PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001
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        1.01     Preliminary Instruction
        1.02     Notetaking By Jurors
        1.03     Introduction To Final Instructions
        1.04     Duty To Follow Instructions
        1.05     Presumption Of Innocence, Burden Of Proof, Reasonable Doubt
        1.06     Evidence––Excluding What Is Not Evidence
        1.07     Evidence––Inferences––Direct and Circumstantial
        1.08     Credibility Of Witnesses
        1.09     Character Evidence
        1.10     Impeachment By Prior Inconsistencies
        1.11     Impeachment By Prior Conviction (Defendant's Testimony)
        1.12     Impeachment By Prior Conviction (Witness Other Than Defendant)
        1.13     Impeachment By Evidence Of Untruthful Character
        1.14     Accomplice––Informer––Immunity
        1.15     Accomplice––Codefendant––Plea Agreement
        1.16     Witness's Use Of Addictive Drugs
        1.17     Expert Witness
        1.18     On Or About
        1.19     Caution––Consider Only Crime Charged
        1.20     Caution––Punishment
        1.21     Single Defendant––Multiple Counts
        1.22     Multiple Defendants––Single Count
        1.23     Multiple Defendants––Multiple Counts
        1.24     Duty to Deliberate--Verdict Form
        1.25     Unanimity Of Theory
        1.26     Confession––Statement––Voluntariness (Single Defendant)
        1.27     Confession––Statement––Voluntariness (Multiple Defendants)
        1.28     Entrapment
        1.29     Identification Testimony
        1.30     Similar Acts
        1.31     Possession
        1.32     Attempt
        1.33     Lesser Included Offense
        1.34     Insanity
        1.35     Alibi
        1.36     Justification, Duress Or Coercion
        1.37     "Knowingly"-- To Act
        1.38     "Willfully"––To Act
        1.39     Interstate Commerce––Defined
        1.40     Foreign Commerce––Defined
        1.41     Commerce––Defined
        1.42     Cautionary Instruction During Trial––Transcript Of Tape Recorded Conversation
        1.43     Summaries And Charts Not Received In Evidence
        1.44     Summaries And Charts Received In Evidence
        1.45     Modified "Allen" Charge

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

Chapter 12: Preliminary Instructions

Note

This is but one of a number of preliminary instructions which can be utilized for the same purposes. See, e.g., Bench Book for United States District Judges and Pattern Criminal Jury Instructions, both published by the Federal Judicial Center, the Manual of Model Criminal Jury Instructions for the Eighth and Ninth Circuits, and the Pattern Criminal Jury Instructions for the Eleventh Circuit, all published by West.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

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12.3.5 Preliminary Instructions: Juror Note Taking

16.8 Juror Note Taking

Note

Whether the jurors take notes is a matter of discretion with the judge. See United States v. Rhodes, 631 F.2d 43, 45 (5^th Cir. 1980).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

In any jury trial there are, in effect, two judges. I am one of the judges; the other is the jury. It is my duty to preside over the trial and to decide what evidence is proper for your consideration. It is also my duty at the end of the trial to explain to you the rules of law that you must follow and apply in arriving at your verdict.

First, I will give you some general instructions which apply in every case, for example, instructions about burden of proof and how to judge the believability of witnesses. Then I will give you some specific rules of law about this particular case, and finally I will explain to you the procedures you should follow in your deliberations.

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297.1.2 Jurors Presumed To Follow The Instructions

You, as jurors, are the judges of the facts. But in determining what actually happened--that is, in reaching your decision as to the facts--it is your sworn duty to follow all of the rules of law as I explain them to you.

You have no right to disregard or give special attention to any one instruction, or to question the wisdom or correctness of any rule I may state to you. You must not substitute or follow your own notion or opinion as to what the law is or ought to be. It is your duty to apply the law as I explain it to you, regardless of the consequences.

It is also your duty to base your verdict solely upon the evidence, without prejudice or sympathy. That was the promise you made and the oath you took before being accepted by the parties as jurors, and they have the right to expect nothing less.

Note

See United States v. Meshack, 225 F.3d 556, 580-81 (5^th Cir. 2000), cert. denied, 121 S.Ct. 834 (2001), amended on reh'g in part 244 F.3d 367 (5^th Cir. 2001), petition for cert. filed, (U.S. June 25, 2001) (No. 00-10499) (instructing jury that "[i]t is also your duty to base your verdict solely upon the evidence, without prejudice or sympathy" is not plain error).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

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Chapter 270: Burdens And Standards Of Proof

The indictment or formal charge against a defendant is not evidence of guilt. Indeed, the defendant is presumed by the law to be innocent. The law does not require a defendant to prove his innocence or produce any evidence at all [and no inference whatever may be drawn from the election of a defendant not to testify]. The government has the burden of proving the defendant guilty beyond a reasonable doubt, and if it fails to do so, you must acquit the defendant.

While the government's burden of proof is a strict or heavy burden, it is not necessary that the defendant's guilt be proved beyond all possible doubt. It is only required that the government's proof exclude any "reasonable doubt" concerning the defendant's guilt.

A "reasonable doubt" is a doubt based upon reason and common sense after careful and impartial consideration of all the evidence in the case. Proof beyond a reasonable doubt, therefore, is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs.

Note

Delete bracketed material if defendant testifies.

This instruction was approved in United States v. Williams, 20 F.3d 125, 129 n. 1 (5^th Cir. 1994), cert. denied, 115 S.Ct. 239 (1994). The use of this instruction has been affirmed, but has been criticized in dictum. United States v. Shaw, 894 F.2d 689 (5^th Cir. 1990), cert. denied, 111 S.Ct. 85 (1990); United States v. Walker, 861 F.2d 810 (5^th Cir. 1988). But see United States v. Castro, 874 F.2d 230 (5^th Cir. 1989), cert. denied, 110 S.Ct. 138 (1989), and United States v. Stewart, 879 F.2d 1268 (5^th Cir. 1989), cert. denied, 110 S.Ct. 256 (1989), both of which question Walker's dictum.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

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24.3 What Is Not Evidence

See United States v. Rocha, 916 F.2d 219, 235 (5^th Cir. 1990), cert. denied, 111 S.Ct. 2057 (1991).

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1997 Version:

See United States v. Rocha, 916 F2d 219, 235 (5th Cir.1990), cert. denied, 500 US 934, 111 S.Ct. 2057, 114 L.Ed.2d 462 (1991).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

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25.12 Circumstantial Evidence

Note

Alternative B is provided for judges who prefer to explain the distinction between direct and circumstantial evidence.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

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Chapter 27 Witness Credibility

Note

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

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25.13 Character Evidence

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1997 Version:

Instruction unchanged.

United States v. Callahan, 588 F2d 1078 (5th Cir.1979), cert. denied, 444 US 826, 100 S.Ct. 49, 62 L.Ed.2d 33 (1979), approved this instruction. However, it is generally not error to refuse this instruction. United States v. Baytank, 934 F2d 599, 614 (5th Cir. 1991).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

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26.3 Prior Inconsistent Statements

A limiting instruction on the use of prior inconsistent statements is required upon request. Even in the absence of a request, failure to give a limiting instruction can sometimes be plain error. See United States v. Livingston, 816 F.2d 184 (5^th Cir. 1987); United States v. Miller, 664 F.2d 94 (5^th Cir. 1981), cert. denied, 103 S.Ct. 121 (1982); United States v. Garcia, 530 F.2d 650 (5^th Cir. 1976). The limiting instruction would not be necessary if the prior statement "was given under oath subject to the penalty of perjury at trial, hearing, or other proceeding, or in a deposition." Rule 801(d)(1)(A), Fed. R. Evid.; United States v. Bigham, 812 F.2d 943 (5^th Cir. 1987), reh'g denied, 816 F.2d 677 (5^th Cir. 1987) (grand jury testimony). Similarly, the prior statement of the defendant would be covered by Rule 801(d)(2)(A), Fed. R. Evid.

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1997 Version:

United States v. Callahan, 588 F2d 1078 (5th Cir.1979), cert. denied, 444 US 826, 100 S.Ct. 49, 62 L.Ed.2d 33 (1979), approved this instruction. However, it is generally not error to refuse this instruction. United States v. Baytank, 934 F2d 599, 614 (5th Cir. 1991).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

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27.3.2 Prior Conviction Of Defendant

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

1.11 Impeachment by Prior Conviction (Witness Other than Defendant) Reverse

You have been told that the witness _______ was convicted in 19__ of [e.g., armed robbery]. A conviction is a factor you may consider in deciding whether to believe that witness, but it does not necessarily destroy the witness's credibility. It has been brought to your attention only because you may wish to consider it when you decide whether you believe the witness's testimony. It is not evidence of anything else.

Note

The last sentence has been added to address the issue raised in United States v. West, 22 F3d 586 (5th Cir.1994), cert. denied, 513 US 1020, 115 S.Ct. 584, 130 L.Ed.2d 498 (1994).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

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27.4 Impeachment Of Witness (Non-Defendant) By Prior Conviction

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

You have been told that the defendant, _______, was found guilty in 19__ of [e.g., bank robbery]. This conviction has been brought to your attention only because you may wish to consider it when you decide, as with any witness, how much of the defendant's testimony you will believe in this trial. The fact that the defendant was previously found guilty of another crime does not mean that the defendant committed the crime for which the defendant is on trial, and you must not use this prior conviction as proof of the crime charged in this case.

Note

This charge should be given when the prior conviction is used for impeachment only (Fed. R. Evid. 609). If the conviction was admitted as a similar offense (Fed. R. Evid. 404(b)), then see the pattern jury instruction on "Similar Acts."

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

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251.4.3.3 Impeachment Of Witness By Evidence Of Untruthful Character Or Reputation.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

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25.5 Witness Immunity

25.6 Accomplices: Cautionary Instructions

25.7.2 Cautionary Instruction: Addict-Informer

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1997 Version:

Instruction unchanged.

United States v. D’Antignac, 628 F2d 428, 435-36 n. 10 (5th Cir.1980), cert. denied, 450 US 967, 101 S.Ct. 1485, 67 L.Ed.2d 617 (1981), approved this instruction. See also Wilkerson v. United States, 591 F2d 1046 (5th Cir.1979), rehearing denied, 595 F2d 1221 (5th Cir.1979), approving an instruction that testimony of a co-conspirator must be weighed with caution.

It is plain error to fail to give this instruction or a similar one in a "compensated witness" case. United States v. Bradfield, 103 F3d 1207, 1216-17 (5th Cir.1997), citing United States v. Cervantes-Pacheco, 826 F2d 310, 315 (5th Cir.1987), cert. denied sub nom., 484 US 1026, 108 S.Ct. 749, 98 L.Ed.2d 762 (1988).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

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19.4.2 Jury Not To Consider The Guilty Plea Of An Accomplice Or Codefendant

In this case the government called as one of its witnesses an alleged accomplice, named as a co-defendant in the indictment, with whom the government has entered into a plea agreement providing for the dismissal of some charges and a lesser sentence than the co-defendant would otherwise be exposed to for the offense to which the co-defendant plead guilty. Such plea bargaining, as it is called, has been approved as lawful and proper, and is expressly provided for in the rules of this court.

An alleged accomplice, including one who has entered into a plea agreement with the government, is not prohibited from testifying. On the contrary, the testimony of such a witness may alone be of sufficient weight to sustain a verdict of guilty. You should keep in mind that such testimony is always to be received with caution and weighed with great care. You should never convict a defendant upon the unsupported testimony of an alleged accomplice unless you believe that testimony beyond a reasonable doubt. The fact that an accomplice has entered a plea of guilty to the offense charged is not evidence of the guilt of any other person.

Note

The phrase "in and of itself" has been deleted from the last sentence of the 1997 version of this instruction. The Fifth Circuit and Eleventh Circuit have approved that language. United States v. Pettigrew, 77 F.3d 1500, 1518 (5^th Cir. 1996); United States v. Prieto, 232 F.3d 816, 823 (11^th Cir. 2000). However, the First Circuit discouraged as "potentially misleading" the use of such "in and of itself" language. United States v. Gonzalez-Gonzalez, 136 F.3d 6, 10-11 (1^st Cir. 1998). Pattern jury instructions for the Sixth, Seventh, Eighth, and Ninth Circuits do not contain the "in and of itself" language.

Portions of this instruction were approved in the following cases: United States v. Posada-Rios, 158 F.3d 832, 872-73 (5^th Cir. 1998), cert. denied, 119 S.Ct. 1280 (1999); United States v. Pettigrew, 77 F.3d 1500, 1518 (5^th Cir. 1996); United States v. Pierce, 959 F.2d 1297, 1304 (5^th Cir. 1992), cert. denied, 113 S.Ct. 621 (1992); and United States v. Abravaya, 616 F.2d 250, 251 (5^th Cir. 1980).

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1997 Version:

Instruction unchanged.

Portions of this instruction were approved in United States v. Pierce, 959 F2d 1297 (5th Cir.1992), cert. denied, 506 US 1007, 113 S.Ct. 621, 121 L.Ed.2d 554 (1992), and in United States v. Abravaya, 616 F2d 250 (5th Cir.1980).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

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25.7.2 Cautionary Instruction: Addict-Informer

27.2.3 Witness Under The Influence Of Drugs Or Alcohol At The Time Of The Observation

27.2.4 Witness Credibility: Drug Addiction Of Witness At Time Of Event Witnessed

27.2.5 Testimony Of Witness Who Was Using Drugs Or Alcohol When Testifying Should Be Viewed With Greater Caution Than Other Witnesses

31.6.11 Use Of Drugs Or Alcohol By The Witness

The testimony of someone who is shown to have used addictive drugs during the period of time about which the witness testified must always be examined and weighed by the jury with greater care and caution than the testimony of ordinary witnesses.

You should never convict any defendant upon the unsupported testimony of such a witness unless you believe that testimony beyond a reasonable doubt.

Note

United States v. Gadison, 8 F.3d 186 (5^th Cir. 1993) (fact that witness is recovering drug addict raises an issue of credibility not admissibility); United States v. Garner, 581 F.2d 481 (5^th Cir. 1978) (witness's use of heroin raises a credibility issue for the jury; testimony to be weighed with caution; no specific instruction quoted or approved). See also United States v. Diecidue, 603 F.2d 535 (5^th Cir. 1979), cert. denied, 100 S.Ct. 1345 (1980); United States v. Gentry, 839 F.2d 1065 (5^thCir. 1988).

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1997 Version:

Instruction unchanged.

Note

United States v. Gadison, 8 F3d 186 (5th Cir.1993) (fact that witness is a recovering drug addict raises an issue of credibility not admissibility); United States v. Garner, 581 F2d 481 (5th Cir.1978) (witness's use of heroin raises a credibility issue for the jury; testimony to be weighed with caution; no specific instruction quoted or approved). See also United States v. Diecidue, 603 F2d 535 (5th Cir.1979), cert. denied, 445 US 946, 100 S.Ct. 1345, 63 L.Ed.2d 781 (1980); United States v. Gentry, 839 F2d 1065 (5th Cir. 1988).

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31.2.3 Expert Witnesses

Note

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

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40.1 Date Of Crime Charged: Due Process Violation Where Defendant Was Misled By Date Charged In Preparing Defense

40.2 Time And Date Of Crime: Variance Between Pleading And Proof

40.3 Time of Crime: Request For Continuance Necessary To Preserve Variance Issue

You will note that the indictment charges that the offense was committed on or about a specified date. The government does not have to prove that the crime was committed on that exact date, so long as the government proves beyond a reasonable doubt that the defendant committed the crime on a date reasonably near _______ [repeat date], the date stated in the indictment.

Note

"Generally speaking, proof of any date before the return of the indictment and within the statute of limitations is sufficient." United States v. Bowman, 783 F.2d 1192, 1197 (5^th Cir. 1986).

See also United States v. Powers, 168 F.3d 741, 746 (5^th Cir. 1999), cert. denied, 120 S.Ct. 360 (1999); United States v. Morris, 46 F.3d 410, 419 (5^th Cir. 1995), cert. denied, 115 S.Ct. 2595 (1995).

If the defendant has raised an alibi defense dependent upon a particular day, this instruction should be coordinated with the "Alibi" instruction. See United States v. King, 703 F.2d 119 (5^th Cir. 1983), cert. denied, 104 S.Ct. 148 (1983).

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1997 Version:

Instruction unchanged.

"Generally speaking, proof of any date before the return of the indictment and within the statute of limitations is sufficient." United States v. Bowman, 783 F2d 1192, 1197 (5th Cir.1986).

See also United States v. Morris, 46 F3d 410, 419 (5th Cir. 1995), cert. denied, ____ US ____, 115 S.Ct. 2595, 132 L.Ed.2d 842 (1995).

If the defendant has raised an alibi defense dependent upon a particular day, this instruction should be coordinated with the "Alibi" instruction. See United States v. King, 703 F2d 119 (5th Cir.1983), cert. denied, 464 US 845, 104 S.Ct. 148, 78 L.Ed.2d 138 (1983).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

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12.2.1 Preliminary Instructions: Charges And Burden Of Proof

You are here to decide whether the government has proved beyond a reasonable doubt that the defendant is guilty of the crime charged. The defendant is not on trial for any act, conduct, or offense not alleged in the indictment. Neither are you concerned with the guilt of any other person or persons not on trial as a defendant in this case, except as you are otherwise instructed.

Note

See United States v. Fotovich, 885 F.2d 241 (5^th Cir. 1989), cert. denied, 110 S.Ct. 754 (1990), approving a substantially similar instruction.

The exception in the last sentence of this instruction is intended to avoid possible jury confusion in cases where the guilt of another person could have some relevance, e.g., deciding whether defendant was a member of a criminal conspiracy even when the other alleged conspirators are not also being tried.

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

You are here to decide whether the government has proved beyond a reasonable doubt that the defendant is guilty of the crime charged. The defendant is not on trial for any act, conduct, or offense not alleged in the indictment. Neither are you concerned with the guilt of any other person or persons not on trial as a defendant in this case.

Note

See United States v. Fotovich, 885 F2d 241 (5th Cir.1989), cert. denied, 493 US 1034, 110 S.Ct. 754, 107 L.Ed.2d 770 (1990), approving a substantially similar instruction.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

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279.1 Jury Must Not Consider Penalty, Punishment Or Sentence

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

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Chapter 274 Propriety Of Instruction On Multiple Counts Or Offenses Based On A Single Act Or Course Of Conduct (Multiplicity)

A separate crime is charged in each count of the indictment. Each count and the evidence pertaining to it should be considered separately. The fact that you may find the defendant guilty or not guilty as to one of the crimes charged should not control your verdict as to any other.

Note

In some cases, such as prosecutions under 18 U.S.C. § 1862 (RICO) and 21 U.S.C. § 848 (Continuing Criminal Enterprise), a conviction on one or more counts ("predicate offenses") is necessary to support a conviction on another count. In such cases, the last sentence of the instruction should be modified.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

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Chapter 19: Multiple Defendants

The case of each defendant and the evidence pertaining to that defendant should be considered separately and individually. The fact that you may find one of the defendants guilty or not guilty should not control your verdict as to any other defendant.

Note

See United States v. Hass, 150 F.3d 443, 449 n.1 (5^th Cir. 1998) (undue prejudice resulting from admission of evidence relevant to co-defendant but having only a tenuous relationship to another defendant cured by limiting instruction that "evidence pertaining to each defendant should be considered separately and individually"). See also United States v. Gallardo-Trapero, 185 F.3d 307, 316 n.2 (5^th Cir. 1999), cert. denied, 120 S.Ct. 961 (2000); United States v. Manges, 110 F.3d 1162 (5^th Cir. 1997), cert. denied, 118 S.Ct. 1675 (1998).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

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Chapter 19: Multiple Defendants

Chapter 274 Propriety Of Instruction On Multiple Counts Or Offenses Based On A Single Act Or Course Of Conduct (Multiplicity)

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1997 Version:

Instruction unchanged.

United States v. Dillman, 15 F3d 384 (5th Cir.1994), cert. denied, 513 US 866, 115 S.Ct. 183, 130 L.Ed.2d 118 (1994), approved this charge.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

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273.11 Jury Unanimity: Use Of Special Verdict Forms

Chapter 278: Duty Of Jury To Deliberate

287.3 Verdict And Verdict Forms

To reach a verdict, whether it is guilty or not guilty, all of you must agree. Your verdict must be unanimous on each count of the indictment. Your deliberations will be secret. You will never have to explain your verdict to anyone.

It is your duty to consult with one another and to deliberate in an effort to reach agreement if you can do so. Each of you must decide the case for yourself, but only after an impartial consideration of the evidence with your fellow jurors. During your deliberations, do not hesitate to reexamine your own opinions and change your mind if convinced that you were wrong. But do not give up your honest beliefs as to the weight or effect of the evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.

Remember at all times, you are judges—judges of the facts. Your sole duty is to decide whether the government has proved the defendant guilty beyond a reasonable doubt.

When you go to the jury room, the first thing that you should do is select one of your number as your foreperson, who will help to guide your deliberations and will speak for you here in the courtroom.

A form of verdict has been prepared for your convenience.

          [Explain verdict form.]

The foreperson will write the unanimous answer of the jury in the space provided for each count of the indictment, either guilty or not guilty. At the conclusion of your deliberations, the foreperson should date and sign the verdict.

If you need to communicate with me during your deliberations, the foreperson should write the message and give it to the marshal. I will either reply in writing or bring you back into the court to answer your message.

Bear in mind that you are never to reveal to any person, not even to the court, how the jury stands, numerically or otherwise, on any count of the indictment, until after you have reached a unanimous verdict.

Note

Concerning the admonition against disclosure of the numerical division of the jury, seeBrasfield v. United States, 47 S.Ct. 135 (1926); United States v. Chanya, 700 F.2d 192, 193 (5^th Cir. 1983), appeal after remand, 723 F.2d 374 (5^th Cir. 1984), cert. denied, 104 S.Ct. 1925 (1984), reh'g denied, 104 S.Ct. 2693 (1984).

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

To reach a verdict, whether it is guilty or not guilty, all of you must agree. Your verdict must be unanimous on each count of the indictment. Your deliberations will be secret. You will never have to explain your verdict to anyone.

It is your duty to consult with one another and to deliberate in an effort to reach agreement if you can do so. Each of you must decide the case for yourself, but only after an impartial consideration of the evidence with your fellow jurors. During your deliberations, do not hesitate to reexamine your own opinions and change your mind if convinced that you were wrong. But do not give up your honest beliefs as to the weight or effect of the evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.

Remember at all times, you are judges—judges of the facts. Your sole duty is to decide whether the government has proved the defendant guilty beyond a reasonable doubt.

When you go to the jury room, the first thing that you should do is select one of your number as your foreperson, who will help to guide your deliberations and will speak for you here in the courtroom.

A form of verdict has been prepared for your convenience.

          [Explain verdict form.]

The foreperson will write the unanimous answer of the jury in the space provided for each count of the indictment, either guilty or not guilty. At the conclusion of your deliberations, the foreperson should date and sign the verdict.

If you need to communicate with me during your deliberations, the foreperson should write the message and give it to the marshal. I will either reply in writing or bring you back into the court to answer your message.

Bear in mind that you are never to reveal to any person, not even to the court, how the jury stands, numerically or otherwise, on any count of the indictment, until after you have reached a unanimous verdict.

Note

In United States v. Gonzalez-Balderas, 11 F3d 1218, 1222 (5th cir.1994), cert. denied, 511 US 1129, 114 S.Ct. 2138, 128 L.Ed.2d 867 (1994), the court suggested that the third paragraph of the 1990 version of this instruction to the effect that the jurors' "sole interest is to seek the truth" be deleted. That paragraph has been changed accordingly.

Concerning the admonition against disclosure of the numeric division of the jury, see Brasfield v. United States, 272 US 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926); United States v. Chanya, 700 F2d 192, 193 (5th Cir.1983), appeal after remand, 723 F2d 374 (5th Cir.1984), cert. denied, 466 US 943, 104 S.Ct. 1925, 80 L.Ed.2d 471 (1984), rehearing denied, 467 US 1231, 104 S.Ct. 2693, 81 L.Ed.2d 886 (1984).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

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Chapter 273 Jury Unanimity As To The Act Or Offense Committed (Duplicity)

The first paragraph of the instruction reflects that indictments often state different means of committing the crime in the conjunctive.

This instruction should be used when the alternative means are conceptually separate and distinct, and there are special circumstances creating a genuine risk that a conviction may occur as a result of different jurors concluding that the defendant committed different acts. See Richardson v. United States, 119 S.Ct. 1707 (1999); United States v. Correa-Ventura, 6 F.3d 1070 (5^th Cir. 1993), for discussion of when this instruction is required. See also United States v. Meshack, 225 F.3d 556 (5^th Cir. 2000), cert. denied, 121 S.Ct. 834 (2001), amended on reh'g in part 244 F.3d 367 (5^th Cir. 2001), petition for cert. filed, (U.S. June 25, 2001) (No. 00-10499) (failure to instruct jury that it must unanimously agree as to mental state possessed by defendant charged with money laundering not plain error), United States v. Narvez-Guerra, 148 F.3d 530 (5^th Cir.), cert. denied, 119 S.Ct. 601 (1998) (failure to give specific unanimity instruction in case involving conspiracy to launder money not plain error), United States v. Dillman, 15 F.3d 384 (5^th Cir.), cert. denied, 115 S.Ct. 183 (1994) (district court refusal to give specific unanimity instruction on conspiracy count not error); United States v. Holley, 942 F.2d 916 (5^th Cir. 1991) (district court refusal to give specific unanimity instruction held to be reversible error).

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

The first paragraph of the instruction reflects that indictments often state different means of committing the crime in the conjunctive.

This instruction should be used when the alternative means are conceptually separate and distinct, and there are special circumstances creating a genuine risk that a conviction may occur as a result of different jurors concluding that the defendant committed different acts. See United States v. Correa-Ventura, 6 F3d 1070 (5^th Cir. 1993), for discussion of when this instruction is required. See also United States v. Dillman, 15 F3d 384 (5th Cir.1994), cert. denied, 513 US 866, 115 S.Ct. 183, 130 L.Ed.2d 118 (1994) (district court refusal to give specific unanimity charge on conspiracy count not error), and United States v. Holley, 942 F2d 916 (5th Cir.1991) (district court refusal to give specific unanimity charge held to be reversible error).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

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28.2 Jury Should Consider Whether The Defendant's Out-Of-Court Statement Was Voluntary

28.3 Statement Of Defendant To Police: Factors To Be Considered In Deciding Voluntariness

28.4 Slight Coercion Can Induce Voluntary Statement

28.5 Statement Of Defendant To Private Citizen: Jury Must Consider Coercion As To The Credibility And Weight Of The Statement

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

FORECITE National™ Materials Related To This Instruction:

28.2 Jury Should Consider Whether The Defendant's Out-Of-Court Statement Was Voluntary

28.3 Statement Of Defendant To Police: Factors To Be Considered In Deciding Voluntariness

28.4 Slight Coercion Can Induce Voluntary Statement

28.5 Statement Of Defendant To Private Citizen: Jury Must Consider Coercion As To The Credibility And Weight Of The Statement

In determining whether any statement, claimed to have been made by a defendant outside of court and after an alleged crime has been committed, was knowingly and voluntarily made, you should consider the evidence concerning such a statement with caution and great care, and should give such weight to the statement as you feel it deserves under all the circumstances.

You may consider in that regard such factors as the age, sex, training, education, occupation, and physical and mental condition of the defendant, his treatment while under interrogation, and all the other circumstances in evidence surrounding the making of the statement.

Of course, any such statement should not be considered in any way whatsoever as evidence with respect to any other defendant on trial.

Note

United States v. Watson, 591 F.2d 1058 (5^th Cir. 1979), cert. denied, 99 S.Ct. 2414 (1979), approved instruction in substantially same form. See also United States v. Terrazas-Carrasco, 861 F.2d 93 (5^th Cir. 1988).

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1997 Version:

Instruction unchanged.

Note

United States v. Watson, 591 F2d 1058 (5th Cir.1979), cert. denied, 441 US 965, 99 S.Ct. 2414, 60 L.Ed.2d 1070 (1979), approved instruction in substantially same form. See also United States v. Terrazas-Carrasco, 861 F2d 9 3 (5th Cir.1988).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

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257.3 Entrapment

This instruction has been cited and approved in a number of cases. See, e.g., United States v. Wise, 221 F.3d 140 (5^th Cir. 2000), petition for cert. filed (U.S. Dec. 4, 2000) (No. 00-7342);United States v. Brace, 145 F.3d 247 (5^th Cir.), cert. denied, 119 S.Ct. 426 (1998); United States v. Hernandez, 92 F.3d 309 (5^th Cir. 1996), cert. denied, 117 S.Ct. 1437 (1997); United States v. Arditti, 955 F.2d 331 (5^th Cir. 1992), cert. denied, 113 S.Ct. 597 (1992); United States v. Collins, 972 F.2d 1385, 1412, n. 58 (5^th Cir. 1992), cert. denied, 113 S.Ct. 1812 (1993); United States v. Stowell, 947 F.2d 1251, 1257 (5^th Cir. 1991), cert. denied, 112 S.Ct. 1269 (1992).

In Jacobson v. United States, 112 S.Ct. 1535, 1540 (1992), the Supreme Court held that where the government "has induced an individual to break the law, and the defense of entrapment is at issue, the prosecution must prove beyond a reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by government agents." The Fifth Circuit interpreted Jacobson as requiring "that the government must prove at trial beyond a reasonable doubt that the defendant was actually predisposed to commit the underlying crime absent the government's role in assisting such commission." United States v. Byrd, 31 F.3d 1329, 1336 (5^th Cir. 1994) (quoting United States v. Aibejeris, 28 F.3d 97, 99 (11^th Cir. 1994)), cert. denied, 115 S.Ct. 1432 (1995). The Fifth Circuit stressed that "the crucial holding of Jacobson is that predisposition must be independent of government action." Id. In United States v. Hernandez, 92 F.3d 309 (5^th Cir. 1996), cert. denied, 117 S.Ct. 1437 (1997), the Fifth Circuit affirmed the adequacy of this instruction with respect to the requirement expressed in Jacobson.

Post-Jacobson, the Seventh Circuit held that "[p]redisposition is not a purely mental state ... [i]t has positional as well as dispositional force." United States v. Hollingsworth, 27 F.3d 1196, 1200 (7^th Cir. 1994). "Postitional predisposition" requires that the "defendant must be so situated by reason of previous training or experience or occupation or acquaintances that it is likely that if the government had not induced him to commit the crime some criminal would have done so." Id. For a discussion of the Fifth's Circuit's view on "positional predisposition" see United States v. Reyes, 239 F.3d 722, 742-43 (5^th Cir 2001), cert. denied, 121 S.Ct. 2618 (2001).

An issue may arise in a case in which a defendant denies the requisite intent to commit the crime in question or that he was involved in one or more of the acts essential to the commission of the charged crime and alternatively contends that he was in any event entrapped. In Mathews v. United States, 108 S.Ct. 883, 886 (1988), the Supreme Court held that "even if the defendant denies one or more elements of the crime, he is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment." In United States v. Collins, 972 F.2d 1385, 1413 (5^th Cir. 1992), cert. denied, 113 S.Ct. 1812 (1993), the trial judge declined to give a requested instruction to the effect that the defendant has a right to deny participation in the crime and alternatively plead entrapment. The Fifth Circuit held that there was no reversible error, but stressed that "the jury repeatedly was told that the defendants were denying culpability for the crime." Id. Considering the unusual nature of such an alternative contention, on request of a defendant the judge should give a specific instruction to the effect that a defendant may deny that he engaged in the activity constituting the charged offense and alternatively plead entrapment.

Generally, an entrapment issue should be submitted under the general rule that a jury must be instructed on defensive theories, if there is sufficient evidence for a reasonable jury to rule in favor of the defendant on that theory. United States v. Bradfield, 113 F.3d 515, 520 (5^th Cir. 1997).

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1997 Version:

Instruction unchanged.

This instruction has been cited and approved. United States v. Hernandez, 92 F3d 309 (5th. Cir.1996). See Jacobson v. United States, 503 US 540, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992); United States v. Arditti, 955 F2d 331 (5th Cir.1992), cert. denied, 506 US 998, 113 S.Ct. 597, 121 L.Ed.2d 534 (1992); United States v. Collins, 972 F2d 1385, 1412 n. 58 (5th Cir.1992), cert. denied, 507 US 1017, 113 S.Ct. 1812, 123 L.Ed.2d 444 (1993); United States v. Stowell, 947 F2d 1251, 1257 (5th Cir.1991), cert. denied, 503 US 908, 112 S.Ct. 1269, 117 L.Ed.2d 497 (1992); United States v. Martinez, 894 F2d 1445, 1450 (5th Cir.1990), cert. denied, 498 US 942, 111 S.Ct. 351, 112 L.Ed.2d 315 (1990).

In United States v. Hernandez, 92. F3d 309 (5th Cir. 1996), the Fifth Circuit affirmed the adequacy of this instruction on the requirement expressed in Jacobson v. United States, supra, that the government must prove that the defendant was predisposed to commit the crime absent the government's role in assisting such commission. United States v. Byrd, 31 F3d 1329., 1336 (5th Cir.1994) (quoting United States v. Aibejeris, 28 F3d 97 (1lth Cir.1994)), cert. denied, ____ US ____, 115 S.Ct. 1432, 131 L.Ed.2d 313 (1995).

An issue may arise, however, in a case in which a defendant denies the requisite intent to commit the crime in question or that he was involved in one or more of the acts essential to the commission of the charged crime and alternatively contends that he was in any event entrapped. In Mathews v. United States, 485 U:S. 58, 62, 108 S.Ct. 883, 886, 99 L.Ed.2d 54 (1988), the Supreme Court held that "even if the defendant denies one or more elements of the crime, he is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment." In United States v. Collins, 972 F2d 1385, 1413 (5th Cir.1992), cert. denied, 507 US 1017, 113 S.Ct. 1812, 123 L.Ed.2d 444 (1993), the trial judge declined to give a requested instruction to the effect that the defendant has a right to deny participation in the crime and alternatively plead entrapment. The Fifth Circuit held that there was no reversible error, but stressed that "the jury repeatedly was told that the defendants were denying culpability for the crime." Id. Considering the unusual nature of such an alternative contention, on request of a defendant the judge should give a specific instruction to the effect that a defendant may deny that he engaged in the activity constituting the charged offense and alternatively plead entrapment. Generally, an entrapment issue should be submitted under the general rule that a jury must be instructed on defensive theories, if there is sufficient evidence for a reasonable jury to rule in favor of the defendant on that theory. United States v. Bradfield, 103 F3d 1207, 1216-17 (5th Cir.1997).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

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Chapter 31: Identification: Eyewitness (Mistaken Identity)

In any criminal case the government must prove not only the essential elements of the offense or offenses charged, as hereafter defined, but must also prove, of course, the identity of the defendant as the perpetrator of the alleged offense or offenses.

In evaluating the identification testimony of a witness you should consider all of the factors already mentioned concerning your assessment of the credibility of any witness in general, and should also consider, in particular, whether the witness had an adequate opportunity to observe the person in question at the time or times about which the witness testified. You may consider, in that regard, such matters as the length of time the witness had to observe the person in question, the prevailing conditions at that time in terms of visibility or distance and the like, and whether the witness had known or observed the person at earlier times.

You may also consider the circumstances surrounding the identification itself including, for example, the manner in which the defendant was presented to the witness for identification, and the length of time that elapsed between the incident in question and the next opportunity the witness had to observe the defendant.

If, after examining all of the testimony and evidence in the case, you have a reasonable doubt as to the identity of the defendant as the perpetrator of the offense charged, you must find the defendant not guilty.

Note

Barber v. United States, 412 F.2d 775 (5^th Cir. 1969), approved a similar instruction.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

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26.5 Uncharged Bad Acts To Prove Issues Other Than Propensity

whether the defendant committed the acts for which he is on trial by accident or mistake.

These are the limited purposes for which any evidence of other similar acts may be considered.

Note

United States v. LeBaron, 156 F.3d 621, 626 (5^th Cir. 1998), cert. denied, 119 S.Ct. 1074 (1999), cites this instruction with approval. See also United States v. Chiak, 137 F.3d 252, 257-58 n. 3 (5^th Cir.), cert. denied, 119 S.Ct. 118 (1998) and United States v. West, 22 F.3d 586, 595 (5^th Cir. ), cert. denied, 115 S.Ct. 584 (1994), approving similar instructions.

United States v. Gibson, 55 F.3d 173 (5^th Cir. 1995), and United States v. Waldrip, 981 F.2d 799 (5^th Cir. 1993), discuss the use of a limiting instruction when extraneous offenses are introduced. Ordinarily, the defendant must request this instruction. Under some circumstances, the failure to give this instruction, even in the absence of a request, may constitute plain error. Id. Thus, the better practice may be to give this instruction whenever Rule 404(b) evidence is introduced.

A limiting instruction need not be given each and every time a prior bad act is introduced into evidence. United States v. Hernandez-Guevara, 162 F.3d 863 (5^th Cir. 1998), cert. denied, 119 S.Ct. 1375 (1999).

In United States v. Peterson, 244 F.3d 385 (5^th Cir. 2001), several defendants were tried jointly but the Rule 404(b) evidence only applied to one of them. In reviewing a claim by the other defendants that they were prejudiced by the denial of a severance, the Fifth Circuit commented that "it might be better to use the actual names rather than 'those defendants' in the instructions in order to make crystal clear to the jury that Rule 404(b) evidence against" one defendant "could not be considered, even for 'other, very limited purposes,' against" other codefendants. Id. at 395.

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1997 Version:

Instruction unchaged.

Note

United States v. West, 22 F3d 586, 595 (5th Cir.1994), cert. denied, 513 US 1020, 115 S.Ct. 584, 130 L.Ed.2d 498 (1994), approved a similar instruction.

United States v. Gibson, 55 F3d 173 (5th Cir.1995), and United States v. Waldrip, 981 F2d 799 (5th Cir.1993), citing United States v. Prati, 861 F2d 82 (5th Cir.1988), discuss the use of a limiting instruction when extraneous offenses are introduced. Ordinarily, the defendant must request this instruction. Under some circumstances, the failure to give this instruction, even in the absence of a request, may constitute plain error. Id. Thus the better practice may be to give this instruction whenever Rule 404(b) evidence is introduced.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

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Chapter 56: Possession

Possession, as that term is used in this case, may be of two kinds: actual possession and constructive possession. A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it.

A person who, although not in actual possession, 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, is then in constructive possession of it.

Possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive p possession of a thing, possession is joint.

You may find that the element of possession, as that term is used in these instructions, is present if you find beyond a reasonable doubt that the defendant had actual or constructive possession, either alone or jointly with others.

Note

The instruction on joint or constructive possession should be given only when the evidence raises the issue. See United States v. Jones, 185 F.3d 459 (5^th Cir. 1999), cert. denied, 121 S.Ct. 125 (2000); United States v. Ybarra, 70 F.3d 362, (5^th Cir. 1995), cert. denied, 116 S.Ct. 1582 (1996),United States v. Steen, 55 F.3d 1022 (5^th Cir. 1995), cert. denied, 116 S.Ct. 577 (1995); United States v. Posner, 868 F.2d 720 (5^th Cir. 1989), on constructive possession.

A number of Fifth Circuit cases have cited this instruction with approval. See United States v. Cano-Guel, 167 F.3d 900, 905-906 (1999); United States v. Prudhome, 13 F.3d 147, 149-50 (5^thCir. 1994), cert. denied, 114 S.Ct. 1866 (1994); United States v. Shabazz, 993 F.2d 431, 440 n. 14 (5^th Cir. 1993); United States v. McKnight, 953 F.2d 898, 903-04 (5^th Cir. 1992), cert. denied, 112 S.Ct. 2975 (1992).

When the jury is instructed that constructive possession requires proof of "dominion and control," refusal to instruct jury that "mere touching" is insufficient to establish constructive possession is not error. United States v. DeLeon, 170 F.3d 494, 498 (5^th Cir.), cert. denied, 120 S.Ct. 156 (1999).

In a prosecution for possession of a controlled substance, when the substance is hidden and the defense is lack of knowledge of the presence of the substance, defendant is entitled to a "knowledge" instruction more specific than the "'Knowingly'-To Act" instruction. See United States v. Pennington, 20 F.3d 593 (5^th Cir. 1994). For example, if an unlawful drug is hidden from view in a vehicle, a charge such as the following should be considered:

The government may not rely only upon a defendant's ownership and control of the vehicle to prove the defendant knew that he possessed a controlled substance. While these are factors you may consider, the government must prove that there is other evidence indicating the defendant's guilty knowledge of a controlled substance hidden in the vehicle.

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1997 Version:

Instruction unchanged.

Note

The instruction on joint or constructive possession should be given only when the evidence raises these issues. See United States v. Ybarra, 70 F3d 362 (5th Cir.1995), cert. denied, ____ US ____, 116 S.Ct. 1582, 134 L.Ed.2d 679 (1996); United States v. Steen, 55 F3d 1022 (5th Cir.1995), cert. denied, ____ US ____, 116 S.Ct. 577, 133 L.Ed.2d 500, (1995); United States v. Posner, 868 F2d 720 (5th Cir.1989), on constructive possession.

A number of Fifth Circuit cases have cited this instruction with approval. See United States v. Prudhome, 13 F3d 147, 149-50 (5th Cir.1994), cert. denied, 511 US 1097, 114 S.Ct. 1866, 128 L.Ed.2d 487 (1994); United States v. Shabazz, 993 F2d 431, 440 n. 14 (5th Cir.1993); United States v. McKnight, 953 F2d 898, 903-04 (5th Cir.1992), cert. denied, 504 US 989, 112 S.Ct. 2975, 119 L.Ed.2d 594 (1992).

In a prosecution for possession of a controlled substance, when the substance is hidden and the defense is lack of knowledge of the presence of the substance, defendant is entitled to a "knowledge" instruction more specific than the "Knowingly-To Act" instruction. See United States v. Pennington, 20 F3d 593 (5th Cir.1994). For example, if an unlawful drug is hidden from view in a vehicle, a charge such as the following should be considered:

The government may not rely only upon a defendant's ownership and control of the vehicle to prove the defendant knew that he possessed a controlled substance. While these are factors you may consider, the government must prove that there is other evidence indicating the defendant's guilty knowledge of a controlled substance hidden in the vehicle.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

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Chapter 66: Attempt

It is a crime for anyone to attempt to commit a violation of certain specified laws of the United States. In this case, the defendant is charged with attempting to ____________ [describe the substantive offense alleged in the indictment; e.g., possess with intent to distribute a controlled substance].

The elements of [the substantive offense] are: [give required elements unless they are already given elsewhere in the charge].

For you to find the defendant guilty of attempting to commit [the substantive offense], you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: That the defendant intended to commit [the substantive offense];

and

Second: That the defendant did an act constituting a substantial step towards the commission of that crime which strongly corroborates the defendant's criminal intent.

Note

The elements of the offense are discussed in United States v. Crow, 164 F.3d 229, 235 (5^thCir. 1999), United States v. Fuller, 974 F.2d 1474, 1478 (5^th Cir. 1993), and United States v. Contreras, 950 F.2d 232, 236-37 (5^th Cir. 1991), cert. denied, 112 S.Ct. 2276 (1992).

The "requirement that the conduct be strongly corroborative of the firmness of the defendant's criminal intent also relates to the requirement that the conduct be more than 'mere preparation,' ...."" United States v. Mandujano, 499 F.2d 370, 377 (5th Cir. 1974), cert. denied, 95 S.Ct. 792 (1975) (affirming defendant's conviction of attempted distribution of a controlled substance under 21 U.S.C. § 846); see also Contreras, 950 F.2d at 237 (stating that a substantial step must be conduct strongly corroborative of the firmness of the defendant's criminal intent).

Attempt is usually a lesser included offense of the completed crime. However, a defendant may be convicted of a substantive offense and also attempting to commit the same kind of substantive offense, so long as there is a different factual basis for the two separate crimes. United States v. Anderson, 987 F.2d 251, 254-56 (5th Cir.), cert. denied, 114 S.Ct. 157 (1993) (affirming convictions for manufacturing one batch of methamphetamine and attempting to manufacture a second batch).

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1997 Version:

Instruction unchanged.

Note

The "requirement that the conduct be strongly corroborative of the firmness of the defendant's criminal intent also relates to the requirement that the conduct be more than ‘mere preparation’"United States v. Mandujano, 499 F2d 370, 377 (5th Cir.1974), cert denied, 419 US S.1114, 95 S.Ct. 792, 42 L.Ed.2d 812 (1975) (defendant convicted of attempted distribution of a controlled substance under 21 USC 846).

Attempt is usually a lesser included offense of the completed crime. However, a defendant may be convicted of a substantive offense and also attempting to commit the same kind of substantive offense, so long as there is a different factual basis for the two separate crimes. United States v. Anderson, 987 F2d 251, 254-56 (5th Cir.1993), cert. denied, 510 US 853, 114 S-Ct. 157, 126 L.Ed.2d 118 (1993) (affirming convictions for manufacturing one batch of methamphetamine and attempting to manufacture a second batch)

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

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Chapter 265: Lesser Included Offenses: General Principles

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1997 Version:

Instruction unchanged.

See Schmuck v. United States, 489 US 705, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989), rehearing denied, 490 US 1076, 109 S.Ct. 2091, 104 L.Ed.2d 654 (1989), on when to give a lesser included offense instruction. The phrase "after all reasonable efforts" has been included in the first two paragraphs to address the concerns raised in United States v. Buchner, 7 F3d 1149, n. 5 (5th Cir.1993), cert. denied, 510 US 1207, 114 S.Ct. 1331, 127 L.Ed.2d 678 (1994).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

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256.4 Insanity

The defendant claims that he was insane at the time of the events alleged in the indictment. If you conclude that the government has proved beyond a reasonable doubt that the defendant committed the crime as charged, you must then consider whether the defendant should be found "not guilty only by reason of insanity."

The defendant was insane as the law defines that term only if, as a result of a severe mental disease or defect, the defendant was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.

On the issue of insanity, it is the defendant who must prove his insanity by clear and convincing evidence. You should render a verdict of "not guilty only by reason of insanity" if you are persuaded by clear and convincing evidence that the defendant was insane when the crime was committed.

Remember, then, that there are three possible verdicts in this case: guilty, not guilty, and not guilty only by reason of insanity.

Note

The Insanity Defense Reform Act of 1984, codified at 18 U.S.C. § 17, redefined the insanity defense and reallocated the burden of proof, modifying United States v. Lyons, 731 F.2d 243 (5^th Cir. 1984) (en banc), cert. denied, 105 S.Ct. 323 (1984).

The Fifth Circuit affirmed a district court's use of this instruction on insanity in United States v. Shannon, 981 F.2d 759, 761 (5^th Cir. 1993), affirmed, 114 S.Ct. 2419 (1994). In Shannon, the Fifth Circuit also held that a defendant is not entitled to a jury instruction which describes mandatory commitment procedures accompanying a verdict of not guilty by reason of insanity (NGI). Id. at 764.

The Supreme Court affirmed the Fifth Circuit's decision and held that "the IDRA [Insanity Defense Reform Act of 1984, 18 U.S.C. §§ 4241-4247] does not require an instruction concerning the consequences of an NGI verdict, and that such an instruction is not to be given as a matter of general practice." Shannon v. United States, 114 S.Ct. 2419, 2428 (1994).

The Supreme Court did recognize that an instruction "of some form may be necessary under certain limited circumstances," e.g., if a witness or prosecutor states to the jury that a defendant would go free after an NGI verdict, a district court might need to "intervene with an instruction to counter such misstatement." Id.

See also United States v. Dixon, 185 F.3d 393 (5^th Cir. 1999), and United States v. Levine, 80 F.3d 129 (5^th Cir.), cert. denied, 117 S.Ct. 83 (1996), for Fifth Circuit decisions on the insanity defense.

See 18 U.S.C. § 4242(b), providing that the jury shall be instructed to find the defendant guilty, not guilty, or not guilty only by reason of insanity.

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1997 Version:

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 1997

The defendant claims that he was insane at the time of the events alleged in the indictment. If you conclude that the government has proved beyond a reasonable doubt that the defendant committed the crime as charged, you must then consider whether the defendant should be found "not guilty only by reason of insanity."

The defendant was insane as the law defines that term only if, as a result of a severe mental disease or defect, the defendant was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.

On the issue of insanity, it is the defendant who must prove his insanity by clear and convincing evidence. You should render a verdict of "not guilty only by reason of insanity" if you are persuaded by clear and convincing evidence that the defendant was insane when the crime was committed.

Remember, then, that there are three possible verdicts in this case: guilty, not guilty, and not guilty only by reason of insanity.

Note

The Insanity Defense Reform Act of 1984, codified at 18 USC 17, redefined the insanity defense and reallocated the burden of proof, modifying United States v. Lyons, 731 F2d 243 (5th Cir. 1984) (en banc), cert. denied, 469 US 930, 105 S.Ct. 323, 83 L.Ed.2d 260 (1984).

The Fifth Circuit affirmed a district court's use of this pattern instruction on insanity in United States v. Shannon, 981 F2d 759, 761 (5th Cir.1993), affirmed, 512 US 573, 114 S.Ct. 2419, 129 L.Ed.2d 459 (1994). In Shannon, the Fifth Circuit also held that a defendant is not entitled to a jury instruction which describes mandatory commitment procedures accompanying a verdict of not guilty by reason of insanity (NGI). Id. at 764.

The Supreme Court affirmed the Fifth Circuit's decision and held that "the IDRA [Insanity Defense Reform Act of 1984, 18 USC§ 4241-4247] does not require an instruction concerning the consequences of an NGI verdict, and that such an instruction is not to be given as a matter of general practice." Shannon v. United States, 512 US 573, 586, 114 S.Ct. 2419, 2428, 129 L.Ed.2d 459 (1994).

The Supreme Court did recognize that an instruction "of some form could be necessary under certain limited circumstances," e.g., if a witness or prosecutor states to the jury that a defendant would go free after an NGI verdict, a district court might need to "intervene to counter such misstatement." Id.

See also United States v. Levine, 80 F3d 129 (5th Cir.1996), for a recent Fifth Circuit decision on the insanity defense.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

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251.2 Alibi

Evidence has been introduced tending to establish an alibi—that the defendant was not present at the time when, or at the place where, the defendant is alleged to have committed the offense charged in the indictment.

It is, of course, the government's burden to establish beyond a reasonable doubt each of the essential elements of the offense, including the involvement of the defendant; and if, after consideration of all the evidence in the case, you have a reasonable doubt as to whether the defendant was present at the time or place as alleged in the indictment, you must find the defendant not guilty.

Note

United States v. Brown, 49 F.3d 135 (5^th Cir. 1995), approved an instruction in substantially the same form.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

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253.4 Self Defense, Defense Of Others, Defense Of Property -- Complete

254.1 Duress/Coercion

Two recent Fifth Circuit cases set forth the elements of this defense in essentially the same terms as this instruction. United States v. Wyly, 193 F.3d 289, 300 (5^th Cir. 1999), United States v. Posada-Rios, 158 F.3d 832, 873 (5^th Cir. 1998), cert. denied, 119 S.Ct. 1280 (1999). Contrary to other circuits, the Fifth Circuit places the burden of proving this affirmative defense on the defendant and requires the defendant to prove that he did not recklessly or negligently place himself in the situation. Hence, this instruction differs from the pattern instructions in those other circuits. United States v. Wyly, 193 F.3d 289, 300 (5^th Cir. 1999); United States v. Willis, 38 F.3d 170, 179 (5^th Cir. 1994), cert. denied, 115 S.Ct. 2585 (1995). See also United States v. Harper, 802 F.2d 115 (5^th Cir. 1986), Manual of Model Criminal Jury Instructions for the Ninth Circuit, § 6.5 (West 2000);Manual of Model Criminal Jury Instructions for the District Courts of the Eighth Circuit, Committee Comments to § 9.02, p. 496 (West 2000); Pattern Criminal Jury Instructions Sixth Circuit, § 6.06 (West 1991).

The test of whether or not the defense of duress exists is an objective one, not a subjective one. United States v. Posada-Rios, 158 F.3d 832, 873 (5^th Cir. 1998), cert. denied, 119 S.Ct. 1280 (1999); United States v. Willis, 38 F.3d 170, 176 (5^th Cir. 1994), cert. denied, 115 S.Ct. 2585 (1995).

As with any affirmative defense, the trial court may refuse to give the justification instruction if the defendant fails to submit sufficient evidence for a reasonable juror to find duress. United States v. Posada-Rios, 158 F.3d 832, 873 (5^th Cir. 1998), cert. denied, 119 S.Ct. 1280 (1999); United States v. Liu, 960 F.2d 449 (5^th Cir. 1992), cert. denied, 113 S.Ct. 418 (1992); United States v Harvey, 897 F.2d 1300 (5^th Cir. 1990), cert. denied, 111 S.Ct. 568 (1990), overruled in part on other grounds, United States v. Lambert, 984 F.2d 658 (5^th Cir. 1993) (en banc).

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1997 Version:

Instruction unchanged.

Contrary to many other circuits, the Fifth Circuit places the burden of proving this affirmative defense on the defendant and requires the defendant to prove that he did not recklessly or negligently place himself in the situation. Hence, this instruction differs from the pattern charges in those other circuits. United States v. Willis, 38 F3d 170, 179 (5th Cir.1994), cert. denied, ____US ____, 115 S.Ct. 2585, 132 L.Ed.2d 834 (1995). See also United States v. Harper, 802 F2d 115 (5th Cir.1986); Manual of Model Criminal Jury Instructions for the Ninth Circuit, 6.6 (West 1994); Manual of Model Criminal Jury Instructions for the District Courts of the Eighth Circuit, Committee Comments to § 9.02, p. 424 (West 1994); Pattern Criminal Jury Instructions Sixth Circuit, § 6.05 (West 1991).

The test of whether or not the defense of duress exists is an objective one, not a subjective one. United States v. Willis, 38 F3d 170, 176 (5th Cir.1994), cert. denied, ____ US ____, 115 S.Ct. 2585, 132 L.Ed.2d 834 (1995).

As with any affirmative defense, the trial court may refuse to give the justification instruction if the defendant fails to submit sufficient evidence for a reasonable juror to find duress. United States v. Liu, 960 F2d 449 (5th Cir.1992), cert. denied, 506 US 957, 113 S.Ct. 418, 121 L.Ed.2d 341 (1992); United States v. Harvey, 897 F2d 1300 (5th Cir. 1990), cert. denied, 498 US 1003, 111 S.Ct. 568, 112 L.Ed.2d 574 (1990).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

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Chapter 47: Knowledge

The word "knowingly," as that term has been used from time to time in these instructions, means that the act was done voluntarily and intentionally, not because of mistake or accident.

[You may find that a defendant had knowledge of a fact if you find that the defendant deliberately closed his eyes to what would otherwise have been obvious to him. While knowledge on the part of the defendant cannot be established merely by demonstrating that the defendant was negligent, careless, or foolish, knowledge can be inferred if the defendant deliberately blinded himself to the existence of a fact.]

United States v. Brown, 186 F.3d 661, 665 (5^th Cir. 1999), held that a jury given this instruction was "properly instructed." See also United States v. Jobe, 101 F.3d 1046, 1059 (5^th Cir. 1996), cert. denied, 118 S.Ct. 81 (1997); United States v. Aggrawal, 17 F.3d 737, 744 (5^th Cir. 1994) (this instruction is "correct" definition of "knowingly").

Refusal to give this "knowingly" instruction may not be error if the substantive offense instruction adequately covers the element of knowledge. See United States v. Cano-Guel, 167 F.3d 900 (5^th Cir. 1999); United States v. Sanchez-Sotelo, 8 F.3d 202 (5^th Cir. 1993), cert. denied, 114 S.Ct. 1410 (1994).

With regard to the deliberate ignorance instruction and the appropriate occasions for its submission, see United States v. Peterson, 244 F.3d 385 (5^th Cir.), petition for cert. filed (U.S. June 5, 2001) (No. 00-10428); United States v. Sharpe, 193 F.3d 852 (5^th Cir. 1999), cert. denied, 120 S.Ct. 1202 (2000); United States v. Moreno, 185 F.3d 465 (5^th Cir. 1999), cert. denied, 120 S.Ct. 835 (2000); United States v. Threadgill, 172 F.3d 357 (5^th Cir.), cert. denied, 120 S.Ct. 172 (1999);United States v. Lara-Velasquez, 919 F.2d 946 (5^th Cir. 1990). The bracketed material should be used sparingly-only when the facts and statute under which the defendant is being prosecuted justify it. See United States v. Chen, 913 F.2d 183 (5^th Cir. 1990). If a deliberate ignorance instruction is given, a "balancing" instruction should be considered upon request of defendant. See United States v. Farfan-Carreon, 935 F.2d 678 (5^th Cir. 1991).

The deliberate ignorance instruction "does not lessen the government's burden to show, beyond a reasonable doubt, that the knowledge elements of the crimes have been satisfied." United States v. Reveles, 190 F.3d 678, 686 (5^th Cir. 1999).

A judge is cautioned that, in instructing on a statute which punishes "otherwise innocent conduct," the knowledge requirement applies to each element. United States v. Ahmad, 101 F.3d 386, 390 (5^th Cir. 1996), reh'g and suggestion for reh'g en banc denied, 108 F.3d 335 (5^th Cir. 1997).

When a deliberate ignorance instruction is appropriate only with respect to one of a group of co-defendants, the Fifth Circuit has approved the giving of the instruction accompanied by a statement that the instruction may not apply to all of the defendants. United States v. Reissig, 186 F.3d 617 (5^th Cir. 1999), cert. denied, 120 S.Ct. 832 (2000).

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1997 Version:

Instruction unchanged.

Refusal to give this "knowingly" instruction may not be error if the substantive offense instruction adequately covers the element of knowledge. See United States v. Sanchez-Sotelo, 8 F3d 202 (5^th Cir.1993), cert. denied, 511 US 1023, 114 S.Ct. 1410, 128 L.Ed.2d 82 (1994).

On the deliberate ignorance charge and the appropriate occasions for its submission, see United States v. Investment Enterprises, 10 F3d 263 (5th Cir.1993); United States v. Lara-Velasquez, 919 F2d 946 (5th Cir.1990); United States v. Daniel, 957 F2d 162 (5th Cir.1992); United States v. DeVeau, 734 F2d 1023, 1028 (5th Cir.1984), cert. denied, 469 US 1158, 105 S.Ct. 906, 83 L.Ed.2d 921 (1985). The bracketed material should be used sparingly-only when the facts and statute under which the defendant is being prosecuted justify it. See United States v. Chen, 913 F2d 183 (5th Cir.1990). If a deliberate ignorance charge is given, a "balancing" instruction should be considered upon request of defendant. See United States v. Farfan-Carreon, 935 F2d 678 (5th Cir.1991).

A judge is cautioned that, in instructing on a statute which punishes "otherwise innocent conduct," the knowledge requirement applies to each element. United States v. Ahmad, 101 F3d 386, 390 (5th Cir.1996).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

FORECITE National™ ALERT: See also FORECITE National™ 103.7.2.4 [Mail Theft And Mail Fraud: Materiality Is An Element]. 

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Chapter 46: Willfulness

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1997 Version:

The word "willfully" is frequently included in the indictment, even when not required by statute or case law. This practice should be discouraged. The 1978 Fifth Circuit Criminal Pattern Jury Instructions inserted "willfully" as an element of almost every crime and then supplied this definition of that term:

The word "willfully," as that term has been used from time to time in these instructions, means that the act was committed voluntarily and purposely, with the specific intent to do something the law forbids; that is to say, with bad purpose either to disobey or disregard the law.

Court decisions indicate, however, that this definition is not accurate in every situation. As stated in United States v. Granda, 565 F2d 922, 924 (5th Cir.1978), the term "willfully" has "defied any consistent interpretation by the courts." In United States v. Bailey, 444 US 394, 403, 100 S.Ct. 624, 631, 62 L.Ed.2d 575 (1980), the Court stated that "[F]ew areas of criminal law pose more difficulty than the proper definition of the mens rea required for any particular crime." In Ratzlaf v. United States, 510 US 135, 141, 114 S.Ct. 655, 659, 126 L.Ed.2d 615 (1994), the Supreme Court, quoting from Spies v. United States, 317 US 492, 497, 63 S.Ct. 364, 367, 87 L.Ed. 418 (1943), recognized that "willful is a word of many meanings, and its construction is often influenced by its context."'

In Cheek v. United States, the Supreme Court defined "willful" for prosecutions under the Internal Revenue Code. 498 US 192, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991). Because of the complexity of the tax laws, "willful" criminal tax offenses are treated as an exception to the general rule that "ignorance of the law or a mistake of law is no defense to criminal prosecution." 498 US at 199, 111 S.Ct. at 609. "Congress has accordingly softened the impact of the common-law presumption by making specific intent to violate the law an element of certain federal criminal tax offenses." 498 US at 199, 111 S.Ct. at 609. "The standard for the statutory willfulness requirement is the 'voluntary, intentional violation of a known legal duty.' " 498 US at 201, 111 S.Ct. at 610 (quoting United States v. Pomponio, 429 US 10, 12, 97 S.Ct. 22, 23, 50 L.Ed.2d 12 (1976), and United States v. Bishop, 412 US 346, 360, 93 S.Ct. 2008, 2017, 36 L.Ed.2d 941 (1973)). The Court reversed a conviction because the trial court instructed the jury that the defendant's good faith belief that he was not violating the law must have been objectively reasonable. However, a good faith belief that the law is unconstitutional does not negate the willfulness requirement. Thus it is not error to instruct a jury not to consider a defendant's claims that a tax law is unconstitutional. 498 US at 204-06, 111 S.Ct. at 612-13. See also United States v. Townsend, 31 F3d 262, 267 (5th Cir.1994) (stating that "[t]he US Supreme Court has recognized that the term 'willfully' connotes a voluntary, intentional violation of known legal duty" in a case involving evasion of federal excise taxes), cert. denied, 513 US 1100, 115 S.Ct. 773, 130 L.Ed.2d 668 (1995) ; United States v. Charroux, 3 F3d 827, 831 (5th Cir.1993) (defining willfulness as "‘voluntary, intentional violation of a known legal duty' " in a gasoline excise tax evasion case).

In an evasion of diesel fuel excise tax case, "[t]he government must prove 'that the law imposed a duty on the defendant, that the defendant knew of this duty, and that he voluntarily and intentionally violated that duty.' A defendant's belief that he is not liable for a tax, if held in good faith, is a defense to a finding of willfulness even if the belief is unreasonable." United States v. Wisenbaker, 14 F3d 1022, 1025 (5th Cir.1994).

In United States v. Masat, the Fifth Circuit stated that in a tax evasion case, "willfulness simply means a voluntary, intentional violation of a known legal duty" and that the jury instruction defining "willfully" does not have to include any language about bad purpose or evil motive. 948 F2d 923, 931-32 (5th Cir.1991), cert. denied, 506 US 835, 113 S.Ct. 108, 121 L.Ed.2d 66 (1992).

The notion that "willfully" requires a "bad purpose" derives from the opinion in United States v. Murdock, 290 US 389, 54 S.Ct. 223, 78 L.Ed. 381 (1933). Based on Murdock, the Fifth Circuit held in Wardlaw v. United States, 203 F2d 884 (5th Cir.1953), that "willfully" included an evil motive or bad purpose. Nevertheless, in McBride v. United States, 225 F2d 249 (5th Cir.1955), cert. denied, 350 US 934, 76 S.Ct. 306, 100 L.Ed. 816 (1956), the Fifth Circuit distinguished Murdock and Wardlaw as being cases of alleged tax violations and held that "willful" had a different meaning in a prosecution for making false records under 18 USC 1001. McBride approved an instruction specifically stating that proof of an evil intent was not required and that "willful means no more than that the forbidden act is done deliberately and with knowledge." 225 F2d at 253. This definition has subsequently been approved on several occasions in § 1001 prosecutions. United States v. Markham, 537 F2d 187, 194 (5th Cir.1976), cert. denied, 429 US 1041, 97 S.Ct. 739, 50 L.Ed.2d 752 (1977).

In United States v. Kerley, 643 F2d 299 (5th Cir.Unit B 1981), the court held that in a prosecution under 18 USC 242, the failure to charge the jury that "willfully" means acting with bad purpose or evil motive was reversible error. The court again distinguished Pomponio as being limited to tax violations but concluded that the "bad purpose or evil motive" element was required because of Screws v. United States, 325 US 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945).

In United States v. Hunt, 794 F2d 1095 (5th Cir.1986), a prosecution for mail fraud under 18 USC 1341, the court approved a definition that "willfully" meant an act committed voluntarily and purposely, with the specific intent to disobey or disregard the law. Hunt specifically rejected a contention that reversible error is avoided "only if the judge utters the magic words with bad purpose.'" 794 F. 2d at 1100.

United States v. St. Gelais, 952 F2d 90 (5th Cir.1992), cert. denied, 506 US 965, 113 S.Ct. 439, 121 L.Ed.2d 358 (1992), involved a prosecution under 18 USC 1343, wire fraud. Although the statute does not use the term "willfully" (nor does our 1990 Pattern Instruction), the court instructed the jury that the government must prove that the defendant "knowingly and willfully devised ... a scheme ...," and then defined "willfully" as defined in our 1978 Pattern Instruction. The Fifth Circuit held that this charge adequately conveyed the concept of good faith to the jury, and therefore the district court did not err in refusing to include a requested specific good faith instruction. Id. at 93-94. The Fifth Circuit reached the same conclusion in a drug prosecution under 21 USC 841(a)(1). Neither the statute nor the 1990 Pattern Instruction includes "willfully." United States v. Greig, 967 F2d 1018, 1027 (5th Cir.1992).

The Seventh and Ninth Circuits have recommended that "willfully" not be defined unless the word appears in the statute allegedly violated by the defendant. Federal Criminal Jury Instructions of the Seventh Circuit § 6.03 (West 1980); Manual of Model Jury Instructions for the Ninth Circuit § 5.5 (West 1992); also see, Devitt & Blackmar, Federal Jury Practice and Instructions § 17.05 (West 1992). The Eighth Circuit recommends that the word " ‘willfully' not be used in jury instructions in most cases," even when the word appears in the statute, unless the court is dealing with a criminal tax case or an odometer fraud case. Manual of Model Criminal Jury Instructions for the District Courts of the Eighth Circuit, Instruction 7.02 (1992).

The Committee declines to go as far as these other circuits, because there are cases where the courts have engrafted an element of "willfulness" even when that term does not appear in the statute. For example, in United States v. Kent, 608 F2d 542 (5th Cir.1979) rehearing denied, 611 F2d 882 (5th Cir.1980), cert. denied, 446 US 936, 100 S.Ct. 2153, 64 L.Ed.2d 788 (1980), the court indicated that although the mail fraud statute, 18 USC1341, does not mention intent, an "implicit element of mail fraud is a specific intent to commit fraud." 608 F2d at 545 n.3. In United States v. Salinas-Garza, 803 F2d 834 (5th Cir.1986), rehearing denied, 811 F2d 272 (5th Cir.1987), the court considered the currency reporting statute, 31 USC 5316(a)(1)(A). Although the statute uses only the term "knowingly," the court held that the statute also requires the act be done "willfully," that is, the defendant must be shown to have intentionally violated a known legal duty. 803 F2d at 838. In Ratzlaf v. United States, the Supreme Court held that in a prosecution for violation of the money structuring statute (31 USC 5324), the government must establish "willfulness" (§ 5322), and in order to do so must prove that the defendant acted with knowledge that his conduct was unlawful. 510 US 135, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994). In United States v. Oreira, 29 F3d 185, 188 (5th Cir.1994), the Fifth Circuit recognized that Ratzlaf overruled United States v Beaumont, 972 F2d 91, 93-95 (5th Cir.1992), and held that in a 31 USC 5324 proceeding it was reversible error not to give a requested definition of "willfully" which tracked the 1978 Fifth Circuit Pattern Instruction quoted above. There is dictum in United States v. Rodriguez-Rios to the effect that Ratzlaf is inapplicable to a prosecution under 18 USC 1001. 14 F3d 1040, 1048 n. 21 (5th Cir.1994). A short time after Ratzlaf was decided, Congress amended 31 USC 5322 so as to make "willful" (the basis for the Ratzlaf opinion) inapplicable to 31 USC 5324, the money structuring statute. Although the general conspiracy statute, 18 USC 371, contains no express intent requirement, the Fifth Circuit held that a conviction under that statute requires proof of "at least the degree of criminal intent necessary for the substantive offense itself." United States v. Harrelson, 754 F2d 1153, 1172 (5th Cir.1985), rehearing denied, 766 F2d 186 (5th Cir. 1985) , cert. denied, 474 US 908, 106 S.Ct. 277, 88 L.Ed.2d 241 (1985).

The Supreme Court has cautioned that the required mental state may be different even for different elements of the same crime, and that the mental element encompasses more than just the two possibilities of "specific" and "general" intent. Liparota v. United States, 471 US 419, 423 n. 5, 105 S.Ct. 2084, 2087 n. 5, 85 L.Ed.2d 434 (1985) The Committee has therefore abandoned the indiscriminate use of the term "willfully" accompanied by an inflexible definition of that term. Instead, we have attempted to define clearly what state of mind is required, i.e., what the defendant must know and intend to be guilty of the particular crime charged. See Federal Judicial Center, Pattern Criminal Jury Instructions.

We stress, however, that the judge will generally wish to make clear the meaning of offense definitions in the context of the case at hand by giving a ‘theory of the case" instruction based upon the parties’ submissions.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

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1997 Version:

Instruction unchanged.

Note

See United States v. Lopez, 514 US 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (discussion of the "outer limits" of Congress' authority to regulate interstate commerce; Gun Free School Zones Act of 1990 exceeds Congress' authority to regulate interstate commerce); United States v. Box, 50 F3d 345 (5th Cir.1995), cert. denied, ____ US ____, 116 S.Ct. 309, 133 L.Ed.2d 213 (1995) (extortion at a Texas state park alongside a US highway of Texas residents traveling wholly within Texas does not have "even a slight effect on interstate commerce"); United States v. Collins, 40 F3d 95 (5th Cir.1994), cert. denied, ____ US ____, 115 S.Ct. 1986, 131 L.Ed.2d 873 (1995) (robbery of individual employed by company engaged in interstate commerce does not have requisite effect on interstate commerce to sustain a conviction under the Hobbs Act); United States v. Heacock, 31 F3d 249 (5th Cir.1994) (intrastate mailing held to be sufficient to invoke federal jurisdiction under 18 USC 1952); United States v. Fitzhugh, 984 F2d 143 (5th Cir.1993), cert. denied, 510 US 895, 114 S.Ct. 259, 126 L.Ed.2d 211 (1993) (convicted felon's possession of a firearm having a past connection to interstate commerce violates 18 USC 922(g)(1)).

In cases involving statutes which have as an element of the offense a requirement that activity takes place in interstate commerce or has an effect on interstate commerce, the issue of whether the activity takes place in interstate commerce or has an effect on interstate commerce should be submitted to the jury. See United States v. Gaudin, ____ US___, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995); United States v. Parker, 73 F3d 48, rehearing en banc granted, 80 F3d 1042 (5th Cir.1996). After the panel decided this issue, an en banc decision was rendered. United States v. Parker, 104 F3d 72 (5th Cir.1997) (en banc). Its meaning on the necessity to submit interference with interstate commerce to the jury as an element is not clear, and the committee continues to rely on the panel decision and to recommend that the issue of interference with interstate commerce be submitted to the jury as an element of this offense.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

1.40 Foreign Commerce–Defined

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1997 Version:

Instruction unchanged.

See United States v. Montford, 27 F3d 137 (5th Cir.1994), and United States v. De La Rosa, 911 F2d 985 (5th Cir.1990), cert. denied, 500 US 959, 111 S.Ct. 2275, 114 L.Ed.2d 726 (1991).

In cases involving statutes which have as an element of the offense a requirement that activity takes place in foreign commerce or has an effect on foreign commerce, the issue of whether the activity takes place in foreign commerce or has an effect on foreign commerce should be submitted to the jury. See United States v. Gaudin, ____ US ____, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), and United States v. Parker, 73 F3d 48 (5th Cir.1996), rehearing en banc granted, 80 F3d 1042 (5th Cir.1996). After the panel decided this issue, an en banc decision was rendered. United States v. Parker, 104 F3d 72 (5th Cir.1997) (en banc). Its meaning on the necessity to submit interference with foreign commerce to the jury as an element is not clear, and the committee continues to rely on the panel decision and to recommend that the issue of interference with foreign commerce be submitted to the jury as an element of offense.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

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25.9 Electronic Recordings

Exhibit ___ has been identified as a typewritten transcript [and partial translation from Spanish into English] of the oral conversation which can be heard on the tape recording received in evidence as Exhibit ___. The transcript also purports to identify the speakers engaged in such conversation.

I have admitted the transcript for the limited and secondary purpose of aiding you in following the content of the conversation as you listen to the tape recording, [particularly those portions spoken in Spanish] and also to aid you in identifying the speakers.

You are specifically instructed that whether the transcript correctly or incorrectly reflects the content of the conversation or the identity of the speakers is entirely for you to determine based upon your own evaluation of the testimony you have heard concerning the preparation of the transcript, and from your own examination of the transcript in relation to your hearing of the tape recording itself as the primary evidence of its own contents; and, if you should determine that the transcript is in any respect incorrect or unreliable, you should disregard it to that extent.

Note

This instruction should be given when the tape is played and again in the final charge. 

See United States v. Murray, 988 F2d 518, 525-27 (5th Cir. 1993), and United States v. Rena, 981 F2d 765, 767-70 (5th Cir.1993). Under certain circumstances, including when the taped conversation is in a foreign language, a transcript (in English) may be admitted but the tape excluded. See, e.g., United States v. Valencia, 957 F2d 1189 (5th Cir.1992), cert. denied, 506 US 889, 113 S.Ct. 254, 121 L.Ed.2d 185 (1992). In such a case, of course, this pattern instruction must be modified.

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

1.43 Summaries And Charts Not Received In Evidence

Certain charts and summaries have been shown to you solely to help explain the facts disclosed by the books, records, and other documents which are in evidence in the case. These charts and summaries are not evidence or proof of any facts. You should determine the facts from the evidence.

See United States v. Winn, 948 F.2d 145, 157-58 n.30 (5^th Cir. 1991), cert. denied, 112 S.Ct. 1599 (1992), and United States v. Duncan, 919 F.2d 981, 988 (5^th Cir. 1990), cert. denied, 111 S.Ct. 2036 (1991), approving similar instructions.

Under some circumstances, the failure to give a limiting instruction in conjunction with the government's use of a demonstrative chart may be plain error, but not when other factors suggest the permissible use of the chart. United States v. Meshack, 225 F.3d 556, 582 (5^th Cir. 2000), cert. denied, 121 S.Ct. 834 (2001), amended on reh'g in part 244 F.3d 367 (5^th Cir. 2001), petition for cert. filed, (U.S. June 25, 2001) (No. 00-10499).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

1.44 Summaries And Charts Received In Evidence

Certain charts and summaries have been received into evidence. Charts and summaries are valid only to the extent that they accurately reflect the underlying supporting evidence. You should give them only such weight as you think they deserve.

This instruction is not appropriate when the summaries and charts have been introduced into evidence under Federal Rule of Evidence 1006 and the underlying documents or records have not been introduced into evidence. In such a case the charts or summaries are themselves evidence of facts in the case. See United States v. Osum, 943 F.2d 1394, 1405 n.9 (5^th Cir. 1991).

PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT – 2001

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Chapter 286: Deadlock

I am going to ask that you continue your deliberations in an effort to agree upon a verdict and dispose of this case; and I have a few additional comments I would like for you to consider as you do so.

This is an important case. The trial has been expensive in time, effort, and money to both the defense and the prosecution. If you should fail to agree on a verdict, the case is left open and must be tried again. Obviously, another trial would only serve to increase the cost to both sides, and there is no reason to believe that the case can be tried again by either side better or more exhaustively than it has been tried before you.

Any future jury must be selected in the same manner and from the same source as you were chosen, and there is no reason to believe that the case could ever be submitted to twelve men and women more conscientious, more impartial, or more competent to decide it, or that more or clearer evidence could be produced.

Those of you who believe that the government has proved the defendant guilty beyond a reasonable doubt should stop and ask yourselves if the evidence is really convincing enough, given that other members of the jury are not convinced. And those of you who believe that the government has not proved the defendant guilty beyond a reasonable doubt should stop and ask yourselves if the doubt you have is a reasonable one, given that other members of the jury do not share your doubt.

Remember at all times that no juror is expected to yield a conscientious conviction he or she may have as to the weight or effect of the evidence. But remember also that, after full deliberation and consideration of the evidence in the case, it is your duty to agree upon a verdict if you can do so without surrendering your conscientious conviction. You must also remember that if the evidence in the case fails to establish guilt beyond a reasonable doubt, the accused should have your unanimous verdict of Not Guilty.

You may be as leisurely in your deliberations as the occasion may require and should take all the time which you may feel is necessary.

I will ask now that you retire once again and continue your deliberations with these additional comments in mind to be applied, of course, in conjunction with all of the instructions I have previously given to you.

Note

In United States v. Winters, 105 F.3d 200, 203-04 (5^th Cir. 1997), the Fifth Circuit rejected defendant's claim that the jury was coerced into finding him guilty by the following instruction: "[i]f you should fail to agree on a verdict as to the remaining counts the case is left open and must be tried again." See United States v. Clayton, 172 F.3d 347, 352 (5^th Cir. 1999).

See also United States v. Nguyen, 28 F.3d 477, 483-84 (5^th Cir. 1994), and United States v. Pace, 10 F.3d 1106, 1125 (5^th Cir. 1993), cert. denied, 114 S.Ct. 2180 (1994) (discussing the 1990 version of this instruction).

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1997 Version:

Formerly 1.43 Modified "Allen" Charge.

Note

In urging jurors to reconsider their views, the fourth paragraph of this instruction in the 1990 version refers to "a substantial majority" of jurors, "each dissenting juror and "a majority or even a lesser number" of jurors. These references have been removed. See Lowenfield v. Phelps , 484 US 231. 237, 108 S.Ct. 546, 551, 98 L.Ed.2d 568 (1988), and Pattern Criminal Jury Instructions, US Sixth Circuit District Judges Association, pp. 214-15 (1991). See also United States v. Tanios, 82 F3d 98 (5th Cir. 1996).

The 1990 version of this instruction was approved in United States v. Nguyen, 28 F3d 477, 483-84 (5th Cir.1994), and United States v. Pace, 10 F3d 1106 (5th Cir.1993), cert. denied, 511 US 1149, 114 S.Ct. 2180, 128 L.Ed.2d 899 (1994).