).

In order to find (name) guilty of this offense, in addition to the elements that I have already explained to you, you must also find that the government proved beyond a reasonable doubt that (name) (distributed) (possessed with intent to distribute) a controlled substance [in or on, or within 1000 feet of the property comprising a (public or private elementary, vocational, or secondary school) (public or private college, junior college, or university) (playground) (housing facility owned by a public housing authority)] [within 100 feet of a (public or private youth center) (public swimming pool) (video arcade facility)].

A similar instruction must be given if the defendant is charged with any of the other separate, increased penalty offenses. With respect to the enhanced penalties for offenses involving firearms and drug trafficking, see Instructions 6.18.924A, A-1, B, B-1.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

See Sand, Form Instruction 35-49; O’Malley § 64.08. This instruction is the same as Instruction 6.18.922-5 with respect to possession of a firearm.

Constructive Possession. To convict the defendant of possession or possession with the intent to distribute a controlled substance, the government must establish that the defendant possessed the controlled substance. Possession may be actual or constructive. To establish constructive possession the government must prove that the defendant knew of the object and had control over it. In United States v. Brown, 3 F.3d 673 (3d Cir. 1993), the Third Circuit stated:

Although the government need not show proof of actual possession, to show "constructive" possession of an illegal substance the government must submit sufficient evidence to support an inference that the individual "knowingly has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons. Constructive possession necessarily requires both 'dominion and control' over an object and knowledge of that object's existence."

3 F.3d at 680 (citing United States v. Iafelice, 978 F.2d 92 (3d Cir. 1992)). See also United States v. Brightwell, 104 Fed.Appx. 823 (3d Cir. 2004) (affirming conviction for possessing a firearm in relation to a drug trafficking crime on basis of constructive possession); United States v. Garth, 188 F.3d 99, 112 (3d Cir.1999) (holding that prosecution had failed to establish that defendant had constructive possession).

The instruction does not use the terms "constructive possession" or "dominion," which are commonly used by the courts when discussing the legal concept of possession. Jurors cannot be expected to understand these terms. However, if the attorneys have used either or both of these terms during the trial, the court may chose to modify the instruction accordingly.

If the government’s case rests heavily on the defendant’s presence in combination with other circumstances, the court may wish to include the optional language instructing the jury that mere presence or association is not sufficient to establish possession. It is clear that mere presence or association is insufficient to prove possession. See United States v. Davis, 461 F.2d 1026, 1036 (3d Cir. 1972) (addressing possession of drugs). In United States v. Stewart, 131 Fed.Appx. 350, 354 (3d Cir. 2005) (not precedential), however, the Third Circuit held that the defendant was not entitled to a "mere presence" instruction because the jury instructions given adequately conveyed the requirements for constructive possession:

The instructions concerning actual and constructive possession were legally correct and complete. The District Court made clear that, in order to have actual possession of an object, a person must have direct physical control or authority over the object, such as the control one has when one holds an object in one's hands. And in order to have "constructive" possession over an object, the District Court explained, a person must have the ability to take actual possession of the object when the person wants to do so. Because mere proximity, mere presence, or mere association is not enough for even constructive possession, these instructions adequately conveyed to the jury that constructive possession is not established by mere proximity, mere presence, or mere association.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

The Notes to O’Malley § 64.04 state: "This instruction is based, in part, upon 21 USC 802(8) and § 802(11). Section 802(8) defines "deliver" or "delivery" to mean the "actual, constructive, or attempted transfer of a controlled substance, whether or not there exists an agency relationship." Section 802(11) defines "distribute" to mean "to deliver (other than by administering or dispensing) a controlled substance." A "distributor" is one "who so delivers a controlled substance." 21 USC 802(11). Distribution simply involves an unlawful transfer--a sale or exchange of money or other "commercial" item is not required. See United States v. Coady, 809 F.2d 119, 124 (1st Cir.1987); United States v. Workopich, 479 F.2d 1142, 1147 (5th Cir.1973); United States v. Ramirez, 608 F.2d 1261, 1264 (9th Cir.1979)."

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

O’Malley § 64.13.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

The language of this instruction is based on the general definitions of knowingly and intentionally, stated in Instructions 5.02 (Knowingly) and 5.03 (Intentionally), modified in accordance with the Third Circuit’s opinion in United States v. Barbosa, 271 F.3d 438, 457-58 (3d Cir. 2001), about the meaning of these two mental states with respect to controlled substances offenses. Also see O’Malley § 6.15 (Knowledge of precise controlled substance need not be proven).

In Barbosa, the Third Circuit held that although the identity of the specific controlled substance alleged must usually be treated as an element of the offense, which must be found by a jury beyond a reasonable doubt under Apprendi v. New Jersey, 530 U.S. 466 (2000), the mental state requirements knowingly, intentionally, and intent to distribute in 21 USC 841(a) do not require the government to prove that the defendant was aware that he possessed, etc, the specific substance alleged. That is, although the government must prove the identity of the controlled substance in order to increase the available maximum sentence beyond the one year in prison default maximum, the government only needs to prove beyond a reasonable doubt that the defendant knew that he or she was possessing, etc., a controlled substance generally. Thus, in Barbosa the evidence was sufficient to sustain the defendant’s conviction of possession with intent to distribute, even though it was essentially undisputed that the defendant honestly believed that the cocaine he possessed was in fact heroin.

In those cases in which the weight of the controlled substance affects the maximum penalty available under 21 USC 841(b), whether the weight exceeds the thresholds for greater maximum penalties must also be treated as an element of the offense under Apprendi. See the Comment to Instruction 21.841C. United States v. Vasquez, 271 F.3d 93 (3d Cir.2001) (en banc). Although the Third Circuit has not addressed whether the mental state requirements for controlled substance offenses applies to this weight element, it is likely the court will also hold that the government need not prove that the defendant was aware of the weight of the mixture or substance containing the controlled substance. With respect to the controlled substance offenses, the Third Circuit has treated the identity and weight elements similarly under Apprendi. See, e.g., United States v. Lacy, 446 F.3d 448, 453 (3d Cir. 2006); United States v. Barbosa, 271 F.3d 438, 457-58 (3d Cir. 2001); Vasquez v. United States, 271 F.3d 93 (3d Cir.2001) (en banc). Identity and weight serve the same function as determinants of the various penalty ranges under 21 USC 841(b), and Congress likely intended the same mental state analysis with respect to both.

The bracketed language in the third paragraph should be used when the government seeks to prove the weight thresholds that would authorize the higher maximum penalties and the court follows the alternative of instructing that weight of the controlled substance is an element of the offense, rather than the alternative of asking the jury to make a finding on weight through special interrogatories after it has found the defendant guilty of the offense.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

O’Malley § 64.09. This is a clear example of the traditional specific intent element, meaning that the government is required to prove that it was the defendant’s purpose or conscious object to commit the unlawful act.

The relevant portions of the second sentence of the second paragraph should be used when supported by the evidence. See, e.g., United States v. Lee, 174 Fed. Appx. 60, 62 (3d Cir. 2006) (not precedential) (evidence sufficient to prove intent to distribute where the defendant was arrested with 30, $10 packets of crack cocaine and stuffed into his waistband, as well as $746 in United States currency, in addition to testimony that he was a seller); United States v. Johnson, 302 F.3d 139, 149 (3d Cir. 2002) (evidence sufficient to find intent to distribute where it showed that, when confronted by U. S. Marshals, defendant appeared to stuff fifteen bags of marijuana in a taxi's back seat cushions, his companion said the bags were his not hers; defendant had sixty-two small plastic bags of crack cocaine in his coat pocket; a bag found at his companion’s residence contained documents bearing defendant’s name and fingerprint, scores of small plastic bags filled with crack cocaine, cocaine, and marijuana, extensive drug paraphernalia, and a loaded gun; she testified the bag belonged to defendant).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

O’Malley § 64.03; First Circuit §§ 4.23-4.24; Eighth Circuit § 6.21.841B; Ninth Circuit § 9.15; Tenth Circuit § 2.85.1.

21 USC 841(a) provides in pertinent part, "(a) Unlawful acts. Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally – (1) to manufacture, distribute, or dispense . . . a controlled substance."

21 USC 841(b) sets forth the authorized penalties for violation of (a)(1) and (2). These penalties vary depending on the identity and, in some cases, the weight of the controlled substance manufactured, distributed or possessed with the intent to manufacture or distribute. See the Drug Penalties Chart in the Comment to Instruction 6.21.841C.

Identity and Weight of Controlled Substance as Elements; Alternatives. As discussed in the Comment to Instruction 6.21.841A, with respect to the offenses defined by 21 USC 841(a), the Third Circuit has held that the identity and quantity of controlled substance involved usually must be treated as elements of the offense charged that must be found by the jury beyond a reasonable doubt under Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

Ordinarily, the government will charge and prove a specific type of controlled substance; this element is covered in the Third paragraph of the instruction. If the government proves and the jury finds that the controlled substance is, for example, heroin, cocaine, cocaine base, and methamphetamine, the maximum penalty is 20 years in prison and $1 million fine regardless of the weight of the substance. In cases in which the indictment alleges or the government otherwise seeks to prove a weight threshold that would authorize higher maximum penalties under 21 USC 841(b), different practices are followed in different districts. Like Instruction 6.21.841A, this instruction provides for flexibility in handling this issue by providing bracketed alternatives with respect to the weight of the substance. See discussion in Comment to Instruction 6.21.841A. If special interrogatories are used, see Instruction 6.21.841C.

Death or Serious Bodily Injury. Under 21 USC 841(b), the maximum penalties available are also increased "if death or serious bodily injury results from the use of such substance." When the indictment alleges or the government otherwise seeks to prove resulting death or serious bodily injury, to authorize the increased penalties available under this provision, the jury must find "death or serious bodily injury" beyond a reasonable doubt under Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). The trial judge may ask the jury to consider resulting death or serious bodily injury by way of special interrogatories answered after it finds the defendant guilty of the core offense. See Instruction 6.21.841C. Alternatively, the trial judge may include in the offense instruction a "death or serious bodily injury" element, as follows: "[(Fourth) (Fifth), that death or serious bodily injury resulted from the use of the controlled substance.]" Under this alternative, the judge should also consider instructing on the lesser included offense of possession with intent not resulting in death or serious injury. See Comment to Instruction 6.21.841A.

Lesser Included Offenses. Distribution (or manufacture) of a weight meeting a lower maximum penalty threshold, distribution (or manufacture) of an unspecified amount of controlled substance, possession with intent to distribute (or manufacture), and simple possession are lesser included offenses of distribution (or manufacture) of a specific amount of controlled substance. See United States v. Lacy, 446 F.3d 448 (3d Cir. 2006). The trial judge should, therefore, consider Instruction No. 3.11 (Lesser Included Offenses). The trial judge should also consider the need to give an instruction on attempt to distribute (or manufacture). See Instructions No. 7.01 and 21.846A. See FRCP 31(c) (Jury Verdict – Lesser Included Offense or Attempt).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

O’Malley § 64.14 (should not be followed in Apprendi-affected cases); Eighth Circuit § 6.21.841A.1 (Verdict Form; with Lesser Included Offense). The interrogatories and verdict forms provided in this instruction are based on those "prepared by the Office of the United States Attorney for the Eastern District of Pennsylvania and used without incident or problem by the judges of the district court ...." United States v. Vasquez, 271 F.3d 93, 114 (3d Cir. 2001 (Becker, C.J., concurring).

The special interrogatories may be used, as one of the alternatives in Instructions 6.21.841A and B, in cases in which the government seeks to prove the weight thresholds that would authorize the higher maximum penalties under 21 USC 841(b). See Comments to Instructions 6.21.841A and B. Also see discussion of special interrogatories in the Comment to Instruction No. 3.18. When the government seeks the increased penalties available under 21 USC 841(b) "if death or serious bodily injury results from the use of such substance," the trial judge may use the bracketed special interrogatory at the end of this instruction.

Where the defendant is charged with conspiracy to violate the controlled substances provisions under 21 USC 846, the weight or quantity thresholds for the maximum authorized penalties are determined based on the weight or quantity involved in the entire conspiracy, not merely the weight or quantity that the particular defendant conspired to possess, distribute, or manufacture. See Comment to Instruction 6.21.846B (Controlled Substances – Conspiracy to (Distribute) (Possess with Intent to Manufacture / Distribute) (Manufacture) (Possess)(21 USC 846)). However, where multiple conspiracies are alleged and the defendant was not involved in a single overall conspiracy or in all of the multiple conspiracies, the special interrogatory with respect to conspiracy may need to be modified.

The weight thresholds and maximum sentences for the most commonly charged controlled substances (with or without "death or serious bodily injury"), provided by 21 USC 841(b), are set forth in the following chart (provided by the office of the United States Attorney for the Eastern District of Pennsylvania).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

6.21.844 
Controlled Substance – Possession (21 USC 844)

Count (number) of the indictment charges the defendant (name of defendant) with possessing [X grams or more] of a mixture or substance containing a controlled substance, specifically (identity of controlled substance), which is a violation of federal law.

In order to find (name) guilty of this offense, you must find that the government proved each of the following (two) (four) elements beyond a reasonable doubt:

First, that (name) possessed a mixture or substance containing a controlled substance; and

Second, that (name) possessed the controlled substance knowingly or intentionally.

[When the indictment charges possession of cocaine base and alleges one of the weight thresholds authorizing increased maximum penalties under 21 USC 844, use one of the following alternatives:

Alternative 1

Use a Verdict Form with Special Interrogatories With Respect to Substance Identity and Weight of the type provided in Instruction 6.21.841C.

Alternative 2

Give the following additional instructions and consider giving a lesser included offense instruction on possession of an amount of cocaine base meeting a lower maximum penalty threshold:

Third, that the controlled substance was cocaine base; and

Fourth, that the weight of the mixture or substance containing the controlled substance was (approximate weight) (X grams or more).]

O’Malley § 64.12.

21 USC 844(a) provides in part, "(a) Unlawful acts; penalties. It shall be unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by this subchapter or subchapter II of this chapter." The penalties prescribed under § 844(a) are "a term of imprisonment of not more than 1 year, and . . . a minimum fine of $1,000, or both. . . . . Notwithstanding the preceding sentence, a person convicted under this subsection for the possession of a mixture or substance which contains cocaine base shall be imprisoned not less than 5 years and not more than 20 years, and fined a minimum of $1,000, if the conviction is a first conviction under this subsection and the amount of the mixture or substance exceeds 5 grams, if the conviction is after a prior conviction for the possession of such a mixture or substance under this subsection becomes final and the amount of the mixture or substance exceeds 3 grams, or if the conviction is after 2 or more prior convictions for the possession of such a mixture or substance under this subsection become final and the amount of the mixture or substance exceeds 1 gram."

Identity and Weight of Cocaine Base as Elements; Alternatives. Under this provision, the authorized maximum penalties for possession of a controlled substance depend on the identity and quantity of the substance only when possession of cocaine base is charged. (The authorized maximum penalty for possession of a controlled substance other than cocaine base is the same regardless of the type and weight of the substance possessed.) As a result, when the charge is possession of cocaine base and the government seeks a penalty greater than the default penalties for possession of a controlled substance generally, identity and weight must be treated as elements of the offense and found by the jury beyond a reasonable doubt under Apprendi v. New Jersey, 530 U.S. 466 (2000). In United States v. Lacy, 446 F.3d 448, 453 (3d Cir. 2006), the Third Circuit stated, "Although we have not previously discussed this issue in the context of a section 844 simple possession offense, we conclude that applying Apprendi to that statute yields the same result that we reached with respect to section 841: drug identity and quantity should be considered the functional equivalents of elements of a simple possession offense when they increase a defendant's maximum statutory sentence exposure." See discussion in the Comment to Instruction 6.21.841A.

Accordingly, when possession of cocaine base is charged, the trial judge should either instruct that there are four elements of the offense and give the Third and Fourth elements stated in the bracketed portion of this instruction, or obtain jury findings on these issues by asking the jury to answer a special interrogatory of the type set forth in Instruction 6.21.841C, after it has found the defendant guilty.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

Eighth Circuit § 6.21.846B; Ninth Circuit § 9.14 & § 9.16.

21 USC 846 provides, "Any person who attempts or conspires to commit any offense defined in this subchapter [dealing with controlled substances] shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy." With respect to conspiracy under this provision, the Supreme Court has recognized, according to "the settled principle of statutory construction that, absent contrary indications, Congress intends to adopt the common law definition of statutory terms." United States v. Shabani, 513 U.S. 10, 13-14 (1994). This same principle has also been applied to attempt under various federal statutes. See, e.g., United States v. Earp, 84 Fed. Appx. 228, 232-34 (3d Cir 2004) (unpublished opinion); United States v. Hsu, 155 F.3d 189, 202-03 (3d Cir. 1998); United States v. Cicco, 10 F.3d 980, 984-85 (3d Cir. 1993); United States v. Cruz-Jiminez, 977 F.2d 95, 102 (3d Cir. 1992); United States v. Kikumura, 918 F.2d 1084, 1108 (3d Cir. 1990); United States v. Everett, 700 F. 2d 900, 903-04 (3d Cir. 1983). The law with respect to attempt under federal criminal statutes, is set forth in Instruction 7.01 (Attempt) and in the Comment to that instruction.

As discussed in the Comment to Instruction 6.21.841A, identity and, in some cases, weight must be treated as elements of the controlled substance offense and found by the jury beyond a reasonable doubt under Apprendi v. New Jersey, 530 U.S. 466 (2000). Because the penalties for attempt under 21 USC 846 are the same as those prescribed for the controlled substance offense(s) that was (were) the object of the attempt, identity and quantity of the controlled substance involved must be treated as elements of attempt in those cases in which they would be treated as elements of the offense attempted. Accordingly, when the trial judge instructs on the elements of the controlled substance offense(s) the defendant is charged with attempting, the judge should instruct on the identity and weight elements or adapt the special interrogatories set forth in Instruction 6.21.841C. See Instructions 6.21.841A, B, and C, and the Comments to these instructions.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

Fifth Circuit § 2.89; Eighth Circuit § 6.21.846A & § 6.21.846A.1 (Apprendi - Affected); Eleventh Circuit § 87; Tenth Circuit § 2.87.

21 USC 846 provides, "Any person who attempts or conspires to commit any offense defined in this subchapter (dealing controlled substances laws) shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy." Conspiracy to commit a controlled substances offense under 21 USC 846 is generally defined the same as under the general conspiracy statute 18 USC 371, except that 21 USC 846 does not include an overt act requirement. When the charge is conspiracy under 21 USC 846, the trial judge should also give the instructions with respect to conspiracy generally that are applicable in the case. See Instructions 6.18.371C - E and G - L. If the defendant is charged in the same case both with conspiracy under 18 USC 371 and with conspiracy under 21 USC 846, the trial judge must be careful to make clear that an overt act is required with respect to the former but not the latter.

No Overt Act Requirement. As to the lack of an overt act element under 21 USC 846, the Supreme Court explained in United States v. Shabani, 513 U.S. 10, 13-14 (1994):

The language of [21 USC 846 does not] require that an overt act be committed to further the conspiracy, and we have not inferred such a requirement from congressional silence in other conspiracy statutes. . . .

Nash [ v. United States, 229 U.S. 373 (1913)] and Singer [ v. United States, 323 U.S. 338 (1945)] follow the settled principle of statutory construction that, absent contrary indications, Congress intends to adopt the common law definition of statutory terms. See Molzof v. United States, 502 U.S. 301, 307-308, 112 S.Ct. 711, 715-716, 116 L.Ed.2d 731 (1992). We have consistently held that the common law understanding of conspiracy "does not make the doing of any act other than the act of conspiring a condition of liability." Nash, supra, 229 U.S., at 378, 33 S.Ct., at 782; see also Collins v. Hardyman, 341 U.S. 651, 659, 71 S.Ct. 937, 941, 95 L.Ed. 1253 (1951); Bannon v. United States, 156 U.S. 464, 468, 15 S.Ct. 467, 469, 39 L.Ed. 494 (1895) ("At common law it was neither necessary to aver nor prove an overt act in furtherance of the conspiracy ...").

[W]e find it instructive that the general conspiracy statute, 18 USC 371, contains an explicit requirement that a conspirator "do any act to effect the object of the conspiracy." In light of this additional element in the general conspiracy statute, Congress' silence in § 846 speaks volumes. After all, the general conspiracy statute preceded and presumably provided the framework for the more specific drug conspiracy statute. "Nash and Singer give Congress a formulary: by choosing a text modeled on § 371, it gets an overt-act requirement; by choosing a text modeled on the Sherman Act, 15 USC 1, it dispenses with such a requirement." United States v. Sassi, 966 F.2d 283, 284 (CA7 1992). Congress appears to have made the choice quite deliberately with respect to § 846.

Identity and Weight of Controlled Substance Involved in Conspiracy. As with attempt under 21 USC 846, the penalties for conspiracy under 21 USC 846 are the same as those prescribed for the controlled substance offense(s) that was (were) the object of the conspiracy. Accordingly, when the trial judge instructs on the elements of the controlled substance offense the defendant is charged with conspiring to commit, the judge should instruct on the identity and weight elements or should use the special interrogatories set forth in Instruction 6.21.841C. See Instructions 6.21.841A, B, and C, and the Comments to these instructions.

In United States v. Phillips, 349 F.3d 138 (3d Cir. 2003), the Third Circuit held that, under Apprendi v. New Jersey, 530 U.S. 466 (2000), a jury in a multi-defendant drug conspiracy case need only determine the amount of drugs involved in the conspiracy as a whole, not the amount attributable to each defendant. Finding persuasive the analyses of cases from other circuits, the court reasoned (349 F.3d at 142-43):

In drug conspiracy cases, Apprendi requires the jury to find only the drug type and quantity element as to the conspiracy as a whole, and not the drug type and quantity attributable to each co-conspirator. The finding of drug quantity for purposes of determining the statutory maximum is, in other words, to be an offense-specific, not a defendant-specific, determination. The jury must find, beyond a reasonable doubt, the existence of a conspiracy, the defendant's involvement in it, and the requisite drug type and quantity involved in the conspiracy as a whole. Once the jury makes these findings, it is for the sentencing judge to determine by a preponderance of the evidence the drug quantity attributable to each defendant and sentence him or her accordingly, provided that the sentence does not exceed the applicable statutory maximum.

In Phillips, the Third Circuit affirmed the trial court’s instruction to the jury to decide, beyond a reasonable doubt, only the amount of crack involved in the conspiracy itself, and upheld sentences for the individual defendants that were within the statutory maximum of life imprisonment triggered by the jury’s finding that the amount of crack attributable to the conspiracy was 50 or more grams. 349 F.3d at 140.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

6.21.853 
Criminal Forfeiture of Property (Controlled Substances) 
(21 USC 853)

See Eighth Circuit § 6.21.853 (Controlled Substances); Sand, Inst. 52.06 (RICO Forfeiture).

This instruction addresses criminal forfeiture after a conviction for a controlled substance offense, under 21 USC 853 (Criminal Forfeiture), which provides in pertinent part:

(a) Property subject to criminal forfeiture

Any person convicted of a violation of this subchapter or subchapter II of this chapter 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 in violation of section 848 of this title, the person shall forfeit, in addition to any property described in paragraph (1) or (2), any of his interest in, claims against, and property or contractual rights affording a source of control over, the continuing criminal enterprise.

The court, in imposing sentence on such person, shall order, in addition to any other sentence imposed pursuant to this subchapter or subchapter II of this chapter, that the person forfeit to the United States all property described in this subsection. . . .

(b) Meaning of term "property"

Property subject to criminal forfeiture under this section includes--

(1) real property, including things growing on, affixed to, and found in land; and

(2) tangible and intangible personal property, including rights, privileges, interests, claims, and securities. . . .

(d) Rebuttable presumption

There is a rebuttable presumption at trial that any property of a person convicted of a felony under this subchapter or subchapter II of this chapter is subject to forfeiture under this section if the United States establishes by a preponderance of the evidence that–

(1) such property was acquired by such person during the period of the violation of this subchapter or subchapter II of this chapter or within a reasonable time after such period; and

(2) there was no likely source for such property other than the violation of this subchapter or subchapter II of this chapter. . . .

21 USC 853(a), (b), (d).

Other Criminal Forfeiture Statutes. In 1970, when Congress enacted this controlled substances forfeiture provision, it also enacted a RICO forfeiture provision (18 USC 1963). The RICO provision is broader than the controlled substances provision with respect to the property subject to forfeiture, but the RICO provision does not provide the rebuttable presumption set forth in subsection (d) of the controlled substances provision. Since 1970, Congress has expanded the availability of criminal forfeiture to other federal criminal offenses. For example, 18 USC 982 provides for criminal forfeiture as part of the sentence for persons convicted of a number of federal crimes, including money laundering, and mail, bank and wire fraud. Also, see, e.g., 18 USC 1467 (obscene materials); 18 USC 2253 (exploitation of children in producing obscene materials); 18 USC 3665 (firearms possessed by convicted felons); 18 USC 201, 981(a)(1)(C), 3666 (bribery); 18 USC 3667 (liquors and related property).

Further, in the Civil Asset Forfeiture Reform Act of 2000 (CAFRA), Pub. L. 106-185, § 16, Apr. 25, 2000, 114 Stat. 221, Congress enacted 28 USC 2461(c), which provides that a forfeiture judgment may be obtained in any criminal prosecution on the basis of a violation for which a civil forfeiture provision but no corresponding criminal forfeiture provision exists. The Third Circuit confirmed this expansion of the reach of criminal forfeiture proceedings in United States v. Vampire Nation, 451 F.3d 189, 198-201 (3d Cir. 2006). In addition, Section 2461(c), as amended by the USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. 109-177, Title IV, § 410, Mar. 9, 2006, 120 Stat. 192, 246, directs that the criminal forfeiture procedures in 21 USC 853 are the controlling procedures for all criminal forfeiture cases with the exception of § 853(d)’s rebuttable presumption provision, which applies only to forfeiture under the Controlled Substances Act.

Where a different forfeiture provision is charged, the instructions must be modified to reflect the standard for forfeiture stated in the particular provision. For example, the provision at 18 USC 981(a)(1)(C), which is applicable by virtue of 28 USC 2461(c) to numerous offenses, allows for forfeiture of "[a]ny property, real or personal, which constitutes or is derived from proceeds traceable" to the offense. These terms are defined in various decisions. See, e.g., United States v. Stewart, 185 F.3d 112, 129-30 (3d Cir. 1999) (tainted funds traced into account were forfeitable as "involved in" and "traceable to" money laundering); United States v. Bornfield, 145 F.3d 1123, 1134 (10th Cir. 1998) ("property ‘traceable to’ means property where the acquisition is attributable to the money laundering scheme rather than from money obtained from untainted sources" and "proof that the proceeds of the money laundering transaction enabled the defendant to acquire the property is sufficient to warrant forfeiture as property ‘traceable to’ the offense"); United States v. Voigt, 89 F.3d 1050, 1084-87 (3d Cir. 1996).

In RICO forfeiture cases, the trial judge should be careful in modifying this instruction because of the significant differences between RICO forfeiture and controlled substances forfeiture. Compare 21 USC 853 with 18 USC 1963.

In some cases, where money was the proceeds of an offense but has been dissipated, the government may seek to forfeit that sum of money, and receive a money judgment. "Given that § 853 does not contain any language limiting the amount of money available in a forfeiture order to the value of the assets a defendant possesses at the time the order is issued, we think it clear that an in personam forfeiture judgment may be entered for the full amount of the criminal proceeds." United States v. Vampire Nation, 451 F.3d 189, 201-02 (3d Cir. 2006).

Notice and Jury Determination. Where criminal forfeiture is authorized by statute, a judgment of forfeiture can be considered in a particular case only when "the indictment or information contains notice to the defendant that the government will seek the forfeiture of property as part of any sentence in accordance with the applicable statute." FRCP 32.2(a). A jury determination that property is subject to forfeiture is required when a party requests it under FRCP 32.2(b)(4), which provides:

(4) Jury Determination. Upon a party's request in a case in which a jury returns a verdict of guilty, the jury must determine whether the government has established the requisite nexus between the property and the offense committed by the defendant.

Rule 32.2 and the relevant statutes also provide that issues with respect to third party claims of ownership of or an interest in the property subject to forfeiture are to be determined by the trial judge on the petition of the third party, in an ancillary proceeding without a jury. See, e.g., FRCP 32.2(c); 21 USC 853(n).

Burden of Proof. Criminal forfeiture is part of the sentence authorized after conviction; it is not an element of the offense. See, e.g., United States v. Libretti, 516 U.S. 29, 41, 49 (1995) (holding, because forfeiture is not an element of the offense, there is no constitutional right to a jury determination of the issues relevant to forfeiture). Because forfeiture is a part of the sentence and does not involve an element of the offense, there is no constitutional requirement that the issues with respect to forfeiture must be proved by the government beyond a reasonable doubt. Thus, in United States v. Voight, 89 F.3d 1050, 1082-84 (3d Cir. 1996), the Third Circuit held that the government’s burden of proof was a preponderance of evidence under 18 USC 982, even though the statute does not itself address the standard of proof. In United States v. Sandini, 816 F.2d 869, 874-76 (3d Cir. 1987), the court held that 21 USC 853(d) (quoted above), which creates a rebuttable presumption that the property is subject to forfeiture if the government establishes certain facts by a preponderance of the evidence, is constitutional as long as the forfeiture proceeding follows conviction based on proof beyond a reasonable doubt. Even after Apprendi v. New Jersey, 530 U.S. 466 (2000), and United States v. Booker, 543 U.S. 220 (2005), the Third Circuit held in United States v. Leahy, 438 F.3d 328, 331-33 (3d Cir. 2006), that, "[a]s to forfeiture, based upon the Supreme Court's decision in Libretti v. United States, 516 U.S. 29, 116 S.Ct. 356, 133 L.Ed.2d 271 (1995), we conclude that the amount a defendant must forfeit also need not be admitted or proved to a jury beyond a reasonable doubt."

Nevertheless, the Third Circuit has interpreted the RICO forfeiture statute (18 USC1963) as imposing on the government the burden of proof beyond a reasonable doubt. Thus, in United States v. Pelullo, 14 F.3d 881 (3d Cir. 1994), the court distinguished Sandini, attaching much significance to the fact that although Congress enacted 21 USC 853 and 18 USC 1963 at the same time, Congress did not include in the RICO forfeiture section, the rebuttable presumption provision it included in the controlled substances statute. Id. at 902-06

Two years later, in Voight, however, the Third Circuit concluded that the lack of a rebuttable presumption in 18 USC 982 (criminal forfeiture after conviction of, e.g., money laundering, mail, bank, and wire fraud) did not mean that Congress intended the beyond a reasonable doubt standard to apply to forfeiture under that provision. The court distinguished its Pelullo decision by noting that the RICO section was the most far reaching federal criminal forfeiture provision and, therefore, the beyond a reasonable doubt standard was appropriate to insure a greater degree of fact finding accuracy in RICO actions. See United States v. Lebed, 2005 WL 2495843 (E.D. Pa. 2005) (discussing that a different burden of proof applies depending on the specific statutory forfeiture provision, citing Voight, Pelullo, and Sandini). Further, the Pelullo court’s holding was based on the court’s interpretation of the statute, which is not affected by the Third Circuit’s holding in Leahy that, even after Apprendi and Booker, the Constitution does not require proof beyond a reasonable doubt of the issues related to forfeiture.

It appears that the Third Circuit may apply the preponderance of evidence standard to criminal forfeitures authorized by the Civil Asset Forfeiture Reform Act of 2000, since the procedures under 21 USC 853 apply to forfeitures under that Act as well. Whether Pelullo will be revisited on the basis of subsequent developments is an open question.

Rebuttable Presumption. The rebuttable presumption created by 21 USC 853(d) seems to be treated more like a permissive inference than a presumption. Thus, in United States v. Sandini, 816 F.2d at 876, responding to the defendant’s argument that there was no rational connection between the proven facts and the ultimate facts, the Third Circuit stated:

In some circumstances the defendant's argument might marshal some force. But as the Court stated in Ulster County Court v. Allen, 442 U.S. 140, 157, 99 S.Ct. 2213, 2224, 60 L.Ed.2d 777 (1979), "[w]hen reviewing this type of device, the Court has required the party challenging it to demonstrate its invalidity as applied to him." Only if "under the facts of the case, there is no rational way the trier could make the connection permitted by the inference" does a permissible inference affect the burden of proof. See also Barnes v. United States, 412 U.S. 837, 843-47, 93 S.Ct. 2357, 2361-63, 37 L.Ed.2d 380 (1973).

In this case, the jury was free to reject the inference derived from the statutory presumption, and the burden of proof remained with the government. The huge profits generated by the illegal drug trade are well known, and the jury rationally may give some weight to the statutory inference when other evidence demonstrates sudden and unexpected wealth. On its face, we cannot say the presumption is improper. . . .

The presumption here does not exist in a vacuum and to establish its invalidity the defendant must take the inference in the context of other facts in the record. We conclude at this stage only that the inference is not facially invalid. Ulster County v. Allen, 442 U.S. at 163, 99 S.Ct. at 2227.

Note: For Criminal Forfeiture of Property under forfeiture provisions other than 21 USC 853, see the Comment to Instruction 6.21.853.

Count (number) of the indictment charges (name of defendant) with possession of an unregistered firearm, namely (describe the firearm; e.g., a shotgun having a barrel of less than 18 inches in length), which is a violation of federal law.

In order to find (name) guilty of the offense charged in the indictment, you must find that the government proved each of the following four elements beyond a reasonable doubt.

First: That (name) knowingly possessed a firearm;

Second: That this firearm was a (describe the firearm; e.g., a shotgun having a barrel of less than 18 inches in length);

Third: That (name) knew of the characteristics of the firearm, (that is, that it was (describe the firearm; e.g., a shotgun having a barrel of less than 18 inches in length);

Fourth: That this firearm was (could readily have been put) in operating condition; and

Fifth: That this firearm was not registered to the defendant in the National Firearms Registration and Transfer Record. It does not matter whether (name) knew that the firearm was not registered or had to be registered.

The evidence in this case contains a certificate showing that after diligent search of the National Firearms Registration and Transfer Record, no record was found that the firearm which the government claims was involved in this case was registered to (name). From such evidence you may, but do not need to, find that the government has sustained its burden of proving beyond a reasonable doubt the non-registration of the firearm.

See Fifth Circuit 2.94.

This instruction should be used when the defendant is charged with violating 26 USC 5861. Section 5861 provides:

It shall be unlawful for any person–

* * * *

(d) to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record.

The term firearm is used differently in this section than in the firearms offenses found in Title 18. 26 USC 5845 includes the following definitions of "firearm" :

(1) a shotgun having a barrel or barrels of less than 18 inches in length;

(2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length;

(3) a rifle having a barrel or barrels of less than 16 inches in length;

(4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length;

(5) any other weapon, as defined in subsection (e);

(6) a machinegun;

(7) any silencer (as defined in section 921 of title 18, United States Code); and

(8) a destructive device.

Section 5845(a) further provides:

The term "firearm" shall not include an antique firearm or any device (other than a machinegun or destructive device) which, although designed as a weapon, the Secretary finds by reason of the date of its manufacture, value, design, and other characteristics is primarily a collector's item and is not likely to be used as a weapon.

Sections 5845 (b) through (f) define the terms "machinegun," "rifle," "shotgun," "any other weapon," and "destructive device" respectively. The description of the firearm used in the instruction should track the statutory language of section 5845. For the definition of possessed, see Instruction 6.18.922G-4 (Firearm Offenses – Possession Defined).

It is not clear whether the provisions excepting some devices from the definition of firearms clarify the elements of the offense or define affirmative defenses. In United States v. Neil, 138 Fed. App’x. 418 (3d Cir. 2005), a non-precedential opinion, the Third Circuit noted that the circuits are divided and this circuit has not addressed the issue. The court cited United States v. Hammond, 371 F.3d 776, 780 (11th Cir.2004), treating the question of whether a device was designed for use as a weapon as an element of the offense and United States v. Beason, 690 F.2d 439, 445 (5th Cir.1982), concluding that the statutory exceptions are affirmative defenses.

To establish a violation of section 5861(d), the Government must prove beyond a reasonable doubt that the defendant knowingly possessed the item and also knew "the item he possessed had the characteristics that brought it within the statutory definition of a firearm" but need not prove that the defendant knew that the item fell within the statutory definition. Rogers v. United States, 522 U.S. 252, 254-55 (1998); Staples v. United States, 511 U.S. 600, 619 (1994). As a result, the court must inform the jury of the characteristics of the item that bring it within the statutory definition of firearm found in § 5845. For example, in Rogers, the court’s instructions adequately communicated to the jury that it could not convict unless it found that the defendant knew that the item he possessed was a silencer. The Government does not need to prove that the defendant knew the firearm was unregistered. United States v. Freed, 401 U.S. 601, 607-10 (1971).

If the defendant is charged with possession of an unregistered destructive device as defined in section 5845(f), the Government may be required to prove that the defendant intended to use the components as a weapon. In United States v. Urban, 140 F.3d 229, 233 (3d Cir. 1998), the Third Circuit held that "intent is a required element when the components are commercial in nature and are not designed or redesigned for use as a weapon." However, if there is no ambiguity concerning the nature of the device, the government need not prove that the defendant intended to use the components as a weapon. 140 F.3d at 234. For example, in Urban, where it was "undisputed that the parts were clearly designed to create a grenade," the trial court was not required to instruct on intent to use the components as a weapon. 140 F.3d at 234.

In United States v. Hull, 456 F.3d 133, 143-44 (3d Cir. 2006), the Third Circuit further clarified the intent requirement. The court rejected the defendant’s argument for additional intent instructions and explained:

The Government was required to prove that Hull knew of the features that made what he was making, possessing, or transferring, a "firearm," . . . and indeed the District Court instructed the jury accordingly. However, Hull claims that the Government also had to prove that he intended for the unassembled parts of the pipe bomb to be assembled into a fully functioning pipe bomb. This is simply not an element of 26 USC 5861.* * * Accordingly, we discern no error in the District Court's refusal to instruct the jury that the Government must prove Hull intended that the parts be converted into a destructive device. (Citations omitted.)