8TH CIRCUIT CHAPTER 6

8TH CIRCUIT MODEL INSTRUCTIONS 2009
Go to Federal Model Instructions Table of Contents - Go to 8th Circuit Table of Contents

6. Final Instructions: Elements of Offenses (6.01 - 6.18.1001C)

        6.00                    Introductory Comment
        6.18.111            Assault On A Federal Officer [With A Dangerous Or Deadly Weapon] (18 USC 111)
        6.18.152A         Bankruptcy Fraud (Concealment Of Assets) (18 USC 152(1))
        6.18.152B         Bankruptcy Fraud (Making A False Statement) (18 USC 152(2-4))
        6.18.201A         Bribery Of Public Official (18 USC 201(b)(1))
        6.18.201B         Receiving Bribe By Public Official (18 USC 201(b)(2))
        6.18.201C         Bribing A Witness (18 USC 201(b)(3))
        6.18.201D         Soliciting Bribe By Witness (18 USC 201(b)(4))
        6.18.201E         Illegal Gratuity To Public Official (18 USC 201(c)(1)(A))
        6.18.201F         Receiving Illegal Gratuity By Public Official (18 USC 201(c)(1)(B))
        6.18.287           Making A False Claim Against The United States (18 USC 287)
        6.18.471           Counterfeiting (18 USC 471)
        6.18.472           Passing Counterfeit Obligations (18 USC 472)
        6.18.495A        Forgery (18 USC 495) (First Paragraph)
        6.18.495B        Uttering A Forged Writing (18 USC 495) (Second Paragraph)
        6.18.641           Theft Of Government Money Or Property (18 USC 641)
        6.18.656           Embezzlement And Misapplication Of Bank Funds (18 USC 656)
        6.18.659A        Theft from Interstate Shipment (18 USC 659) (First Paragraph)
        6.18.659B         Purchase, Receipt Or Possession Of Property Stolen From An Interstate Shipment (18 USC 659)
                                 (Second Paragraph)
        6.18.666A        Theft Concerning A Program Receiving Federal Funds (18 USC 666(a)(1)(A))
        6.18.666B        Solicitation Or Acceptance Of A Bribe By An Agent Of A Program Receiving Federal
                                 Funds (18 USC 666(a)(1)(B))
        6.18.666C        Bribery Of An Agent Of A Program Receiving Federal Funds (18 USC 666(a)(2))
        6.18.751           Escape From Custody (18 USC 751(a))
        6.18.844          Arson of Property Used in or Affecting Interstate Commerce [No Personal Injury Involved]
        6.18.912           Impersonation Of A Federal Officer Or Employee-[Acting As] [Demanding Something
                                 Of Value] (18 USC 912)
        6.18.922A        Felon In Possession Of Firearm (18 USC 922(g))
        6.18.922B        Drug User in Possession of Firearm (18 USC 922(g)(3))
        6.18.924           Firearms -Possession in Furtherance of a Crime of Violence/ Drug Trafficking
                                 Offense (18 USC 924(c))
        6.18.1001A      Concealing A Material Fact From A Governmental Agency (18 USC 1001)
        6.18.1001B      False Statement To Governmental Agency (18 USC 1001)
        6.18.1001C      Using A False Document (18 USC 1001)

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.00 FINAL INSTRUCTIONS: ELEMENTS OF OFFENSES
Introductory Comment

This section contains elements instructions for many commonly prosecuted criminal offenses. Also included are definitions of particular terms used in the individual elements instructions or statute. Definitions of terms generally applicable to many offenses are included in Section 8, infra.

An instruction on the elements of a crime should be as simple and direct as possible. Separating the elements and numbering them should make the instruction both easier to draft and more understandable to the jury. Instruction 3.09 on the Government's burden of proof should follow the elements instructions.

If a lesser included offense is to be submitted to the jury, it should be given immediately after the greater offense. Instruction 3.10, supra, contains a format for the lesser included offense.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.111 ASSAULT ON A FEDERAL OFFICER [WITH A DANGEROUS OR DEADLY WEAPON]
(18 USC 111)

FORECITE National™ Materials Related To This Instruction:

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

The crime of assault¹ on a federal officer [with a dangerous or deadly weapon], as charged in [Count of] the indictment, has [three] [four] elements, which are:

One, the defendant forcibly assaulted (describe federal officer by position and name)² [with a deadly or dangerous weapon];³

Two, the assault was done voluntarily and intentionally;⁴ [and ]

[Three, the assault resulted in bodily injury;⁵ and ]

[Three,] [Four,] at the time of the assault, (name of officer) was doing what he was employed by the federal government to do.⁶

An "assault" is any intentional and voluntary attempt or threat to do injury to the person of another, when coupled with the apparent present ability to do so sufficient to put the person against whom the attempt is made in fear of immediate bodily harm.⁷

"Forcibly" means by use of force. Physical force is sufficient but actual physical contact is not required. You may also find that a person who, in fact, has the present ability to inflict bodily harm upon another and who threatens or attempts to inflict bodily harm upon such person acts forcibly. In such case, the threat must be a present one.⁸

[A "deadly and dangerous weapon" is an object used in a manner likely to endanger life or inflict serious bodily harm. A weapon intended to cause death or danger but that fails to do so because of a defective component is a deadly or dangerous weapon.]⁹

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. The wording of the introductory paragraph and Elements One and Three (or Four if bodily injury resulted) must be modified to conform to the indictment if forcibly "resists, opposes, impedes, intimidates, or interferes . . . on account of the performance of his (her) official duties" is charged.

2. Whether a person performing the functions delegated to the assault victim is a federal officer or employee within the meaning of section 111 is a question of law for the court. See United States v. Oakie, 12 F.3d 1436 (8th Cir. 1993). However, whether the assault victim was in fact acting as an officer or employee, and whether he was performing federal "investigative, inspection, or law enforcement functions" at the time of the alleged assault, are fact questions for the jury. United States v. Oakie, 12 F.3d at 1440. The Committee recommends that the specific title of the federal officer be used.

3. Use this language if the enhanced penalty under section 111(b) for assault with a deadly or dangerous weapon is charged. The question of what constitutes a deadly or dangerous weapon is a question of fact for the jury. United States v. Czeck, 671 F.2d 1195, 1197 (8th Cir. 1982). A thorough discussion of this question is found in United States v. Moore, 846 F.2d 1163, 1166-67 (8th Cir. 1988).

4. The assault must be intentional, even though the term "willful" is not used in the statute. United States v. Feola, 420 U.S. at 684; Potter v. United States, 691 F.2d 1275, 1280 (8th Cir. 1982); United States v. Manelli, 667 F.2d 695, 696 (8th Cir. 1981). The requirement that the defendant acted "voluntarily and intentionally" would appear to satisfy that element. United States v. Hanson, 618 F.2d 1261, 1264-65 (8th Cir. 1980). In United States v. Sweet, 985 F.2d 443, 444-45 (8th Cir. 1993), the court stated "[U]nless used in the statute itself or unless the crime falls within that rare type of offense where defendant's knowledge that [s]he is violating the law is an element of the offense, there is no occasion for an instruction defining specific intent." Id. at 444-45 (quoting United States v. Dougherty, 763 F.2d 970, 974 (8th Cir. 1985)).

The defendant need not know that the victim is a federal officer. United States v. Feola, 420 U.S. at 684-86; United States v. Michalek, 464 F.2d 442, 443-44 (8^th Cir. 1972). If self- defense is raised, however, knowledge of the official capacity of the victim may be an element necessary for conviction. See United States v. Feola, 420 U.S. at 686; United States v. Lynch, 58 F.3d 389, 391-92 (8^th Cir. 1995).

5. Use this bracketed element if the enhanced penalty under section 111(b) if the assault inflicted bodily injury. "Bodily injury" is not defined in section 111 but is defined in 18 USC 1365(g)(4) as "(A) a cut, abrasion bruise, burn or disfigurement; (B) physical pain; (C) illness; (D) impairment of the function of a bodily member, organ, or mental faculty; or (E) any other injury to the body, no matter how temporary."

6. State, local or tribal officers are federal officers for the purposes of the statute if included within the designation of 18 USC 1114 by reason of contract, designation or deputization. See United States v. Bettelyoun, 16 F.3d 850, 852 (8^th Cir. 1994), and United States v. Oakie, 12 F.3d at 1439-40 (tribal law enforcement officers designated by the Bureau of Indian Affairs to perform federal law enforcement functions are federal officers).

The statute uses the phrase "while engaged in . . . the performance of his official duties." This means simply acting within the scope of what that person is employed to do; it is not defined by whether the officer is abiding by laws and regulations in effect at the time of the incident. The test is whether the person is acting within that area of responsibility, that is, whether the officer’s actions fall within the agency’s overall mission, in contrast to engaging in a personal frolic of his own. United States v. Street, 66 F.3d 969, 978 (8th Cir. 1995).

It is also a violation of the statute to assault a federal officer "on account of" or in retaliation for his discharge of his official duties. E.g., United States v. Lopez, 710 F.2d 1071, 1074 n.3 (5th Cir. 1983). If this conduct is charged, Element Three should be so modified.

7. The statute prohibits any acts or threats of bodily harm that might reasonably that might reasonably deter a federal official from the performance of his or her duties. Even if there is no physical contact, the force requirement is satisfied even if the defendant’s conduct places the officer in fear for his life or safety. See United States v. Yates, 304 F.3d 818 (8^th Cir. 2002); United States v. Street, 66 F.3d 969, 975-76 (8^th Cir. 1995); United States v. Wollenzien, 972 F.2d 890, 891-92 (8^th Cir. 1992).

8. The element of force may be satisfied by proof of actual physical contact or by proof of a threat or display of physical aggression toward the officer that would reasonably inspire fear of pain, bodily harm, or death in a reasonable person. No direct contact is required, simply conduct that places the officer in fear for his life or safety. See United States v. Street, 66 F.3d at 977.

9. See 18 USC 111(b). "Serious bodily harm" has been defined as more than minor injury, but not necessarily injury creating a substantial likelihood of death. Moore, 846 F.2d at 1166. See also United States v. Hollow, 747 F.2d 481, 482 (8th Cir. 1984).

Committee Comments

See United States v. Yates, 304 F.3d 818 (8^th Cir. 2002), for a discussion of the categories of assault and the penalty provisions of section 111; it further holds that in the context of section 111, simple assault is conduct in violation of section 111(a), which does not involve actual physical contact, a dangerous weapon, serious bodily injury, or the intent to commit murder or another serious felony.

If "self defense" is raised as an affirmative defense, an appropriate instruction setting forth the defense and the government's burden thereon should be given. See United States v. Feola, 420 U.S. 671 (1975); United States v. Lynch, 58 F.3d 389, 391-92 (8^th Cir. 1995); United States v. Alvarez, 755 F.2d 830, 842-43 (11th Cir. 1985). See also Instructions 3.09, supra, and 9.00 and 9.04, infra.

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

The crime of assault¹ on a federal officer [with a dangerous or deadly weapon], as charged in [Count of] the indictment, has [three] [four] elements, which are:

One, the defendant forcibly assaulted (describe federal officer by position and name)² [with a deadly or dangerous weapon];³

Two, the assault was done voluntarily and intentionally;⁴ [and ]

[Three, the assault resulted in bodily injury;⁵ and ]

[Three,] [Four,] at the time of the assault, (name of officer) was doing what he was employed by the federal government to do.⁶

An "assault" is any intentional and voluntary attempt or threat to do injury to the person of another, when coupled with the apparent present ability to do so sufficient to put the person against whom the attempt is made in fear of immediate bodily harm.⁷

"Forcibly" means by use of force. Physical force is sufficient but actual physical contact is not required. You may also find that a person who, in fact, has the present ability to inflict bodily harm upon another and who threatens or attempts to inflict bodily harm upon such person acts forcibly. In such case, the threat must be a present one.⁸

[A "deadly and dangerous weapon" is an object used in a manner likely to endanger life or inflict serious bodily harm. A weapon intended to cause death or danger but that fails to do so because of a defective component is a deadly or dangerous weapon.]⁹

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

2. Whether a person performing the functions delegated to the assault victim is a federal officer or employee within the meaning of section 111 is a question of law for the court. See, United States v. Oakie, 12 F.3d 1436 (8th Cir. 1993). However, whether the assault victim was in fact acting as an officer or employee, and whether he was performing federal "investigative, inspection, or law enforcement functions" at the time of the alleged assault, are fact questions for the jury. United States v. Oakie, 12 F.3d at 1440. The Committee recommends that the specific title of the federal officer be used.

Committee Comments

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

The crime of assault1 on a federal officer [with a dangerous or deadly weapon], as charged in [Count of] the indictment, has [three] [four] elements, which are:

One, the defendant forcibly assaulted (describe federal officer by position and name)2 [with a deadly or dangerous weapon];3

Two, the assault was done voluntarily and intentionally;4 [and ]

[Three, the assault resulted in bodily injury;5 and ]

[Three,] [Four,] at the time of the assault, (name of officer) was doing what he was employed by the federal government to do.6

An "assault" is any intentional and voluntary attempt or threat to do injury to the person of another, when coupled with the apparent present ability to do so sufficient to put the person against whom the attempt is made in fear of immediate bodily harm.7

"Forcibly" means by use of force. Physical force is sufficient but actual physical contact is not required. You may also find that a person who, in fact, has the present ability to inflict bodily harm upon another and who threatens or attempts to inflict bodily harm upon such person acts forcibly. In such case, the threat must be a present one.8

[A "deadly and dangerous weapon" is an object used in a manner likely to endanger life or inflict serious bodily harm. A weapon intended to cause death or danger but that fails to do so because of a defective component is a deadly or dangerous weapon.]9

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

2. Whether a person performing the functions delegated to the assault victim is a federal officer or employee within the meaning of section 111 is a question of law for the court. See, United States v. Oakie, 12 F.3d 1436 (8th Cir. 1993). However, whether the assault victim was in fact acting as an officer or employee, and whether he was performing federal "investigative, inspection, or law enforcement functions" at the time of the alleged assault, are fact questions for the jury. United States v. Oakie, 12 F.3d at 1440. The Committee recommends that the specific title of the federal officer be used.

The defendant need not know that the victim is a federal officer. United States v. Feola, 420 U.S. at 684-86; United States v. Michalek, 464 F.2d 442, 443-44 (8th Cir. 1972). If self- defense is raised, however, knowledge of the official capacity of the victim may be an element necessary for conviction. See United States v. Feola, 420 U.S. at 686; United States v. Lynch, 58 F.3d 389, 391-92 (8th Cir. 1995).

6. State, local or tribal officers are federal officers for the purposes of the statute if included within the designation of 18 USC 1114 by reason of contract, designation or deputization. See United States v. Bettelyoun, 16 F.3d 850, 852 (8th Cir. 1994), and United States v. Oakie, 12 F.3d at 1439-40 (tribal law enforcement officers designated by the Bureau of Indian Affairs to perform federal law enforcement functions are federal officers).

7. The statute prohibits any acts or threats of bodily harm that might reasonably that might reasonably deter a federal official from the performance of his or her duties. Even if there is no physical contact, the force requirement is satisfied even if the defendant’s conduct places the officer in fear for his life or safety. See United States v. Yates, 304 F.3d 818 (8th Cir. 2002); United States v. Street, 66 F.3d 969, 975-76 (8th Cir. 1995); United States v. Wollenzien, 972 F.2d 890, 891-92 (8th Cir. 1992).

Committee Comments

See United States v. Yates, 304 F.3d 818 (8th Cir. 2002), for a discussion of the categories of assault and the penalty provisions of section 111; it further holds that in the context of section 111, simple assault is conduct in violation of section 111(a), which does not involve actual physical contact, a dangerous weapon, serious bodily injury, or the intent to commit murder or another serious felony.

If "self defense" is raised as an affirmative defense, an appropriate instruction setting forth the defense and the government's burden thereon should be given. See United States v. Feola, 420 U.S. 671 (1975); United States v. Lynch, 58 F.3d 389, 391-92 (8th Cir. 1995); United States v. Alvarez, 755 F.2d 830, 842-43 (11th Cir. 1985). See also Instructions 3.09, supra, and 9.00 and 9.04, infra.

For 2000 version see below

******************************************************************************************************************

2000 Version

The crime of assault on a federal officer [with a dangerous or deadly weapon], as charged in [Count of] the indictment, has three essential elements, which are:

One, the defendant forcibly assaulted (describe federal officer by position and name)1 [with a deadly or dangerous weapon]2;

Two, the assault was done voluntarily and intentionally;3 and

Three, at the time of the assault (name of officer) was doing what he was employed by the federal Government to do.4

An "assault" is any intentional and voluntary attempt or threat to do injury to the person of another, when coupled with the apparent present ability to do so sufficient to put the person against whom the attempt is made in fear of immediate bodily harm.5

"Forcibly" means by use of force. Physical force is sufficient. You may also find that a person who, in fact, has the present ability to inflict bodily harm upon another and who threatens or attempts to inflict bodily harm upon such person acts forcibly. In such case, the threat must be a present one.

[A "deadly and dangerous weapon" is an object used in a manner likely to endanger life or inflict serious bodily harm.]6

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Committee Comments

See 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal §§ 42.01-42.11 (4th ed. 1990); Fifth Circuit Pattern Jury Instructions: Criminal § 2.09 (1997); Ninth Cir. Crim. Jury Instr. 8.2.1 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) §§ 1.1, 1.2 (1997).

If "self defense" is raised as an affirmative defense, an appropriate instruction setting forth the defense and the government's burden thereon should be given. See United States v. Alvarez, 755 F.2d 830, 842-43 (11th Cir.), cert. denied, 474 U.S. 905 (1985); see also Instructions 3.09, supra, and 9.00 and 9.04, infra.

Notes on Use

1. Whether a person performing the functions delegated to the assault victim is a federal officer or employee within the meaning of section 111 is a question of law for the court. See, e.g., United States v. Oakie, 12 F.3d 1436 (8th Cir. 1993); United States v. Lopez, 586 F.2d 978, 979-980 (2d Cir. 1978), cert. denied, 440 U.S. 923 (1979); United States v. Patrin, 575 F.2d 708, 712-14 (9th Cir. 1978). However, whether the assault victim was in fact acting as an officer or employee, and whether he was performing federal "investigative, inspection, or law enforcement functions" at the time of the alleged assault, are fact questions for the jury. United States v. Oakie, 12 F.3d at 1440. The Committee recommends that the specific title of the federal officer be used.

2. This language must be used if it is charged that the assault was with a deadly or dangerous weapon. The question of what constitutes a "deadly and dangerous weapon" is a question of fact for the jury. United States v. Czeck, 671 F.2d 1195, 1197 (8th Cir. 1982). A thorough discussion of this question is found in United States v. Moore, 846 F.2d 1163, 1166-67 (8th Cir. 1988).

3. The assault must be intentional, even though the term "willful" is not used in the statute. United States v. Feola, 420 U.S. 671, 684 (1975); Potter v. United States, 691 F.2d 1275, 1280 (8th Cir. 1982); United States v. Manelli, 667 F.2d 695, 696 (8th Cir. 1981). The requirement that the defendant acted "voluntarily and intentionally" would appear to satisfy that element. United States v. Hanson, 618 F.2d 1261, 1264-65 (8th Cir.), cert. denied, 449 U.S. 854 (1980). In United States v. Sweet, 985 F.2d 443 (8th Cir. 1993), the court stated "[n]less used in the statute itself or unless the crime falls within that rare type of offense where defendant's knowledge that [s]he is violating the law is an element of the offense, there is no occasion for an instruction defining specific intent." Id. at 444-45 (quoting United States v. Dougherty, 763 F.2d 970, 974 (8th Cir. 1985).

The defendant need not know that the victim is a federal officer. United States v. Goldson, 954 F.2d 51 (2d Cir. 1992); United States v. Feola, 420 U.S. at 684-86; United States v. Alvarez, 755 F.2d 830, 842-47 (11th Cir. 1985); United States v. Maynard, 452 F.2d 1087, 1088 (1st Cir. 1971).

4. The statute uses the phrase "while engaged in . . . the performance of his official duties." This means simply acting within the scope of what that person is employed to do and the test is whether the person is acting within that area of responsibility. United States v. Murdock, 826 F.2d 771, 774 n.2 (8th Cir. 1987).

5. See United States v. Maynard, "assault is the act of putting in fear." 452 F.2d at 1088. This case covers the typical situation of a firearm being pointed at an agent.

6. See United States v. Hollow, 747 F.2d 481, 482 (8th Cir. 1984). "Serious bodily harm" has been defined as more than minor injury, but not necessarily injury creating a substantial likelihood of death. Moore, 846 F.2d at 1166; United States v. Webster, 620 F.2d 640, 641-42 (7th Cir. 1980)

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.152A BANKRUPTCY FRAUD (Concealment of Assets)

(18 USC 152(1))

FORECITE National™ Materials Related To This Instruction:

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

The crime of bankruptcy fraud has four elements, which are:

One, on or about (specify time alleged in the indictment) a bankruptcy case was pending in the United States Bankruptcy Court for the _____ District of _____, in which _____ [doing business as _____ ] was the Debtor;

Two, (describe the property alleged in the indictment)¹ was a part of the bankruptcy estate of the Debtor;

Three, the defendant knowingly² [concealed] [attempted to conceal;³] the (describe the property alleged in the indictment) from the [custodian] [trustee] [Marshal] [some person] charged with the custody and control of that property; and

Four, such [concealment] [attempt to conceal] was done with the intent to defraud.

The term "debtor" means the person or corporation 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, which is comprised of all property belonging to the debtor, wherever located, and by whomever held, as of the time of the filing of the bankruptcy case. 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.

"Concealment" means not only hiding property or assets, it also includes preventing the discovery of assets, transferring property or withholding information required to be made known. Concealment of property of the 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 United States need not prove that the concealment was successful.

To act with "intent to defraud" means to act knowingly and with the intent to deceive someone for the purpose of causing some [financial loss] [loss of property or property rights] to another, or bringing about a financial gain to oneself or another, to the detriment of a third party.

(Insert paragraph describing Government's burden of proof, see Instruction 3.09, supra.)

Notes On Use

1. The property alleged to have been concealed must be pled with particularity and, therefore, should be sufficiently identified in the instruction. See United States v. Arge, 418 F.2d 721, 724 (10th Cir. 1969).

2. It is the opinion of the Committee that the term "knowingly" is a well-known and often used term which does not need to be defined. If a definition is requested and deemed necessary, see the Committee Comments for Instruction 7.03.

3. This bracketed language should be used where an attempted concealment was unsuccessful. It is no defense that the defendant’s attempt to conceal was unsuccessful. See United States v. Cherek, 734 F.2d 1248, 1254 (7th Cir. 1984); United States v. Porter, 842 F.2d 1021, 1024 (8th Cir. 1988).

Committee Comments

See Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) at 86, et seq. (1997).

A similar instruction was discussed in United States v. Christner, 66 F.3d 922, 925-26 (8th Cir. 1995).

Property which is subject to a bankruptcy proceeding is to be accorded a broad interpretation, and it also includes equitable interests held by the debtor, such as causes of action. United States v. Brimberry, 779 F.2d 1339, 1347-48 (8th Cir. 1985) (citing 4 W. Collier, Bankruptcy, ¶ 541.10 (15th ed.)). However, equitable interests subject to the bankruptcy estate include only existing equitable interests, not the right to acquire such an interest. In Brimberry, the court concluded that the right to a constructive trust did not provide a basis for conviction under the bankruptcy fraud statute, but where the bankruptcy court imposed a constructive trust on property purchased with embezzled funds, the court concluded the constructive trust was sufficient to satisfy the "property belonging to the estate of the debtor" element of 15 USC 78jjj(c)1(C)(I).

The Committee believes that in bankruptcy fraud cases based upon concealment of assets, materiality is not an element of the offense. It is not mentioned in the statute as an element of the offense, and recent decisions of the Supreme Court would tend to indicate that such an element will not be judicially imposed. See United States v. Wells, 519 U.S. 482 (1997).

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

The crime of bankruptcy fraud has four elements, which are:

One, on or about (specify time alleged in the indictment) a bankruptcy case was pending in the United States Bankruptcy Court for the _____ District of _____, in which _____ [doing business as _____ ] was the Debtor;

Two, (describe the property alleged in the indictment)¹ was a part of the bankruptcy estate of the Debtor;

Three, the defendant knowingly² [concealed] [attempted to conceal;³] the (describe the property alleged in the indictment) from the [custodian] [trustee] [Marshal] [some person] charged with the custody and control of that property; and

Four, such [concealment] [attempt to conceal] was done with the intent to defraud.

The term "debtor" means the person or corporation 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, which is comprised of all property belonging to the debtor, wherever located, and by whomever held, as of the time of the filing of the bankruptcy case. 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.

"Concealment" means not only hiding property or assets, it also includes preventing the discovery of assets, transferring property or withholding information required to be made known. Concealment of property of the 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 United States need not prove that the concealment was successful.

To act with "intent to defraud" means to act knowingly and with the intent to deceive someone for the purpose of causing some [financial loss] [loss of property or property rights] to another, or bringing about a financial gain to oneself or another, to the detriment of a third party.

(Insert paragraph describing Government's burden of proof, see Instruction 3.09, supra.)

Notes On Use

Committee Comments

See Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) at 86, et seq. (1997).

A similar instruction was discussed in United States v. Christner, 66 F.3d 922, 925-26 (8th Cir. 1995).

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

The crime of bankruptcy fraud has four elements, which are:

One, on or about (specify time alleged in the indictment) a bankruptcy case was pending in the United States Bankruptcy Court for the _____ District of _____, in which _____ [doing business as _____ ] was the Debtor;

Two, (describe the property alleged in the indictment)1 was a part of the bankruptcy estate of the Debtor;

Three, the defendant knowingly2 [concealed] [attempted to conceal;3] the (describe the property alleged in the indictment) from the [custodian] [trustee] [Marshal] [some person] charged with the custody and control of that property; and

Four, such [concealment] [attempt to conceal] was done with the intent to defraud.

The term "debtor" means the person or corporation 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, which is comprised of all property belonging to the debtor, wherever located, and by whomever held, as of the time of the filing of the bankruptcy case. 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.

"Concealment" means not only hiding property or assets, it also includes preventing the discovery of assets, transferring property or withholding information required to be made known. Concealment of property of the 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 United States need not prove that the concealment was successful.

To act with "intent to defraud" means to act knowingly and with the intent to deceive someone for the purpose of causing some [financial loss] [loss of property or property rights] to another, or bringing about a financial gain to oneself or another, to the detriment of a third party.

(Insert paragraph describing Government's burden of proof, see Instruction 3.09, supra.)

Notes On Use

Committee Comments

See Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) at 86, et seq. (1997).

A similar instruction was discussed in United States v. Christner, 66 F.3d 922, 925-26 (8th Cir. 1995).

For 2000 version see below

******************************************************************************************************************

2000 Version

The crime of bankruptcy fraud has four essential elements, which are:

One, on or about (specify time alleged in the indictment) a bankruptcy case was pending in the United States Bankruptcy Court for the _____ District of _____, in which _____ [doing business as _____ ] was the Debtor;

Two, (describe the property alleged in the indictment)1 was a part of the bankruptcy estate of the Debtor;

Three, the defendant knowingly2 [concealed] [attempted to conceal;3] the (describe the property alleged in the indictment) from the [custodian] [trustee] [Marshal] [some person] charged with the custody and control of that property; and

Four, such [concealment][attempt to conceal] was done with the intent to defraud.

The term "debtor" means the person or corporation 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, which is comprised of all property belonging to the debtor, wherever located, and by whomever held, as of the time of the filing of the bankruptcy case. 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.

"Concealment" means not only hiding property or assets, it also includes preventing the discovery of assets, transferring property or withholding information required to be made known. Concealment of property of the 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 United States need not prove that the concealment was successful.

To act with "intent to defraud" means to act knowingly and with the intent to deceive someone for the purpose of causing some [financial loss] [loss of property or property rights] to another, or bringing about a financial gain to oneself or another, to the detriment of a third party.

(Insert paragraph describing Government's burden of proof, see Instruction 3.09, supra.)

Committee Comments

See Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) at 86, et seq. (1997).

A similar instruction was discussed in United States v. Christner, 66 F.3d 922, 925-26 (8th Cir. 1995).

Property which is subject to a bankruptcy proceeding is to be accorded a broad interpretation, and it also includes equitable interests held by the debtor, such as causes of action. United States v. Brimberry, 779 F.2d 1339, 1347-48 (8th Cir. 1985) (citing 4 W. Collier, Bankruptcy, ¶ 541.10 (15th ed.)). However, equitable interests subject to the bankruptcy estate include only existing equitable interests, not the right to acquire such an interest. In Brimberry, the court concluded that the right to a constructive trust did not provide a basis for conviction under the bankruptcy fraud statute, but where the bankruptcy court imposed a constructive trust on property purchased with embezzled funds, the court concluded the constructive trust was sufficient to satisfy the "property belonging to the estate of the debtor" element of 15 U. S. C. § 78jjj(c)1(C)(I).

Notes On Use

3. This bracketed language should be used where an attempted concealment was unsuccessful. It is no defense that the defendant’s attempt to conceal was unsuccessful. See United States v. Cherek, 734 F.2d 1248, 1254 (7th Cir. 1984), cert. denied, 471 U.S. 1014 (1985); United States v. Porter, 842 F.2d 1021, 1024 (8th Cir. 1988).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.152B BANKRUPTCY FRAUD (Making a False Statement)

(18 USC 152(2-4))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Bankruptcy Fraud (Making A False Statement) (18 USC 152(2-4))

The crime of bankruptcy fraud has four elements, which are:

One, on or about (specify time alleged in the indictment) a bankruptcy case was pending in the United States Bankruptcy Court for the _____ District of _____, in which _____ [doing business as _____] was the Debtor;

Two, the defendant [made] [caused to be made] a false [statement] [oath] [account] [regarding a matter material¹ to] [in relation to] the bankruptcy proceeding;

Three, the defendant knew the [statement] [oath] [account] was false when it was made;

Four, the defendant did so with the intent to defraud.

The term "debtor" means the person or corporation for whom a bankruptcy case has been commenced.

To act with "intent to defraud" means to act knowingly and with the intent to deceive someone for the purpose of causing some [financial loss] [loss of property or property rights] to another, or bringing about a financial gain to oneself or another, to the detriment of a third party.

A matter is "material" if it has a natural tendency to influence, or is capable of influencing, the outcome of the bankruptcy proceeding.

(Insert paragraph describing Government's burden of proof, see Instruction 3.09, supra.)

Notes On Use

1. There is some question as to whether materiality is an element of the offense of bankruptcy fraud. While Title 18 USC 152(2-4) does not specifically mention materiality as an element of the offense, the Eighth Circuit has nevertheless held that materiality is an element which the jury must find in order to support a conviction for bankruptcy fraud. This is so even though it was not expressly set out in the statute. United States v. Yagow, 953 F.2d 427, 432 n.2 (8th Cir. 1992). However, the continued validity of Yagow on the issue of materiality is open to question in light of the Supreme Court's later opinion in United States v. Wells, 519 U.S. 482 (1997). The Wells case was not a bankruptcy case at all; rather, it dealt with an analogous prosecution for false statements made to a financial institution in violation of 18 USC 1014. In Wells, the Supreme Court declined to require materiality where the statute did not impose such a right.

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

The crime of bankruptcy fraud has four elements, which are:

One, on or about (specify time alleged in the indictment) a bankruptcy case was pending in the United States Bankruptcy Court for the _____ District of _____, in which _____ [doing business as _____] was the Debtor;

Two, the defendant [made] [caused to be made] a false [statement] [oath] [account] [regarding a matter material¹ to] [in relation to] the bankruptcy proceeding;

Three, the defendant knew the [statement] [oath] [account] was false when it was made;

Four, the defendant did so with the intent to defraud.

The term "debtor" means the person or corporation for whom a bankruptcy case has been commenced.

To act with "intent to defraud" means to act knowingly and with the intent to deceive someone for the purpose of causing some [financial loss] [loss of property or property rights] to another, or bringing about a financial gain to oneself or another, to the detriment of a third party.

A matter is "material" if it has a natural tendency to influence, or is capable of influencing, the outcome of the bankruptcy proceeding.

(Insert paragraph describing Government's burden of proof, see Instruction 3.09, supra.)

Notes On Use

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

The crime of bankruptcy fraud has four elements, which are:

One, on or about (specify time alleged in the indictment) a bankruptcy case was pending in the United States Bankruptcy Court for the _____ District of _____, in which _____ [doing business as _____] was the Debtor;

Two, the defendant [made] [caused to be made] a false [statement] [oath] [account] [regarding a matter material1 to] [in relation to] the bankruptcy proceeding;

Three, the defendant knew the [statement] [oath] [account] was false when it was made;

Four, the defendant did so with the intent to defraud.

The term "debtor" means the person or corporation for whom a bankruptcy case has been commenced.

To act with "intent to defraud" means to act knowingly and with the intent to deceive someone for the purpose of causing some [financial loss] [loss of property or property rights] to another, or bringing about a financial gain to oneself or another, to the detriment of a third party.

A matter is "material" if it has a natural tendency to influence, or is capable of influencing, the outcome of the bankruptcy proceeding.

(Insert paragraph describing Government's burden of proof, see Instruction 3.09, supra.)

Notes On Use

For 2000 version see below

******************************************************************************************************************

2000 Version

The crime of bankruptcy fraud has four essential elements, which are:

One, on or about (specify time alleged in the indictment) a bankruptcy case was pending in the United States Bankruptcy Court for the _____ District of _____, in which _____ [doing business as _____] was the Debtor;

Two, the defendant [made] [caused to be made] a false [statement] [oath] [account] [regarding a matter material1 to] [in relation to] the bankruptcy proceeding;

Three, the defendant knew the [statement] [oath] [account] was false when it was made;

Four, the defendant did so with the intent to defraud.

The term "debtor" means the person or corporation for whom a bankruptcy case has been commenced.

To act with "intent to defraud" means to act knowingly and with the intent to deceive someone for the purpose of causing some [financial loss] [loss of property or property rights] to another, or bringing about a financial gain to oneself or another, to the detriment of a third party.

A matter is "material" if it has a natural tendency to influence, or is capable of influencing, the outcome of the bankruptcy proceeding.

(Insert paragraph describing Government's burden of proof, see Instruction 3.09, supra.)

Notes On Use

1. There is some question as to whether materiality is an element of the offense of bankruptcy fraud. While Title 18 USC 152(2-4) does not specifically mention materiality as an element of the offense, the Eighth Circuit has nevertheless held that materiality is an element which the jury must find in order to support a conviction for bankruptcy fraud. This is so even though it was not expressly set out in the statute. United States v. Yagow, 953 F.2d 427, 432 n.2 (8th Cir.), cert. denied, 506 U.S. 833 (1992). However, the continued validity of Yagow on the issue of materiality is open to question in light of the Supreme Court's later opinion in United States v. Wells, 519 U.S. 482 (1997). The Wells case was not a bankruptcy case at all; rather, it dealt with an analogous prosecution for false statements made to a financial institution in violation of 18 USC 1014. In Wells, the Supreme Court declined to require materiality where the statute did not impose such a right.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.201A BRIBERY OF PUBLIC OFFICIAL

(18 USC 201(b)(1))

FORECITE National™ Materials Related To This Instruction:

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

The crime of bribing a [public official] [person who has been selected to be a public official]¹, as charged in [Count of] the indictment, has three elements, which are:

One, the defendant [gave] [offered] [promised]² something of value to (name of official or selectee);

Two, at that time (name of official or selectee) was [selected to be] a (name official position, e.g., Special Agent of the Federal Bureau of Investigation);³ and

Three, the defendant did this act corruptly,⁴ that is, with intent to [influence] [induce] (name of official or selectee) (describe the official action or fraud to be influenced or induced - e.g., not to arrest the defendant).

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. This instruction does not cover the second clause of section 201(b)(1). Where an offer or promise is made to give something of value to a third person, the instruction should be so modified.

2. All subsections under section 201(b) and (c) provide for acting "directly or indirectly." Where indirect action is charged, the jury instructions should be modified accordingly.

3. By phrasing the instruction in this manner, the court avoids having to further instruct that a person holding the defendant's particular position is a "public official." However, the court should make such a finding on the record.

4. The Committee believes that the element of "corruptly" is adequately defined by setting out the required intent.

Committee Comments

Section 201(a) is "comprehensive statute applicable to all persons performing activities for or on behalf of the United States, whatever the form of delegation of authority." Dixson v. United States, 465 U.S. 482, 296 (1984). See Vinyard v. United States, 335 F.2d 176, 181-83 (8th Cir. 1964).

Bribery requires intent "to influence" an official act or "to be influenced" in an official act. It also requires proof of a quid pro quo. United States v. Sun-Diamond Growers of California, 526 U.S. 398, 404-05 (1999).

The defendant must have acted "corruptly." "Corruptly" has been recognized as having "a longstanding and well-accepted meaning" in criminal law. "It denotes ‘[a]n act done with an intent to give some advantage inconsistent with official duty and the rights of others. . . . It includes bribery but is more comprehensive; because an act may be corruptly done though the advantage to be derived from it be not offered by another.’" United States v. Aguilar, 515 U.S. 593, 616 (1995) (J. Scalia, joined by J. Kennedy and Thomas, concurring in part and dissenting in part) (internal cites omitted), in the context of 18 USC 1503. See also Committee Comments, Instruction 6.18.1503A, infra, for a discussion of "corruptly" in 18 USC 1503. The following definition given by district court in Aguilar was cited with approval:

An act is done "corruptly" if it’s done voluntarily and intentionally to bring about either an unlawful result or a lawful result by some unlawful method, with a hope or expectation of either financial gain or other benefit to oneself or a benefit of another person.

Id. at 616-17.

It is immaterial whether the public official lacked the legal authority to take the action sought by the defendant, whether the official is not corrupted, or whether the object of the bribe cannot be obtained. Vinyard v. United States, 335 F.2d at 182. The statute is violated when a bribe is given or an offer to bribe is made regardless of whether afterward the person "discovers that for some reason or another, be it a mistake on his part or a mistake on the part of some officer or agency of the United States, there was actually no occasion for him to have done it. Id. at 182. The illegality of an arrest is not a viable defense in a prosecution for bribery of the arresting officer. Id. at 181.

"Public official" is defined in section 201(a)(1). Although the public official must be a federal officer, it is not necessary that the defendant know or believe he is a federal official as long as the defendant believed he was dealing with a government official. United States v. Jennings, 471 F.2d 1310, 1313 (2d Cir. 1973). It is not necessary that a person be formally employed or under contract with the United States to be a public official; a person is a public official if he occupies a position of public trust with official federal responsibilities, if he possesses some degree of official responsibility for carrying out a federal program or policy. Dixson v. United States, 465 U.S. 482, 496, 498-99 (1984). See United States v. Hang, 75 F.3d 1275, 1279-81 (8^th Cir. 1996).

"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." United States v. Sun-Diamond Growers of California, 526 U.S. at 414. "Official act" is defined in section 201(a)(3).

Giving an illegal gratuity to a public official is a lesser-included offense of bribery. United States v. Johnson, 647 F.2d 815 (8th Cir. 1981); see Instruction 6.18.201E, infra.

See Instruction 3.10, supra, for a form for a lesser-included offense instruction which must be given if the factual element of intent is disputed. Where intent is not in dispute, the lesser-included offense instruction should be withheld.

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

The crime of bribing a [public official] [person who has been selected to be a public official]¹, as charged in [Count of] the indictment, has three elements, which are:

One, the defendant [gave] [offered] [promised]² something of value to (name of official or selectee);

Two, at that time (name of official or selectee) was [selected to be] a (name official position, e.g., Special Agent of the Federal Bureau of Investigation);³ and

Three, the defendant did this act corruptly,⁴ that is, with intent to [influence] [induce] (name of official or selectee) (describe the official action or fraud to be influenced or induced - e.g., not to arrest the defendant).

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. This instruction does not cover the second clause of section 201(b)(1). Where an offer or promise is made to give something of value to a third person, the instruction should be so modified.

2. All subsections under section 201(b) and (c) provide for acting "directly or indirectly." Where indirect action is charged, the jury instructions should be modified accordingly.

4. The Committee believes that the element of "corruptly" is adequately defined by setting out the required intent.

Committee Comments

An act is done "corruptly" if it’s done voluntarily and intentionally to bring about either an unlawful result or a lawful result by some unlawful method, with a hope or expectation of either financial gain or other benefit to oneself or a benefit of another person.

Id. at 616-17.

Giving an illegal gratuity to a public official is a lesser included offense of bribery. United States v. Johnson, 647 F.2d 815 (8th Cir. 1981); see Instruction 6.18.201E, infra.

See Instruction 3.10, supra, for a form for a lesser included offense instruction which must be given if the factual element of intent is disputed. Where intent is not in dispute, the lesser included offense instruction should be withheld.

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

The crime of bribing a [public official] [person who has been selected to be a public official]1, as charged in [Count of] the indictment, has three elements, which are:

One, the defendant [gave] [offered] [promised]2 something of value to (name of official or selectee);

Two, at that time (name of official or selectee) was [selected to be] a (name official position, e.g., Special Agent of the Federal Bureau of Investigation);3 and

Three, the defendant did this act corruptly,4 that is, with intent to [influence] [induce] (name of official or selectee) (describe the official action or fraud to be influenced or induced - e.g., not to arrest the defendant).

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. This instruction does not cover the second clause of section 201(b)(1). Where an offer or promise is made to give something of value to a third person, the instruction should be so modified.

2. All subsections under section 201(b) and (c) provide for acting "directly or indirectly." Where indirect action is charged, the jury instructions should be modified accordingly.

4. The Committee believes that the element of "corruptly" is adequately defined by setting out the required intent.

Committee Comments

An act is done "corruptly" if it’s done voluntarily and intentionally to bring about either an unlawful result or a lawful result by some unlawful method, with a hope or expectation of either financial gain or other benefit to oneself or a benefit of another person.

Id. at 616-17.

Giving an illegal gratuity to a public official is a lesser included offense of bribery. United States v. Johnson, 647 F.2d 815 (8th Cir. 1981); see Instruction 6.18.201E, infra.

For 2000 version see below

******************************************************************************************************************

2000 Version

The crime of bribing a [public official] [person who has been selected to be a public official]1, as charged in [Count of] the indictment, has three essential elements, which are:

One, the defendant [gave] [offered] [promised]2 something of value to (name of official or selectee);

Two, at that time (name of official or selectee) was [selected to be] a (name official position, e.g., Special Agent of the Federal Bureau of Investigation);3 and

Three, the defendant did this act corruptly,4 that is with intent to [influence] [induce] (name of official or selectee) (describe the official action or fraud to be influenced or induced - e.g., not to arrest the defendant).

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Committee Comments

See 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal §§ 25.01- 25.12 (4th ed. 1990); White Collar Crime: Bribery, 18 Am. Crim. L. Rev. 240-45 (1980). See generally Vinyard v. United States, 335 F.2d 176, 181-83 (8th Cir.), cert. denied, 379 U.S. 930 (1964).

This offense requires that the defendant have acted "corruptly." United States v. Hsieh Hui Mei Chen, 754 F.2d 817, 822 (9th Cir.), cert. denied, 471 U.S. 1139 (1985); United States v. Strand, 574 F.2d 993, 996 (9th Cir. 1978); United States v. Arthur, 544 F.2d 730, 734 (4th Cir. 1976).

"Corruptly" has been defined as offering anything of value "for the purpose of influencing official action." Seventh Circuit Federal Jury Instructions: Criminal at 141 (1999).

The court in Strand defined "corruptly" as follows:

An act is "corruptly" done, if done voluntarily and intentionally, and with the bad purpose of accomplishing either an unlawful end or result, or a lawful end or result by some unlawful method or means.

The motive to act "corruptly" is ordinarily a hope or expectation of either financial gain or other benefit to one's self, or some aid or profit or benefit to another.

United States v. Strand, 574 F.2d at 996. See also Committee Comments, Instruction 6.18.1503A, infra, for a discussion of "corruptly" in 18 USC 1503.

There should be some connection between the offer and the official's duties. United States v. Seuss, 474 F.2d 385 (1st Cir.), cert. denied, 412 U.S. 928 (1973). However, it is immaterial that the public official lacked the legal authority to take the action sought by the defendant. Vinyard v. United States, 335 F.2d at 182; see also United States v. Gjieli, 717 F.2d 968, 971-75 (6th Cir. 1983), cert. denied, 465 U.S. 1101 (1984). This section is violated even though the official offered the bribe is not corrupted or the object of the bribe cannot be obtained. United States v. Jacobs, 431 F.2d 754, 759-760 (2d Cir. 1970), cert. denied, 402 U.S. 950 (1971).

It is no defense that, even without the bribe, the public official would have taken the same action or reached the same decision that the defendant wanted him to take. United States v. Jannotti, 673 F.2d 578, 601 (3d Cir.), cert. denied, 457 U.S. 1106 (1982). Nor is the illegality of the arrest a viable defense in a prosecution for bribery of the arresting officer. Vinyard v. United States, 335 F.2d at 181.

"Public official" is defined in section 201(a)(1). Although the public official must be a federal officer, it is not necessary that the defendant know or believe he is a federal official as long as the defendant believed he was dealing with a government official. United States v. Jennings, 471 F.2d 1310, 1313 (2d Cir.), cert. denied, 411 U.S. 935 (1973). It is not necessary that a person be formally employed or under contract with the United States to be a public official if he possesses some degree of official responsibility for carrying out a federal program or policy. Dixson v. United States, 465 U.S. 482, 498-99 (1984).

"Official act" is defined in section 201(a)(3). This definition has been variously construed. Compare, United States v. Muntain, 610 F.2d 964, 967-69 (D.C. Cir. 1979); United States v. Carson, 464 F.2d 424 (2d Cir.), cert. denied, 409 U.S. 949 (1972); United States v. Dobson, 609 F.2d 840 (5th Cir.), cert. denied, 446 U.S. 955 (1980).

Giving an illegal gratuity to a public official is a lesser included offense of bribery. United States v. Johnson, 647 F.2d 815 (8th Cir. 1981); See No. 6.18.201E, infra.

See Instruction 3.10, supra, for a form for a lesser included offense instruction which must be given if the factual element of intent is disputed. United States v. Crutchfield, 547 F.2d 496, 500 (9th Cir. 1977); United States v. Brewster, 506 F.2d 62, 78-79 (D.C. Cir. 1974). Where intent is not in dispute, the lesser included offense instruction should be withheld. United States v. Harary, 457 F.2d 471, 477 (2d Cir. 1972).

Notes on Use

1. This instruction does not cover the second clause of section 201(b)(1). Where an offer or promise is made to give something of value to a third person, the instruction should be so modified.

2. All subsections under section 201(b) and (c) provide for acting "directly or indirectly." Where indirect action is charged, the jury instructions should be modified accordingly.

3. By phrasing the instruction in this manner, the court avoids having to further instruct that a person holding defendant's particular position is a "public official." However, the court should make such a finding on the record.

4. The Committee believes that the element of "corruptly" is adequately defined by setting out the required intent. See Seventh Circuit Federal Jury Instructions: Criminal at 141 (1999).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.201B RECEIVING BRIBE BY PUBLIC OFFICIAL

(18 USC 201(b)(2))

FORECITE National™ Materials Related To This Instruction:

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

The crime of [soliciting] [receiving] [agreeing to receive] a bribe by a [public official] [person who has been selected to be a public official], as charged in [Count of] the indictment, has three elements, which are:

One, the defendant was [selected to be] (describe the defendant's official position, e.g., a special agent of the United States Customs Service)¹;

Two, the defendant [asked for] [accepted] [agreed to receive]² [personally] [for another person or entity] something of value; and

Three, the defendant did so corruptly³, that is, in return for being [influenced] [induced] to (describe the official act or fraud offered by the defendant, e.g., allow the importation of contraband drugs into the United States).

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. By phrasing the instruction in this manner, the court avoids having to further instruct that a person holding the defendant's particular position is a "public official." However, the court should such a finding on the record.

2. All subsections under section 201(b) and (c) provide for acting "directly or indirectly." Where indirect action is charged, the jury instructions should be modified accordingly.

3. The Committee believes that the element of "corruptly" is adequately defined by setting out the required intent.

Committee Comments

See Committee Comments, Instruction 6.18.201A, supra.

Under 18 USC 201(b)(2), "the illegal conduct is taking or agreeing to take money for a promise to act in a certain way." United States v. Brewster, 408 U.S. 501, 526 (1972). Performance of the promise is not required, simply acceptance or solicitation with knowledge that the donor is paying compensation for an official act. Id. at 526-27.

This offense requires corrupt intent, "a quid pro quo – a specific intent to give or receive something of value in exchange for an official act." An offense under section 201(c)(1)(B), which criminalizes illegal gratuities, punishes the receipt of a gratuity paid "for or because of any official act performed or to be performed" by a public official. An illegal gratuity "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. United States v. Sun-Diamond Growers of California, 526 U.S. 398, 404-05 (1999).

The statutory requirement that the public official was influenced or induced to act in a certain way does not describe the official's subjective intent; instead, it describes the intention conveyed to the briber. Thus, the statute is violated "by giving false promises of assistance to people he believed were offering him money to influence his official actions." United States v. Myers, 692 F.2d 823, 842 (2^nd Cir. 1982). See also United States v. Brewster, 408 U.S. 501 (1972).

Receiving an illegal gratuity is a lesser-included offense of receiving a bribe. See Instruction 6.18.201F, infra.

See Instruction 3.10, supra, for a form for a lesser-included offense instruction which must be given if the factual element of intent is disputed. Where intent is not in dispute the lesser-included offense instruction should be withheld.

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

The crime of [soliciting] [receiving] [agreeing to receive] a bribe by a [public official] [person who has been selected to be a public official], as charged in [Count of] the indictment, has three elements, which are:

One, the defendant was [selected to be] (describe the defendant's official position, e.g., a special agent of the United States Customs Service)¹;

Two, the defendant [asked for] [accepted] [agreed to receive]² [personally] [for another person or entity] something of value; and

Three, the defendant did so corruptly³, that is, in return for being [influenced] [induced] to (describe the official act or fraud offered by the defendant, e.g., allow the importation of contraband drugs into the United States).

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

2. All subsections under section 201(b) and (c) provide for acting "directly or indirectly." Where indirect action is charged, the jury instructions should be modified accordingly.

3. The Committee believes that the element of "corruptly" is adequately defined by setting out the required intent.

Committee Comments

See Committee Comments, Instruction 6.18.201A, supra.

Receiving an illegal gratuity is a lesser included offense of receiving a bribe. See Instruction 6.18.201F, infra.

See Instruction 3.10, supra, for a form for a lesser included offense instruction which must be given if the factual element of intent is disputed. Where intent is not in dispute the lesser included offense instruction should be withheld.

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

The crime of [soliciting] [receiving] [agreeing to receive] a bribe by a [public official] [person who has been selected to be a public official], as charged in [Count of] the indictment, has three elements, which are:

One, the defendant was [selected to be] (describe the defendant's official position, e.g., a special agent of the United States Customs Service)1;

Two, the defendant [asked for] [accepted] [agreed to receive]2 [personally] [for another person or entity] something of value; and

Three, the defendant did so corruptly3, that is, in return for being [influenced] [induced] to (describe the official act or fraud offered by the defendant, e.g., allow the importation of contraband drugs into the United States).

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

2. All subsections under section 201(b) and (c) provide for acting "directly or indirectly." Where indirect action is charged, the jury instructions should be modified accordingly.

3. The Committee believes that the element of "corruptly" is adequately defined by setting out the required intent.

Committee Comments

See Committee Comments, Instruction 6.18.201A, supra.

The statutory requirement that the public official was influenced or induced to act in a certain way does not describe the official's subjective intent; instead, it describes the intention conveyed to the briber. Thus, the statute is violated "by giving false promises of assistance to people he believed were offering him money to influence his official actions." United States v. Myers, 692 F.2d 823, 842 (2nd Cir. 1982). See also, United States v. Brewster, 408 U.S. 501 (1972).

Receiving an illegal gratuity is a lesser included offense of receiving a bribe. See Instruction 6.18.201F, infra.

See Instruction 3.10, supra, for a form for a lesser included offense instruction which must be given if the factual element of intent is disputed. Where intent is not in dispute the lesser included offense instruction should be withheld.

For 2000 version see below

******************************************************************************************************************

2000 Version

The crime of [soliciting] [receiving] [agreeing to receive] a bribe by a [public official] [person who has been selected to be a public official], as charged in [Count of] the indictment, has three essential elements, which are:

One, the defendant was [selected to be] (describe the defendant's official position, e.g., a special agent of the United States Customs Service)1;

Two, the defendant [asked for] [accepted] [agreed to receive]2 [personally] [for another person or entity] something of value; and

Three, the defendant did so corruptly3, that is in return for being [influenced] [induced] to (describe the official act or fraud offered by the defendant, e.g., allow the importation of contraband drugs into the United States).

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Committee Comments

See United States v. Strand, 574 F.2d 993, 996 (9th Cir. 1978). See also Committee Comments, No. 6.18.201A, supra.

Under 18 USC 201(b)(2), "the illegal conduct is taking or agreeing to take money for a promise to act in a certain way." United States v. Brewster, 408 U.S. 501, 526 (1972). Receipt of a bribe under this section requires a promise of a future act in exchange for something of value given to the public official. E.g., United States v. Williams, 705 F.2d 603, 621 (2d Cir.), cert. denied, 464 U.S. 1007 (1983); United States v. Strand, 574 F.2d at 995-96. However, this section may be violated where the official has already acted, but leads the person he is soliciting to believe that he has not yet acted. United States v. Arroyo, 581 F.2d 649 (7th Cir. 1978), cert. denied, 439 U.S. 1069 (1979).

This offense requires corrupt intent and in that important respect differs from the offense under section 201(c)(1)(B), which punishes the receipt of a gratuity paid "for or because of performance of a future or past official act." United States v. Myers, 692 F.2d 823, 841 (2d Cir. 1982), cert. denied, 461 U.S. 961 (1983). See also United States v. Brewster, 506 F.2d 62, 71 (D.C. Cir. 1974).

Receiving an illegal gratuity is a lesser included offense of receiving a bribe. See No. 6.18.201F, infra.

See Instruction 3.10, supra, for a form for a lesser included offense instruction which must be given if the factual element of intent is disputed. United States v. Crutchfield, 547 F.2d 496, 500 (9th Cir. 1977); United States v. Brewster, 506 F.2d 62, 78-79 (D.C. Cir. 1974). Where intent is not in dispute the lesser included offense instruction should be withheld. United States v. Harary, 457 F.2d 471, 477 (2d Cir. 1972).

Notes on Use

1. By phrasing the instruction in this manner, the court avoids having to further instruct that a person holding defendant's particular position is a "public official." However, the court should such a finding on the record.

2. All subsections under section 201(b) and (c) provide for acting "directly or indirectly." Where indirect action is charged, the jury instructions should be modified accordingly.

3. The Committee believes that the element of "corruptly" is adequately defined by setting out the required intent. See Seventh Circuit Federal Jury Instructions: Criminal at 141 (1999).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.201C BRIBING A WITNESS

(18 USC 201(b)(3))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Bribing A Witness (18 USC 201(b)(3))

The crime of bribing a witness, as charged in [Count of] the indictment, has three elements, which are:

One, (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 District of Nebraska);

Two, the defendant [gave] [offered] [promised] something of value to (name of witness)¹; and

Three, the defendant did this act corruptly,² that is, with the intent to influence [(name of witness's) testimony] [(name of witness) to be absent from the proceeding described].

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. This section can also be violated by offering to give something of value to any other person or entity.

2. The Committee believes that the element of "corruptly" is adequately defined by setting out the required intent. See Seventh Circuit Federal Jury Instructions: Criminal at 141 (1999).

Committee Comments

See Committee Comments, Instructions 6.18.201A-B, supra.

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

The crime of bribing a witness, as charged in [Count of] the indictment, has three elements, which are:

One, (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 District of Nebraska);

Two, the defendant [gave] [offered] [promised] something of value to (name of witness)¹; and

Three, the defendant did this act corruptly,² that is, with the intent to influence [(name of witness's) testimony] [(name of witness) to be absent from the proceeding described].

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. This section can also be violated by offering to give something of value to any other person or entity.

2. The Committee believes that the element of "corruptly" is adequately defined by setting out the required intent. See Seventh Circuit Federal Jury Instructions: Criminal at 14 (formerly 141 (1999)).

Committee Comments

See Committee Comments, Instructions 6.18.201A, supra.

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

The crime of bribing a witness, as charged in [Count of] the indictment, has three elements, which are:

One, (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 District of Nebraska);

Two, the defendant [gave] [offered] [promised] something of value to (name of witness)1; and

Three, the defendant did this act corruptly,2 that is, with the intent to influence [(name of witness's) testimony] [(name of witness) to be absent from the proceeding described].

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. This section can also be violated by offering to give something of value to any other person or entity.

2. The Committee believes that the element of "corruptly" is adequately defined by setting out the required intent. See Seventh Circuit Federal Jury Instructions: Criminal at 14 (1999).

Committee Comments

See Committee Comments, Instructions 6.18.201A-B, supra.

For 2000 version see below

******************************************************************************************************************

2000 Version

The crime of bribing a witness, as charged in [Count of] the indictment, has three essential elements, which are:

One, (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 District of Nebraska);

Two, the defendant [gave] [offered] [promised] something of value to (name of witness)1; and

Three, the defendant did this act corruptly,2 that is with the intent to influence [(name of witness's) testimony] [(name of witness) to absent himself from the proceeding described].

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Committee Comments

See Committee Comments, Instructions 6.18.201A-B, supra.

Notes on Use

1. This section can also be violated by offering to give something of value to any other person or entity.

2. The Committee believes that the element of "corruptly" is adequately defined by setting out the required intent. See Seventh Circuit Federal Jury Instructions: Criminal at 141 (1999).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.201D SOLICITING BRIBE BY WITNESS

(18 USC 201(b)(4))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Soliciting Bribe By Witness (18 USC 201(b)(4))

The crime of [soliciting] [receiving] [agreeing to receive] a bribe by a witness, as charged in [Count _____ of] the indictment, has three elements, which are:

One, the defendant was to be a witness under oath or affirmation at (describe proceeding, e.g., a hearing before the National Labor Relations Board); and

Two, the defendant [asked for] [accepted] [agreed to receive]¹ something of value [personally] [for another person or entity]; and

Three, the defendant did so corruptly,² that is, in return for [being influenced in his testimony at the (e.g., hearing)] [absenting himself from the (e.g., hearing)].

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. The defendant may also be charged with demanding, exacting, soliciting, seeking or receiving something of value.

2. The Committee believes that the element of "corruptly" is adequately defined by setting out the required intent.

Committee Comments

See Committee Comments, Instructions 6.18.201A-C, supra.

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

The crime of [soliciting] [receiving] [agreeing to receive] a bribe by a witness, as charged in [Count _____ of] the indictment, has three elements, which are:

One, the defendant was to be a witness under oath or affirmation at (describe proceeding, e.g., a hearing before the National Labor Relations Board); and

Two, the defendant [asked for] [accepted] [agreed to receive]¹ something of value [personally] [for another person or entity]; and

Three, the defendant did so corruptly,² that is, in return for [being influenced in his testimony at the (e.g., hearing)] [absenting himself from the (e.g., hearing)].

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. The defendant may also be charged with demanding, exacting, soliciting, seeking or receiving something of value.

2. The Committee believes that the element of "corruptly" is adequately defined by setting out the required intent.

Committee Comments

See Committee Comments, Instructions 6.18.201A-C, supra.

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

The crime of [soliciting] [receiving] [agreeing to receive] a bribe by a witness, as charged in [Count _____ of] the indictment, has three elements, which are:

One, the defendant was to be a witness under oath or affirmation at (describe proceeding, e.g., a hearing before the National Labor Relations Board); and

Two, the defendant [asked for] [accepted] [agreed to receive]1 something of value [personally] [for another person or entity]; and

Three, the defendant did so corruptly,2 that is, in return for [being influenced in his testimony at the (e.g., hearing)] [absenting himself from the (e.g., hearing)].

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. The defendant may also be charged with demanding, exacting, soliciting, seeking or receiving something of value.

2. The Committee believes that the element of "corruptly" is adequately defined by setting out the required intent.

Committee Comments

See Committee Comments, Instructions 6.18.201A-C, supra.

For 2000 version see below

******************************************************************************************************************

2000 Version

The crime of [soliciting] [receiving] [agreeing to receive] a bribe by a witness, as charged in [Count _____ of] the indictment, has three essential elements, which are:

One, the defendant was to be a witness under oath or affirmation at (describe proceeding, e.g., a hearing before the National Labor Relations Board); and

Two, the defendant [asked for] [accepted] [agreed to receive]1 something of value [personally] [for another person or entity]; and

Three, the defendant did so corruptly,2 that is in return for [being influenced in his testimony at the (e.g., hearing)] [absenting himself from the (e.g., hearing)].

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Committee Comments

See Committee Comments, Instructions 6.18.201A-C, supra; United States v. Busch, 758 F.2d 1394 (10th Cir. 1985).

Notes on Use

1 The defendant may also be charged with demanding, exacting, soliciting, seeking or receiving something of value.

2. The Committee believes that the element of "corruptly" is adequately defined by setting out the required intent. See Seventh Circuit Federal Jury Instructions: Criminal at 141 (1999).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.201E ILLEGAL GRATUITY TO PUBLIC OFFICIAL

(18 USC 201(c)(1)(A))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Illegal Gratuity To A Public Official (18 USC 201(c)(1)(A))

The crime of [giving] [offering] [promising] an illegal gratuity¹ to a public official², as charged in [Count _____ of] the indictment, has three elements, which are:

One, the defendant [gave] [offered] [promised] a [payment] [thing of value] not authorized by law to (name of official);

Two, the defendant did so [for] [because of] an official act³ to be performed by (name of official); and

Three, at that time, (name of official) was a (name official position, e.g., Member of Congress)³.

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. "Illegal gratuity" is used to describe a violation of section 201(c)(1)(A) in numerous cases, including by the Supreme Court in United States v. Sun-Diamond Growers of California, 526 U.S. 398; the phrase is a generally recognized substitute for the more cumbersome phraseology in the statute. However, the statute does not refer to this crime as an "illegal gratuity." If the parties do not want to characterize this conduct as an "illegal gratuity," they may substitute the statutory language.

2. The statute also applies to former public officials and persons who have been selected to be public officials. If one of these alternatives is charged, the language in the elements should be changed accordingly.

3. "Official act" is defined in section 201(a)(3) as "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." It includes "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.’" 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 27.08 (5^th ed. 2000).

4. By phrasing the instruction in this manner, the court avoids having to further instruct that a person holding the defendant's particular position is a "public official." However, the court should make such a finding on the record. See United States v. Hang, 75 F.3d 1275, 1279 (8^th Cir. 1996) ("The classification of an individual as a ‘public official’ is a legal determination" and is subject to de novo review.).

Committee Comments

See United States v. Sun-Diamond Growers of California, 526 U.S. 398 (1999); United States v. Johnson, 647 F.2d 815 (8th Cir. 1981).

The subsections to section 201(c) prohibit illegal gratuities. The distinguishing feature between a bribe and an illegal gratuity is the 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 quo pro – 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. at 404-05. See also United States v. Johnson, 647 F.2d 815, 818 (8th Cir. 1981). For a violation of section 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." United States v. Sun-Diamond Growers of California, 526 U.S. at 414. Some laws which prohibit receipt of honoraria are subject to challenge on First Amendment grounds. See United States v. National Treasury Employees Union, 513 U.S. 454 (1995).

Giving an illegal gratuity is a lesser-included offense of bribery. United States v. Oseby, 148 F.3d 1016, 1021 (8^th Cir. 1998); United States v. Johnson, 647 F.2d at 818. See also Instruction 6.18.201A, supra.

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

The crime of [giving] [offering] [promising] an illegal gratuity¹ to a public official², as charged in [Count _____ of] the indictment, has three elements, which are:

One, the defendant [gave] [offered] [promised] a [payment] [thing of value] not authorized by law to (name of official);

Two, the defendant did so [for] [because of] an official act³ to be performed by (name of official); and

Three, at that time, (name of official) was a (name official position, e.g., Member of Congress)³.

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

Committee Comments

See United States v. Sun-Diamond Growers of California, 526 U.S. 398 (1999); United States v. Johnson, 647 F.2d 815 (8th Cir. 1981).

Giving an illegal gratuity is a lesser included offense of bribery. United States v. Oseby, 148 F.3d 1016, 1021 (8^th Cir. 1998); United States v. Johnson, 647 F.2d at 818. See also Instruction 6.18.201A, supra.

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

The crime of [giving] [offering] [promising] an illegal gratuity1 to a public official2, as charged in [Count _____ of] the indictment, has three elements, which are:

One, the defendant [gave] [offered] [promised] a [payment] [thing of value] not authorized by law to (name of official);

Two, the defendant did so [for] [because of] an official act3 to be performed by (name of official); and

Three, at that time, (name of official) was a (name official position, e.g., Member of Congress)3.

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

4. By phrasing the instruction in this manner, the court avoids having to further instruct that a person holding the defendant's particular position is a "public official." However, the court should make such a finding on the record. See United States v. Hang, 75 F.3d 1275, 1279 (8th Cir. 1996) ("The classification of an individual as a ‘public official’ is a legal determination" and is subject to de novo review.).

Committee Comments

See United States v. Sun-Diamond Growers of California, 526 U.S. 398 (1999); United States v. Johnson, 647 F.2d 815 (8th Cir. 1981).

Giving an illegal gratuity is a lesser included offense of bribery. United States v. Oseby, 148 F.3d 1016, 1021 (8th Cir. 1998); United States v. Johnson, 647 F.2d at 818. See also Instruction 6.18.201A, supra.

For 2000 version see below

******************************************************************************************************************

2000 Version

The crime of [giving] [offering] [promising] an illegal gratuity1 to a public official2, as charged in [Count _____ of] the indictment, has three essential elements, which are:

One, the defendant [gave] [offered] [promised] a [payment] [thing of value] not authorized by law to (name of official);

Two, the defendant did so [for] [because of] an official act to be performed by (name of official); and

Three, at that time, (name of official) was a (name official position, e.g., Member of Congress)3.

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Committee Comments

See United States v. Johnson, 647 F.2d 815 (8th Cir. 1981); United States v. Standefer, 610 F.2d 1076 (3d Cir. 1979), aff'd, 447 U.S. 10 (1980)

The subsections to section 201(c) prohibit illegal gratuities. The essential difference between a bribe and an illegal gratuity is that bribery requires the defendant to have acted "corruptly." United States v. Johnson, 647 F.2d 815, 818 (8th Cir. 1981). In order to constitute bribery, the thing of value given to the public official must be intended as a quid pro quo for a specific official act, decision, or course of conduct. In contrast, an illegal gratuity must be given on account of the recipient's performance of his official duties but need not be intended to influence any official act or decision. See United States v. Patel, 32 F.3d 340, 344-45 (8th Cir. 1994); United States v. Niederberger, 580 F.2d 63, 68-69 (3d Cir.), cert. denied, 439 U.S. 980 (1978); United States v. Raborn, 575 F.2d 688, 690-92 (9th Cir. 1978); United States v. Evans, 572 F.2d 455, 479-82 (5th Cir.) cert. denied, 439 U.S. 870 (1978); United States v. Crutchfield, 547 F.2d 496, 500 (9th Cir. 1977); United States v. Brewster, 506 F.2d 62, 68-74 (D.C. Cir. 1974); United States v. Irwin, 354 F.2d 192, 196 (2d Cir. 1965), cert. denied, 383 U.S. 967 (1966). Some laws which prohibit receipt of honoraria are subject to challenge on First Amendment grounds. See United States v. National Treasury Employees Union, 513 U.S. 454, 115 S. Ct. 1003 (1995).

Giving an illegal gratuity is a lesser included offense of bribery. United States v. Johnson, 647 F.2d at 818. See also No. 6.18.201A, supra.

Notes on Use

1. "Illegal gratuity" is used to describe a violation of this section in Ninth Cir. Crim. Jury Instr. 8.3.1 (1997), as well as in the cases cited in the Committee Comments. The words "illegal gratuity" are used as a generally recognized substitute for the more cumbersome phraseology in the statute. However, the statute does not refer to this crime as an "illegal gratuity." If the parties do not want to characterize this conduct as an "illegal gratuity," they can substitute the statutory language.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.201F RECEIVING ILLEGAL GRATUITY BY
PUBLIC OFFICIAL

(18 USC 201(c)(1)(B))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Receiving Illegal Gratuity By Public Official (18 USC 201(c)(1)(B))

The crime of [demanding] [receiving] [agreeing to receive]¹ an illegal gratuity² by a public official³, as charged in [Count _____ of] the indictment, has three elements, which are:

One, the defendant was a (describe the defendant's official position, e.g., an employee of the Internal Revenue Service);⁴

Two, the defendant [demanded] [received] [agreed to receive] a [payment] [thing of value] not authorized by law; and

Three, the defendant did so [for] [because of] an official act⁵ to be performed by (name of official).

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. The statute also provides for seeking, accepting and agreeing to accept illegal gratuities. When any of this activity is charged, the appropriate words should be substituted in the instruction.

2. "Illegal gratuity" is used to describe a violation of section 201(c)(1)(A) in numerous cases, including by the Supreme Court in United States v. Sun-Diamond Growers of California, 526 U.S. 398 (1999); the phrase is a generally recognized substitute for the more cumbersome phraseology in the statute. However, the statute does not refer to this crime as an "illegal gratuity." If the parties do not want to characterize this conduct as an "illegal gratuity," they may substitute the statutory language.

3. The statute also applies to former public officials and persons who have been selected to be public officials. If one of these alternatives is charged, the language in the elements should be changed accordingly.

5. "Official act" is defined in section 201(a)(3) as "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." It includes "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.’" 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 27.08 (5^th ed. 2000)

Committee Comments

See Committee Comments, Instruction 6.18.201E, supra; United States v. Sun-Diamond Growers of California, 526 U.S. 398 (1999); United States v. Johnson, 647 F.2d 815 (8th Cir. 1981).

Giving an illegal gratuity is a lesser-included offense of bribery. United States v. Oseby, 148 F.3d 1016, 1021 (8^th Cir. 1998); United States v. Johnson, 647 F.2d at 818. See also Instruction 6.18.201A, supra.

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

The crime of [demanding] [receiving] [agreeing to receive]¹ an illegal gratuity² by a public official³, as charged in [Count _____ of] the indictment, has three elements, which are:

One, the defendant was a (describe the defendant's official position, e.g., an employee of the Internal Revenue Service);⁴

Two, the defendant [demanded] [received] [agreed to receive] a [payment] [thing of value] not authorized by law; and

Three, the defendant did so [for] [because of] an official act⁵ to be performed by (name of official).

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. The statute also provides for seeking, accepting and agreeing to accept illegal gratuities. When any of this activity is charged, the appropriate words should be substituted in the instruction.

Committee Comments

See Committee Comments, Instruction 6.18.201E, supra; United States v. Sun-Diamond Growers of California, 526 U.S. 398 (1999); United States v. Johnson, 647 F.2d 815 (8th Cir. 1981).

Giving an illegal gratuity is a lesser included offense of bribery. United States v. Oseby, 148 F.3d 1016, 1021 (8^th Cir. 1998); United States v. Johnson, 647 F.2d at 818. See also Instruction 6.18.201A, supra.

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

The crime of [demanding] [receiving] [agreeing to receive]1 an illegal gratuity2 by a public official3, as charged in [Count _____ of] the indictment, has three elements, which are:

One, the defendant was a (describe the defendant's official position, e.g., an employee of the Internal Revenue Service);4

Two, the defendant [demanded] [received] [agreed to receive] a [payment] [thing of value] not authorized by law; and

Three, the defendant did so [for] [because of] an official act5 to be performed by (name of official).

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. The statute also provides for seeking, accepting and agreeing to accept illegal gratuities. When any of this activity is charged, the appropriate words should be substituted in the instruction.

4. By phrasing the instruction in this manner, the court avoids having to further instruct that a person holding the defendant's particular position is a "public official." However, the court should make such a finding on the record. See United States v. Hang, 75 F.3d 1275, 1279 (8th Cir. 1996) ("The classification of an individual as a ‘public official’ is a legal determination" and is subject to de novo review.).

Committee Comments

See Committee Comments, Instruction 6.18.201E, supra; United States v. Sun-Diamond Growers of California, 526 U.S. 398 (1999); United States v. Johnson, 647 F.2d 815 (8th Cir. 1981).

Giving an illegal gratuity is a lesser included offense of bribery. United States v. Oseby, 148 F.3d 1016, 1021 (8th Cir. 1998); United States v. Johnson, 647 F.2d at 818. See also Instruction 6.18.201A, supra.

For 2000 version see below

******************************************************************************************************************

2000 Version

The crime of [demanding] [receiving] [agreeing to receive]1 an illegal gratuity2 by a public official3, as charged in [Count _____ of] the indictment, has three essential elements, which are:

One, the defendant was a (describe the defendant's official position, e.g., an employee of the Internal Revenue Service);4

Two, the defendant [demanded] [received] [agreed to receive] a [payment] [thing of value] not authorized by law; and

Three, the defendant did so [for] [because of] an official act to be performed by (name of official).

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Committee Comments

See Committee Comments , Instruction 6.18.201E, supra. See generally United States v. Niederberger, 580 F.2d 63, 68-70 (3d Cir.), cert. denied, 439 U.S. 980 (1978); United States v. Raborn, 575 F.2d 688, 690-91 (9th Cir. 1989); United States v. Brewster, 506 F.2d 62, 68-74 (D.C. Cir. 1974). United States v. Evans, 572 F.2d 455, 479-81 (5th Cir.), cert. denied, 439 U.S. 870 (1978). United States v. Dobson, 609 F.2d 840 (5th Cir.), cert. denied, 446 U.S. 955 (1980).

Receiving an illegal gratuity is a lesser included offense of receiving a bribe. United States v. Brewster.

Notes on Use

1. The statute also provides for seeking, accepting and agreeing to accept illegal gratuities. When any of this activity is charged, the appropriate words should be substituted in the instruction.

2. "Illegal gratuity" is used to describe a violation of this section in Ninth Cir. Crim. Jury Instr. 8.3.1 (1997), as well as in the cases cited in the Committee Comments. The words "illegal gratuity" are used as a generally recognized substitute for the more cumbersome phraseology in the statute and should be defined in subsequent instructions. However, the statute does not refer to this crime as an "illegal gratuity." If the parties do not want to characterize this conduct as an "illegal gratuity," they can substitute the language in the statute.

4. By phrasing the instruction in this manner, the court avoids having to further instruct that a person holding defendant's particular position is a "public official." However, the court should make such a finding on the record.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.287 MAKING A FALSE CLAIM AGAINST
THE UNITED STATES

(18 USC 287)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: False Claims Against The Government (18 USC 287)

The crime of making a [false] [fictitious] [fraudulent] claim against the United States, as charged in [Count _____] of the indictment, has four elements, which are:

One, the defendant [made] [presented] to (name of U.S. officer or agency)¹ a claim against [the United States] [(name of department or agency of the United States)];

Two, the claim was [false] [fictitious] [fraudulent]² in that (describe how claim was false, etc.);

Three, the defendant knew the claim was [false] [fictitious] [fraudulent]; and

Four, the [false] [fictitious] [fraudulent] matter was material to (name of U.S. officer or agency).

[A claim is "false" or "fictitious" if any part of it is untrue when made, and then known to be untrue by the person making it or causing it to be made.] [A claim is "fraudulent" if any part of it is known to be untrue, and made or caused to be made with the intent to deceive the governmental agency to which submitted.]³

A claim is "material" if it has a natural tendency to influence, or is capable of influencing the (name of U.S. officer or agency). [However, whether a claim is "material" does not depend on whether (name of U.S. officer or agency) was actually deceived.]⁴

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. By naming the agency in the elements, the court avoids having to further instruct that the agency is an agency of the United States. However, the court should make such a finding on the record, because that is an issue of law which the court must decide. The jury must decide whether it was material.

2. In some cases, the claim may be charged to be false in more than one way in a single count of an indictment. In those cases, the jury should be instructed as follows:

You need not find that the claim is false in all of the ways alleged. Instead, you must find unanimously and beyond a reasonable doubt that the claim is false in at least one of the ways set out in a particular count of the indictment.

3. Definitions of "false," "fictitious" and "fraudulent" should be given. See 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 30.05 (5th ed. 2000); Seventh Circuit Federal Jury Instructions: Criminal at 163-65 (1999); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 9 (1997); United States v. Milton, 602 F.2d 231, 233 (9th Cir. 1979) on which the instruction is based. See also 18 Am. Crim. L. Rev. at 283-84.

4. Materiality is an element of the second ("false claim") clause of 18 U.S.C. § 287, even though the statute, on its face, has no materiality requirement. United States v. Wells, 63 F.3d 745, 750 (8th Cir. 1995) (citing United States v. Adler, 623 F.2d 1287, 1291 n.5 (8th Cir. 1980)). As an element, the question of materiality must be submitted to the jury and it is a constitutional violation and reversible error for the trial court to refuse to submit this issue to the jury. United States v. Gaudin, 515 U.S. 506, 523 (1995) (unanimous opinion).

Committee Comments

The following matters are questions of law to be determined by the court. The court may instruct the jury as to its findings on these matters:

a. Claim. The question of whether the matter submitted constitutes a claim against the United States is a question of law for the court. United States v. John Bernard Industries, 589 F.2d 1353, 1360 (8th Cir. 1979) (jury instructed that the submission of sales slips constituted a claim); United States v. Wertheimer, 434 F.2d 1004, 1006 (2d Cir. 1970) (jury instructed that the submission of invoices constituted a claim).

b. "Against the United States." The question of whether the entity to which a claim is submitted is a department or agency of the United States is a question of law. 18 USC 6 (department or agency defined); see also 5 USC 101 (executive departments); United States v. Madeoy, 912 F.2d 1486, 1494 (D.C. Cir. 1990) (if the court reaches a "conclusion through an exercise in statutory interpretation" about a particular issue, the conclusion is a legislative fact that need not be submitted to the jury). The legal relationship between a private entity to whom a claim is submitted and a government agency alleged to have jurisdiction over it is also a question of law. United States v. Catena, 500 F.2d 1319, 1325 (3d Cir. 1974).

"Willfulness" is not in the statute and accordingly the Committee has not included it as an element. See Committee Comments to Instructions 7.01 and 7.02. "Willfulness" has been specifically held not to be an element of a section 287 offense. United States v. Cook, 586 F.2d 572, 574-75 (5th Cir. 1978), reh. denied, 589 F.2d 1114 (5th Cir. 1979); United States v. Beasley, 550 F.2d 261, 270 n.12 (5th Cir. 1977). Both cases held the portion of the opinion in United States v. Johnson, ruling on the constitutionality of section 287, should not be construed to mean that willfulness should be added as a separate element. See also White Collar Crime: False Claims, 18 Am. Crim. L. Rev. at 285 (1980).

Courts of Appeals in the past have approved instructions under section 287 which contain the word "willfully"; however, this approval does not mean more than that from a defendant's point of view an instruction containing a willfulness requirement is not erroneous, not that a new element, not mandated by the statute was being judicially created. United States v. Irwin, 654 F.2d at 681-82.

The Committee has considered the opinion in United States v. Martin, 772 F.2d 1442 (8th Cir. 1985), a fraudulent claim case, and does not believe that the court meant to add an element of "intent to deceive" to the elements of a false or fictitious claim case. In Martin, the defendant raised the issue of "intent to deceive" by arguing that his claim was not "fraudulent," of which "intent to deceive" is part of the definition. This distinction was not made clear in the opinion. Since both parties treated "intent to deceive" as an issue, the court was never asked to decide how it became an issue. Thus, the Committee is treating the unanalyzed and unsupported statement in the opinion that "intent to deceive" is an element as dicta and not controlling with respect to false or fictitious claims. See United States v. Marvin, 687 F.2d 1221, 1225 (8th Cir. 1982).

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

The crime of making a [false] [fictitious] [fraudulent] claim against the United States, as charged in [Count _____] of the indictment, has four elements, which are:

One, the defendant [made] [presented] to (name of U.S. officer or agency)¹ a claim against [the United States] [(name of department or agency of the United States)];

Two, the claim was [false] [fictitious] [fraudulent]² in that (describe how claim was false, etc.);

Three, the defendant knew the claim was [false] [fictitious] [fraudulent]; and

Four, the [false] [fictitious] [fraudulent] matter was material to (name of U.S. officer or agency).

[A claim is "false" or "fictitious" if any part of it is untrue when made, and then known to be untrue by the person making it or causing it to be made.] [A claim is "fraudulent" if any part of it is known to be untrue, and made or caused to be made with the intent to deceive the governmental agency to which submitted.]³

A claim is "material" if it has a natural tendency to influence, or is capable of influencing the (name of U.S. officer or agency). [However, whether a claim is "material" does not depend on whether (name of U.S. officer or agency) was actually deceived.]⁴

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

2. In some cases, the claim may be charged to be false in more than one way in a single count of an indictment. In those cases, the jury should be instructed as follows:

You need not find that the claim is false in all of the ways alleged. Instead, you must find unanimously and beyond a reasonable doubt that the claim is false in at least one of the ways set out in a particular count of the indictment.

4. Materiality is an element of the second ("false claim") clause of 18 USC 287, even though the statute, on its face, has no materiality requirement. United States v. Wells, 63 F.3d 745, 750 (8th Cir. 1995) (citing United States v. Adler, 623 F.2d 1287, 1291 n.5 (8th Cir. 1980)). As an element, the question of materiality must be submitted to the jury and it is a constitutional violation and reversible error for the trial court to refuse to submit this issue to the jury. United States v. Gaudin, 515 U.S. 506, 523 (1995) (unanimous opinion).

Committee Comments

The following matters are questions of law to be determined by the court. The court may instruct the jury as to its findings on these matters:

a. Claim. The question of whether the matter submitted constitutes a claim against the United States is a question of law for the court. United States v. John Bernard Industries, 589 F.2d 1353, 1360 (8th Cir. 1979) [jury instructed that the submission of sales slips constituted a claim]; United States v. Wertheimer, 434 F.2d 1004, 1006 (2d Cir. 1970) [jury instructed that the submission of invoices constituted a claim].

b. "Against the United States." The question of whether the entity to which a claim is submitted is a department or agency of the United States is a question of law. 18 USC 6 (department or agency defined); see also 5 USC 101 (executive departments); United States v. Madeoy, 912 F.2d 1486, 1494 (D.C. Cir. 1990) (if the court reaches a "conclusion through an exercise in statutory interpretation" about a particular issue, the conclusion is a legislative fact that need not be submitted to the jury). The legal relationship between a private entity to whom a claim is submitted and a government agency alleged to have jurisdiction over it is also a question of law. United States v. Catena, 500 F.2d 1319, 1325 (3d Cir. 1974).

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

The crime of making a [false] [fictitious] [fraudulent] claim against the United States, as charged in [Count _____] of the indictment, has four elements, which are:

One, the defendant [made] [presented] to (name of U.S. officer or agency)1 a claim against [the United States] [(name of department or agency of the United States)];

Two, the claim was [false] [fictitious] [fraudulent]2 in that (describe how claim was false, etc.);

Three, the defendant knew the claim was [false] [fictitious] [fraudulent]; and

Four, the [false] [fictitious] [fraudulent] matter was material to (name of U.S. officer or agency).

[A claim is "false" or "fictitious" if any part of it is untrue when made, and then known to be untrue by the person making it or causing it to be made.] [A claim is "fraudulent" if any part of it is known to be untrue, and made or caused to be made with the intent to deceive the governmental agency to which submitted.]3

A claim is "material" if it has a natural tendency to influence, or is capable of influencing the (name of U.S. officer or agency). [However, whether a claim is "material" does not depend on whether (name of U.S. officer or agency) was actually deceived.]4

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

2. In some cases, the claim may be charged to be false in more than one way in a single count of an indictment. In those cases, the jury should be instructed as follows:

You need not find that the claim is false in all of the ways alleged. Instead, you must find unanimously and beyond a reasonable doubt that the claim is false in at least one of the ways set out in a particular count of the indictment.

Committee Comments

The following matters are questions of law to be determined by the court. The court may instruct the jury as to its findings on these matters:

a. Claim. The question of whether the matter submitted constitutes a claim against the United States is a question of law for the court. United States v. John Bernard Industries, 589 F.2d 1353, 1360 (8th Cir. 1979) [jury instructed that the submission of sales slips constituted a claim]; United States v. Wertheimer, 434 F.2d 1004, 1006 (2d Cir. 1970) [jury instructed that the submission of invoices constituted a claim].

b. "Against the United States." The question of whether the entity to which a claim is submitted is a department or agency of the United States is a question of law. 18 USC 6 (department or agency defined); see also 5 USC 101 (executive departments); United States v. Madeoy, 912 F.2d 1486, 1494 (D.C. Cir. 1990) (if the court reaches a "conclusion through an exercise in statutory interpretation" about a particular issue, the conclusion is a legislative fact that need not be submitted to the jury). The legal relationship between a private entity to whom a claim is submitted and a government agency alleged to have jurisdiction over it is also a question of law. United States v. Catena, 500 F.2d 1319, 1325 (3d Cir. 1974).

For 2000 version see below

******************************************************************************************************************

2000 Version

The crime of making a [false] [fictitious] [fraudulent] claim against the United States, as charged in [Count _____] of the indictment, has four essential elements, which are:

One, the defendant [made] [presented] to (name of U.S. officer or agency)1 a claim against [the United States] [(name of department or agency of the United States)];

Two, the claim was [false] [fictitious] [fraudulent]2 in that (describe how claim was false, etc.);

Three, the defendant knew the claim was [false] [fictitious] [fraudulent]; and

Four, the [false] [fictitious] [fraudulent] matter was material to (name of U.S. officer or agency).

[A claim is "false" or "fictitious" if any part of it is untrue when made, and then known to be untrue by the person making it or causing it to be made.] [A claim is "fraudulent" if any part of it is known to be untrue, and made or caused to be made with the intent to deceive the governmental agency to which submitted.]3

A claim is "material" if it has a natural tendency to influence, or is capable of influencing the (name of U.S. officer or agency). [However, whether a claim is "material" does not depend on whether (name of U.S. officer or agency) was actually deceived.]4

(Insert paragraph describing Government's burden of proof; see No. 3.09, supra.)

Committee Comments

The following matters are questions of law to be determined by the court. The court may instruct the jury as to its findings on these matters:

a. Claim. The question of whether the matter submitted constitutes a claim against the United States is a question of law for the court. United States v. John Bernard Industries, 589 F.2d 1353, 1360 (8th Cir. 1979) [jury instructed that the submission of sales slips constituted a claim]; United States v. Wertheimer, 434 F.2d 1004, 1006 (2d Cir. 1970) [jury instructed that the submission of invoices constituted a claim].

b. "Against the United States." The question of whether the entity to which a claim is submitted is a department or agency of the United States is a question of law. 18 USC 6 (department or agency defined); see also 5 USC 101 (executive departments); United States v. Madeoy, 912 F.2d 1486, 1494 (D.C. Cir. 1990) (if the court reaches a "conclusion through an exercise in statutory interpretation" about a particular issue, the conclusion is a legislative fact that need not be submitted to the jury). The legal relationship between a private entity to whom a claim is submitted and a government agency alleged to have jurisdiction over it is also a question of law. United States v. Catena, 500 F.2d 1319, 1325 (3d Cir.), cert. denied, 419 U.S. 1047 (1974).

"Willfulness" is not in the statute and accordingly the Committee has not included it as an element. See Committee Comments to Instructions 7.01 and 7.02. "Willfulness" has been specifically held not to be an essential element of a section 287 offense. United States v. Cook, 586 F.2d 572, 574-75 (5th Cir. 1978), reh. denied, 589 F.2d 1114 (5th Cir.), cert. denied, 442 U.S. 909 (1979); United States v. Beasley, 550 F.2d 261, 270 n.12 (5th Cir.), cert. denied, 434 U.S. 938 (1977). Both cases held the portion of the opinion in United States v. Johnson, ruling on the constitutionality of section 287, should not be construed to mean that willfulness should be added as a separate element. See also White Collar Crime: False Claims, 18 Am. Crim. L. Rev. at 285 (1980).

The Committee has considered the opinion in United States v. Martin, 772 F.2d 1442 (8th Cir. 1985), a fraudulent claim case, and does not believe that the court meant to add an element of "intent to deceive" to the essential elements of a false or fictitious claim case. In Martin, the defendant raised the issue of "intent to deceive" by arguing that his claim was not "fraudulent," of which "intent to deceive" is part of the definition. This distinction was not made clear in the opinion. Since both parties treated "intent to deceive" as an issue, the court was never asked to decide how it became an issue. Thus, the Committee is treating the unanalyzed and unsupported statement in the opinion that "intent to deceive" is an essential element as dicta and not controlling with respect to false or fictitious claims. See United States v. Marvin, 687 F.2d 1221, 1225 (8th Cir. 1982), cert. denied, 460 U.S. 1081 (1983).

Notes on Use

2. In some cases, the claim may be charged to be false in more than one way in a single count of an indictment. In those cases, the jury should be instructed as follows:

You need not find that the claim is false in all of the ways alleged. Instead, you must find unanimously and beyond a reasonable doubt that the claim is false in at least one of the ways set out in a particular count of the indictment.

3. Definitions of "false," "fictitious" and "fraudulent" should be given. See 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 37.08 (4th ed. 1990); Seventh Circuit Federal Juiry Instructions: Criminal at 163-65 (1999); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 9 (1997); United States v. Milton, 602 F.2d 231, 233 (9th Cir. 1979) on which the instruction is based. See also 18 Am. Crim. L. Rev., supra, at pp. 283-84.

4. Materiality is an essential element of the second ("false claim") clause of 18 USC 287, even though the statute, on its face, has no materiality requirement. United States v. Wells, 63 F.3d 745, 750 (8th Cir. 1995) (citing United States v. Adler, 623 F.2d 1287, 1291 n.5 (8th Cir. 1980)). As an essential element, the question of materiality must be submitted to the jury and it is a constitutional violation and reversible error for the trial court to refuse to submit this issue to the jury. United States v. Gaudin, 515 U.S. 506, ___, ___, 115 S. Ct. 2310, 2311, 2320 (1995) (unanimous opinion).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.471 COUNTERFEITING

(18 USC 471)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Counterfeiting (18 USC 471)

The crime of counterfeiting, as charged in [Count ] of the indictment, has two elements, which are:

One, the defendant [falsely made] [forged] [counterfeited] [altered] a (specify U.S. obligation or security); and

Two, the defendant did so with intent to defraud.

To act with "intent to defraud" means to act with the intent to deceive or cheat, for the purpose of causing some financial loss to another or bringing about some financial gain to the defendant or another. It is not necessary, however, to prove that the United States or anyone else was in fact defrauded.¹

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. See United States v. Hall, 801 F.2d 356, 357-60 (8^th Cir. 1986); 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 32.01-.13 (5th ed. 2000).

Committee Comments

Whether or not a specific security or obligation is an obligation or security of the United States is a question of law and is to be decided by the trial court. See 18 USC 8; United States v. Anzalone, 626 F.2d 239, 242 (2d Cir. 1980).

The generally accepted definition of "counterfeit" means made in order to bear such a likeness or resemblance to (a genuine obligation of the United States) (currency of the United States) that it is calculated to deceive an honest, sensible, and unsuspecting person of ordinary observation and care when dealing with a person who is (presumed) (believed) (supposed) to be honest and upright. See United States v. Hall, 801 F.2d 356, 357-60 (8^th Cir. 1986); 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 32.11 (5th ed. 2000). If a fact issue exists as to whether the instrument meets this test, a separate instruction should be submitted.

See United States v. Hall, 801 F.2d at 358, for a discussion of "altered."

An intent to defraud unknown third parties is sufficient. United States v. Pitts, 508 F.2d 1237, 1240 (8^th Cir. 1974).

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

The crime of counterfeiting, as charged in [Count ] of the indictment, has two elements, which are:

One, the defendant [falsely made] [forged] [counterfeited] [altered] a (specify U.S. obligation or security); and

Two, the defendant did so with intent to defraud.

To act with "intent to defraud" means to act with the intent to deceive or cheat, for the purpose of causing some financial loss to another or bringing about some financial gain to the defendant or another. It is not necessary, however, to prove that the United States or anyone else was in fact defrauded.¹

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. See United States v. Hall, 801 F.2d 356, 357-60 (8^th Cir. 1986); 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 32.01-.13 (5th ed. 2000).

Committee Comments

See United States v. Hall, 801 F.2d at 358, for a discussion of "altered."

An intent to defraud unknown third parties is sufficient. United States v. Pitts, 508 F.2d 1237, 1240 (8^th Cir. 1974).

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

The crime of counterfeiting, as charged in [Count ] of the indictment, has two elements, which are:

One, the defendant [falsely made] [forged] [counterfeited] [altered] a (specify U.S. obligation or security); and

Two, the defendant did so with intent to defraud.

To act with "intent to defraud" means to act with the intent to deceive or cheat, for the purpose of causing some financial loss to another or bringing about some financial gain to the defendant or another. It is not necessary, however, to prove that the United States or anyone else was in fact defrauded.1

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. See United States v. Hall, 801 F.2d 356, 357-60 (8th Cir. 1986); 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 32.01-.13 (5th ed. 2000).

Committee Comments

The generally accepted definition of "counterfeit" means made in order to bear such a likeness or resemblance to (a genuine obligation of the United States) (currency of the United States) that it is calculated to deceive an honest, sensible, and unsuspecting person of ordinary observation and care when dealing with a person who is (presumed) (believed) (supposed) to be honest and upright. See United States v. Hall, 801 F.2d 356, 357-60 (8th Cir. 1986); 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 32.11 (5th ed. 2000). If a fact issue exist as to whether the instrument meets this test, a separate instruction should be submitted.

See United States v. Hall, 801 F.2d at 358, for a discussion of "altered."

An intent to defraud unknown third parties is sufficient. United States v. Pitts, 508 F.2d 1237, 1240 (8th Cir. 1974).

For 2000 version see below

******************************************************************************************************************

2000 Version

The crime of counterfeiting, as charged in [Count of the indictment, has two essential elements, which are:

One, the defendant [falsely made] [forged] [counterfeited] [altered] a (specify U.S. obligation or security); and

Two, the defendant did so with intent to defraud.

To act with "intent to defraud" means to act with the intent to deceive or cheat, for the purpose of causing some financial loss to another or bringing about some financial gain to the defendant or another. It is not necessary, however, to prove that the United States or anyone else was in fact defrauded.1

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Committee Comments

See Seventh Circuit Federal Jury Instructions: Criminal, at 169 (1999); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 12 (1997); 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal §§ 29.01-29.13 (4th ed. 1990).

The generally accepted definition of counterfeit is found in United States v. Lustig, 159 F.2d 798, 802 (3d Cir. 1947); rev'd on the other grounds, 338 U.S. 74 (1949). The test is whether there is such a likeness to genuine currency as is calculated to deceive an honest, sensible, and unsuspecting person of ordinary observation and care when dealing with a person supposed to be upright and honest. See also United States v. Brunson, 657 F.2d 110, 114 (7th Cir. 1981), cert. denied, 454 U.S. 1151 (1982) (same definition used) and 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 29.12 (4th ed. 1990), which provides:

"The term 'counterfeit' means made in order to bear such a likeness or resemblance to something genuine that it is calculated to deceive an honest, sensible, and unsuspecting person of ordinary observation and using care when dealing with a person who is presumed to be honest and upright."

Should a fact issue exist as to whether the instrument meets this test, a separate instruction should be submitted.

Notes on Use

1. See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 16.07 (4th ed. 1992) and Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 12 (1997) (intent to defraud). The definition of "intent to defraud," for financial gain, is noted with approval in United States v. Speaks, 453 F.2d 966, 969 n.9 (1st Cir.), cert. denied, 405 U.S. 1971 (1972).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.472 PASSING COUNTERFEIT OBLIGATIONS

(18 USC 472)

FORECITE National™ Materials Related To This Instruction:

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

The crime of [passing] [selling] [attempting to [pass] [sell]]¹ counterfeit obligations, as charged in [Count of] the indictment, has three elements, which are:

One, the defendant [passed] [sold] [attempted to [pass] [sell]] (specify the security or obligation involved, e.g., three counterfeit ten dollar bills);

Two, the defendant knew that (describe security or obligation, e.g., the ten dollar bills) were counterfeit when [he] [she] [passed] [sold] [attempted to [pass] [sell] them; and

Three, the defendant did so with intent to defraud.

To act with "intent to defraud" means to act with the intent to deceive or cheat, for the purpose of causing some financial loss to another or bringing about some financial gain to the defendant or another. It is not necessary, however, to prove that the United States or anyone else was in fact defrauded.

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. Section 472 of Title 18 U.S.C. specifically provides that an attempt to commit the act constitutes a violation of law just as when the act has been completed. The Committee is of the opinion that the statutory terms "utter" and "publish" are adequately covered by "passing" or "attempting to pass." It may be appropriate in some circumstances to define "attempt." United States v. Joyce, 693 F.2d 838 (8th Cir. 1982).

Committee Comments

See United States v. Armstrong, 16 F.3d 289, 292 (8^th Cir. 1994); United States v. Hall, 801 F.2d 356, 357-60 (8^th Cir. 1986); 2 Kevin F. O’Malley, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 32.06 (5th ed. 2000).

Only obligations or securities of the United States are covered by the statute, and are defined by 18 USC 8. See United States v. Anzalone, 626 F.2d 239, 242 (2d Cir. 1980).

The generally accepted definition of "counterfeit" is an item bearing such a likeness or resemblance to genuine currency as is calculated to deceive an honest, sensible, and unsuspecting person of ordinary observation and care when dealing with a person supposed to be honest and upright. See United States v. Hall, 801 F.2d 356, 357-60 (8^th Cir. 1986). Should a fact issue exist as to whether the instrument meets this test, a separate instruction should be submitted.

An intent to defraud unknown third parties is sufficient. United States v. Pitts, 508 F.2d 1237, 1240 (8th Cir. 1974). The cases do not require that the recipient think that the bills are true and genuine. See United States v. Berry, 599 F.2d 267, 268 (8^th Cir. 1979) (recipients immediately noticed bills were "funny"). A defendant can be convicted of passing to a recipient who knows of the bills' counterfeit character where the bills will eventually be put into circulation. United States v. Patterson, 739 F.2d 191, 196 (5th Cir. 1984); United States v. Hagan, 487 F.2d 897 (5th Cir. 1973); United States v. Wolfe, 307 F.2d 798 (7th Cir. 1962).

Knowledge of the counterfeit character of the obligation is an element of the offense. See, e.g., United States v. Carll, 105 U.S. 611, 613 (1881); United States v. Baker, 650 F.2d 936, 937 (8th Cir. 1981); United States v. Pitts, 508 F.2d at 1240; United States v. Tucker, 820 F.2d at 236-37. Knowledge may be shown by circumstantial evidence. United States v. Armstrong, 16 F.3d at 292; United States v. Berry, 599 F.2d 267, 268-69 (8th Cir. 1979). A mere attempt to pass a bill does not support an inference that the defendant knew it was counterfeit. United States v. Armstrong, 16 F.3d at 292; United States v. Castens, 462 F.2d 391, 393 (8th Cir. 1972). Depending on the circumstances, however, the appearance of a bill may be sufficient to prove the defendant's guilty knowledge. United States v. Baker, 650 F.2d at 937. Acts from which guilty knowledge may be inferred include a rapid series of passings, the passing of counterfeit money at different establishments (even though the accused is not positively identified at other places in the vicinity), the use of large counterfeit bills for small purchases rather than change received in prior purchases, and the segregation of counterfeit bills from genuine bills. United States v. Armstrong, 18 F.3d at 292; United States v. Olson, 697 F.2d 273, 275 (8th Cir. 1983). Mere possession of a counterfeit obligation will not sustain a conviction. United States v. Olson, 697 F.2d 273, 275 (8th Cir. 1983), on appeal after remand, 730 F.2d 544 (8^th Cir. 1984).

"Passing" and "uttering" are sometimes treated as synonymous. However, "passing" does not require any declaration that the note is good nor does it require an attempt to place it in circulation. "Uttering" may require either or both of these additional elements. See 2 Kevin F. O’Malley, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 32.06 (5th ed. 2000); Committee Comments, Instruction 6.18.495B, infra.

It is not necessary to allege or prove that anything of value was actually received for the counterfeit currency. United States v. Holmes, 453 F.2d 950, 952 (10th Cir. 1972) (citing Rader v. United States, 288 F.2d 452, 453 (8th Cir. 1961)), a forgery case under 18 USC 500.

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

The crime of [passing] [selling] [attempting to [pass] [sell]]¹ counterfeit obligations, as charged in [Count of] the indictment, has three elements, which are:

One, the defendant [passed] [sold] [attempted to [pass] [sell]] (specify the security or obligation involved, e.g., three counterfeit ten dollar bills);

Two, the defendant knew that (describe security or obligation, e.g., the ten dollar bills) were counterfeit when [he] [she] [passed] [sold] [attempted to [pass] [sell] them; and

Three, the defendant did so with intent to defraud.

To act with "intent to defraud" means to act with the intent to deceive or cheat, for the purpose of causing some financial loss to another or bringing about some financial gain to the defendant or another. It is not necessary, however, to prove that the United States or anyone else was in fact defrauded.

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

Committee Comments

Only obligations or securities of the United States are covered by the statute, and are defined by 18 USC 8. See United States v. Anzalone, 626 F.2d 239, 242 (2d Cir. 1980).

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

The crime of [passing] [selling] [attempting to [pass] [sell]]1 counterfeit obligations, as charged in [Count of] the indictment, has three elements, which are:

One, the defendant [passed] [sold] [attempted to [pass] [sell]] (specify the security or obligation involved, e.g., three counterfeit ten dollar bills);

Two, the defendant knew that (describe security or obligation, e.g., the ten dollar bills) were counterfeit when [he] [she] [passed] [sold] [attempted to [pass] [sell] them; and

Three, the defendant did so with intent to defraud.

To act with "intent to defraud" means to act with the intent to deceive or cheat, for the purpose of causing some financial loss to another or bringing about some financial gain to the defendant or another. It is not necessary, however, to prove that the United States or anyone else was in fact defrauded.

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. Section 472 of Title 18 USC specifically provides that an attempt to commit the act constitutes a violation of law just as when the act has been completed. The Committee is of the opinion that the statutory terms "utter" and "publish" are adequately covered by "passing" or "attempting to pass." It may be appropriate in some circumstances to define "attempt." United States v. Joyce, 693 F.2d 838 (8th Cir. 1982).

Committee Comments

See United States v. Armstrong, 16 F.3d 289, 292 (8th Cir. 1994); United States v. Hall, 801 F.2d 356, 357-60 (8th Cir. 1986); 2 Kevin F. O’Malley, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 32.06 (5th ed. 2000).

Only obligations or securities of the United States are covered by the statute, and are defined by 18 USC 8. See United States v. Anzalone, 626 F.2d 239, 242 (2d Cir. 1980).

The generally accepted definition of "counterfeit" is an item bearing such a likeness or resemblance to genuine currency as is calculated to deceive an honest, sensible, and unsuspecting person of ordinary observation and care when dealing with a person supposed to be honest and upright. See United States v. Hall, 801 F.2d 356, 357-60 (8th Cir. 1986). Should a fact issue exist as to whether the instrument meets this test, a separate instruction should be submitted.

An intent to defraud unknown third parties is sufficient. United States v. Pitts, 508 F.2d 1237, 1240 (8th Cir. 1974). The cases do not require that the recipient think that the bills are true and genuine. See United States v. Berry, 599 F.2d 267, 268 (8th Cir. 1979) (recipients immediately noticed bills were "funny"). A defendant can be convicted of passing to a recipient who knows of the bills' counterfeit character where the bills will eventually be put into circulation. United States v. Patterson, 739 F.2d 191, 196 (5th Cir. 1984); United States v. Hagan, 487 F.2d 897 (5th Cir. 1973); United States v. Wolfe, 307 F.2d 798 (7th Cir. 1962).

For 2000 version see below

******************************************************************************************************************

2000 Version

The crime of [passing] [selling] [attempting to [pass] [sell]]1 counterfeit obligations, as charged in [Count of] the indictment, has three essential elements, which are:

One, the defendant [passed] [sold] [attempted to [pass] [sell]] (specify the security or obligation involved, e.g., three counterfeit ten dollar bills);

Two, the defendant knew that (describe security or obligation, e.g., the ten dollar bills) were counterfeit when [he] [she] [passed] [sold] [attempted to [pass] [sell] them; and

Three, the defendant did so with intent to defraud.

To act with "intent to defraud" means to act with the intent to deceive or cheat, for the purpose of causing some financial loss to another or bringing about some financial gain to defendant or another. It is not necessary, however, to prove that the United States or anyone else was in fact defrauded.2

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Committee Comments

See 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 29.06 (4th ed. 1990); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 12 (1997); Ninth Cir. Crim. Jury Instr. 8.6.2 (1997); Seventh Circuit Federal Jury Instructions: Criminal at 170 (1999). See also United States v. Tucker, 820 F.2d 234, 236 (7th Cir. 1987).

An intent to defraud unknown third parties is sufficient. United States v. Pitts, 508 F.2d 1237, 1240 (8th Cir. 1974), cert. denied, 421 U.S. 967 (1975). The cases do not require that the recipient think that the bills are true and genuine. Thus, a defendant can be convicted of passing to a recipient who knows of the bills' counterfeit character where the bills will eventually be put into circulation. United States v. Patterson, 739 F.2d 191, 196 (5th Cir. 1984); United States v. Hagan, 487 F.2d 897 (5th Cir. 1973); United States v. Wolfe, 307 F.2d 798 (7th Cir. 1962), cert. denied, 372 U.S. 945 (1963).

The generally accepted definition of a counterfeit is found in United States v. Lustig, 159 F.2d 798, 802 (3d Cir. 1947), rev'd on other grounds, 338 U.S. 74 (1949). The test is whether there is such a likeness to genuine currency as is calculated to deceive an honest, sensible, and unsuspecting person supposed to be upright and honest. See also United States v. Brunson, 657 F.2d 110, 114 (7th Cir. 1981), cert. denied, 454 U.S. 1151 (1982) [same definition used] and 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 29.12 (4th ed. 1990), which provides:

The term "counterfeit" means made in order to bear such a likeness or resemblance to something genuine that it is calculated to deceive an honest, sensible, and unsuspecting person of ordinary observation and using care when dealing with a person who is presumed to be honest and upright.

Knowledge of the counterfeit character of the obligation is an essential element of the offense. See, e.g., United States v. Carll, 105 U.S. 611, 613 (1881); United States v. Baker, 650 F.2d 936, 937 (8th Cir. 1981); United States v. Pitts, 508 F.2d at 1240; United States v. Tucker, 820 F.2d at 236-37. Knowledge may be shown by circumstantial evidence. United States v. Berry, 599 F.2d 267, 268-69 (8th Cir.), cert. denied, 444 U.S. 862 (1979). A mere attempt to pass a bill does not support an inference that the defendant knew it was counterfeit. United States v. Castens, 462 F.2d 391, 393 (8th Cir. 1972). Depending on the circumstances, however, the appearance of a bill may be sufficient to prove the defendant's guilty knowledge. United States v. Baker, 650 F.2d at 937. A critical factor concerning the issue of guilty knowledge is whether the defendant is in possession of or has passed more than one counterfeit obligation. See United States v. Olson, 697 F.2d 273, 275 (8th Cir. 1983). The naked act of possessing and passing counterfeit money, without knowledge that it is counterfeit, does not establish the requisite knowledge essential to the crime of passing or the requisite intent to defraud. United States v. Bishop, 534 F.2d 214 (10th Cir. 1976).

"Passing" and "uttering" are sometimes treated as synonymous. See Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 12 (1997): "To 'pass' or 'utter' a counterfeit note includes any attempt to spend the note or otherwise place it in circulation." However, "passing" does not require any declaration that the note is good or any attempt to circulate. "Uttering" may require either or both of these additional elements. See 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 29.06 (4th ed. 1990); Committee Comments, Instruction 6.18.495B, infra. This question was left open in United States v. DeFilippis, 637 F.2d 1370, 1373-74 (9th Cir. 1981), an unusual case on the facts in which the defendants exchanged "raised" notes for good ones with merchants, claiming the merchants had mistakenly given them altered currency in change. In that case the court held that the evidence supported "passing" and uttering instructions were not appropriate since there was no declaration that the raised note was good nor any attempt to circulate it.

It is not necessary to allege or prove that anything of value was actually received for the counterfeit currency. United States v. Holmes, 453 F.2d 950, 952 (10th Cir.), cert. denied, 406 U.S. 908 (1972) (citing Rader v. United States, 288 F.2d 452, 453 (8th Cir.), cert. denied, 368 U.S. 851 (1961)), a forgery case under 18 USC 500.

Notes on Use

1. 18 USC 472 specifically provides that an attempt to commit the act constitutes a violation of law just as when the act has been completed. The Committee is of the opinion that the statutory terms "utter" and "publish" are adequately covered by "passing" or "attempting to pass." It may be appropriate in some circumstances to define "attempt." United States v. Joyce, 693 F.2d 838 (8th Cir. 1982).

2. See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 16.07 (4th ed. 1992) and Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 13.1 (1997). The definition of "intent to defraud," for financial gain, is noted with approval in United States v. Speaks, 453 F.2d 966, 969 n.9 (1st Cir.), cert. denied, 405 U.S. 1071 (1972).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.495A FORGERY
(18 USC 495) (First Paragraph)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Counterfeiting And Forgery (Title 18 - Chapter 25)

See FORECITE National™ Federal Models By Offense: Forgery Against The United States (First Paragraph) (18 USC 495)

The crime of forgery,¹ as charged in [Count of] the indictment, has four elements, which are:

One, the defendant wrote the signature of [payee] on a (specify the document);

Two, the defendant did so without authority;

Three, the defendant did so in order to [obtain money] [enable another to obtain money] from the United States; and

Four, the defendant did so with intent to defraud the United States.

To act with "intent to defraud" means to act with the intent to deceive or cheat, for the purpose of causing some financial loss to another or bringing about some financial gain to the defendant or another. It is not necessary, however, to prove that the United States or anyone else was in fact defrauded, or that anyone actually obtained money from the United States.²

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. The first paragraph of section 495 also covers false making, altering and counterfeiting. If any of these alternatives are charged, elements one and two should be changed accordingly.

2. See United States v. Speaks, 453 F.2d 966, 969 n.9 (1st Cir.1972) for this definition of "intent to defraud."

Committee Comments

See 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 32.01-.13 (5th ed. 2000); Seventh Circuit Federal Jury Instructions: Criminal at 175 (1999).

The jury should be instructed that intent to defraud the United States is an element of this offense. See Prussian v. United States, 282 U.S. 675, 680 (1931); United States v. Hester, 598 F.2d 247, 249 (D.C. Cir. 1979); United States v. Bates, 468 F.2d 1252, 1255 (5th Cir. 1972). But see United States v. Dimond, 445 F.2d 866, 867 (9th Cir. 1971) (proof of intent to interfere with governmental functions is sufficient).

Signing "without authority" is usually part of the definition of forgery. However, there are cases where a forgery can be accomplished with authority. See United States v. McGovern, 661 F.2d 27 (3d Cir. 1981; United States v. Price, 655 F.2d 958 (9th Cir. 1981).

It is not necessary that anyone actually received money or anything of value from the United States as a result of the forgery. Hammerschmidt v. United States, 265 U.S. 182, 188 (1924); United States v. Rader, 185 F. Supp. 224, 230 (W.D. Ark. 1960), aff'd, 288 F.2d 452 (8th Cir. 1961); United States v. Price, 655 F.2d 958, 960 (9th Cir. 1981). In appropriate cases, the jury may be so instructed. See 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 32.11 (5th ed. 2000).

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

The crime of forgery,¹ as charged in [Count of] the indictment, has four elements, which are:

One, the defendant wrote the signature of [payee] on a (specify the document);

Two, the defendant did so without authority;

Three, the defendant did so in order to [obtain money] [enable another to obtain money] from the United States; and

Four, the defendant did so with intent to defraud the United States.

To act with "intent to defraud" means to act with the intent to deceive or cheat, for the purpose of causing some financial loss to another or bringing about some financial gain to the defendant or another. It is not necessary, however, to prove that the United States or anyone else was in fact defrauded, or that anyone actually obtained money from the United States.²

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. The first paragraph of section 495 covers false making, altering and counterfeiting. If any of these alternatives are charged, elements one and two should be changed accordingly.

2. See United States v. Speaks, 453 F.2d 966, 969 n.9 (1st Cir.1972) for this definition of "intent to defraud."

Committee Comments

See 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 32.01-.13 (5th ed. 2000); Seventh Circuit Federal Jury Instructions: Criminal at 175 (1999).

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

The crime of forgery,1 as charged in [Count of] the indictment, has four elements, which are:

One, the defendant wrote the signature of [payee] on a (specify the document);

Two, the defendant did so without authority;

Three, the defendant did so in order to [obtain money] [enable another to obtain money] from the United States; and

Four, the defendant did so with intent to defraud the United States.

To act with "intent to defraud" means to act with the intent to deceive or cheat, for the purpose of causing some financial loss to another or bringing about some financial gain to the defendant or another. It is not necessary, however, to prove that the United States or anyone else was in fact defrauded, or that anyone actually obtained money from the United States.2

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. The first paragraph of section 495 also covers false making, altering and counterfeiting. If any of these alternatives are charged, elements one and two should be changed accordingly.

2. See United States v. Speaks, 453 F.2d 966, 969 n.9 (1st Cir.1972) for this definition of "intent to defraud."

Committee Comments

See 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 32.01-.13 (5th ed. 2000); Seventh Circuit Federal Jury Instructions: Criminal at 175 (1999).

For 2000 version see below

******************************************************************************************************************

2000 Version

The crime of forgery,1 as charged in [Count of] the indictment, has four essential elements, which are:

One, the defendant wrote the signature of [payee] on a (specify the document);

Two, the defendant did so without authority;

Three, the defendant did so in order to [obtain money] [enable another to obtain money] from the United States; and

Four, the defendant did so with intent to defraud the United States.

To act with "intent to defraud" means to act with the intent to deceive or cheat, for the purpose of causing some financial loss to another or bringing about some financial gain to defendant or another. It is not necessary, however, to prove that the United States or anyone else was in fact defrauded, or that anyone actually obtained money from the United States.2

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Committee Comments

See 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal §§ 29.01- 29.13 (4th ed. 1990); Seventh Circuit Federal Jury Instructions: Criminal at 175 (1999).

The jury should be instructed that intent to defraud the United States is an element of this offense. See Prussian v. United States, 282 U.S. 675, 680 (1931); United States v. Hester, 598 F.2d 247, 249 (D.C. Cir. 1979); United States v. Bates, 468 F.2d 1252, 1255 (5th Cir. 1972). But see United States v. Dimond, 445 F.2d 866, 867 (9th Cir. 1971) (proof of intent to interfere with governmental functions is sufficient).

Signing "without authority" is usually part of the definition of forgery. However, there are cases where a forgery can be accomplished with authority. See United States v. McGovern, 661 F.2d 27 (3d Cir. 1981), cert. denied, 454 U.S. 1157 (1982); United States v. Price, 655 F.2d 958 (9th Cir. 1981).

It is not necessary that anyone actually received money or anything of value from the United States as a result of the forgery. Hammerschmidt v. United States, 265 U.S. 182, 188 (1924); United States v. Rader, 185 F. Supp. 224, 230 (W.D. Ark. 1960), aff'd, 288 F.2d 452 (8th Cir.), cert. denied, 368 U.S. 851 (1961); United States v. Price, 655 F.2d 958, 960 (9th Cir. 1981). In appropriate cases, the jury may be so instructed. See 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 29.11 (4th ed. 1990).

Notes on Use

1. The first paragraph of § 495 also covers false making, altering and counterfeiting. If any of these alternatives are charged, elements one and two should be changed accordingly.

2. See United States v. Speakes, 453 F.2d 966, 969 n.9 (1st Cir.), cert. denied, 405 U.S. 1071 (1972) for this definition of "intent to defraud."

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.495B UTTERING A FORGED WRITING
(18 USC 495) (Second Paragraph)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Counterfeiting And Forgery (Title 18 - Chapter 25)

See FORECITE National™ Federal Models By Offense: Uttering A Forged Writing To Defraud The United States (Second Paragraph) (18 USC 495)

The crime of uttering a [false] [forged] [altered] [counterfeited] document, as charged in [Count of] the indictment, has three elements, which are:

One, the defendant used or attempted to use (describe document) and in doing so stated or implied, directly or indirectly, that the (specify document) was genuine;

Two, the defendant did so knowing that the (specify document or matter forged or altered, e.g., the endorsement of the payee) was [false] [forged] [altered] or [counterfeited]; and

Three, the defendant did so with intent to defraud the United States.

"Intent to defraud" means to act with the intent to deceive or cheat, for the purpose of causing some financial loss to another or bringing about some financial gain to the defendant or another. It is not necessary, however, to prove that the United States or anyone else was, in fact, defrauded, or that anyone actually obtained money from the United States.¹

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. See United States v. Speaks, 453 F.2d 966, 969 n.9 (1st Cir. 1972) for a definition of "intent to defraud" under this statute.

Committee Comments

See 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 32.01-.13 (5th ed. 2000) and Seventh Circuit Federal Jury Instructions: Criminal at 175 (1999).

The Committee is satisfied that Element Three correctly sets out the required mental state. See Ross v. United States, 374 F.2d 97, 101 (8th Cir. 1967).

The crime of uttering under 18 USC 495 requires proof of an attempt to circulate a check by means of a fraudulent representation that it is "genuine." United States v. Rivamonte, 666 F.2d 515 (11th Cir. 1982); United States v. DeJohn, 638 F.2d 1048, 1055-56 (7th Cir. 1981) and United States v. Smith, 631 F.2d 391, 396 (5th Cir. 1980). It is not necessary that anything of value be actually received in exchange for the written instrument. Merely offering the instrument is sufficient. United States v. Rader, 185 F. Supp. 224, 230 (W.D. Ark. 1960), aff'd, 288 F.2d 452 (8th Cir. 1961). "'Uttering and publishing' . . . is the putting forth or attempt to circulate the false or forged Treasury check." United States v. Watts, 532 F.2d 1215, 1218 n.2 (8th Cir. 1976).

The distinction between "falsely made" and "forged" is addressed in United States v. Hagerty, 561 F.2d 1197 (5th Cir. 1977).

The Devitt and Blackmar definition of "forgery," former § 53.05 (see now 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 32.12 (5th ed. 2000)), was held adequate in United States v. Mercer, 853 F.2d 630, 633 (8th Cir. 1988). The Mercer case further held that a theory of defense instruction identical to one required in United States v. Lewis, 592 F.2d 1282, 1285 (5th Cir. 1979) was merely cumulative and not required where the jury was adequately instructed on intent to defraud.

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

The crime of uttering a [false] [forged] [altered] [counterfeited] document, as charged in [Count of] the indictment, has three elements, which are:

One, the defendant used or attempted to use (describe document) and in doing so stated or implied, directly or indirectly, that the (specify document) was genuine;

Two, the defendant did so knowing that the (specify document or matter forged or altered, e.g., the endorsement of the payee) was [false] [forged] [altered] or [counterfeited]; and

Three, the defendant did so with intent to defraud the United States.

"Intent to defraud" means to act with the intent to deceive or cheat, for the purpose of causing some financial loss to another or bringing about some financial gain to the defendant or another. It is not necessary, however, to prove that the United States or anyone else was, in fact, defrauded, or that anyone actually obtained money from the United States.¹

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. See United States v. Speaks, 453 F.2d 966, 969 n.9 (1st Cir. 1972) for a definition of "intent to defraud" under this statute.

Committee Comments

See 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 32.01-.13 (5th ed. 2000) and Seventh Circuit Federal Jury Instructions: Criminal at 175 (1999).

The Committee is satisfied that Element Three correctly sets out the required mental state. See Ross v. United States, 374 F.2d 97, 101 (8th Cir. 1967).

The distinction between "falsely made" and "forged" is addressed in United States v. Hagerty, 561 F.2d 1197 (5th Cir. 1977).

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

The crime of uttering a [false] [forged] [altered] [counterfeited] document, as charged in [Count of] the indictment, has three elements, which are:

One, the defendant used or attempted to use (describe document) and in doing so stated or implied, directly or indirectly, that the (specify document) was genuine;

Two, the defendant did so knowing that the (specify document or matter forged or altered, e.g., the endorsement of the payee) was [false] [forged] [altered] or [counterfeited]; and

Three, the defendant did so with intent to defraud the United States.

"Intent to defraud" means to act with the intent to deceive or cheat, for the purpose of causing some financial loss to another or bringing about some financial gain to the defendant or another. It is not necessary, however, to prove that the United States or anyone else was, in fact, defrauded, or that anyone actually obtained money from the United States.1

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. See United States v. Speaks, 453 F.2d 966, 969 n.9 (1st Cir. 1972) for a definition of "intent to defraud" under this statute.

Committee Comments

See 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 32.01-.13 (5th ed. 2000) and Seventh Circuit Federal Jury Instructions: Criminal at 175 (1999).

The Committee is satisfied that Element Three correctly sets out the required mental state. See Ross v. United States, 374 F.2d 97, 101 (8th Cir. 1967).

The distinction between "falsely made" and "forged" is addressed in United States v. Hagerty, 561 F.2d 1197 (5th Cir. 1977).

For 2000 version see below

******************************************************************************************************************

2000 Version

The crime of uttering a [false] [forged] [altered] [counterfeited] document, as charged in [Count of] the indictment, has three essential elements, which are:

One, the defendant used or attempted to use (describe document) and in doing so stated or implied, directly or indirectly, that the (specify document) was genuine;

Two, the defendant did so knowing that the (specify document or matter forged or altered, e.g., the endorsement of the payee) was [false] [forged] [altered] or [counterfeited]; and

Three, defendant did so with intent to defraud the United States.

"Intent to defraud" means to act with the intent to deceive or cheat, for the purpose of causing some financial loss to another or bringing about some financial gain to defendant or another. It is not necessary, however, to prove that the United States or anyone else was, in fact, defrauded, or that anyone actually obtained money from the United States.1

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Committee Comments

See 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 29.01- 29.13 (4th ed. 1990) and Seventh Circuit Federal Jury Instructions: Criminal at 175 (1999).

The Committee is satisfied that Element Three correctly sets out the required mental state. See Ross v. United States, 374 F.2d 97, 101 (8th Cir.), cert. denied, 389 U.S. 882 (1967).

The crime of uttering under 18 USC 495 requires proof of an attempt to circulate a check by means of a fraudulent representation that it is "genuine." United States v. Rivamonte, 666 F.2d 515 (11th Cir. 1982); United States v. DeJohn, 638 F.2d 1048, 1055-56 (7th Cir. 1981) and United States v. Smith, 631 F.2d 391, 396 (5th Cir. 1980). It is not necessary that anything of value be actually received in exchange for the written instrument. Merely offering the instrument is sufficient. United States v. Rader, 185 F. Supp. 224, 230 (W.D. Ark. 1960), aff'd, 288 F.2d 452 (8th Cir.), cert. denied, 368 U.S. 851 (1961). "'Uttering and publishing' . . . is the putting forth or attempt to circulate the false or forged Treasury check." United States v. Watts, 532 F.2d 1215, 1218 n.2 (8th Cir.), cert. denied, 429 U.S. 847 (1976).

The distinction between "falsely made" and "forged" is addressed in United States v. Hagerty, 561 F.2d 1197 (5th Cir. 1977).

The Devitt and Blackmar definition of "forgery," former § 53.05 (see now 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 29.12 (4th ed. 1990)), was held adequate in United States v. Mercer, 853 F.2d 630, 633 (8th Cir.), cert. denied, 488 U.S. 996 (1988). The Mercer case further held that a theory of defense instruction identical to one required in United States v. Lewis, 592 F.2d 1282, 1285 (5th Cir. 1979) was merely cumulative and not required where the jury was adequately instructed on intent to defraud.

Notes on Use

1. See United States v. Speakes, 453 F.2d 966, 969 n.9 (1st Cir.), cert. denied, 405 U.S. 1071 (1972) for a definition of "intent to defraud" under this statute.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.641 THEFT OF GOVERNMENT MONEY OR PROPERTY

(18 USC 641)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Theft Of Government Money Or Property (18 USC 641)

The crime of theft of Government [property]¹ as charged in the indictment has three elements which are:

One, the defendant voluntarily, intentionally and knowingly [embezzled] [stole] [converted] [money] [thing of value]² [to [his] [her] [their] own use or to the use of another]; and

Two, the [money] [thing of value]³ belonged to the United States and had a value in excess of One Thousand Dollars ($1,000);⁴ and

Three, the defendant did so with intent to deprive the owner of the use or benefit of the [money] [thing of value]⁵ or property so taken.

The word "value" means the face, par, or market value, or cost price, either wholesale or retail, whichever is greater.⁶

A "thing of value" can be tangible or intangible property.⁷

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

[To "embezzle" means voluntarily and intentionally to take or to convert to one's use the property of another which property came into the defendant's possession lawfully.]

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1., 2., 3., 5. The statute covers "record," "voucher," "money," "thing of value," or "property made or being made under [federal] contract." Whichever form is applicable should be used.

4. The statute provides for both a felony offense and a misdemeanor offense. Section 641 was amended by section 606 of The Economic Espionage Act of 1996, Pub. L. 104-294, 110 Stat. 3511, to make value in excess of $1,000 the felony threshold. The Committee recommends that the jury specifically find that the amount embezzled or misapplied exceeded $1,000. If this issue is controverted, the misdemeanor offense should be included in the instructions as a lesser-included offense. Alternatively, a special interrogatory could be submitted to the jury asking it whether it finds, beyond a reasonable doubt, that the item had a value of more than $1,000 at the time of the alleged offense.

6. 18 USC 641.

7. United States v. May, 625 F.2d 186, 190-91 (8th Cir. 1980). See also United States v. DiGilio, 538 F.2d 972 (3d Cir. 1976) (copying F.B.I. documents and selling the copies held to violate the statute) and United States v. Morison, 604 F. Supp. 655, 663-64 (D. Md. 1985), aff’d, 844 F.2d 1057 (4th Cir. 1988) (statute applied to unauthorized disclosures of classified information).

Committee Comments

See Fifth Circuit Pattern Jury Instructions: Criminal § 2.33 (1997); United States v. Walker, 563 F. Supp. 805 (S.D. Iowa 1983).

The Committee believes that the intent required by 18 USC 641 is adequately covered by Elements One and Three. United States v. May, 625 F.2d 186 (8th Cir. 1980); United States v. Denmon, 483 F.2d 1093 (8th Cir. 1973).

In this statute, steal or stealing has been given broader meaning than larceny at common law. The statute applies to any taking whereby a person dishonestly obtains anything of value belonging to another with the intent to deprive the owner of the rights and benefits of ownership. Crabb v. Zerbst, 99 F.2d 562 (5th Cir. 1938). See also Morissette v. United States, 342 U.S. 246, 267-69 n.28 (1952).

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

The crime of theft of Government [property]¹ as charged in the indictment has three elements which are:

One, the defendant voluntarily, intentionally and knowingly [embezzled] [stole] [converted] [money] [thing of value]² [to [his] [her] [their] own use or to the use of another]; and

Two, the [money] [thing of value]³ belonged to the United States and had a value in excess of One Thousand Dollars ($1,000);⁴ and

Three, the defendant did so with intent to deprive the owner of the use or benefit of the [money] [thing of value]⁵ or property so taken.

The word "value" means the face, par, or market value, or cost price, either wholesale or retail, whichever is greater.⁶

A "thing of value" can be tangible or intangible property.⁷

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

[To "embezzle" means voluntarily and intentionally to take or to convert to one's use the property of another which property came into the defendant's possession lawfully.]

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1., 2., 3., 5. The statute covers "record," "voucher," "money," "thing of value," or "property made or being made under [federal] contract." Whichever form is applicable should be used.

4. The statute provides for both a felony offense and a misdemeanor offense. Section 641 was amended by section 606 of The Economic Espionage Act of 1996, Pub. L. 104-294, 110 Stat. 3511, to make value in excess of $1,000 the felony threshold. The Committee recommends that the jury specifically find that the amount embezzled or misapplied exceeded $1,000. If this issue is controverted, the misdemeanor offense should be included in the instructions as a lesser included offense. Alternatively, a special interrogatory could be submitted to the jury asking it whether it finds, beyond a reasonable doubt, that the item had a value of more than $1,000 at the time of the alleged offense.

6. 18 USC 641.

Committee Comments

See Fifth Circuit Pattern Jury Instructions: Criminal § 2.33 (1997); United States v. Walker, 563 F. Supp. 805 (S.D. Iowa 1983).

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

The crime of theft of Government [property]1 as charged in the indictment has three elements which are:

One, the defendant voluntarily, intentionally and knowingly [embezzled] [stole] [converted] [money] [thing of value]2 [to [his] [her] [their] own use or to the use of another]; and

Two, the [money] [thing of value]3 belonged to the United States and had a value in excess of One Thousand Dollars ($1,000);4 and

Three, the defendant did so with intent to deprive the owner of the use or benefit of the [money] [thing of value]5 or property so taken.

The word "value" means the face, par, or market value, or cost price, either wholesale or retail, whichever is greater.6

A "thing of value" can be tangible or intangible property.7

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

[To "embezzle" means voluntarily and intentionally to take or to convert to one's use the property of another which property came into the defendant's possession lawfully.]

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1., 2., 3., 5. The statute covers "record," "voucher," "money," "thing of value," or "property made or being made under [federal] contract." Whichever form is applicable should be used.

4. The statute provides for both a felony offense and a misdemeanor offense. Section 641 was amended by section 606 of The Economic Espionage Act of 1996, Pub. L. 104-294, 110 Stat. 3511, to make value in excess of $1,000 the felony threshold. The Committee recommends that the jury specifically find that the amount embezzled or misapplied exceeded $1,000. If this issue is controverted, the misdemeanor offense should be included in the instructions as a lesser included offense. Alternatively, a special interrogatory could be submitted to the jury asking it whether it finds, beyond a reasonable doubt, that the item had a value of more than $1,000 at the time of the alleged offense.

6. 18 USC 641.

Committee Comments

See Fifth Circuit Pattern Jury Instructions: Criminal § 2.33 (1997); United States v. Walker, 563 F. Supp. 805 (S.D. Iowa 1983).

For 2000 version see below

******************************************************************************************************************

2000 Version

The crime of theft of Government [property]1 as charged in the indictment has three essential elements which are:

One, the defendant voluntarily, intentionally and knowingly [embezzled] [stole] [converted] [money] [thing of value]2 [to [his] [her] [their] own use or to the use of another]; and

Two, the [money] [thing of value]3 belonged to the United States and had a value in excess of One Thousand Dollars ($1,000);4 and

Three, the defendant did so with intent to deprive the owner of the use or benefit of the [money] [thing of value]5 or property so taken.

The word "value" means the face, par, or market value, or cost price, either wholesale or retail, whichever is greater.6

A "thing of value" can be tangible or intangible property.7

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

[To "embezzle" means voluntarily and intentionally to take or to convert to one's use the property of another which property came into the defendant's possession lawfully.]

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Committee Comments

See Fifth Circuit Pattern Jury Instructions: Criminal § 2.33 (1997); United States v. Walker, 563 F. Supp. 805 (S.D. Iowa 1983).

In this statute steal or stealing has been given broader meaning than larceny at common law. The statute applies to any taking whereby a person dishonestly obtains anything of value belonging to another with the intent to deprive the owner of the rights and benefits of ownership. Crabb v. Zerbst, 99 F.2d 562 (5th Cir. 1938). See also Morisette v. United States, 342 U.S. 246, 267-69 n.28, 72 S. Ct. 240, 253 n.28 (1952).

Notes on Use

1., 2., 3., 5. The statute covers "record," "voucher," "money," "thing of value," or "property made or being made under [federal] contract." Whichever form is applicable should be used.

4. The statute provides for both a felony offense and a misdemeanor offense. Section 641 was amended by section 606 of The Economic Espionage Act of 1996, Pub. L. 104-294, 110 Stat. 3511, to make value in excess of $1,000 the felony threshold. The Committee recommends that the jury specifically find that the amount embezzled or misapplied exceeded $1,000. If this issue is controverted, the misdemeanor offense should be included in the instructions as a lesser included offense. Alternatively, a special interrogatory could be submitted to the jury asking it whether it finds, beyond a reasonable doubt, that the item had a value of more than $1,000 at the time of the alleged offense.

6. 18 USC 641.

7. United States v. May, 625 F.2d 186, 190-91 (8th Cir. 1980). See also United States v. DiGilio, 538 F.2d 972 (3d Cir. 1976), cert. denied, 429 U.S. 1038 (1977) (copying F.B.I. documents and selling the copies held to violate the statute) and United States v. Morison, 604 F. Supp. 655, 663-64 (D. Md. 1985), aff’d, 844 F.2d 1057 (4th Cir. 1987) (statute applied to unauthorized disclosures of classified information).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.656 EMBEZZLEMENT AND MISAPPLICATION
OF BANK FUNDS

(18 USC 656)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Theft Or Embezzlement By Bank Officer Or Employee (18 USC 656)

The crime of [embezzlement] [misapplication] of bank funds, as charged in [Count of] the indictment, has five elements, which are:

One, the defendant was (describe position and name of bank, e.g., a trust officer at First National Bank);

Two, the defendant [embezzled] [misapplied] the [funds] [credits]¹ of the bank;

Three, the amount so [embezzled] [misapplied] was more

than $100.00;²

Four, the defendant did so with the intent [to injure] [to defraud] the bank³; and

Five, the bank was (describe federal relation, e.g., insured by the FDIC).⁴

["Embezzlement" means the voluntary and intentional taking, or conversion to one's own use, of the property of another, which property came into the defendant's possession lawfully, by virtue of some office, employment, or position of trust which the defendant held.]⁵ ["Misapplication" means the unauthorized, or unjustifiable or wrongful use of a bank's funds. Misapplication includes the wrongful taking or use of money of the bank by a bank officer or employee for his own benefit or for the use and benefit of some other person.]⁶

[To act with "intent to injure" means to act with intent to cause pecuniary loss.]⁷ [To act with "intent to defraud" means to act with intent to deceive or cheat, for the purpose of causing a financial loss to someone else or bringing about a financial gain to the defendant or another.]⁸

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. The statute also covers "money, funds, assets or securities entrusted to the custody or care" of the bank. If the embezzlement or the misapplication of any of these is charged, the instruction should be changed accordingly.

A more detailed description of the property embezzled or misapplied can be used instead of the general statutory language.

2. The statute provides for both a felony offense and a misdemeanor offense. The Committee recommends that the jury specifically find that the amount embezzled or misapplied exceeded $100.00. If this issue is controverted, the misdemeanor offense should be included in the instructions as a lesser-included offense. Alternatively, a special interrogatory could be submitted to the jury asking it whether it finds, beyond a reasonable doubt, that the item had a value of more than $100.00 at the time of the alleged offense.

3. Several cases have held that the required intent could alternatively be intent to deceive the bank's officers, directors, or examiners. United States v. Steffen, 641 F.2d 591, 597 (8th Cir. 1981); United States v. Krepps, 605 F.2d 101, 107 n.21 (3d Cir. 1979). Both of these cases involved situations where the misapplication was accomplished by a bank officer circumventing policies regarding loans to officers by setting up loans to third parties from which the officer was to receive the proceeds. Judge Devitt has included "intent to deceive" the bank's officers, etc. in jury instructions which are set out in United States v. Dougherty, 763 F.2d 970 (8th Cir. 1985). That case involved a misapplication accomplished by a bank officer who issued banker's acceptances to certain bank customers without obtaining loan committee approval. These cases indicate that an instruction on "intent to deceive" may be appropriate in misapplication cases of this nature.

4. Absent a stipulation between the government and the defendant, this instruction must include the element that the victim financial institution fell into one of the categories listed in the statute.

5. See United States v. Sayklay, 542 F.2d 942 (5th Cir. 1976); Woxberg v. United States, 329 F.2d 284 (9th Cir. 1964); 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 33.04 (5th ed. 2000).

6. See United States v. Moraites, 456 F.2d 435 (3d Cir. 1972); United States v. Bevans, 496 F.2d 494 (8th Cir. 1974); United States v. Beran, 546 F.2d 1316 (8th Cir. 1976); 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 33.05 (5th ed. 2000). Conversion of bank funds is encompassed within the definition of misapplication. United States v. Beran.

7. See United States v. Arthur, 544 F.2d 730, 736 (4th Cir. 1976); United States v. Blackwood, 735 F.2d 142, 144-46 (4th Cir. 1984).

8. See Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 19 (1997).

Committee Comments

See 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 33.01-.06 (5th ed. 2000); Ninth Cir. Crim. Jury Instr. 8.11.1, 8.11.2 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 19 (1997); United States v. Bevans, 496 F.2d 494, 499 n.4 (8th Cir. 1974); United States v. Farrell, 609 F.2d 816, 818 (5th Cir. 1980).

Misapplication and embezzlement are separate and distinct offenses. United States v. Holmes, 611 F.2d 329, 331 (10th Cir. 1979). Embezzlement requires a conversion of property for the defendant's own use while misapplication may be accomplished by diverting funds for the use of others, United States v. Beran, 546 F.2d 1316, 1320 (8th Cir. 1976), or by improperly structuring a loan to third parties for the defendant's personal benefit. United States v. Angelos, 763 F.2d 859, 861 (7th Cir. 1985); United States v. Steffen, 641 F.2d 591, 597 (8th Cir. 1981). A check kiting scheme can constitute misapplication. United States v. Young, 618 F.2d 1281 (8th Cir. 1980). See United States v. Gens, 493 F.2d 216 (1st Cir. 1974) for a comprehensive review of the cases construing the word "misapplied."

Intent to injure or defraud the bank is an element of embezzlement, United States v. Scheper, 520 F.2d 1355 (4th Cir. 1975), as well as misapplication. United States v. Cooper, 577 F.2d 1079, 1082-83 (6th Cir. 1978). Courts have read this requirement back into section 656 after it was inadvertently dropped from the statute in the course of a technical revision of the federal criminal code. United States v. Angelos, 763 F.2d at 861; Seals v. United States, 221 F.2d 243, 245 (8th Cir. 1955).

This circuit has specifically held that the element of "intent to defraud" is sufficient and the concept of specific intent or a definition thereof is not appropriate in a section 656 case (or in any other, unless used in the statute itself). United States v. Dougherty, 763 F.2d 970, 973-74 (8th Cir. 1985).

Intent to injure or defraud the bank is proved by showing a "knowing voluntary act by the defendant, the natural tendency of which may have been to injure the bank even though such may not have been his motive." United States v. Farrell, 609 F.2d at 820.

The defendant's criminal intent may be shown by circumstantial evidence. Seals v. United States, 221 F.2d at 248; see, e.g., United States v. Mohr, 728 F.2d 1132, 1134-35 (8th Cir. 1984). The government need not prove that the defendant knew he was violating the law. United States v. Dougherty, 763 F.2d at 973-74.

Whether the defendant planned to return the money or whether the bank actually sustained a loss is immaterial to guilt under section 656. United States v. Angelos, 763 F.2d at 861; United States v. Scheper, 520 F.2d at 1358.

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

The crime of [embezzlement] [misapplication] of bank funds, as charged in [Count of] the indictment, has five elements, which are:

One, the defendant was (describe position and name of bank, e.g., a trust officer at First National Bank);

Two, the defendant [embezzled] [misapplied] the [funds] [credits]¹ of the bank;

Three, the amount so [embezzled] [misapplied] was more

than $100.00;²

Four, the defendant did so with the intent [to injure] [to defraud] the bank³; and

Five, the bank was (describe federal relation, e.g., insured by the FDIC).⁴

["Embezzlement" means the voluntary and intentional taking, or conversion to one's own use, of the property of another, which property came into the defendant's possession lawfully, by virtue of some office, employment, or position of trust which the defendant held.]⁵ ["Misapplication" means the unauthorized, or unjustifiable or wrongful use of a bank's funds. Misapplication includes the wrongful taking or use of money of the bank by a bank officer or employee for his own benefit or for the use and benefit of some other person.]⁶

[To act with "intent to injure" means to act with intent to cause pecuniary loss.]⁷ [To act with "intent to defraud" means to act with intent to deceive or cheat, for the purpose of causing a financial loss to someone else or bringing about a financial gain to the defendant or another.]⁸

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

A more detailed description of the property embezzled or misapplied can be used instead of the general statutory language.

2. The statute provides for both a felony offense and a misdemeanor offense. The Committee recommends that the jury specifically find that the amount embezzled or misapplied exceeded $100.00. If this issue is controverted, the misdemeanor offense should be included in the instructions as a lesser included offense. Alternatively, a special interrogatory could be submitted to the jury asking it whether it finds, beyond a reasonable doubt, that the item had a value of more than $100.00 at the time of the alleged offense.

7. See United States v. Arthur, 544 F.2d 730, 736 (4th Cir. 1976); United States v. Blackwood, 735 F.2d 142, 144-46 (4th Cir. 1984).

8. See Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 19 (1997).

Committee Comments

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

The crime of [embezzlement] [misapplication] of bank funds, as charged in [Count of] the indictment, has five elements, which are:

One, the defendant was (describe position and name of bank, e.g., a trust officer at First National Bank);

Two, the defendant [embezzled] [misapplied] the [funds] [credits]1 of the bank;

Three, the amount so [embezzled] [misapplied] was more

than $100.00;2

Four, the defendant did so with the intent [to injure] [to defraud] the bank3; and

Five, the bank was (describe federal relation, e.g., insured by the FDIC).4

["Embezzlement" means the voluntary and intentional taking, or conversion to one's own use, of the property of another, which property came into the defendant's possession lawfully, by virtue of some office, employment, or position of trust which the defendant held.]5 ["Misapplication" means the unauthorized, or unjustifiable or wrongful use of a bank's funds. Misapplication includes the wrongful taking or use of money of the bank by a bank officer or employee for his own benefit or for the use and benefit of some other person.]6

[To act with "intent to injure" means to act with intent to cause pecuniary loss.]7 [To act with "intent to defraud" means to act with intent to deceive or cheat, for the purpose of causing a financial loss to someone else or bringing about a financial gain to the defendant or another.]8

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

A more detailed description of the property embezzled or misapplied can be used instead of the general statutory language.

2. The statute provides for both a felony offense and a misdemeanor offense. The Committee recommends that the jury specifically find that the amount embezzled or misapplied exceeded $100.00. If this issue is controverted, the misdemeanor offense should be included in the instructions as a lesser included offense. Alternatively, a special interrogatory could be submitted to the jury asking it whether it finds, beyond a reasonable doubt, that the item had a value of more than $100.00 at the time of the alleged offense.

7. See United States v. Arthur, 544 F.2d 730, 736 (4th Cir. 1976); United States v. Blackwood, 735 F.2d 142, 144-46 (4th Cir. 1984).

8. See Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 19 (1997).

Committee Comments

See 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 33.01-.06 (5th ed. 2000); Ninth Cir. Crim. Jury Instr. 8.33 ; Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 19 (1997); United States v. Bevans, 496 F.2d 494, 499 n.4 (8th Cir. 1974); United States v. Farrell, 609 F.2d 816, 818 (5th Cir. 1980).

For 2000 version see below

******************************************************************************************************************

2000 Version

The crime of [embezzlement] [misapplication] of bank funds, as charged in [Count of] the indictment, has five essential elements, which are:

One, the defendant was (describe position and name of bank, e.g., a trust officer at First National Bank);

Two, the defendant [embezzled] [misapplied] the [funds] [credits]1 of the bank;

Three, the amount so [embezzled] [misapplied] was more than $100.00;2

Four, the defendant did so with the intent [to injure] [to defraud] the bank3; and

Five, the bank was (describe federal relation, e.g., insured by the FDIC).4

["Embezzlement" means the voluntary and intentional taking, or conversion to one's own use, of the property of another, which property came into the defendant's possession lawfully, by virtue of some office, employment, or position of trust which the defendant held.]5 ["Misapplication" means the unauthorized, or unjustifiable or wrongful use of a bank's funds. Misapplication includes the wrongful taking or use of money of the bank by a bank officer or employee for his own benefit or for the use and benefit of some other person.]6

[To act with "intent to injure" means to act with intent to cause pecuniary loss.]7 [To act with "intent to defraud" means to act with intent to deceive or cheat, for the purpose of causing a financial loss to someone else or bringing about a financial gain to defendant or another.]8

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Committee Comments

See 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal §§ 30.01- 30.06 (4th ed. 1990); Ninth Cir. Crim. Jury Instr. 8.11.1, 8.11.2 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 19 (1997); United States v. Bevans, 496 F.2d 494, 499 n.4 (8th Cir. 1974); United States v. Farrell, 609 F.2d 816, 818 (5th Cir. 1980).

Misapplication and embezzlement are separate and distinct offenses. United States v. Holmes, 611 F.2d 329, 331 (10th Cir. 1979). Embezzlement requires a conversion of property for the defendant's own use while misapplication may be accomplished by diverting funds for the use of others, United States v. Beran, 546 F.2d 1316, 1320 (8th Cir. 1976), cert. denied, 430 U.S. 916 (1977), or by improperly structuring a loan to third parties for defendant's personal benefit. United States v. Angelos, 763 F.2d 859, 861 (7th Cir. 1985); United States v. Steffen, 641 F.2d 591, 597 (8th Cir.), cert. denied, 452 U.S. 943 (1981). A check kiting scheme can constitute misapplication. United States v. Young, 618 F.2d 1281 (8th Cir.), cert. denied, 449 U.S. 844 (1980). See United States v. Gens, 493 F.2d 216 (1st Cir. 1974) for a comprehensive review of the cases construing the word "misapplied."

Intent to injure or defraud the bank is an essential element of embezzlement, United States v. Scheper, 520 F.2d 1355 (4th Cir. 1975), as well as misapplication. United States v. Cooper, 577 F.2d 1079, 1082-83 (6th Cir.), cert. denied, 439 U.S. 868 (1978). Courts have read this requirement back into section 656 after it was inadvertently dropped from the statute in the course of a technical revision of the federal criminal code. United States v. Angelos, 763 F.2d at 861; Seals v. United States, 221 F.2d 243, 245 (8th Cir. 1955).

Intent to injure is distinct from intent to defraud. Angelos, 763 F.2d at 861, which case further held that intent to defraud can mean to take financial advantage of a confidential relationship. Intent to injure under section 656 means intent to cause pecuniary loss. United States v. Arthur, 544 F.2d 730, 736 (4th Cir. 1976); United States v. Blackwood, 735 F.2d 142, 144-46 (4th Cir. 1984). Intent to injure or defraud the bank is proved by showing a "knowing voluntary act by the defendant, the natural tendency of which may have been to injure the bank even though such may not have been his motive." United States v. Farrell, 609 F.2d at 820.

The defendant's criminal intent may be shown by circumstantial evidence. Seals v. United States, 221 F.2d at 248; see, e.g., United States v. Mohr, 728 F.2d 1132, 1134-35 (8th Cir.), cert. denied, 469 U.S. 843 (1984). The government need not prove that the defendant knew he was violating the law. United States v. Dougherty, 763 F.2d at 973-74.

Notes on Use

A more detailed description of the property embezzled or misapplied can be used instead of the general statutory language.

2. The statute provides for both a felony offense and a misdemeanor offense. The Committee recommends that the jury specifically find that the amount embezzled or misapplied exceeded $100.00. If this issue is controverted, the misdemeanor offense should be included in the instructions as a lesser included offense. Alternatively, a special interrogatory could be submitted to the jury asking it whether it finds, beyond a reasonable doubt, that the item had a value of more than $100.00 at the time of the alleged offense.

3. Several cases have held that the required intent could alternatively be intent to deceive the bank's officers, directors, or examiners. United States v. Steffen, 641 F.2d 591, 597 (8th Cir.), cert. denied, 452 U.S. 943 (1981); United States v. Krepps, 605 F.2d 101, 107 n.21 (3d Cir. 1979). Both of these cases involved situations where the misapplication was accomplished by a bank officer circumventing policies regarding loans to officers by setting up loans to third parties from which the officer was to receive the proceeds. Judge Devitt has included "intent to deceive" the bank's officers, etc. in jury instructions which are set out in United States v. Dougherty, 763 F.2d 970 (8th Cir. 1985). That case involved a misapplication accomplished by a bank officer who issued banker's acceptances to certain bank customers without obtaining loan committee approval. These cases indicate that an instruction on "intent to deceive" may be appropriate in misapplication cases of this nature.

5. See United States v. Sayklay, 542 F.2d 942 (5th Cir. 1976); Woxberg v. United States, 329 F.2d 284 (9th Cir.), cert. denied, 379 U.S. 823 (1964); 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 30.04 (4th ed. 1990).

6. See United States v. Moraites, 456 F.2d 435 (3d Cir.), cert. denied, 409 U.S. 891 (1972); United States v. Bevans, 496 F.2d 494 (8th Cir. 1974); United States v. Beran, 546 F.2d 1316 (8th Cir. 1976), cert. denied, 430 U.S. 916 (1977); 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 30.05 (4th ed. 1990). Conversion of bank funds is encompassed within the definition of misapplication. United States v. Beran.

7. See United States v. Arthur, 544 F.2d 730, 736 (4th Cir. 1976); United States v. Blackwood, 735 F.2d 142, 144-46 (4th Cir. 1984).

8. See Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 19 (1997)

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.659A THEFT FROM INTERSTATE SHIPMENT
(18 USC 659)
(First Paragraph)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Theft From Interstate Shipment (18 USC 659) (First Paragraph)

See FORECITE National™ Federal Models By Offense: Buying Or Receiving Goods Stolen From Interstate Shipment (18 USC 659) (Second Paragraph)

The crime of theft from an [interstate] [foreign] shipment, as charged in [Count of] the indictment, has three elements, which are:

One, the defendant [embezzled] [stole] [obtained by fraud or deception]¹ the property of another² from a (describe interstate or foreign carrier);

Two, at that time this property [was moving as] [was part of] [constituted] a[n] [interstate] [foreign] shipment;

Three, at that time the value of the property was more than $100.00;³ and

Four, the defendant acted with the intent to convert the property temporarily or permanently to his own use.

[To "embezzle" means voluntarily and intentionally to take, or to convert to one's own use, the property of another, which property came into the defendant's possession lawfully.]

[To "steal" means to take with the intent to deprive the owner permanently or temporarily of the rights and benefits of ownership.]

A shipment becomes a[n] [interstate] [foreign] shipment as soon as it is assembled for movement across a [state line] [United States border] and remains one until it arrives at its final destination and is delivered.⁴

The word "value" means face, par, or market value, or cost price, either wholesale or retail, whichever is greater.⁵

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. The statute may also be violated by "unlawfully" "taking," "carrying away" or "concealing." If one of the "unlawful" alternatives is charged and a definition of "unlawfully" is requested, "unlawfully" should be defined in terms of the specific manner in which the conduct is alleged to be unlawful.

2. A more specific description of the property may be used instead of the general statutory language.

3. If there is a dispute over whether the value is greater or less than $100.00, a lesser-included offense instruction may be given. If there is no dispute, a lesser-included offense instruction is not necessary. United States v. Price, 447 F.2d 23 (2d Cir. 1971). Alternatively, a special interrogatory could be submitted to the jury asking it whether it finds, beyond a reasonable doubt, that the item had a value of more than $100.00 at the time of the alleged offense.

4. United States v. Crum, 663 F.2d 771 (8th Cir. 1981); 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 34.05, 34.07 (5th ed. 2000); Fifth Circuit Pattern Jury Instructions: Criminal § 2.36 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 20.1 (1997).

The eighth paragraph of section 659 reads as follows:

To establish the interstate or foreign commerce character of any shipment in any prosecution under this section the waybill or other shipping document of such shipment shall be prima facie evidence of the place from which and to which such shipment was made. The removal of property from a pipeline system which extends interstate shall be prima facie evidence of the interstate character of the shipment of the property.

This circuit has found that the following instruction complies with that statute and the applicable constitutional test of a statutory presumption:

Section 659 of Title 18 of U.S.C.A. further provides that:

To establish the interstate . . . commerce character of any shipment . . . the waybill or other shipping document of such shipment shall be prima facie evidence of the place from which and to which such shipment was made.

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

United States v. Franklin, 568 F.2d 1156, 1157 (8th Cir. 1978). See further Committee Comments, Instruction 4.13, supra, relating to instructions on statutory inferences. See also 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 34.05, 34.07 (5th ed. 2000); Fifth Circuit Pattern Jury Instructions: Criminal § 2.36 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 20.1 (1997).

5. This definition of value is contained in 18 USC 641 and has been held applicable to section 659. United States v. Watson, 570 F.2d 282, 283-84 (8th Cir. 1978).

Committee Comments

See 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 34.01-.08 (5th ed. 2000); Fifth Circuit Pattern Jury Instructions: Criminal § 2.36 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 20.1 (1997).

In this and other federal statutes the word "steal" or "stolen" has been given a broader meaning than larceny at common law. Accordingly this statute applies to any taking whereby a person dishonestly obtains goods belonging to another with the intent to deprive the owner of the rights and benefits of ownership. United States v. DeNormand, 149 F.2d 622, 624 (2d Cir. 1945); United States v. Scott, 592 F.2d 1139, 1143 (10th Cir. 1979). See also United States v. Turley, 352 U.S. 407, 410-17 (1957). Thus, the Government need not prove that the defendant intended permanently to deprive an owner of property, which is an element of larceny. United States v. Shackelford, 777 F.2d 1141, 1143-45 (6th Cir. 1985); United States v. Waronek, 582 F.2d 1158, 1160-62 (7th Cir. 1978).

"Embezzle" is defined in United States v. Scott, 592 F.2d at 1143. See also Instruction 6.18.656, supra.

The determination of whether goods are moving as an interstate shipment is to be based on practical considerations rather than technical distinctions. United States v. Crum, 663 F.2d 771 (8th Cir. 1981). An "interstate shipment" exists if the goods have been physically segregated for such shipment, even where interstate transport has not actually commenced in the sense of over-the-road travel. See United States v. Henneberry, 719 F.2d 941 (8th Cir. 1983); United States v. Gollin, 176 F.2d 889, 893-95 (3d Cir. 1949). An interstate shipment does not lose its interstate character until it arrives at its final destination and is delivered. Crum, 663 F.2d at 771. See also United States v. Wetzel, 488 F.2d 153 (8th Cir. 1973).

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

The crime of theft from an [interstate] [foreign] shipment, as charged in [Count of] the indictment, has three elements, which are:

One, the defendant [embezzled] [stole] [obtained by fraud or deception]¹ the property of another² from a (describe interstate or foreign carrier);

Two, at that time this property [was moving as] [was part of] [constituted] a[n] [interstate] [foreign] shipment;

Three, at that time the value of the property was more than $100.00;³ and

Four, the defendant acted with the intent to convert the property temporarily or permanently to his own use.

[To "embezzle" means voluntarily and intentionally to take, or to convert to one's own use, the property of another, which property came into the defendant's possession lawfully.]

[To "steal" means to take with the intent to deprive the owner permanently or temporarily of the rights and benefits of ownership.]

A shipment becomes a[n] [interstate] [foreign] shipment as soon as it is assembled for movement across a [state line] [United States border] and remains one until it arrives at its final destination and is delivered.⁴

The word "value" means face, par, or market value, or cost price, either wholesale or retail, whichever is greater.⁵

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

2. A more specific description of the property may be used instead of the general statutory language.

3. If there is a dispute over whether the value is greater or less than $100.00, a lesser included offense instruction may be given. If there is no dispute, a lesser included offense instruction is not necessary. United States v. Price, 447 F.2d 23 (2d Cir. 1971). Alternatively, a special interrogatory could be submitted to the jury asking it whether it finds, beyond a reasonable doubt, that the item had a value of more than $100.00 at the time of the alleged offense.

The eighth paragraph of section 659 reads as follows:

To establish the interstate or foreign commerce character of any shipment in any prosecution under this section the waybill or other shipping document of such shipment shall be prima facie evidence of the place from which and to which such shipment was made. The removal of property from a pipeline system which extends interstate shall be prima facie evidence of the interstate character of the shipment of the property.

This circuit has found that the following instruction complies with that statute and the applicable constitutional test of a statutory presumption:

Section 659 of Title 18 of U.S.C.A. further provides that:

To establish the interstate . . . commerce character of any shipment . . . the waybill or other shipping document of such shipment shall be prima facie evidence of the place from which and to which such shipment was made.

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

5. This definition of value is contained in 18 USC 641 and has been held applicable to section 659. United States v. Watson, 570 F.2d 282, 283-84 (8th Cir. 1978).

Committee Comments

"Embezzle" is defined in United States v. Scott, 592 F.2d at 1143. See also Instruction 6.18.656, supra.

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

The crime of theft from an [interstate] [foreign] shipment, as charged in [Count of] the indictment, has three elements, which are:

One, the defendant [embezzled] [stole] [obtained by fraud or deception]1 the property of another2 from a (describe interstate or foreign carrier);

Two, at that time this property [was moving as] [was part of] [constituted] a[n] [interstate] [foreign] shipment;

Three, at that time the value of the property was more than $100.00;3 and

Four, the defendant acted with the intent to convert the property temporarily or permanently to his own use.

[To "embezzle" means voluntarily and intentionally to take, or to convert to one's own use, the property of another, which property came into the defendant's possession lawfully.]

[To "steal" means to take with the intent to deprive the owner permanently or temporarily of the rights and benefits of ownership.]

A shipment becomes a[n] [interstate] [foreign] shipment as soon as it is assembled for movement across a [state line] [United States border] and remains one until it arrives at its final destination and is delivered.4

The word "value" means face, par, or market value, or cost price, either wholesale or retail, whichever is greater.5

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

2. A more specific description of the property may be used instead of the general statutory language.

The eighth paragraph of section 659 reads as follows:

To establish the interstate or foreign commerce character of any shipment in any prosecution under this section the waybill or other shipping document of such shipment shall be prima facie evidence of the place from which and to which such shipment was made. The removal of property from a pipeline system which extends interstate shall be prima facie evidence of the interstate character of the shipment of the property.

This circuit has found that the following instruction complies with that statute and the applicable constitutional test of a statutory presumption:

Section 659 of Title 18 of U.S.C.A. further provides that:

To establish the interstate . . . commerce character of any shipment . . . the waybill or other shipping document of such shipment shall be prima facie evidence of the place from which and to which such shipment was made.

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

5. This definition of value is contained in 18 USC 641 and has been held applicable to section 659. United States v. Watson, 570 F.2d 282, 283-84 (8th Cir. 1978).

Committee Comments

"Embezzle" is defined in United States v. Scott, 592 F.2d at 1143. See also Instruction 6.18.656, supra.

For 2000 version see below

******************************************************************************************************************

2000 Version

The crime of theft from an [interstate] [foreign] shipment, as charged in [Count of] the indictment, has three essential elements, which are:

One, the defendant [embezzled] [stole] [obtained by fraud or deception]1 the property of another2 from a (describe interstate or foreign carrier);

Two, at that time this property [was moving as] [was part of] [constituted] a[n] [interstate] [foreign] shipment;

Three, at that time the value of the property was more than $100.00;3 and

Four, the defendant acted with the intent to convert the property temporarily or permanently to his own use.

[To "embezzle" means voluntarily and intentionally to take, or to convert to one's own use, the property of another, which property came into the defendant's possession lawfully.]

[To "steal" means to take with the intent to deprive the owner permanently or temporarily of the rights and benefits of ownership.]

A shipment becomes a[n] [interstate] [foreign] shipment as soon as it is assembled for movement across a [state line] [United States border] and remains one until it arrives at its final destination and is delivered.4

The word "value" means face, par, or market value, or cost price, either wholesale or retail, whichever is greater.5

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Committee Comments

See 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal §§ 31.01-31.08 (4th ed. 1990); Fifth Circuit Pattern Jury Instructions: Criminal § 2.36 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 20.1 (1997).

In this and other federal statutes the word "steal" or "stolen" has been given a broader meaning than larceny at common law. Accordingly this statute applies to any taking whereby a person dishonestly obtains goods belonging to another with the intent to deprive the owner of the rights and benefits of ownership. United States v. DeNormand, 149 F.2d 622, 624 (2d Cir.), cert. denied, 326 U.S. 756 (1945); United States v. Scott, 592 F.2d 1139, 1143 (10th Cir. 1979). See also United States v. Turley, 352 U.S. 407, 410-17 (1957). Thus, the Government need not prove that the defendant intended permanently to deprive an owner of property, which is an element of larceny. United States v. Shackelford, 777 F.2d 1141, 1143-45 (6th Cir. 1985), cert. denied, 476 U.S. 1119 (1986); United States v. Waronek, 582 F.2d 1158, 1160-62 (7th Cir. 1978).

"Embezzle" is defined in United States v. Scott, 592 F.2d at 1143. See also Instruction 6.18.656, supra.

The determination of whether goods are moving as an interstate shipment is to be based on practical considerations rather than technical distinctions. United States v. Crum, 663 F.2d 771 (8th Cir. 1981). An "interstate shipment" exists if the goods have been physically segregated for such shipment, even where interstate transport has not actually commenced in the sense of over-the-road travel. See United States v. Henneberry, 719 F.2d 941 (8th Cir. 1983); United States v. Gollin, 176 F.2d 889, 893-95 (3d Cir.), cert. denied, 338 U.S. 848 (1949). An interstate shipment does not lose its interstate character until it arrives at its final destination and is delivered. Crum, 663 F.2d at 771. See also United States v. Wetzel, 488 F.2d 153 (8th Cir. 1973).

Notes on Use

2. A more specific description of the property may be used instead of the general statutory language.

3. If there is a dispute over whether the value is greater or less than $100.00, a lesser included offense instruction may be given. If there is no dispute, a lesser included offense instruction is not necessary. United States v. Price, 447 F.2d 23 (2d Cir.), cert. denied, 404 U.S. 912 (1971). Alternatively, a special interrogatory could be submitted to the jury asking it whether it finds, beyond a reasonable doubt, that the item had a value of more than $100.00 at the time of the alleged offense.

4. United States v. Crum, 663 F.2d 771 (8th Cir. 1981); 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal §§ 31.05, 31.07 (4th ed. 1990); Fifth Circuit Pattern Jury Instructions: Criminal § 2.36 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 20.1 (1997).

The eighth paragraph of section 659 reads as follows:

To establish the interstate or foreign commerce character of any shipment in any prosecution under this section the waybill or other shipping document of such shipment shall be prima facie evidence of the place from which and to which such shipment was made. The removal of property from a pipeline system which extends interstate shall be prima facie evidence of the interstate character of the shipment of the property.

This circuit has found that the following instruction complies with that statute and the applicable constitutional test of a statutory presumption:

Section 659 of Title 18 of U.S.C.A. further provides that:

To establish the interstate . . . commerce character of any shipment . . . the waybill or other shipping document of such shipment shall be prima facie evidence of the place from which and to which such shipment was made.

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

United States v. Franklin, 568 F.2d 1156, 1157 (8th Cir.), cert. denied, 435 U.S. 955 (1978). See further Committee Comments, Instruction 4.13, supra, relating to instructions on statutory inferences. See also 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal §§ 31.05, 31.07 (4th ed. 1990); Fifth Circuit Pattern Jury Instructions: Criminal § 2.36 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 20.1 (1997).

5. This definition of value is contained in 18 USC 641 and has been held applicable to section 659. United States v. Watson, 570 F.2d 282, 283-84 (8th Cir. 1978).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.659B PURCHASE, RECEIPT OR POSSESSION OF PROPERTY
STOLEN FROM AN INTERSTATE SHIPMENT
(18 USC 659) (Second Paragraph)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Theft From Interstate Shipment (18 USC 659) (First Paragraph)

See FORECITE National™ Federal Models By Offense: Buying Or Receiving Goods Stolen From Interstate Shipment (18 USC 659) (Second Paragraph)

The crime of receiving property which has been stolen from an [interstate] [foreign] shipment, as charged in [Count of] the indictment, has four elements, which are:

One, property¹ was [embezzled] [stolen] [obtained by fraud or deception]² from a (describe interstate or foreign carrier) while it [was moving as] [was part of] [constituted] a[n] [interstate] [foreign] shipment;

Two, the defendant [bought] [received] [possessed] that property;

Three, at that time the value of the property was more than $100.00;³ and

Four, at the time that the defendant [bought] [received] [possessed] such property, he knew that it had been [embezzled] [stolen] [obtained by fraud or deception].

[Property has been "embezzled" if it has been voluntarily and intentionally taken or converted to the use of someone other than the owner, after it came into that person's possession lawfully.]

[Property has been "stolen" if it has been taken with the intent to permanently or temporarily deprive the owner of the rights and benefits of ownership.]

A shipment becomes a[n] [interstate] [foreign] shipment as soon as it is assembled for movement across a [state line] [United States border] and remains one until it arrives at its final destination and is delivered.⁴

The word "value" means face, par, or market value, or cost price, either wholesale or retail, whichever is greater.⁵

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. A more specific description of the property may be used instead of the more general statutory language.

2. The statute may also be violated by receiving property that has been "unlawfully" "taken," "carried away" or "concealed." If any one of the "unlawful" alternatives is charged, and a definition of "unlawfully" is requested, "unlawfully" should be defined in terms of the specific manner in which the conduct is alleged to be unlawful.

4. United States v. Crum, 663 F.2d 771 (8th Cir. 1981); 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 34.05, 34.07 (5th ed. 2000); Fifth Circuit Pattern Jury Instructions: Criminal § 2.37 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 20.2 (1997)

The eighth paragraph of section 659 reads as follows:

To establish the interstate or foreign commerce character of any shipment in any prosecution under this section the waybill or other shipping document of such shipment shall be prima facie evidence of the place from which and to which such shipment was made. The removal of property from a pipeline system which extends interstate shall be prima facie evidence of the interstate character of the shipment of the property.

This circuit has found that the following instruction complies with that statute and the applicable constitutional test of a statutory presumption:

Section 659 of Title 18 of U.S.C.A. further provides that:

To establish the interstate . . . commerce character of any shipment . . . the waybill or other shipping document of such shipment shall be prima facie evidence of the place from which and to which such shipment was made.

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

United States v. Franklin, 568 F.2d 1156, 1157 (8th Cir. 1978). See further Committee Comments, Instruction 4.13, supra, relating to instructions on statutory inferences. See also 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 34.05, 34.07 (5th ed. 2000); Fifth Circuit Pattern Jury Instructions: Criminal § 2.37 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 20.2 (1997).

5. This definition of value is contained in 18 USC 641 and has been held applicable to section 659. United States v. Watson, 570 F.2d 282, 283-84 (8th Cir. 1978).

Committee Comments

See Fifth Circuit Pattern Jury Instructions: Criminal § 2.37 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 20.2 (1997); United States v. Beck, 659 F.2d 875 (8th Cir. 1981); United States v. Mavrick, 601 F.2d 921, 927 (7th Cir. 1979).

See Committee Comments, Instruction 6.18.659A, supra.

The goods must be part of an interstate shipment only when stolen; it is not necessary that they be so when the receiving or possession occurs. United States v. Tyers, 487 F.2d 828, 830 (2d Cir. 1973); Winer v. United States, 228 F.2d 944, 947 (6th Cir. 1956); United States v. Gollin, 166 F.2d 123, 125 (3d Cir. 1948).

The defendant must know that the goods were stolen, but need not know they were stolen from an interstate shipment. United States v. Allegretti, 340 F.2d 243, 247 (7th Cir. 1964). Possession of recently stolen goods gives rise to a permissible inference of knowledge that the goods are stolen unless possession is otherwise explained. United States v. Humphrey, 696 F.2d 72, 74 (8th Cir. 1982); United States v. Dugan, 477 F.2d 140, 142 (8th Cir. 1973). See Committee Comments, Instruction 4.13, supra.

Possession may be sole or joint and includes both actual and constructive possession. United States v. Dugan, 477 F.2d at 141, which defined constructive possession as "knowingly having both the power and the intention at a given time to exercise dominion or control over the property." See Instruction 8.02, infra, for an instruction defining possession.

If the defendant claims innocent possession the burden is on the defendant to produce such evidence and raise it as a defense; it is not an element of the crime to be proved by the government. United States v. Mavrick, 601 F.2d 921, 926-27 (7th Cir. 1979).

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

The crime of receiving property which has been stolen from an [interstate] [foreign] shipment, as charged in [Count of] the indictment, has four elements, which are:

One, property¹ was [embezzled] [stolen] [obtained by fraud or deception]² from a (describe interstate or foreign carrier) while it [was moving as] [was part of] [constituted] a[n] [interstate] [foreign] shipment;

Two, the defendant [bought] [received] [possessed] that property;

Three, at that time the value of the property was more than $100.00;³ and

Four, at the time that the defendant [bought] [received] [possessed] such property, he knew that it had been [embezzled] [stolen] [obtained by fraud or deception].

[Property has been "embezzled" if it has been voluntarily and intentionally taken or converted to the use of someone other than the owner, after it came into that person's possession lawfully.]

[Property has been "stolen" if it has been taken with the intent to permanently or temporarily deprive the owner of the rights and benefits of ownership.]

A shipment becomes a[n] [interstate] [foreign] shipment as soon as it is assembled for movement across a [state line] [United States border] and remains one until it arrives at its final destination and is delivered.⁴

The word "value" means face, par, or market value, or cost price, either wholesale or retail, whichever is greater.⁵

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. A more specific description of the property may be used instead of the more general statutory language.

4. United States v. Crum, 663 F.2d 771 (8th Cir. 1981); 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 34.05, 34.07 (5th ed. 2000); Fifth Circuit Pattern Jury Instructions: Criminal § 2.37 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 20.2 (1997)

The eighth paragraph of section 659 reads as follows:

To establish the interstate or foreign commerce character of any shipment in any prosecution under this section the waybill or other shipping document of such shipment shall be prima facie evidence of the place from which and to which such shipment was made. The removal of property from a pipeline system which extends interstate shall be prima facie evidence of the interstate character of the shipment of the property.

This circuit has found that the following instruction complies with that statute and the applicable constitutional test of a statutory presumption:

Section 659 of Title 18 of U.S.C.A. further provides that:

To establish the interstate . . . commerce character of any shipment . . . the waybill or other shipping document of such shipment shall be prima facie evidence of the place from which and to which such shipment was made.

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

United States v. Franklin, 568 F.2d 1156, 1157 (8th Cir. 1978). See further Committee Comments, Instruction 4.13, supra, relating to instructions on statutory inferences. See also 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 34.05, 34.07 (5th ed. 2000); Fifth Circuit Pattern Jury Instructions: Criminal § 2.37 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 20.2 (1997).

5. This definition of value is contained in 18 USC 641 and has been held applicable to section 659. United States v. Watson, 570 F.2d 282, 283-84 (8th Cir. 1978).

Committee Comments

See Committee Comments, Instruction 6.18.659A, supra.

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

The crime of receiving property which has been stolen from an [interstate] [foreign] shipment, as charged in [Count of] the indictment, has four elements, which are:

One, property1 was [embezzled] [stolen] [obtained by fraud or deception]2 from a (describe interstate or foreign carrier) while it [was moving as] [was part of] [constituted] a[n] [interstate] [foreign] shipment;

Two, the defendant [bought] [received] [possessed] that property;

Three, at that time the value of the property was more than $100.00;3 and

Four, at the time that the defendant [bought] [received] [possessed] such property, he knew that it had been [embezzled] [stolen] [obtained by fraud or deception].

[Property has been "embezzled" if it has been voluntarily and intentionally taken or converted to the use of someone other than the owner, after it came into that person's possession lawfully.]

[Property has been "stolen" if it has been taken with the intent to permanently or temporarily deprive the owner of the rights and benefits of ownership.]

A shipment becomes a[n] [interstate] [foreign] shipment as soon as it is assembled for movement across a [state line] [United States border] and remains one until it arrives at its final destination and is delivered.4

The word "value" means face, par, or market value, or cost price, either wholesale or retail, whichever is greater.5

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. A more specific description of the property may be used instead of the more general statutory language.

4. United States v. Crum, 663 F.2d 771 (8th Cir. 1981); 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 34.05, 34.07 (5th ed. 2000); Fifth Circuit Pattern Jury Instructions: Criminal § 2.37 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 20.2 (1997)

The eighth paragraph of section 659 reads as follows:

To establish the interstate or foreign commerce character of any shipment in any prosecution under this section the waybill or other shipping document of such shipment shall be prima facie evidence of the place from which and to which such shipment was made. The removal of property from a pipeline system which extends interstate shall be prima facie evidence of the interstate character of the shipment of the property.

This circuit has found that the following instruction complies with that statute and the applicable constitutional test of a statutory presumption:

Section 659 of Title 18 of U.S.C.A. further provides that:

To establish the interstate . . . commerce character of any shipment . . . the waybill or other shipping document of such shipment shall be prima facie evidence of the place from which and to which such shipment was made.

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

United States v. Franklin, 568 F.2d 1156, 1157 (8th Cir. 1978). See further Committee Comments, Instruction 4.13, supra, relating to instructions on statutory inferences. See also 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 34.05, 34.07 (5th ed. 2000); Fifth Circuit Pattern Jury Instructions: Criminal § 2.37 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 20.2 (1997).

5. This definition of value is contained in 18 USC 641 and has been held applicable to section 659. United States v. Watson, 570 F.2d 282, 283-84 (8th Cir. 1978).

Committee Comments

See Committee Comments, Instruction 6.18.659A, supra.

For 2000 version see below

******************************************************************************************************************

2000 Version

The crime of receiving property which has been stolen from an [interstate] [foreign] shipment, as charged in [Count of] the indictment, has four essential elements, which are:

One, property1 was [embezzled] [stolen] [obtained by fraud or deception]2 from a (describe interstate or foreign carrier) while it [was moving as] [was part of] [constituted] a[n] [interstate] [foreign] shipment;

Two, the defendant [bought] [received] [possessed] that property;

Three, at that time the value of the property was more than $100.00;3 and

Four, at the time that the defendant [bought] [received] [possessed] such property, he knew that it had been [embezzled] [stolen] [obtained by fraud or deception].

[Property has been "embezzled" if it has been voluntarily and intentionally taken or converted to the use of someone other than the owner, after it came into that person's possession lawfully.] [Property has been "stolen" if it has been taken with the intent to permanently or temporarily deprive the owner of the rights and benefits of ownership.]

A shipment becomes a[n] [interstate] [foreign] shipment as soon as it is assembled for movement across a [state line] [United States border] and remains one until it arrives at its final destination and is delivered.4 The word "value" means face, par, or market value, or cost price, either wholesale or retail, whichever is greater.5

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Committee Comments

See Committee Comments, Instruction 6.18.659A, supra.

The goods must be part of an interstate shipment only when stolen; it is not necessary that they be so when the receiving or possession occurs. United States v. Tyers, 487 F.2d 828, 830 (2d Cir. 1973), cert. denied, 416 U.S. 971 (1974); Winer v. United States, 228 F.2d 944, 947 (6th Cir.), cert. denied, 351 U.S. 906 (1956); United States v. Gollin, 166 F.2d 123, 125 (3d Cir.), cert. denied, 338 U.S. 848 (1948).

The defendant must know that the goods were stolen, but need not know they were stolen from an interstate shipment. United States v. Allegretti, 340 F.2d 243, 247 (7th Cir. 1964), cert. denied, 381 U.S. 911 (1965). Possession of recently stolen goods gives rise to a permissible inference of knowledge that the goods are stolen unless possession is otherwise explained. United States v. Humphrey, 696 F.2d 72, 74 (8th Cir. 1982), cert. denied, 459 U.S. 1222 (1983); United States v. Dugan, 477 F.2d 140, 142 (8th Cir. 1973). See Committee Comments, Instruction 4.13, supra.

Notes on Use

1. A more specific description of the property may be used instead of the more general statutory language.

3. If there is a dispute over whether the value is greater or less than $100.00, a lesser included offense instruction may be given. If there is no dispute, a lesser included offense instruction is not necessary. United States v. Price, 447 F.2d 23 (2d Cir.), cert. denied, 404 U.S. 912 (1971). Alternatively, a special interrogatory could be submitted to the jury asking it whether it finds, beyond a reasonable doubt, that the item had a value of more than $100.00 at the time of the alleged offense.

4. United States v. Crum, 663 F.2d 771 (8th Cir. 1981); 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal §§ 31.05, 31.07 (4th ed. 1990); Fifth Circuit Pattern Jury Instructions: Criminal § 2.37 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 20.2 (1997)

The eighth paragraph of section 659 reads as follows:

To establish the interstate or foreign commerce character of any shipment in any prosecution under this section the waybill or other shipping document of such shipment shall be prima facie evidence of the place from which and to which such shipment was made. The removal of property from a pipeline system which extends interstate shall be prima facie evidence of the interstate character of the shipment of the property.

This circuit has found that the following instruction complies with that statute and the applicable constitutional test of a statutory presumption:

Section 659 of Title 18 of U.S.C.A. further provides that:

To establish the interstate . . . commerce character of any shipment . . . the waybill or other shipping document of such shipment shall be prima facie evidence of the place from which and to which such shipment was made.

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

United States v. Franklin, 568 F.2d 1156, 1157 (8th Cir.), cert. denied, 435 U.S. 955 (1978). See further Committee Comments, Instruction 4.13, supra, relating to instructions on statutory inferences. See also 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal §§ 31.05, 31.07 (4th ed. 1990); Fifth Circuit Pattern Jury Instructions: Criminal § 2.37 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 20.2 (1997).

5. This definition of value is contained in 18 USC 641 and has been held applicable to section 659. United States v. Watson, 570 F.2d 282, 283-84 (8th Cir. 1978).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.666A THEFT CONCERNING A PROGRAM RECEIVING
FEDERAL FUNDS
(18 USC 666(a)(1)(A))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Theft Concerning Federally Funded Program--Elements (18 USC 666(a)(1)(A))

The crime of [embezzlement] [theft] [fraud] [conversion] [misapplication] concerning a program receiving Federal funds, as charged in [Count ___ of] the indictment, has four elements, which are:

One: the defendant was an agent of (name of organization, agency or governmental unit);

Two: [on or about (insert date)] [during the period between (insert beginning and ending dates)], the defendant [embezzled] [stole] [obtained by fraud] [converted to the use of (name of person) without authority] [intentionally misapplied]¹ property of a value² of $5,000 or more [as part of a single scheme or plan];³

Three: the property was [owned by] [under the (care) (custody) (control)] of (name of organization, agency or governmental unit);

Four: (name of organization, agency or governmental unit) received benefits in excess of $10,000 in the one-year period beginning (insert date), pursuant to a federal program involving a [grant] [contract] [subsidy] [loan] [guarantee] [insurance] [(describe some other form of federal assistance)].

As used in this instruction, the term "agent" means a person authorized to act on behalf of (insert name of organization, agency or governmental unit) and includes [(an) (a)] [employee] [partner] [director] [officer] [manager] [representative].⁴

[To "embezzle" means knowingly, voluntarily and intentionally to take, or to convert to one's own use, the property of another which came into the defendant's possession lawfully.]⁵

[To "steal" means knowingly to take with the intent to deprive the owner permanently or temporarily of the rights and benefits of ownership.]⁶

[To "obtain by fraud" means to act knowingly and with intent to deceive or cheat, usually for the purpose of causing a financial loss to someone else or bringing about a financial gain to oneself or another.]⁷

["Conversion" means the deliberate taking or retaining of the money or property of another with the intent to deprive the owner of its use or benefit either temporarily or permanently. Conversion includes the misuse or abuse of property as well as use in an unauthorized manner or to an unauthorized extent.]⁸

[To "misapply" means to use the funds or property of (name of organization, agency or governmental unit) knowing that such use is unauthorized, or unjustifiable or wrongful. Misapplication includes the wrongful taking or use of the money or property of (name of organization, agency or governmental unit) by its agent for [(his) (her) own benefit] [the use or benefit of some other person]⁹ [an unauthorized purpose, even if such use benefitted (name of organization, agency or governmental unit)].¹⁰

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. When alternative means of commission of the crime are charged and submitted, see FRCP 7(c)(1) and Committee Comments to Instruction 11.02, infra; Note 2, Instruction 6.18.1341, infra; and Note 4, Instruction 6.18.1951, infra. If two or more means are submitted to the jury, consideration should be given to whether a unanimity instruction is appropriate.

2. A definition of the term "value" can be found in Instruction 6.18.641, supra.

3. "Under section 666, where multiple conversions are part of a single scheme, it seems appropriate to aggregate the value of property stolen in order to reach the $5,000 minimum required for prosecution." United States v. Sanderson, 966 F.2d 184, 189 (6th Cir. 1992); see also United States v. Billingslea, 603 F.2d 515, 520 (5th Cir. 1979) ("[F]ormulation of a plan or scheme or setting up of a mechanism which, when put into operation, will result in the taking or diversions of sums of money on a recurring basis will produce but one crime [under § 665]."); United States v. Brown, 521 F. Supp. 511 (W.D. Wis. 1981) (a continuing course of conduct reflecting a single intent may be prosecuted in a single aggregate count for violations of 18 USC 665).

4. See 18 USC 666(d)(1). The Committee recommends that the definition of "agent" be tailored to conform to the facts of each case by selecting one or more of the alternatives in section 666(d)(1) that have been established by the evidence.

5. See Instruction 6.18.641, supra. This definition should be used if the term "embezzled" is used in Element Two.

6. See Instruction 6.18.659A, supra; Morissette v. United States, 342 U.S. 246, 271 (1952). This definition should be used if the term "stole" is used in Element Two.

7. See Instruction 6.18.1341, infra. This definition should be used if the term "obtained by fraud" is used in Element Two.

8. See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 16.03 (5th ed. 2000). This definition should be used if the term "converted" is used in Element Two.

9. The Dictionary Act, 1 USC 1, provides in relevant part "that ‘in determining the meaning of any Act of Congress, unless the context indicates otherwise’ ‘person’ includes ‘associations’ and other artificial entities such as corporations and societies." Rowland v. California Men’s Colony, 506 U.S. 194 (1993).

10. See Instruction 6.18.656, supra; United States v. Urlacher, 979 F.2d 935, 938 (2d Cir. 1992); Instruction 6.18.2314, infra; United States v. Miller, 725 F.2d 462, 468 (8th Cir. 1984). This definition should be used if the term "misapplied" is used in Element Two.

Committee Comments

Section 666 was "designed to create new offenses to augment the ability of the United States to vindicate significant acts of theft, fraud, and bribery involving Federal monies which are disbursed to private organizations or State and local governments pursuant to a federal program." S. Rep. No. 225, at 369, 98th Cong., 2d Sess., reprinted in 1984 U.S. Code Cong. & Admin. News 3182, 3510. "Thus it seems Congress intended this statute to augment the prosecutorial powers of 18 U.S.C. §§ 641 and 665." United States v. Sanderson, 966 F.2d 184, 188 (6th Cir. 1992).

The Committee believes that where a violation of 18 USC 666 requires proof of a specific intent element, the requisite intent is set forth in the applicable definition. As the instruction is drafted, the definition of the term used in Element Two is required to supply the appropriate specific intent.

"Conversion . . . may be consummated without any intent to keep and without any wrongful taking, where the initial possession by the converter was entirely lawful. Conversion may include misuse or abuse of property. It may reach use in an unauthorized manner or to an unauthorized extent of property placed in one's custody for limited use. Money rightfully taken into one's custody may be converted without any intent to keep or embezzle it merely by commingling it with the custodian's own, if he was under a duty to keep it separate and intact." Morissette v. United States, 342 U.S. 246, 271-72 (1952). The Committee believes that in most cases "conversion" is among the types of criminal activities subsumed within the ambit of "misapplication." See United States v. Krepps, 605 F.2d 101, 104 (3d Cir. 1979), 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 16.01, 16.03 (5th ed. 2000).

"The language in Section 666 is clear that it is not an element of this crime that the government trace the $5,000 to specific federal government funds." United States v. Smith, 659 F. Supp. 833, 835 (S.D. Miss. 1987). "Congress specifically chose . . . [to] enact a criminal statute that would eliminate the need to trace the flow of federal monies and that would avoid inconsistencies caused by the different ways that various federal programs disburse funds and control their administration." United States v. Westmoreland, 841 F.2d 572, 576 (5th Cir. 1988) (Congress desired to protect the integrity of federal funds by assuring the integrity of the organization or agencies that receive them); see also United States v. Rooney, 986 F.2d 31, 34 (2d Cir. 1993).

"The principal policy objective behind § 666 is to protect the integrity of the vast sums of money distributed through Federal programs." United States v. Rooney, 986 F.2d 31, 34 (2d Cir. 1993). The Senate Judiciary Committee Report accompanying the statute states that "[t]he Committee intends that the term 'Federal program involving a grant, a contract, a subsidy, a loan, a guarantee, insurance or another form of Federal Assistance' be broadly construed, consistent with the purpose of this section to protect the integrity of the vast sums of money distributed through Federal programs from theft, fraud, and undue influence by bribery. However, the concept is not unlimited. The term 'Federal program' means that there must exist a specific statutory scheme authorizing the Federal assistance in order to promote or achieve certain policy objectives." S. Rep. No. 225, 98th Cong., 2d Sess. 369 (1984); see also United States v. Peery, 977 F.2d 1230, 1232 (8th Cir. 1992).

"The term 'in any one-year period' means a continuous period that commences no earlier than twelve months before the commission of the offense or that ends no later than twelve months after the commission of the offense. Such period may include time both before and after the commission of the offense." 18 USC 666(d)(5).

Section 666(c) was added by amendment in 1986 to avoid the possible application of the statute to acceptable commercial and business practices, and the provision closely parallels the bank bribery provision found in 18 USC 215. See H.R. Rep. No. 797, 99th Cong., 2d Sess. 1986, reprinted in 1986 U.S. Code Cong. & Admin. News, 6138, 6153. However, this provision does not exempt from criminal liability the willful misappropriation of funds that are used for otherwise legitimate purposes. "Section 666(a)(1)(A) prohibits embezzling, stealing, obtaining by fraud, converting, or intentionally misapplying funds. The first four prohibitions cover any possible taking of money for one's own use or benefit. Intentional misapplication, in order to avoid redundancy, must mean intentional misapplication for otherwise legitimate purposes; if it were for illegitimate purposes, it would be covered by the prohibitions against embezzlement, stealing, obtaining by fraud, or conversion." United States v. Urlacher, 979 F.2d 935, 938 (2d Cir. 1992).

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

The crime of [embezzlement] [theft] [fraud] [conversion] [misapplication] concerning a program receiving Federal funds, as charged in [Count ___ of] the indictment, has four elements, which are:

One: the defendant was an agent of (name of organization, agency or governmental unit);

Two: [on or about (insert date)] [during the period between (insert beginning and ending dates)], the defendant [embezzled] [stole] [obtained by fraud] [converted to the use of (name of person) without authority] [intentionally misapplied]¹ property of a value² of $5,000 or more [as part of a single scheme or plan];³

Three: the property was [owned by] [under the (care) (custody) (control)] of (name of organization, agency or governmental unit);

Four: (name of organization, agency or governmental unit) received benefits in excess of $10,000 in the one-year period beginning (insert date), pursuant to a federal program involving a [grant] [contract] [subsidy] [loan] [guarantee] [insurance] [(describe some other form of federal assistance)].

As used in this instruction, the term "agent" means a person authorized to act on behalf of (insert name of organization, agency or governmental unit) and includes [(an) (a)] [employee] [partner] [director] [officer] [manager] [representative].⁴

[To "embezzle" means knowingly, voluntarily and intentionally to take, or to convert to one's own use, the property of another which came into the defendant's possession lawfully.]⁵

[To "steal" means knowingly to take with the intent to deprive the owner permanently or temporarily of the rights and benefits of ownership.]⁶

[To "obtain by fraud" means to act knowingly and with intent to deceive or cheat, usually for the purpose of causing a financial loss to someone else or bringing about a financial gain to oneself or another.]⁷

["Conversion" means the deliberate taking or retaining of the money or property of another with the intent to deprive the owner of its use or benefit either temporarily or permanently. Conversion includes the misuse or abuse of property as well as use in an unauthorized manner or to an unauthorized extent.]⁸

[To "misapply" means to use the funds or property of (name of organization, agency or governmental unit) knowing that such use is unauthorized, or unjustifiable or wrongful. Misapplication includes the wrongful taking or use of the money or property of (name of organization, agency or governmental unit) by its agent for [(his) (her) own benefit] [the use or benefit of some other person]⁹ [an unauthorized purpose, even if such use benefitted (name of organization, agency or governmental unit)].¹⁰

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

2. A definition of the term "value" can be found in Instruction 6.18.641, supra.

5. See Instruction 6.18.641, supra. This definition should be used if the term "embezzled" is used in Element Two.

6. See Instruction 6.18.659A, supra; Morissette v. United States, 342 U.S. 246, 271 (1952). This definition should be used if the term "stole" is used in Element Two.

7. See Instruction 6.18.1341, infra. This definition should be used if the term "obtained by fraud" is used in Element Two.

8. See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 16.03 (5th ed. 2000). This definition should be used if the term "converted" is used in Element Two.

Committee Comments

Section 666 was "designed to create new offenses to augment the ability of the United States to vindicate significant acts of theft, fraud, and bribery involving Federal monies which are disbursed to private organizations or State and local governments pursuant to a federal program." S. Rep. No. 225, at 369, 98th Cong., 2d Sess., reprinted in 1984 U.S. Code Cong. & Admin. News 3182, 3510. "Thus it seems Congress intended this statute to augment the prosecutorial powers of 18 USC§ 641 and 665." United States v. Sanderson, 966 F.2d 184, 188 (6th Cir. 1992).

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

The crime of [embezzlement] [theft] [fraud] [conversion] [misapplication] concerning a program receiving Federal funds, as charged in [Count ___ of] the indictment, has four elements, which are:

One: the defendant was an agent of (name of organization, agency or governmental unit);

Two: [on or about (insert date)] [during the period between (insert beginning and ending dates)], the defendant [embezzled] [stole] [obtained by fraud] [converted to the use of (name of person) without authority] [intentionally misapplied]1 property of a value2 of $5,000 or more [as part of a single scheme or plan];3

Three: the property was [owned by] [under the (care) (custody) (control)] of (name of organization, agency or governmental unit);

Four: (name of organization, agency or governmental unit) received benefits in excess of $10,000 in the one-year period beginning (insert date), pursuant to a federal program involving a [grant] [contract] [subsidy] [loan] [guarantee] [insurance] [(describe some other form of federal assistance)].

As used in this instruction, the term "agent" means a person authorized to act on behalf of (insert name of organization, agency or governmental unit) and includes [(an) (a)] [employee] [partner] [director] [officer] [manager] [representative].4

[To "embezzle" means knowingly, voluntarily and intentionally to take, or to convert to one's own use, the property of another which came into the defendant's possession lawfully.]5

[To "steal" means knowingly to take with the intent to deprive the owner permanently or temporarily of the rights and benefits of ownership.]6

[To "obtain by fraud" means to act knowingly and with intent to deceive or cheat, usually for the purpose of causing a financial loss to someone else or bringing about a financial gain to oneself or another.]7

["Conversion" means the deliberate taking or retaining of the money or property of another with the intent to deprive the owner of its use or benefit either temporarily or permanently. Conversion includes the misuse or abuse of property as well as use in an unauthorized manner or to an unauthorized extent.]8

[To "misapply" means to use the funds or property of (name of organization, agency or governmental unit) knowing that such use is unauthorized, or unjustifiable or wrongful. Misapplication includes the wrongful taking or use of the money or property of (name of organization, agency or governmental unit) by its agent for [(his) (her) own benefit] [the use or benefit of some other person]9 [an unauthorized purpose, even if such use benefitted (name of organization, agency or governmental unit)].10

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

2. A definition of the term "value" can be found in Instruction 6.18.641, supra.

5. See Instruction 6.18.641, supra. This definition should be used if the term "embezzled" is used in Element Two.

6. See Instruction 6.18.659A, supra; Morissette v. United States, 342 U.S. 246, 271 (1952). This definition should be used if the term "stole" is used in Element Two.

7. See Instruction 6.18.1341, infra. This definition should be used if the term "obtained by fraud" is used in Element Two.

8. See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 16.03 (5th ed. 2000). This definition should be used if the term "converted" is used in Element Two.

Committee Comments

Section 666 was "designed to create new offenses to augment the ability of the United States to vindicate significant acts of theft, fraud, and bribery involving Federal monies which are disbursed to private organizations or State and local governments pursuant to a federal program." S. Rep. No. 225, at 369, 98th Cong., 2d Sess., reprinted in 1984 U.S. Code Cong. & Admin. News 3182, 3510. "Thus it seems Congress intended this statute to augment the prosecutorial powers of 18 USC 641 and 665." United States v. Sanderson, 966 F.2d 184, 188 (6th Cir. 1992).

For 2000 version see below

******************************************************************************************************************

2000 Version

The crime of [embezzlement] [theft] [fraud] [conversion] [misapplication] concerning a program receiving Federal funds, as charged in [Count ___ of] the indictment, has four essential elements, which are:

One: the defendant was an agent of (name of organization, agency or governmental unit);

Two: [on or about (insert date)] [during the period between (insert beginning and ending dates)], the defendant [embezzled] [stole] [obtained by fraud] [converted to the use of (name of person) without authority] [intentionally misapplied]1 property of a value2 of $5,000 or more [as part of a single scheme or plan];3

Three: the property was [owned by] [under the (care) (custody) (control)] of (name of organization, agency or governmental unit);

Four: (name of organization, agency or governmental unit) received benefits in excess of $10,000 in the one-year period beginning (insert date), pursuant to a federal program involving a [grant] [contract] [subsidy] [loan] [guarantee] [insurance] [(describe some other form of federal assistance)].

As used in this instruction, the term "agent" means a person authorized to act on behalf of (insert name of organization, agency or governmental unit) and includes [(an) (a)] [employee] [partner] [director] [officer] [manager] [representative].4

[To "embezzle" means knowingly, voluntarily and intentionally to take, or to convert to one's own use, the property of another which came into the defendant's possession lawfully.]5

[To "steal" means knowingly to take with the intent to deprive the owner permanently or temporarily of the rights and benefits of ownership.]6

[To "obtain by fraud" means to act knowingly and with intent to deceive or cheat, usually for the purpose of causing a financial loss to someone else or bringing about a financial gain to oneself or another.]7

["Conversion" means the deliberate taking or retaining of the money or property of another with the intent to deprive the owner of its use or benefit either temporarily or permanently. Conversion includes the misuse or abuse of property as well as use in an unauthorized manner or to an unauthorized extent.]8

[To "misapply" means to use the funds or property of (name of organization, agency or

governmental unit) knowing that such use is unauthorized, or unjustifiable or wrongful. Misapplication includes the wrongful taking or use of the money or property of (name of organization, agency or governmental unit) by its agent for [(his) (her) own benefit] [the use or benefit of some other person]9 [an unauthorized purpose, even if such use benefitted (name of organization, agency or governmental unit)].10

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Committee Comments

Section 666 was "designed to create new offenses to augment the ability of the United States to vindicate significant acts of theft, fraud, and bribery involving Federal monies which are disbursed to private organizations or State and local governments pursuant to a federal program." S. Rep. No. 225, at 369, 98th Cong., 2d Sess., reprinted in 1984 U.S. Code Cong. & Admin. News 3182, 3510. "Thus it seems Congress intended this statute to augment the prosecutorial powers of 18 USC§ 641 and 665." United States v. Sanderson, 966 F.2d 184, 188 (6th Cir. 1992).

"Conversion . . . may be consummated without any intent to keep and without any wrongful taking, where the initial possession by the converter was entirely lawful. Conversion may include misuse or abuse of property. It may reach use in an unauthorized manner or to an unauthorized extent of property placed in one's custody for limited use. Money rightfully taken into one's custody may be converted without any intent to keep or embezzle it merely by commingling it with the custodian's own, if he was under a duty to keep it separate and intact." Morissette v. United States, 342 U.S. 246, 271-72 (1952). The Committee believes that in most cases "conversion" is among the types of criminal activities subsumed within the ambit of "misapplication." See United States v. Krepps, 605 F.2d 101, 104 (3d Cir. 1979), 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 30.05 Notes (4th ed. 1990)

"The language in Section 666 is clear that it is not an essential element of this crime that the government trace the $5,000 to specific federal government funds." United States v. Smith, 659 F. Supp. 833, 835 (S.D. Miss. 1987). "Congress specifically chose . . . [to] enact a criminal statute that would eliminate the need to trace the flow of federal monies and that would avoid inconsistencies caused by the different ways that various federal programs disburse funds and control their administration." United States v. Westmoreland, 841 F.2d 572, 576 (5th Cir.), cert. denied, 488 U.S. 820 (1988) (Congress desired to protect the integrity of federal funds by assuring the integrity of the organization or agencies that receive them); see also United States v. Rooney, 986 F.2d 31, 34 (2d Cir. 1993).

"The principal policy objective behind § 666 is to protect the integrity of the vast sums of money distributed through Federal programs." United States v. Rooney, 986 F.2d 31, 34 (2d Cir. 1993). The Senate Judiciary Committee Report accompanying the statute states that "[t]he Committee intends that the term 'Federal program involving a grant, a contract, a subsidy, a loan, a guarantee, insurance or another form of Federal Assistance' be broadly construed, consistent with the purpose of this section to protect the integrity of the vast sums of money distributed through Federal programs from theft, fraud, and undue influence by bribery. However, the concept is not unlimited. The term 'Federal program' means that there must exist a specific statutory scheme authorizing the Federal assistance in order to promote or achieve certain policy objectives." S. Rep. No. 225, 98th Cong., 2d Sess. 369 (1984); see also United States v. Peery, 977 F.2d 1230, 1232 (8th Cir. 1992), cert. denied, 507 U.S. 946 (1993).

Notes on Use

1. When alternative means of commission of the crime are charged and submitted, see FRCP 7(c)(1) and Committee Comments to Instruction No. 11.02; Instruction No. 6.18.1341, Notes on Use No. 2; and Instruction No. 6.18.1951, Notes on Use No. 4. If two or more means are submitted to the jury, consideration should be given to whether a unanimity instruction is appropriate.

2. A definition of the term "value" can be found in Instruction No. 6.18.641.

3. "Under section 666, where multiple conversions are part of a single scheme, it seems appropriate to aggregate the value of property stolen in order to reach the $5,000 minimum required for prosecution." United States v. Sanderson, 966 F.2d 184, 189 (6th Cir. 1992); see also United States v. Billingslea, 603 F.2d 515, 520 (5th Cir. 1979) ("[F]ormulation of a plan or scheme or setting up of a mechanism which, when put into operation, will result in the taking or diversions of sums of money on a recurring basis will produce but one crime [under § 665]."); United States v. Brown, 521 F. Supp. 511 (W.D. Wis. 1981) (a continuing course of conduct reflecting a single intent may be prosecuted in a single aggregate count for violations of 18 USC 665).

5. See Instruction No. 6.18.641. This definition should be used if the term "embezzled" is used in Element Two.

6. See Instruction No. 6.18.659A; Morissette v. United States, 342 U.S. 246, 271 (1952). This definition should be used if the term "stole" is used in Element Two.

7. See Instruction No. 6.18.1341. This definition should be used if the term "obtained by fraud" is used in Element Two.

8. See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 16.03 (4th ed. 1992). This definition should be used if the term "converted" is used in Element Two.

10. See Instruction No. 6.18.656; United States v. Urlacher, 979 F.2d 935, 938 (2d Cir. 1992); Instruction No. 6.18.2314; United States v. Miller, 725 F.2d 462, 468 (8th Cir. 1984). This definition should be used if the term "misapplied" is used in Element Two.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.666B SOLICITATION OR ACCEPTANCE OF A BRIBE BY AN AGENT
OF A PROGRAM RECEIVING FEDERAL FUNDS
(18 USC 666(a)(1)(B))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Bribery Concerning Federally Funded Program--Elements (18 USC 666(a)(1)(B))

The crime of [soliciting] [demanding] [accepting] [agreeing to accept] a bribe by an agent of a program receiving Federal funds, as charged in [Count ___ of] the indictment, has four elements, which are:

One: the defendant was an agent of (name of organization, agency or governmental unit);

Two: [on or about (insert date)] [during the period between (insert beginning and ending dates)], the defendant corruptly [[solicited] [demanded] for the benefit of [(name of person or entity)] [another person]¹] [[accepted] [agreed to accept] from (name of person or entity)], something of value, that is (describe the thing of value), in connection with (briefly describe in summary form the business, transaction, or series of transactions, e.g., a contract for the purchase of office supplies);

Three: the (business, transaction(s), e.g., the contract) involved something of a value² of $5,000 or more;

Four: (name of organization, agency or governmental unit) received benefits in excess of $10,000 in the one-year period beginning (insert date), pursuant to a federal program involving a [grant] [contract] [subsidy] [loan] [guarantee] [insurance] [(describe some other form of federal assistance)].

As used in this instruction, the term "agent" means a person authorized to act on behalf of (insert name of organization, agency or governmental unit) and includes [(an) (a)] [employee] [partner] [director] [officer] [manager] [representative].³

As used in this instruction, the term "corruptly"⁴ means that the defendant acted voluntarily and intentionally and[, at least in part,]⁵ in return for being [influenced to] [induced to] [rewarded for] (describe the action to be rewarded, influenced or induced, e.g., award a contract for the purchase of office supplies).

[A "thing of value" can be tangible or intangible property. Intangible property rights include any valuable right considered as a source of wealth, and include the right to exercise control over how money is spent.]⁶

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. The Dictionary Act, 1 USC 1, provides in relevant part "that ‘in determining the meaning of any Act of Congress, unless the context indicates otherwise’ ‘person’ includes ‘associations and other artificial entities such as corporations and societies." Rowland v. California Men’s Colony, 506 US. 194 (1993). The Committee believes that the term "person" as defined in 1 USC 1 applies in section 666, and that the instructions should be modified accordingly when the intended beneficiary of the bribe is an artificial entity.

2. A definition of the term "value" can be found in Instruction 6.18.641, supra.

3. See 18 USC 666(d)(1). The Committee recommends that the definition of "agent" be tailored to conform to the facts of each case by selecting one or more of the alternatives in section 666(d)(1) that have been established by the evidence.

4. See Instruction 6.18.201B, supra.

5. Where the defendant introduces evidence that his motive was proper, it is appropriate for the court to use the phrase "at least in part" when defining the term "corruptly" in the section 666 verdict directing instruction. See United States v. Coyne, 4 F.3d 100, 113 (2d Cir. 1993); United States v. Biaggi, 909 F.2d 662, 683 (2d Cir. 1990). ("[A] valid purpose that partially motivates a transaction does not insulate participants in an unlawful transaction from criminal liability.")

6. See Note 7, Instruction 6.18.641, supra; United States v. Shyres, 898 F.2d 647, 652 (8th Cir. 1990). Where the evidence establishes that intangible property rights were illegally usurped by the defendant, the jury instructions should be modified accordingly.

Committee Comments

Section 666 was "designed to create new offenses to augment the ability of the United States to vindicate significant acts of theft, fraud, and bribery involving Federal monies which are distributed to private organizations or State and local governments pursuant to a Federal program." S. Rep. No. 225 at 369, 98th Cong., 2d. Sess., reprinted in 1984 U.S. Code Cong. & Admin. News, 3182, 3510. Congress intended that this statute augment the prosecutorial powers of 18 U.S.C. §§ 201, 641 and 665. Id.; see also United States v. Sanderson, 966 F.2d 184, 188 (6th Cir. 1992).

Section 666 applies to both illegal gratuities and bribes. Under the former version of section 666, where the payment was illegal if it was made "for or because of" the recipient's official conduct, the statute applied to "both past acts supporting a gratuity theory and future acts necessary for a bribery theory." United States v. Crozier, 987 F.2d 893, 898-99 (2d Cir. 1993). "[U]nder the current version, the payment must be 'to influence or reward' the official conduct. Thus, the current statute continues to cover payments made with intent to reward past official conduct, so long as the intent to reward is corrupt." United States v. Bonito, 57 F.3d 167 (2d Cir. 1995).

"The term 'thing of value' used in § 666[(a)(1)(B) and (a)(2)] . . . has long been construed in other federal criminal statutes to embrace intangibles. . . . The valuation of intangibles is a traditional challenge which has routinely been met by courts in the past, e.g., with respect to the jurisdictional amount requirements for diversity jurisdiction under 28 USC 1332, and indeed, in federal question cases under 28 USC 1331 prior to 1980. The value of a right to engage in a business activity has been recognized as subject to reasonable estimation." United States v. Mongelli, 794 F. Supp. 529, 531 (S.D.N.Y. 1992); see also United States v. Marmolejo, 89 F.3d 1185, 1191 (5th Cir. 1996), cert. granted sub nom., Salinas v. United States, 522 U.S. 52 (1997); Morissette v. United States, 342 U.S. 246 (1952); United States v. May, 625 F.2d 186, 191 (8th Cir. 1980).

The circuits are split on the issue of whether the United States must show a tracing of federal funds in bribery cases charged under section 666[(a)(1)(B). Compare United States v. Simas, 937 F.2d 459, 463 (9th Cir. 1991) (in cases charged under section 666, federal funds need not be traced to project affected by bribe, nor is it necessary to show that the defendant had authority to administer federal funds); United States v. Foley, 73 F.3d 484, 492 (2d Cir. 1996) (no violation of section 666[(a)(1)(B) where the conduct at issue affects neither the federal program funds received by a protected organization nor the receiving organization’s financial interests. The Supreme Court has granted certiorari to examine the question of what kinds of cases involving state employees are subject to prosecution under the Federal Bribery Statute and whether such cases include those where no federal funds are disbursed or impinged. United States v. Marmolejo, 89 F.3d 1185 (5th Cir. 1996), cert. granted sub nom. Salinas v. United States, 522 U.S. 52 (1997).

"Corruptly" has been defined as offering anything of value "for the purpose of influencing official action." Seventh Circuit Federal Jury Instructions: Criminal at .216-17 (1999). In Bonito, "[t]he court specifically instructed that the government had to prove that [the defendant] acted with corrupt intent, which it defined as acting

voluntarily and intentionally and with the purpose, at least in part, of accomplishing either an unlawful end result or a lawful end result by some unlawful method or means. A person acts corruptly, for example, when he gives or offers to give something of value intending to influence or reward a government agent in connection with his official duties."

United States v. Bonito, 57 F.3d at 171; see also Committee Comments to Instruction 6.18.201B, supra, for a discussion of "corruptly" in 18 USC 201, bribery of a public official.

The Senate Judiciary Committee Report accompanying the statute states that "[t]he Committee intends that the term 'Federal program involving a grant, a contract, a subsidy, a loan, a guarantee, insurance or another form of Federal Assistance' be broadly construed, consistent with the purpose of this section to protect the integrity of the vast sums of money distributed through Federal programs from theft, fraud, and undue influence by bribery. However, the concept is not unlimited. The term 'Federal program' means that there must exist a specific statutory scheme authorizing the Federal assistance in order to promote or achieve certain policy objectives." S. Rep. No. 225, 98th Cong., 2d Sess. 369 (1984); see also United States v. Peery, 977 F.2d 1230, 1232 (8th Cir. 1992).

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

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

The crime of [soliciting] [demanding] [accepting] [agreeing to accept] a bribe by an agent of a program receiving Federal funds, as charged in [Count ___ of] the indictment, has four elements, which are:

One: the defendant was an agent of (name of organization, agency or governmental unit);

Two: [on or about (insert date)] [during the period between (insert beginning and ending dates)], the defendant corruptly [[solicited] [demanded] for the benefit of [(name of person or entity)] [another person]¹] [[accepted] [agreed to accept] from (name of person or entity)], something of value, that is (describe the thing of value), in connection with (briefly describe in summary form the business, transaction, or series of transactions, e.g., a contract for the purchase of office supplies);

Three: the (business, transaction(s), e.g., the contract) involved something of a value² of $5,000 or more;

Four: (name of organization, agency or governmental unit) received benefits in excess of $10,000 in the one-year period beginning (insert date), pursuant to a federal program involving a [grant] [contract] [subsidy] [loan] [guarantee] [insurance] [(describe some other form of federal assistance)].

As used in this instruction, the term "agent" means a person authorized to act on behalf of (insert name of organization, agency or governmental unit) and includes [(an) (a)] [employee] [partner] [director] [officer] [manager] [representative].³

As used in this instruction, the term "corruptly"⁴ means that the defendant acted voluntarily and intentionally and[, at least in part,]⁵ in return for being [influenced to] [induced to] [rewarded for] (describe the action to be rewarded, influenced or induced, e.g., award a contract for the purchase of office supplies).

[A "thing of value" can be tangible or intangible property. Intangible property rights include any valuable right considered as a source of wealth, and include the right to exercise control over how money is spent.]⁶

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

2. A definition of the term "value" can be found in Instruction 6.18.641, supra.

4. See Instruction 6.18.201B, supra.

Committee Comments

Section 666 was "designed to create new offenses to augment the ability of the United States to vindicate significant acts of theft, fraud, and bribery involving Federal monies which are distributed to private organizations or State and local governments pursuant to a Federal program." S. Rep. No. 225 at 369, 98th Cong., 2d. Sess., reprinted in 1984 U.S. Code Cong. & Admin. News, 3182, 3510. Congress intended that this statute augment the prosecutorial powers of 18 USC§ 201, 641 and 665. Id.; see also United States v. Sanderson, 966 F.2d 184, 188 (6th Cir. 1992).

The circuits are split on the issue of whether the United States must show a tracing of federal funds in bribery cases charged under section 666(a)(1)(B). Compare United States v. Simas, 937 F.2d 459, 463 (9th Cir. 1991) (in cases charged under section 666, federal funds need not be traced to project affected by bribe, nor is it necessary to show that the defendant had authority to administer federal funds); United States v. Foley, 73 F.3d 484, 492 (2d Cir. 1996) (no violation of section 666(a)(1)(B) where the conduct at issue affects neither the federal program funds received by a protected organization nor the receiving organization’s financial interests. The Supreme Court has granted certiorari to examine the question of what kinds of cases involving state employees are subject to prosecution under the Federal Bribery Statute and whether such cases include those where no federal funds are disbursed or impinged. United States v. Marmolejo, 89 F.3d 1185 (5th Cir. 1996), cert. granted sub nom. Salinas v. United States, 522 U.S. 52 (1997).

voluntarily and intentionally and with the purpose, at least in part, of accomplishing either an unlawful end result or a lawful end result by some unlawful method or means. A person acts corruptly, for example, when he gives or offers to give something of value intending to influence or reward a government agent in connection with his official duties."

United States v. Bonito, 57 F.3d at 171; see also Committee Comments to Instruction 6.18.201B, supra, for a discussion of "corruptly" in 18 USC 201, bribery of a public official.

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

The crime of [soliciting] [demanding] [accepting] [agreeing to accept] a bribe by an agent of a program receiving Federal funds, as charged in [Count ___ of] the indictment, has four elements, which are:

One: the defendant was an agent of (name of organization, agency or governmental unit);

Two: [on or about (insert date)] [during the period between (insert beginning and ending dates)], the defendant corruptly [[solicited] [demanded] for the benefit of [(name of person or entity)] [another person]1] [[accepted] [agreed to accept] from (name of person or entity)], something of value, that is (describe the thing of value), in connection with (briefly describe in summary form the business, transaction, or series of transactions, e.g., a contract for the purchase of office supplies);

Three: the (business, transaction(s), e.g., the contract) involved something of a value2 of $5,000 or more;

Four: (name of organization, agency or governmental unit) received benefits in excess of $10,000 in the one-year period beginning (insert date), pursuant to a federal program involving a [grant] [contract] [subsidy] [loan] [guarantee] [insurance] [(describe some other form of federal assistance)].

As used in this instruction, the term "agent" means a person authorized to act on behalf of (insert name of organization, agency or governmental unit) and includes [(an) (a)] [employee] [partner] [director] [officer] [manager] [representative].3

As used in this instruction, the term "corruptly"4 means that the defendant acted voluntarily and intentionally and[, at least in part,]5 in return for being [influenced to] [induced to] [rewarded for] (describe the action to be rewarded, influenced or induced, e.g., award a contract for the purchase of office supplies).

[A "thing of value" can be tangible or intangible property. Intangible property rights include any valuable right considered as a source of wealth, and include the right to exercise control over how money is spent.]6

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

2. A definition of the term "value" can be found in Instruction 6.18.641, supra.

4. See Instruction 6.18.201B, supra.

Committee Comments

Section 666 was "designed to create new offenses to augment the ability of the United States to vindicate significant acts of theft, fraud, and bribery involving Federal monies which are distributed to private organizations or State and local governments pursuant to a Federal program." S. Rep. No. 225 at 369, 98th Cong., 2d. Sess., reprinted in 1984 U.S. Code Cong. & Admin. News, 3182, 3510. Congress intended that this statute augment the prosecutorial powers of 18 USC 201, 641 and 665. Id.; see also United States v. Sanderson, 966 F.2d 184, 188 (6th Cir. 1992).

voluntarily and intentionally and with the purpose, at least in part, of accomplishing either an unlawful end result or a lawful end result by some unlawful method or means. A person acts corruptly, for example, when he gives or offers to give something of value intending to influence or reward a government agent in connection with his official duties."

United States v. Bonito, 57 F.3d at 171; see also Committee Comments to Instruction 6.18.201B, supra, for a discussion of "corruptly" in 18 USC 201, bribery of a public official.

For 2000 version see below

******************************************************************************************************************

2000 Version

The crime of [soliciting] [demanding] [accepting] [agreeing to accept] a bribe by an agent of a program receiving Federal funds, as charged in [Count ___ of] the indictment, has four essential elements, which are:

One: the defendant was an agent of (name of organization, agency or governmental unit);

Two: [on or about (insert date)] [during the period between (insert beginning and ending dates)], the defendant corruptly [[solicited] [demanded] for the benefit of [(name of person or entity)] [another person]1] [[accepted] [agreed to accept] from (name of person or entity)], something of value, that is (describe the thing of value), in connection with (briefly describe in summary form the business, transaction, or series of transactions, e.g., a contract for the purchase of office supplies);

Three: the (business, transaction(s), e.g., the contract) involved something of a value2 of $5,000 or more;

Four: (name of organization, agency or governmental unit) received benefits in excess of $10,000 in the one-year period beginning (insert date), pursuant to a federal program involving a [grant] [contract] [subsidy] [loan] [guarantee] [insurance] [(describe some other form of federal assistance)].

As used in this instruction, the term "agent" means a person authorized to act on behalf of (insert name of organization, agency or governmental unit) and includes [(an) (a)] [employee] [partner] [director] [officer] [manager] [representative].3

As used in this instruction, the term "corruptly"4 means that the defendant acted voluntarily and intentionally and[, at least in part,]5 in return for being [influenced to] [induced to] [rewarded for] (describe the action to be rewarded, influenced or induced, e.g., award a contract for the purchase of office supplies).

[A "thing of value" can be tangible or intangible property. Intangible property rights include any valuable right considered as a source of wealth, and include the right to exercise control over how money is spent.]6

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Committee Comments

Section 666 was "designed to create new offenses to augment the ability of the United States to vindicate significant acts of theft, fraud, and bribery involving Federal monies which are distributed to private organizations or State and local governments pursuant to a Federal program." S. Rep. No. 225 at 369, 98th Cong., 2d. Sess., reprinted in 1984 U.S. Code Cong. & Admin. News, 3182, 3510. Congress intended that this statute augment the prosecutorial powers of 18 USC§ 201, 641 and 665. Id.; see also United States v. Sanderson, 966 F.2d 184, 188 (6th Cir. 1992).

Section 666 applies to both illegal gratuities and bribes. Under the former version of section 666, where the payment was illegal if it was made "for or because of" the recipient's official conduct, the statute applied to "both past acts supporting a gratuity theory and future acts necessary for a bribery theory." United States v. Crozier, 987 F.2d 893, 898-99 (2d Cir.), cert. denied, 510 U.S. 880 (1993). "[U]nder the current version, the payment must be 'to influence or reward' the official conduct. Thus, the current statute continues to cover payments made with intent to reward past official conduct, so long as the intent to reward is corrupt." United States v. Bonito, 57 F.3d 167 (2d Cir. 1995), cert. denied, 516 U.S. 1049 (1996).

"The term 'thing of value' used in § 666[(a)(1)(B) and (a)(2)] . . . has long been construed in other federal criminal statutes to embrace intangibles. . . . The valuation of intangibles is a traditional challenge which has routinely been met by courts in the past, e.g., with respect to the jurisdictional amount requirements for diversity jurisdiction under 28 USC 1332, and indeed, in federal question cases under 28 USC 1331 prior to 1980. The value of a right to engage in a business activity has been recognized as subject to reasonable estimation." United States v. Mongelli, 794 F. Supp. 529, 531 (S.D.N.Y. 1992); see also United States v. Marmolejo, 89 F.3d 1185, 1191 (5th Cir. 1996), cert. granted sub nom., Salinas v. United States, 522 U.S. 52, 117 S. Ct. 1079 (1997); Morissette v. United States, 342 U.S. 246 (1952); United States v. May, 625 F.2d 186, 191 (8th Cir. 1980).

The circuits are split on the issue of whether the United States must show a tracing of federal funds in bribery cases charged under section 666(a)(1)(B). Compare United States v. Simas, 937 F.2d 459, 463 (9th Cir. 1991) (in cases charged under § 666, federal funds need not be traced to project affected by bribe, nor is it necessary to show that the defendant had authority to administer federal funds); United States v. Foley, 73 F.3d 484, 492 (2d Cir. 1996) (no violation of § 666(a)(1)(B) where the conduct at issue affects neither the federal program funds received by a protected organization nor the receiving organization’s financial interests. The Supreme Court has granted certiorari to examine the question of what kinds of cases involving state employees are subject to prosecution under the Federal Bribery Statute and whether such cases include those where no federal funds are disbursed or impinged. United States v. Marmolejo, 89 F.3d 1185 (5th Cir. 1996), cert. granted sub nom. Salinas v. United States, 522 U.S. 52, 117 S. Ct. 1079 (1997).

"Corruptly" has been defined as offering anything of value "for the purpose of influencing official action." Seventh Circuit Federal Jury Instructions: Criminal at .216-17 (1999). In Bonito, "[t]he court instructed the jury that the government had to prove that [the defendant] acted with corrupt intent, which it defined as acting

voluntarily and intentionally and with the purpose, at least in part, of accomplishing either an unlawful end result or a lawful end result by some unlawful method or means. A person acts corruptly, for example, when he gives or offers to give something of value intending to influence or reward a government agent in connection with his official duties.

United States v. Bonito, 57 F.3d at 168; see also Committee Comments to Instruction No. 6.18.201B for a discussion of "corruptly" in 18 USC 201, bribery of a public official.

The Senate Judiciary Committee Report accompanying the statute states that "[t]he Committee intends that the term 'Federal program involving a grant, a contract, a subsidy, a loan, a guarantee, insurance or another form of Federal Assistance' be broadly construed, consistent with the purpose of this section to protect the integrity of the vast sums of money distributed through Federal programs from theft, fraud, and undue influence by bribery. However, the concept is not unlimited. The term 'Federal program' means that there must exist a specific statutory scheme authorizing the Federal assistance in order to promote or achieve certain policy objectives." S. Rep. No. 225, 98th Cong., 2d Sess. 369 (1984); see also United States v. Peery, 977 F.2d 1230, 1232 (8th Cir. 1992), cert. denied, 507 U.S. 946 (1993).

Notes on Use

1. The Dictionary Act, 1 USC 1, provides in relevant part "that ‘in determining the meaning of any Act of Congress, unless the context indicates otherwise’ ‘person’ includes ‘associations and other artificial entities such as corporations and societies." Rowland v. California Men’s Colony, 506 US. 194, 113 S. Ct. 716 (1993). The Committee believes that the term "person" as defined in 1 USC 1 applies in section 666, and that the instructions should be modified accordingly when the intended beneficiary of the bribe is an artificial entity.

2. A definition of the term "value" can be found in Instruction No. 6.18.641.

4. See Instruction No. 6.18.201B.

5. Where the defendant introduces evidence that his motive was proper, it is appropriate for the court to use the phrase "at least in part" when defining the term "corruptly" in the section 666 verdict directing instruction. See United States v. Coyne, 4 F.3d 100, 113 (2d Cir. 1993), cert. denied, 510 U.S. 1095 (1994); United States v. Biaggi, 909 F.2d 662, 683 (2d Cir. 1990), cert. denied, 499 U.S. 904 (1991). ("[A] valid purpose that partially motivates a transaction does not insulate participants in an unlawful transaction from criminal liability.")

6. See Instruction No. 6.18.641, Notes on Use No. 7; United States v. Shyres, 898 F.2d 647, 652 (8th Cir.), cert. denied, 498 U.S. 821 (1990). Where the evidence establishes that intangible property rights were illegally usurped by the defendant, the jury instructions should be modified accordingly.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.666C BRIBERY OF AN AGENT OF A PROGRAM RECEIVING
FEDERAL FUNDS
(18 USC 666(a)(2))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Bribery Of An Agent Of A Program Receiving Federal Funds (18 USC 666(a)(2))

The crime of bribery of an agent of a program receiving Federal funds, as charged in [Count ___ of] the indictment, has four elements, which are:

One: (name of agent) was an agent of (name of organization, agency or governmental unit);

Two: the defendant corruptly [gave] [offered] [agreed to give] (describe the thing of value) to (name of recipient) in connection with (briefly describe in summary form the business, transaction, or series of transactions, e.g., a contract for the purchase of office supplies);

Three: the (describe business or transaction(s), e.g., the contract) involved something of a value¹ of $5,000 or more;

Four: (name of organization, agency or governmental unit) received benefits in excess of $10,000 in the one-year period beginning (insert date), pursuant to a federal program involving a [grant] [contract] [subsidy] [loan] [guarantee] [insurance] [(describe some other form of federal assistance)].

As used in this instruction, the term "agent" means a person authorized to act on behalf of (insert name of organization, agency or governmental unit) and includes [(an) (a)] [employee] [partner] [director] [officer] [manager] [representative].²

As used in this instruction, the term "corruptly"³ means that the defendant acted voluntarily and intentionally and[, at least in part,]⁴ to [influence] [induce] [reward] (name of agent) [to] [for] (describe the action to be rewarded, influenced or induced, e.g., award a contract for the purchase of office supplies).

[A "thing of value" can be tangible or intangible property. Intangible property rights include any valuable right considered as a source of wealth, and include the right to exercise control over how money is spent.]⁵

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. A definition of the term "value" can be found in Instruction 6.18.641, supra.

2. See 18 USC 666(d)(1). The Committee recommends that the definition of "agent" be tailored to conform to the facts of each case by selecting one or more of the alternatives in section 666(d)(1) that have been established by the evidence.

3. See Instruction 6.18.201A, supra, and Committee Comments to Instruction 6.18.201A, supra, for a discussion of "corruptly" in 18 USC 201, bribing a public official.

4. Where the defendant introduces evidence that his motive was proper, it is appropriate for the court to use the phrase "at least in part" when defining the term "corruptly" in the section 666 verdict directing instruction. See United States v. Coyne, 4 F.3d 100, 113 (2d Cir. 1993); United States v. Biaggi, 909 F.2d 662, 683 (2d Cir. 1990). ("[A] valid purpose that partially motivates a transaction does not insulate participants in an unlawful transaction from criminal liability.")

5. See Note 7, Instruction 6.18.641, supra; United States v. Shyres, 898 F.2d 647, 652 (8th Cir. 1990). Where the evidence establishes that intangible property rights were illegally usurped by the defendant, the jury instructions should be modified accordingly.

Committee Comments

See Committee Comments in Instruction 6.18.666B, supra.

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

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

The crime of bribery of an agent of a program receiving Federal funds, as charged in [Count ___ of] the indictment, has four elements, which are:

One: (name of agent) was an agent of (name of organization, agency or governmental unit);

Two: the defendant corruptly [gave] [offered] [agreed to give] (describe the thing of value) to (name of recipient) in connection with (briefly describe in summary form the business, transaction, or series of transactions, e.g., a contract for the purchase of office supplies);

Three: the (describe business or transaction(s), e.g., the contract) involved something of a value¹ of $5,000 or more;

Four: (name of organization, agency or governmental unit) received benefits in excess of $10,000 in the one-year period beginning (insert date), pursuant to a federal program involving a [grant] [contract] [subsidy] [loan] [guarantee] [insurance] [describe some other form of federal assistance].

As used in this instruction, the term "agent" means a person authorized to act on behalf of (insert name of organization, agency or governmental unit) and includes [(an) (a)] [employee] [partner] [director] [officer] [manager] [representative].²

As used in this instruction, the term "corruptly"³ means that the defendant acted voluntarily and intentionally and[, at least in part,]⁴ to [influence] [induce] [reward] (name of agent) [to] [for] (describe the action to be rewarded, influenced or induced, e.g., award a contract for the purchase of office supplies).

[A "thing of value" can be tangible or intangible property. Intangible property rights include any valuable right considered as a source of wealth, and include the right to exercise control over how money is spent.]⁵

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. A definition of the term "value" can be found in Instruction 6.18.641, supra.

3. See Instruction 6.18.201A, supra, and Committee Comments to Instruction 6.18.201A, supra, for a discussion of "corruptly" in 18 USC 201, bribing a public official.

Committee Comments

See Committee Comments in Instruction 6.18.666B, supra.

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

The crime of bribery of an agent of a program receiving Federal funds, as charged in [Count ___ of] the indictment, has four elements, which are:

One: (name of agent) was an agent of (name of organization, agency or governmental unit);

Two: the defendant corruptly [gave] [offered] [agreed to give] (describe the thing of value) to (name of recipient) in connection with (briefly describe in summary form the business, transaction, or series of transactions, e.g., a contract for the purchase of office supplies);

Three: the (describe business or transaction(s), e.g., the contract) involved something of a value1 of $5,000 or more;

Four: (name of organization, agency or governmental unit) received benefits in excess of $10,000 in the one-year period beginning (insert date), pursuant to a federal program involving a [grant] [contract] [subsidy] [loan] [guarantee] [insurance] [describe some other form of federal assistance].

As used in this instruction, the term "agent" means a person authorized to act on behalf of (insert name of organization, agency or governmental unit) and includes [(an) (a)] [employee] [partner] [director] [officer] [manager] [representative].2

As used in this instruction, the term "corruptly"3 means that the defendant acted voluntarily and intentionally and[, at least in part,]4 to [influence] [induce] [reward] (name of agent) [to] [for] (describe the action to be rewarded, influenced or induced, e.g., award a contract for the purchase of office supplies).

[A "thing of value" can be tangible or intangible property. Intangible property rights include any valuable right considered as a source of wealth, and include the right to exercise control over how money is spent.]5

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. A definition of the term "value" can be found in Instruction 6.18.641, supra.

3. See Instruction 6.18.201A, supra, and Committee Comments to Instruction 6.18.201A, supra, for a discussion of "corruptly" in 18 USC 201, bribing a public official.

Committee Comments

See Committee Comments in Instruction 6.18.666B, supra.

For 2000 version see below

******************************************************************************************************************

2000 Version

The crime of bribery of an agent of a program receiving Federal funds, as charged in [Count ___ of] the indictment, has four essential elements, which are:

One: (name of agent) was an agent of (name of organization, agency or governmental unit);

Two: the defendant corruptly [gave] [offered] [agreed to give] (describe the thing of value) to (name of recipient) in connection with (briefly describe in summary form the business, transaction, or series of transactions, e.g., a contract for the purchase of office supplies);

Three: the (describe business or transaction(s), e.g., the contract) involved something of a value1 of $5,000 or more;

Four: (name of organization, agency or governmental unit) received benefits in excess of $10,000 in the one-year period beginning (insert date), pursuant to a federal program involving a [grant] [contract] [subsidy] [loan] [guarantee] [insurance] [describe some other form of federal assistance].

As used in this instruction, the term "agent" means a person authorized to act on behalf of (insert name of organization, agency or governmental unit) and includes [(an) (a)] [employee] [partner] [director] [officer] [manager] [representative].2

As used in this instruction, the term "corruptly"3 means that the defendant acted voluntarily and intentionally and[, at least in part,]4 to [influence] [induce] [reward] (name of agent) [to] [for] (describe the action to be rewarded, influenced or induced, e.g., award a contract for the purchase of office supplies).

[A "thing of value" can be tangible or intangible property. Intangible property rights include any valuable right considered as a source of wealth, and include the right to exercise control over how money is spent.]5

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Committee Comments

See Committee Comments in Instruction No. 6.18.666(a)(1)(B).

Notes on Use

1. A definition of the term "value" can be found in Eighth Circuit Instruction No. 6.18.641.

3. See Instruction No. 6.18.201A and Committee Comments to Instruction No 6.18.201A for a discussion of "corruptly" in 18 USC 201, bribing a public official.

4. Where the defendant introduces evidence that his motive was proper, it is appropriate for the court to use the phrase "at least in part" when defining the term "corruptly" in the section 666 verdict directing instruction. See United States v. Coyne, 4 F.3d 100, 113 (2d Cir. 1993), cert. denied, 510 U.S. 1095 (1994); United States v. Biaggi, 909 F.2d 662, 683 (2d Cir. 1990), cert. denied, 499 U.S. 904 (1991). ("[A] valid purpose that partially motivates a transaction does not insulate participants in an unlawful transaction from criminal liability.")

5. See Instruction No. 6.18.641, Notes on Use No. 7; United States v. Shyres, 898 F.2d 647, 652 (8th Cir.), cert. denied, 498 U.S. 821 (1990). Where the evidence establishes that intangible property rights were illegally usurped by the defendant, the jury instructions should be modified accordingly.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.751 ESCAPE FROM CUSTODY
(18 USC 751(a))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Escape from Custody (18 USC 751)

The crime of escape from custody, as charged in [Count of] the indictment, has three elements, which are:

One, the defendant was [in the custody¹ of (describe the custodian, e.g., the Attorney General, the Bureau of Prisons, a Special Agent of the Federal Bureau of Investigation)] [confined in (name of the institution in which the defendant was confined)];

Two, the [custody] [confinement] was by virtue of (describe the authority for the custody, e.g., a felony conviction, an arrest for a misdemeanor, etc.)²; and

[Two] [Three], the defendant [left] [attempted³ to leave] custody without authorization; and

[Three] [Four], in so doing, the defendant knew that he was [leaving] [attempting to leave] custody without authorization.

(Insert paragraph describing Government's burden of proof, see Instruction 3.09, supra.)

Notes on Use

1. In routine cases where custody is obvious, no definition of "custody" should be needed. In other cases, where custody is minimal or constructive, a definition may be appropriate.

2. If the defendant is to be subject to the five-year maximum sentence, the jury must find as an element of the offense that he was in custody or confinement by virtue of an arrest on a charge of felony, or conviction of any offense. See Jones v. United States, 526 U.S. 227 (1999); Apprendi v. New Jersey, 530 U.S. 466 (2000); United States v. Aguayo-Delgado, 220 F.3d 926 (8^th Cir. 2000).

3. If the defendant is charged with attempt, the instructions must incorporate Model Instruction 8.01 on attempt.

Committee Comments

See 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 35.01-.07 (5th ed. 2000).

As an element of the offense, the Government is obligated to establish both the fact of custody and the authority for the custody. United States v. Richardson, 687 F.2d 952 (7th Cir. 1982); see also United States v. Payne, 529 F.2d 1353, 1354-55 (8th Cir. 1976). The custody may be minimal and, indeed, may be constructive. United States v. Cluck, 542 F.2d 728, 731, 736 (8th Cir. 1976). The defendant cannot raise the invalidity or impropriety of his confinement as a defense. Id. at 732.

Out of an abundance of caution, many courts had included willfulness as an element of this offense. See, e.g., United States v. Tapio, 634 F.2d 1092, 1094 (8th Cir. 1980); United States v. Cluck. However, the Committee believes that there now is clear precedent for requiring only knowledge as the mental state for this offense. See United States v. Bailey, 444 U.S. 394, 407-08 (1980). "[S]pecific intent is not an element of the offense of escape under section 751." United States v. Tapio, 634 F.2d at 1094.

An intentional failure to return to confinement is an "escape" in violation of section 751. United States v. Bailey, 444 U.S. at 413.

As the Supreme Court noted in Bailey, 444 U.S. at 409-13, a defense of duress or necessity is theoretically available in escape situations. Two elements are involved in such a defense: (a) that the defendant, while in confinement, was confronted with a threat (presumably limited to threats of death or serious bodily harm) so imminent that leaving custody was his only reasonable alternative; and (b) that the defendant made a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity had lost its coercive force. See United States v. Jackson, 838 F.2d 301, 302 (8th Cir. 1988). As with the defense of duress in other settings, once the defendant has introduced sufficient evidence on both these points to put the defense in issue, the burden may be upon the defense to prove these defenses by a preponderance of the evidence. See Dixon v. United States, 548 U.S. 1 (2006). See generally Instruction 9.02, infra.

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

The crime of escape from custody, as charged in [Count of] the indictment, has three elements, which are:

One, the defendant was [in the custody¹ of (describe the custodian, e.g., the Attorney General, the Bureau of Prisons, a Special Agent of the Federal Bureau of Investigation)] [confined in (name of the institution in which the defendant was confined)];

Two, the [custody] [confinement] was by virtue of (describe the authority for the custody, e.g., a felony conviction, an arrest for a misdemeanor, etc.)²; and

[Two] [Three], the defendant [left] [attempted³ to leave] custody without authorization; and

[Three] [Four], in so doing, the defendant knew that he was [leaving] [attempting to leave] custody without authorization.

(Insert paragraph describing Government's burden of proof, see Instruction 3.09, supra.)

Notes on Use

1. In routine cases where custody is obvious, no definition of "custody" should be needed. In other cases, where custody is minimal or constructive, a definition may be appropriate.

3. If the defendant is charged with attempt, the instructions must incorporate Model Instruction 8.01 on attempt.

Committee Comments

See 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 35.01-.07 (5th ed. 2000).

An intentional failure to return to confinement is an "escape" in violation of section 751. United States v. Bailey, 444 U.S. at 413.

As the Supreme Court noted in Bailey, 444 U.S. at 409-13, a defense of duress or necessity is theoretically available in escape situations. Two elements are involved in such a defense: (a) that the defendant, while in confinement, was confronted with a threat (presumably limited to threats of death or serious bodily harm) so imminent that leaving custody was his only reasonable alternative; and (b) that the defendant made a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity had lost its coercive force. See United States v. Jackson, 838 F.2d 301, 302 (8th Cir. 1988). As with the defense of duress in other settings, once the defendant has introduced sufficient evidence on both these points to put the defense in issue, the burden may be upon the defense to prove these defenses by a preponderance of the evidence. See Dixon v. United States, ___ U.S. ___, 126 S. Ct. 2437 (2006). See generally Instruction 9.02, infra.

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

The crime of escape from custody, as charged in [Count of] the indictment, has three elements, which are:

One, the defendant was [in the custody1 of (describe the custodian, e.g., the Attorney General, the Bureau of Prisons, a Special Agent of the Federal Bureau of Investigation)] [confined in (name of the institution in which the defendant was confined)];

Two, the [custody] [confinement] was by virtue of (describe the authority for the custody, e.g., a felony conviction, an arrest for a misdemeanor, etc.)2; and

[Two] [Three], the defendant [left] [attempted3 to leave] custody without authorization; and

[Three] [Four], in so doing, the defendant knew that he was [leaving] [attempting to leave] custody without authorization.

(Insert paragraph describing Government's burden of proof, see Instruction 3.09, supra.)

Notes on Use

1. In routine cases where custody is obvious, no definition of "custody" should be needed. In other cases, where custody is minimal or constructive, a definition may be appropriate.

3. If the defendant is charged with attempt, the instructions must incorporate Model Instruction 8.01 on attempt.

Committee Comments

See 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 35.01-.07 (5th ed. 2000).

An intentional failure to return to confinement is an "escape" in violation of section 751. United States v. Bailey, 444 U.S. at 413.

As the Supreme Court noted in Bailey, 444 U.S. at 409-13, a defense of duress or necessity is theoretically available in escape situations. Two elements are involved in such a defense: (a) that the defendant, while in confinement, was confronted with a threat (presumably limited to threats of death or serious bodily harm) so imminent that leaving custody was his only reasonable alternative; and (b) that the defendant made a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity had lost its coercive force. See United States v. Jackson, 838 F.2d 301, 302 (8th Cir. 1988). As with the defense of duress in other settings, once the defendant has introduced sufficient evidence on both these points to put the defense in issue, the burden may be upon the defense to prove these defenses by a preponderance of the evidence. See Dixon v. United States, ___ U.S. ___, 126 S. Ct. 2437 (2006). See generally Instruction 9.02, infra.

For 2000 version see below

******************************************************************************************************************

2000 Version

The crime of escape from custody, as charged in [Count of] the indictment, has three essential elements, which are:

One, the defendant was in the custody1 of (describe the custodian, e.g., the Attorney General, the Bureau of Prisons, a Special Agent of the Federal Bureau of Investigation) by reason of (describe the authority for the custody, e.g., a felony conviction, an arrest for a misdemeanor, etc.); and

Two, the defendant left custody without authorization; and

Three, in so doing, the defendant knew that he was leaving custody without authorization.

(Insert paragraph describing Government's burden of proof, see Instruction 3.09, supra.)

Committee Comments

See 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal §§ 32.01-32.07 (4th ed. 1990); S. Saltzburg & H. Perlman, FEDERAL CRIMINAL JURY INSTRUCTIONS § 53.01 (1985).

As an element of the offense, the Government is obligated to establish both the fact of custody and the authority for the custody. United States v. Richardson, 687 F.2d 952 (7th Cir. 1982); see also United States v. Payne, 529 F.2d 1353, 1354-55 (8th Cir. 1976). The custody may be minimal and, indeed, may be constructive. United States v. Cluck, 542 F.2d 728, 731, 736 (8th Cir.), cert. denied, 429 U.S. 986 (1976). The defendant cannot raise the invalidity or impropriety of his confinement as a defense. Id. at 732; see also United States v. Smith, 534 F.2d 74, 75 (5th Cir. 1976), cert. denied, 429 U.S. 1100 (1977) (invalidity of underlying conviction is no defense).

This instruction differs from the Ninth Circuit's former pattern instruction by omitting the words "and with the intention of avoiding confinement" from the second element. And, unlike the former Devitt and Blackmar instructions, there is no reference to a requirement that the defendant acted "willfully." Out of an abundance of caution, many courts had included willfulness as an element of this offense. See, e.g., United States v. Tapio, 634 F.2d 1092, 1094 (8th Cir. 1980); United States v. Cluck. However, the Committee believes that there now is clear precedent for requiring only knowledge as the mental state for this offense. See United States v. Bailey, 444 U.S. 394, 407-08 (1980). "[S]pecific intent is not an element of the offense of escape under section 751." United States v. Tapio, 634 F.2d at 1094.

An intentional failure to return to confinement is an "escape" in violation of section 751. United States v. Bailey, 444 U.S. at 413.

As the Supreme Court noted in Bailey, 444 U.S. at 409-413, a defense of duress or necessity is theoretically available in escape situations. Two elements are involved in such a defense: (a) that the defendant, while in confinement, was confronted with a threat (presumably limited to threats of death or serious bodily harm) so imminent that leaving custody was his only reasonable alternative; and (b) that the defendant made a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity had lost its coercive force. See United States v. Jackson, 838 F.2d 301, 302 (8th Cir. 1988). As with the defense of duress in other settings, once the defendant has introduced sufficient evidence on both these points to put the defense in issue, the burden is upon the Government to disprove the defense beyond a reasonable doubt. See generally Instruction 9.02, infra.

Notes on Use

1. In routine cases where custody is obvious, no definition of "custody" should be needed. In other cases, where custody is minimal or constructive, a definition may be appropriate.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.844 ARSON OF PROPERTY USED IN OR AFFECTING INTERSTATE COMMERCE
[No Personal Injury Involved] 1

FORECITE National™ Materials Related To This Instruction:

Chapter 76: Arson, Vandalism, Destruction Of Property, Etc.

The crime of arson as charged in [Count ___ of] the indictment has three elements, which are:

One, the defendant [attempted to] [damage(d)] (specify the particular building, vehicle, real or personal property alleged in the indictment) by [fire] [using an explosive²] on (date);

Two, the defendant did so maliciously;

Three, at the time of the [fire] [explosion] (specify the particular building, vehicle, real or personal property alleged in the indictment) [was used in (interstate) (foreign) commerce]³ [was used in an activity affecting interstate commerce].

The term "maliciously" as used in this instruction means to intentionally cause damage without just cause or reason.

The term "used in an activity affecting interstate commerce" means active use of the property for commercial purposes and not a passive, passing or past connection to commerce. [You may find an effect on [interstate] [foreign] commerce has been proven if you find from the evidence beyond a reasonable doubt: (describe government’s evidence at trial of effect on interstate or foreign commerce, e.g., that the building was used as rental property.)] ^{4, 5}

(Insert paragraph describing Government’s burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. The Committee believes that arson involving serious bodily injury or death should follow the same approach adopted by the United States Supreme Court in Jones v. United States, 526 U.S. 227 (1999), in which increased penalties for "serious bodily injury" and "death" are "distinct elements, each of which must be charged by indictment, proven beyond a reasonable doubt, and submitted to a jury for its verdict." See also Apprendi v. New Jersey, 530 U.S. 466 (2000).

2. The term "explosive" is defined in 18 USC 844(j) as including "gunpowders, powders used for blasting, all forms of high explosives, blasting materials, fuses (other than electric circuit breakers), detonators, and other detonating agents, smokeless powders, other explosive or incendiary devices . . . and any chemical compounds, mechanical mixture, or device that contains any oxidizing and combustible units, or other ingredients, in such proportions, quantities, or packing that ignition by fire, by friction, by concussion, by percussion, or by detonation of the compound, mixture, or device, or any part thereof may cause an explosion."

3. In United States v. Rea, 169 F.3d 1111, 1113 (8th Cir. 1999), vacated on other grounds, 530 U.S. 1201 (2000), the Eighth Circuit unequivocally confirmed that the interstate commerce requirement of the statute is an element of the offense which must be found by the jury, rather than a prerequisite to subject matter jurisdiction.

4. The Committee believes that the phrase "active employment for commercial purposes" can lead to jury confusion in certain cases because activities that courts have found to constitute active employment (such as use of the building as rental property) may be assumed by the jury to be passive in nature. In Jones v. United States, 529 U.S. 848 (2000) (quoting from Russell v. United States, 471 U.S. 858 (1985)), the Supreme Court stated "the Russell opinion went on to observe however that ‘by its terms § 844(i) applies only to property that is used in an activity that affects commerce. The rental of real estate is unquestionably such an activity.’" 529 U.S. 848, 856. The Committee therefore believes that the following language should also be added in an appropriate case: "[You may find an effect on [interstate] [foreign] commerce has been proven if you find from the evidence beyond a reasonable doubt: (describe government’s evidence at trial of effect on interstate or foreign commerce, e.g., that the building was used as rental property.)]" If this form of instruction is used, the judge should make a finding outside the presence of the jury that the particular use of the property is a sufficient use to affect interstate commerce.

5. In United States v. Jones, id., the Supreme Court determined that section 844(i)’s qualification that a building must, inter alia, be used "in any activity affecting interstate or foreign commerce" means "active employment for commercial purposes, and not merely a passive, passing, or past connection to commerce." The Court concluded that the proper inquiry "‘is into the function of the building itself, and then a determination of whether that function affects commerce.’" Id. (quoting United States v. Ryan, 9 F.3d 660, 675 (8th Cir. 1993) (Arnold, C.J., concurring, in part, and dissenting, in part)). Clearly, under Jones, arson of an owner-occupied residential property connected to interstate commerce solely by virtue of interstate receipt of utilities, a mortgage and an insurance policy does not fall under section 844(i). Further, the Eighth Circuit has made clear that all buildings must be "used in" commerce in order to meet the requirements of section 844(i). United States v. Rea, 223 F.3d 741 (8th Cir. 2000) (church). This issue is discussed in more detail in United States v. Rea (Rea III), No. 01-2177, slip op. (8^th Cir. Aug. 26, 2002). Compare United States v. Harris, 221 F.3d 1048, 1050 n.2 (8th Cir. 2000). The mere status of being owned by an out-of-state resident does not constitute active employment in interstate commerce, nor does the fact that the building is about to be placed on the market for sale, nor that it is leased by a person to his wholly owned company in a passive legal arrangement, nor that it receives natural gas from an out-of-state provider. United States v. Ryan, 227 F.3d 1058 (8th Cir. 2000).

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

6.18.844i ARSON OF PROPERTY USED IN OR AFFECTING INTERSTATE COMMERCE
[No Personal Injury Involved] 1

The crime of arson as charged in [Count ___ of] the indictment has three elements, which are:

One, the defendant [attempted to] [damage(d)] (specify the particular building, vehicle, real or personal property alleged in the indictment) by [fire] [using an explosive²] on (date);

Two, the defendant did so maliciously;

Three, at the time of the [fire] [explosion] (specify the particular building, vehicle, real or personal property alleged in the indictment) [was used in (interstate) (foreign) commerce]³ [was used in an activity affecting interstate commerce].

The term "maliciously" as used in this instruction means to intentionally cause damage without just cause or reason.

The term "used in an activity affecting interstate commerce" means active use of the property for commercial purposes and not a passive, passing or past connection to commerce. [You may find an effect on [interstate] [foreign] commerce has been proven if you find from the evidence beyond a reasonable doubt: (describe government’s evidence at trial of effect on interstate or foreign commerce, e.g., that the building was used as rental property.)] ^{4, 5}

(Insert paragraph describing Government’s burden of proof; see Instruction 3.09, supra.)

Notes on Use

5. In United States v. Jones, id., the Supreme Court determined that section 844(i)’s qualification that a building must, inter alia, be used "in any activity affecting interstate or foreign commerce" means "active employment for commercial purposes, and not merely a passive, passing, or past connection to commerce." The Court concluded that the proper inquiry "‘is into the function of the building itself, and then a determination of whether that function affects commerce.’" Id. (quoting United States v. Ryan, 9 F.3d 660, 675 (8th Cir. 1993) (Arnold, C.J., concurring, in part, and dissenting, in part)). Clearly, under Jones, arson of an owner-occupied residential property connected to interstate commerce solely by virtue of interstate receipt of utilities, a mortgage and an insurance policy does not fall under section 844(I). Further, the Eighth Circuit has made clear that all buildings must be "used in" commerce in order to meet the requirements of section 844(i). United States v. Rea, 223 F.3d 741 (8th Cir. 2000) (church). This issue is discussed in more detail in United States v. Rea (Rea III), No. 01-2177, slip op. (8^th Cir. Aug. 26, 2002). Compare United States v. Harris, 221 F.3d 1048, 1050 n.2 (8th Cir. 2000). The mere status of being owned by an out-of-state resident does not constitute active employment in interstate commerce, nor does the fact that the building is about to be placed on the market for sale, nor that it is leased by a person to his wholly owned company in a passive legal arrangement, nor that it receives natural gas from an out-of-state provider. United States v. Ryan, 227 F.3d 1058 (8th Cir. 2000).

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

The crime of arson as charged in [Count ___ of] the indictment has three elements, which are:

One, the defendant [attempted to] [damage(d)] (specify the particular building, vehicle, real or personal property alleged in the indictment) by [fire] [using an explosive2] on (date);

Two, the defendant did so maliciously;

Three, at the time of the [fire] [explosion] (specify the particular building, vehicle, real or personal property alleged in the indictment) [was used in (interstate) (foreign) commerce]3 [was used in an activity affecting interstate commerce].

The term "maliciously" as used in this instruction means to intentionally cause damage without just cause or reason.

The term "used in an activity affecting interstate commerce" means active use of the property for commercial purposes and not a passive, passing or past connection to commerce. [You may find an effect on [interstate] [foreign] commerce has been proven if you find from the evidence beyond a reasonable doubt: (describe government’s evidence at trial of effect on interstate or foreign commerce, e.g., that the building was used as rental property.)] 4, 5

(Insert paragraph describing Government’s burden of proof; see Instruction 3.09, supra.)

Notes on Use

5. In United States v. Jones, id., the Supreme Court determined that section 844(i)’s qualification that a building must, inter alia, be used "in any activity affecting interstate or foreign commerce" means "active employment for commercial purposes, and not merely a passive, passing, or past connection to commerce." The Court concluded that the proper inquiry "‘is into the function of the building itself, and then a determination of whether that function affects commerce.’" Id. (quoting United States v. Ryan, 9 F.3d 660, 675 (8th Cir. 1993) (Arnold, C.J., concurring, in part, and dissenting, in part)). Clearly, under Jones, arson of an owner-occupied residential property connected to interstate commerce solely by virtue of interstate receipt of utilities, a mortgage and an insurance policy does not fall under section 844(I). Further, the Eighth Circuit has made clear that all buildings must be "used in" commerce in order to meet the requirements of section 844(i). United States v. Rea, 223 F.3d 741 (8th Cir. 2000) (church). This issue is discussed in more detail in United States v. Rea (Rea III), No. 01-2177, slip op. (8th Cir. Aug. 26, 2002). Compare United States v. Harris, 221 F.3d 1048, 1050 n.2 (8th Cir. 2000). The mere status of being owned by an out-of-state resident does not constitute active employment in interstate commerce, nor does the fact that the building is about to be placed on the market for sale, nor that it is leased by a person to his wholly owned company in a passive legal arrangement, nor that it receives natural gas from an out-of-state provider. United States v. Ryan, 227 F.3d 1058 (8th Cir. 2000).

No 2000 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.912 IMPERSONATION OF A FEDERAL OFFICER OR EMPLOYEE-[ACTING
AS] [DEMANDING SOMETHING OF VALUE]
(18 USC 912)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: False Impersonation Of Federal Officer Or Employee—Demanding Or Obtaining Anything Of Value (18 USC 912)

The crime of impersonation of a federal [officer] [employee],¹ as charged in [Count of] the indictment, has three elements, which are:

One, the defendant pretended to be (describe the pretense, e.g., a special agent of the F.B.I.); and

Two, such pretense was false and the defendant knew it was false;² and

Three, the defendant, while so pretending, [acted with the intent to cause a person to follow some course of action or inaction]³ [[demanded] [obtained] some [money] [paper] [document] [thing of value]].⁴

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. The statute does not label the crime "impersonation of a federal officer"; however, that is the title usually associated with a violation of 18 USC 912.

2. Although the statute and cases do not expressly state that the defendant must know the pretense was false, that is implicit in the word "pretend." See 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 38.04 (5th ed. 2000).

3. Use this language if the defendant is charged with "acting as" a federal officer. The specific language setting forth what the victim did or did not do may be substituted for the more general language of "following some course of action or inaction." The exact language of Robbins, 613 F.3d at 691, that "to ‘act as such’ would be the equivalent of causing ‘the deceived person to follow some course he would not have pursued but for the deceitful conduct,’" is not used because it is confusing and because the government is not required to prove that the victim would not have followed the course of action "but for the pretense."

The Committee does not believe that Robbins intended to create a new causation requirement for this statute. The first bracketed matter set forth in Element Three is a mental-state requirement, not a causation requirement. United States v. Gilbert, 143 F.3d 397, 398 (8^th Cir. 1998) (jury could reasonably infer that the defendant attempted to avoid receiving a traffic ticket by impersonating a federal agent and falsely implying that he was on the way to a work-related emergency. "There was more here than a naked representation, more than mere bravado or puffing.")

4. Use this language if the charge is that the defendant obtained something of value. Obtaining property by impersonating a federal official is a separate and distinct offense from "acting as" a federal official. United States v. Lepowitch, 318 U.S. 702, 704-05 (1943); United States v. Robbins, 613 F.2d 688, 690 (8th Cir. 1979). The gravamen of the offense is the acquisition of something of value because of the defendant's representation that he was a federal officer or employee. United States v. Etheridge, 512 F.2d 1249, 1253 (2d Cir. 1975). The "thing of value" obtained by the defendant need not to be tangible; information can be a thing of value. United States v. Sheker, 618 F.2d 607, 609 (9th Cir. 1980). Similarly, forbearance by a police officer of issuing a traffic ticket is a thing of value. United States v. Rippee, 961 F.2d 677, 679 (7^th Cir. 1992).

Committee Comments

See 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 38.01-.06 (5th ed. 2000). See generally United States v. Robbins, 613 F.2d 688 (8th Cir. 1979); United States v. Gilbert, 143 F.3d 397 (8^th Cir. 1998).

An "intent to defraud" need not be specifically alleged; it is automatically present any time the other elements of the offense are proven, United States v. Gayle, 967 F.2d 483, 486-87 (11^th Cir. 1992); instead, all that is required is that the defendant sought to cause the deceived person to follow some course he would not have pursued but for the deceitful conduct. United States v. Robbins, 613 F.2d at 690-92.

It is immaterial that the officer impersonated lacked the authority to do what the defendant did or purported to do, Thomas v. United States, 213 F.2d 30, 31-32 (9th Cir. 1954), or that the benefits accrued to the defendant in his personal capacity rather than in his purported official capacity. United States v. Rippee, 961 F.2d 677, 679 (7^th Cir. 1992).

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

The crime of impersonation of a federal [officer] [employee],¹ as charged in [Count of] the indictment, has three elements, which are:

One, the defendant pretended to be (describe the pretense, e.g., a special agent of the F.B.I.); and

Two, such pretense was false and the defendant knew it was false;² and

Three, the defendant, while so pretending, [acted with the intent to cause a person to follow some course of action or inaction]³ [[demanded] [obtained] some [money] [paper] [document] [thing of value]].⁴

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. The statute does not label the crime "impersonation of a federal officer"; however, that is the title usually associated with a violation of 18 USC 912.

Committee Comments

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

The crime of impersonation of a federal [officer] [employee],1 as charged in [Count of] the indictment, has three elements, which are:

One, the defendant pretended to be (describe the pretense, e.g., a special agent of the F.B.I.); and

Two, such pretense was false and the defendant knew it was false;2 and

Three, the defendant, while so pretending, [acted with the intent to cause a person to follow some course of action or inaction]3 [[demanded] [obtained] some [money] [paper] [document] [thing of value]].4

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. The statute does not label the crime "impersonation of a federal officer"; however, that is the title usually associated with a violation of 18 USC 912.

The Committee does not believe that Robbins intended to create a new causation requirement for this statute. The first bracketed matter set forth in Element Three is a mental-state requirement, not a causation requirement. United States v. Gilbert, 143 F.3d 397, 398 (8th Cir. 1998) (jury could reasonably infer that the defendant attempted to avoid receiving a traffic ticket by impersonating a federal agent and falsely implying that he was on the way to a work-related emergency. "There was more here than a naked representation, more than mere bravado or puffing.")

Committee Comments

An "intent to defraud" need not be specifically alleged; it is automatically present any time the other elements of the offense are proven, United States v. Gayle, 967 F.2d 483, 486-87 (11th Cir. 1992); instead, all that is required is that the defendant sought to cause the deceived person to follow some course he would not have pursued but for the deceitful conduct. United States v. Robbins, 613 F.2d at 690-92.

For 2000 version see below

******************************************************************************************************************

2000 Version

The crime of impersonation of a federal [officer] [employee],1 as charged in [Count of] the indictment, has three essential elements, which are:

One, the defendant pretended to be (describe the pretense, e.g., a special agent of the F.B.I.); and

Two, such pretense was false and defendant knew it was false;2 and

Three, defendant, while so pretending, [acted with the intent to cause a person to follow some course of action or inaction]3 [[demanded] [obtained] some [money] [paper] [document] [thing of value]].4

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Committee Comments

See 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal §§ 35.01- 35.06 (4th ed. 1990) See generally United States v. Robbins, 613 F.2d 688 (8th Cir. 1979); United States v. Parker, 699 F.2d 177 (4th Cir.), cert. denied, 464 U.S. 836 (1983).

An "intent to defraud" is no longer an element of this offense; instead, all that is required is that the defendant sought to cause the deceived person to follow some course he would not have pursued but for the deceitful conduct. United States v. Robbins, 613 F.2d at 690-92.

It is immaterial that the officer impersonated lacked the authority to do what the defendant did or purported to do. Thomas v. United States, 213 F.2d 30, 31-32 (9th Cir. 1954).

Notes on Use

1. The statute does not label the crime "impersonation of a federal officer"; however, that is the title usually associated with a violation of 18 USC 912.

2. Although the statute and cases do not expressly state that the defendant must know the pretense was false, that is implicit in the word "pretend." See 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 35.04 (4th ed. 1990).

3. Use this language if defendant is charged with "acting as" a federal officer. The specific language setting forth what the victim did or did not do may be substituted for the more general language of "following some course of action or inaction." The exact language of Robbins is not used because it is confusing and because the government is not required to prove that the victim would not have followed the course of action "but for the pretense." The first bracketed matter set forth in Element Three is a mental-state requirement, not a causation requirement. The Committee does not believe that Robbins intended to create a new causation requirement for this statute.

4. Use this language if the charge is that defendant obtained something of value. Obtaining property by impersonating a federal official is a separate and distinct offense from "acting as" a federal official. United States v. Lepowitch, 318 U.S. 702, 704-05 (1943); United States v. Robbins, 613 F.2d 688, 690 (8th Cir. 1979). The gravamen of the offense is the acquisition of something of value because of the defendant's representation that he was a federal officer or employee. United States v. Etheridge, 512 F.2d 1249, 1253 (2d Cir.), cert. denied, 423 U.S. 843 (1975). The "thing of value" obtained by the defendant need not to be tangible; information can be a thing of value. United States v. Sheker, 618 F.2d 607, 609 (9th Cir. 1980).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.922A FELON IN POSSESSION OF FIREARM
(18 USC 922(g))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Possession Of A Firearm Or Ammunition In Or Affecting Commerce By A Convicted Felon (18 USC 922(g))

The crime of being a felon¹ in possession of a firearm, as charged in [Count of] the indictment, has three elements, which are:

One, the defendant had been convicted of a crime punishable by imprisonment for a term exceeding one year;

Two, the defendant thereafter knowingly² [possessed] [received] a firearm, that is (describe weapon); and

Three, the firearm was transported across a state line at some time during or before the defendant's possession of it.

[You are instructed that (list convictions of the defendant, e.g., burglary, robbery) [is] [are each] [a] crime[s] punishable by imprisonment for more than one year under the laws of (list jurisdiction, e.g., State of Missouri).]³

[You are instructed that the Government and the defendant have stipulated, that is, agreed, that the defendant has been convicted of a crime punishable by imprisonment for more than one year under the laws of (list jurisdiction, e.g., State of Missouri), and you must consider the first element as proven.]

If you have found beyond a reasonable doubt that the firearm in question was manufactured in a state other than (name state in which possession occurred) and that the defendant possessed that firearm in the State of (name state in which possession occurred) then you may, but are not required to, find that it was transported across a state line.⁴

The term "firearm" means any weapon (including a starter gun) which will or is designed to or may be readily converted to expel a projectile by the action of an explosive.⁵

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. A misdemeanor crime involving domestic abuse may also be actionable under this section. See 18 USC 921(33)(A) and 922(g)(9).

2. "Knowingly" is found in the penalty section of the statute, § 924.

3. Crimes included are defined in section 921.

4. Adapted generally from the instruction used in Barrett v. United States, 423 U.S. 212 (1976), see 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 39.14 (5th ed. 2000).

5. This definition is taken from 18 USC 921(a)(3). Other portions of this definition should be used where appropriate.

Committee Comments

See Scarborough v. United States, 431 U.S. 563 (1977); Barrett v. United States, 423 U.S. 212, 215 n.4 (1976); 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 39.09-.15 (5th ed. 2000).

The Firearms Owners' Protection Act of 1986 amended prior section 922 by incorporating with it related provisions of 18 U.S.C. App. § 1202(a)(l). See House Rep. #99-495, reprinted in 1986 U.S. Code Cong. & Admin. News 1327, 1349. See generally Hardy, The Firearms Owners' Protection Act: A Historical and Legal Perspective, 17 Cumb. L. Rev. 585 (1987), for an extensive discussion of the legislative history of this amendment.

In amending section 922(g), Congress intended both to "enhance the ability of law enforcement to fight violent crime" and to "relieve the nation's sportsmen and firearms owners and dealers from unnecessary burdens under the Gun Control Act of 1968." House Report at 1327. These potentially conflicting goals, coupled with a long and, at times confusing, legislative history, can make interpretation of this statute difficult.

Pursuant to the statute, it is unlawful for any person who has been convicted of a crime punishable by imprisonment for a term exceeding one year to possess or receive a firearm where the required interstate commerce nexus is established. The defendant need not know the firearm was transported across state lines. United States v. Valiant, 873 F.2d 205 (8th Cir. 1989). Challenges to the constitutionality of section 922(g) on the theory that Congress did not have constitutional authority to criminalize possession of a weapon by a felon just because the weapon had been transported in interstate commerce have been unsuccessful. United States v. Lopez, 514 U.S. 549 (1995). See, e.g., United States v. Monteleone, 77 F.3d 1086 (8th Cir. 1996); United States v. Rankin, 64 F.3d 338, 339 (8th Cir. 1995); United States v. Mosby, 60 F.3d 454, 456 (8th Cir. 1995).

Section 921(a)(20) indicates that what constitutes a conviction is to be determined by reference to the law of the jurisdiction in which proceedings were held. Moreover, the section provides that, where a conviction has been expunged or set aside, or where a person has had his or her civil rights restored, there is no conviction for the purposes of this statute. With regard to restoration of civil rights, the Eighth Circuit has held that substantial, not total, restoration is required to remove a defendant from the reach of the statute, but further held that disqualification from serving as a juror and in certain law enforcement positions did not constitute substantial restoration. Presley v. United States, 851 F.2d 1052 (8th Cir. 1988). For a discussion of the differences in the various statutory schemes for the restoration of rights in other jurisdictions within this circuit, see United States v. Traxell, 914 F.2d 119 (8th Cir. 1990); United States v. Woodall, 120 F.3d 880 (8th Cir. 1997). For a discussion of the restoration of the right to possess a firearm, see Caron v. United States, 524 U.S. 308 (1998). Any state limitation on possession of a particular type of firearm by an offender "activates the uniform federal ban on possessing any firearms at all." Caron v. United States, 524 U.S. at 312. The mere absence of a statute prohibiting firearm possession by ex-felons does not constitute a restoration of civil rights for purposes of section 921(a)(20). United States v. Moore, 108 F.3d 878 (8th Cir. 1997).

In Old Chief v. United States, 519 U.S. 172 (1997), the Supreme Court held that it was error for the trial court to refuse to accept a defendant’s offer of stipulation to the fact of a prior felony conviction over the objection of the prosecution in any case "in which the prior conviction is for an offense likely to support conviction on some improper ground." In appropriate cases, under Old Chief, the trial court may be compelled to accept an offer to stipulate to the fact of a prior felony conviction. See, e.g., United States v. Blake, 107 F.3d 651 (8th Cir. 1997); but see Old Chief, 519 U.S. at 196 (Justice O’Connor dissenting).

The Eighth Circuit has not decided whether justification and coercion can be defenses to a charge under section 922(g). See United States v. Blankenship, 67 F.3d 673, 677 (8th Cir. 1995) for a discussion of the elements of both defenses.

The Eighth Circuit held in United States v. Richardson, 439 F.3d 421 (8^th Cir. 2006), that convictions under § 922(g)(1) and (g)(3) arising out of the same act of possession should have been merged for sentencing, because Congress did not intend multiple punishments for a single act of possession of a firearm.

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

6.18.922 FELON IN POSSESSION OF FIREARM
(18 USC 922(g))

The crime of being a felon¹ in possession of a firearm, as charged in [Count of] the indictment, has three elements, which are:

One, the defendant had been convicted of a crime punishable by imprisonment for a term exceeding one year;

Two, the defendant thereafter knowingly² [possessed] [received] a firearm, that is (describe weapon); and

Three, the firearm was transported across a state line at some time during or before the defendant's possession of it.

[You are instructed that (list convictions of the defendant, e.g., burglary, robbery) [is] [are each] [a] crime[s] punishable by imprisonment for more than one year under the laws of (list jurisdiction, e.g., State of Missouri).]³

[You are instructed that the Government and the defendant have stipulated, that is, agreed, that the defendant has been convicted of a crime punishable by imprisonment for more than one year under the laws of (list jurisdiction, e.g., State of Missouri), and you must consider the first element as proven.]

If you have found beyond a reasonable doubt that the firearm in question was manufactured in a state other than (name state in which possession occurred) and that the defendant possessed that firearm in the State of (name state in which possession occurred) then you may, but are not required to, find that it was transported across a state line.⁴

The term "firearm" means any weapon (including a starter gun) which will or is designed to or may be readily converted to expel a projectile by the action of an explosive.⁵

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. A misdemeanor crime involving domestic abuse may also be actionable under this section. See 18 USC 921(33)(A) and 922(g)(9).

2. "Knowingly" is found in the penalty section of the statute, § 924.

3. Crimes included are defined in section 921.

5. This definition is taken from 18 USC 921(a)(3). Other portions of this definition should be used where appropriate.

Committee Comments

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

The crime of being a felon1 in possession of a firearm, as charged in [Count of] the indictment, has three elements, which are:

One, the defendant had been convicted of a crime punishable by imprisonment for a term exceeding one year;

Two, the defendant thereafter knowingly2 [possessed] [received] a firearm, that is (describe weapon); and

Three, the firearm was transported across a state line at some time during or before the defendant's possession of it.

[You are instructed that (list convictions of the defendant, e.g., burglary, robbery) [is] [are each] [a] crime[s] punishable by imprisonment for more than one year under the laws of (list jurisdiction, e.g., State of Missouri).]3

[You are instructed that the Government and the defendant have stipulated, that is, agreed, that the defendant has been convicted of a crime punishable by imprisonment for more than one year under the laws of (list jurisdiction, e.g., State of Missouri), and you must consider the first element as proven.]

If you have found beyond a reasonable doubt that the firearm in question was manufactured in a state other than (name state in which possession occurred) and that the defendant possessed that firearm in the State of (name state in which possession occurred) then you may, but are not required to, find that it was transported across a state line.4

The term "firearm" means any weapon (including a starter gun) which will or is designed to or may be readily converted to expel a projectile by the action of an explosive.5

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. A misdemeanor crime involving domestic abuse may also be actionable under this section. See 18 USC 921(33)(A) and 922(g)(9).

2. "Knowingly" is found in the penalty section of the statute, § 924.

3. Crimes included are defined in section 921.

5. This definition is taken from 18 USC 921(a)(3). Other portions of this definition should be used where appropriate.

Committee Comments

The Firearms Owners' Protection Act of 1986 amended prior section 922 by incorporating with it related provisions of 18 USC App. § 1202(a)(l). See House Rep. #99-495, reprinted in 1986 U.S. Code Cong. & Admin. News 1327, 1349. See generally Hardy, The Firearms Owners' Protection Act: A Historical and Legal Perspective, 17 Cumb. L. Rev. 585 (1987), for an extensive discussion of the legislative history of this amendment.

The Eighth Circuit held in United States v. Richardson, 439 F.3d 421 (8th Cir. 2006), that convictions under § 922(g)(1) and (g)(3) arising out of the same act of possession should have been merged for sentencing, because Congress did not intend multiple punishments for a single act of possession of a firearm.

For 2000 version see below

******************************************************************************************************************

2000 Version

The crime of being a felon1 in possession of a firearm, as charged in [Count of] the indictment, has three essential elements, which are:

One, the defendant had been convicted of a crime punishable by imprisonment for a term exceeding one year;

Two, the defendant thereafter knowingly2 [possessed] [received] a firearm, that is (describe weapon); and

Three, the firearm was transported across a state line at some time during or before the defendant's possession of it.

[You are instructed that (list convictions of the defendant, e.g., burglary, robbery) [is] [are each] [a] crime[s] punishable by imprisonment for more than one year under the laws of (list jurisdiction, e.g., State of Missouri).]3

[You are instructed that the Government and the defendant have stipulated, that is, agreed, that the defendant has been convicted of a crime punishable by imprisonment for more than one year under the laws of (list jurisdiction, e.g., State of Missouri), and you must consider the first essential element as proven.]

If you have found beyond a reasonable doubt that the firearm in question was manufactured in a state other than (name state in which possession occurred) and that the defendant possessed that firearm in the State of (name state in which possession occurred) then you may, but are not required to, find that it was transported across a state line.4

The term "firearm" means any weapon (including a starter gun) which will or is designed to or may be readily converted to expel a projectile by the action of an explosive.5

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Committee Comments

See Scarborough v. United States, 431 U.S. 563 (1977); Barrett v. United States, 423 U.S. 212, 215 n.4 (1976); 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal §§ 36.07-36.115 (4th ed. 1990).

Pursuant to the statute, it is unlawful for any person who has been convicted of a crime punishable by imprisonment for a term exceeding one year to possess or receive a firearm where the required interstate commerce nexus is established. The defendant need not know the firearm was transported across state lines. United States v. Valiant, 873 F.2d 205 (8th Cir. 1989). Challenges to the constitutionality of section 922(g) on the theory that Congress did not have constitutional authority to criminalize possession of a weapon by a felon just because the weapon had been transported in interstate commerce have been unsuccessful. United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624 (1995). See, e.g., United States v. Monteleone, 77 F.3d 1086 (8th Cir. 1996); United States v. Rankin, 64 F.3d 338, 339 (8th Cir. 1995); United States v. Mosby, 60 F.3d 454, 456 (8th Cir. 1995).

Section 921(a)(20) indicates that what constitutes a conviction is to be determined by reference to the law of the jurisdiction in which proceedings were held. Moreover, the section provides that, where a conviction has been expunged or set aside, or where a person has had his or her civil rights restored, there is no conviction for the purposes of this statute. With regard to restoration of civil rights, the Eighth Circuit has held that substantial, not total, restoration is required to remove a defendant from the reach of the statute, but further held that disqualification from serving as a juror and in certain law enforcement positions did not constitute substantial restoration. Presley v. United States, 851 F.2d 1052 (8th Cir. 1988). For a discussion of the differences in the various statutory schemes for the restoration of rights in other jurisdictions within this circuit, see United States v. Traxell, 914 F.2d 119 (8th Cir. 1990); United States v. Woodall, 120 F.2d 880 (8th Cir, 1997). For a discussion of the restoration of the right to possess a firearm, see Caron v. United States, 524 U.S. 308, 118 S. Ct. 2007 (1998). Any state limitation on possession of a particular type of firearm by an offender "activates the uniform federal ban on possessing any firearms at all." Caron v. United States, 118 S. Ct. at 2011. The mere absence of a statute prohibiting firearm possession by ex-felons does not constitute a restoration of civil rights for purposes of section 921(a)(20). United States v. Moore, 108 F.3d 878 (8th Cir. 1997).

In Old Chief v. United States, 519 U.S. 172, 117 S. Ct. 644 (1997), the Supreme Court held that it was error for the trial court to refuse to accept a defendant’s offer of stipulation to the fact of a prior felony conviction over the objection of the prosecution in any case "in which the prior conviction is for an offense likely to support conviction on some improper ground." In appropriate cases, under Old Chief, the trial court may be compelled to accept an offer to stipulate to the fact of a prior felony conviction. See, e.g., United States v. Blake, 107 F.3d 651 (8th Cir. 1997); but see Old Chief, 117 S. Ct. at 658 (Justice O’Connor dissenting).

Notes on Use

1. A misdemeanor crime involving domestic abuse may also be actionable under this section. See 18 USC§ 921(33)(A) and 922(g)(9).

2. "Knowingly" is found in the penalty section of the statute, § 924.

3. Crimes included are defined in section 921.

4. Adapted generally from the instruction used in Barrett v. United States, see 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 36.14 (4th ed. 1990).

5. This definition is taken from 18 USC 921(a)(3). Other portions of this definition should be used where appropriate.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.922B
DRUG USER IN POSSESSION OF FIREARM(18 USC 922(g)(3))

The crime of being a [drug user][drug addict] in possession of a firearm, as charged in [Count of] the indictment, has three elements, which are:

One, the defendant [was an unlawful user of a controlled substance, that is, (name of substance)]¹ [was a drug addict]²;

Two, the defendant knowingly³ [possessed] [received] [a firearm] [ammunition], that is (describe weapon or ammunition), while [he] [she] was [an unlawful user of a controlled substance] [a drug addict]; and

Three, the [firearm] [ammunition] was transported across a state line at some time during or before the defendant's possession of it.

If you have found beyond a reasonable doubt that the firearm in question was manufactured in a state other than (name state in which possession occurred) and that the defendant possessed that firearm in the State of (name state in which possession occurred) then you may, but are not required to, find that it was transported across a state line.⁴

The term "firearm" means any weapon (including a starter gun) which will or is designed to or may be readily converted to expel a projectile by the action of an explosive.⁵

[The phrase "unlawful user of a controlled substance" means a person who uses a controlled substance in a manner other than as prescribed by a licensed physician. The defendant must have been actively engaged in use of [a] controlled substance[s] during the time [he] [she] possessed the [firearm] [ammunition], but the law does not require that [he] [she] used the controlled substance[s] at the precise time [he] [she] possessed the [firearm] [ammunition]. Such use is not limited to the use of drugs on a particular day, or within a matter of days or weeks before, but rather that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct. [An inference that a person [was] [is] a user of a controlled substance may be drawn from evidence of a pattern of use or possession of a controlled substance that reasonably covers the time the [firearm] [ammunition] was possessed.]⁶

[The term "drug addict" means any individual who habitually uses any controlled substance so as to endanger the public morals, health, safety, or welfare, or who is so far addicted to the use of a controlled substance as to have lost the power of self-control with reference to [his] [her] addiction.]⁷

You are instructed that [name of substance(s)] is a controlled substance.

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. This instruction’s definition of an unlawful user of a controlled substance is based upon the definition utilized by the Treasury Department in its firearms regulations, 27 C.F.R. § 478.11, which provides in pertinent part as follows:

[A]ny person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician. Such use is not limited to the use of drugs on a particular day, or within a matter of days or weeks before, but rather that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct. A person may be an unlawful current user of a controlled substance even though the substance is not being used at the precise time the person seeks to acquire a firearm or receives or possesses a firearm. An inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time, e.g., a conviction for use or possession of a controlled substance within the past year; multiple arrests for such offenses within the past 5 years if the most recent arrest occurred within the past year; or persons found through a drug test to use a controlled substance unlawfully, provided that the test was administered within the past year.

The Eighth Circuit in United States v. Turnbull, 349 F.3d 558, 562 (8^th Cir. 2003) found the Treasury Department’s definition "entirely consistent with any standard for unlawful use to be gleaned from our prior decisions" and that the district court acted within its discretion when it incorporated §478.11's definition in its instructions. The Eighth Circuit has held that the government need not prove that the defendant was actually using drugs at the precise moment he possessed the firearm. Rather, the "plain language [of § 922(g)(3)] requires that the government only prove [the defendant] was an ‘unlawful user’ . . . during the time he possessed firearms." United States v. McIntosh, 23 F.3d 1454, 1458 (8^th Cir. 1994).

2. This definition is taken from 21 USC 802(1).

3. "Knowingly" is found in the penalty section of the statute, § 924.

4. Adapted generally from the instruction used in Barrett v. United States, 423 U.S. 212, 225 (1976).

5. This definition is taken from 18 USC 921(a)(3). Other portions of this definition should be used where appropriate.

6. See Note 1.

7. See Note 2.

Committee Comments

Pursuant to the statute, it is unlawful for any person who is a user of or addicted to a controlled substance to possess or receive a firearm where the required interstate commerce nexus is established. The defendant need not know the firearm was transported across state lines. United States v. Valiant, 873 F.2d 205 (8th Cir. 1989). Challenges to the constitutionality of section 922(g) on the theory that Congress did not have constitutional authority to criminalize possession of a weapon by a felon just because the weapon had been transported in interstate commerce have been unsuccessful. United States v. Lopez, 514 U.S. 549 (1995). See, e.g., United States v. Monteleone, 77 F.3d 1086 (8th Cir. 1996); United States v. Rankin, 64 F.3d 338, 339 (8th Cir. 1995); United States v. Mosby, 60 F.3d 454, 456 (8th Cir. 1995).

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

6.18.922(G)(3)
DRUG USER IN POSSESSION OF FIREARM(18 USC 922(g)(3))

The crime of being a [drug user][drug addict] in possession of a firearm, as charged in [Count of] the indictment, has three elements, which are:

One, the defendant [was an unlawful user of a controlled substance, that is, (name of substance)]¹ [was a drug addict]²;

Two, the defendant knowingly³ [possessed] [received] [a firearm] [ammunition], that is (describe weapon or ammunition), while [he] [she] was [an unlawful user of a controlled substance] [a drug addict]; and

Three, the [firearm] [ammunition] was transported across a state line at some time during or before the defendant's possession of it.

If you have found beyond a reasonable doubt that the firearm in question was manufactured in a state other than (name state in which possession occurred) and that the defendant possessed that firearm in the State of (name state in which possession occurred) then you may, but are not required to, find that it was transported across a state line.⁴

The term "firearm" means any weapon (including a starter gun) which will or is designed to or may be readily converted to expel a projectile by the action of an explosive.⁵

[The phrase "unlawful user of a controlled substance" means a person who uses a controlled substance in a manner other than as prescribed by a licensed physician. The defendant must have been actively engaged in use of [a] controlled substance[s] during the time [he] [she] possessed the [firearm] [ammunition], but the law does not require that [he] [she] used the controlled substance[s] at the precise time [he] [she] possessed the [firearm] [ammunition]. Such use is not limited to the use of drugs on a particular day, or within a matter of days or weeks before, but rather that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct. [An inference that a person [was] [is] a user of a controlled substance may be drawn from evidence of a pattern of use or possession of a controlled substance that reasonably covers the time the [firearm] [ammunition] was possessed.]⁶

[The term "drug addict" means any individual who habitually uses any controlled substance so as to endanger the public morals, health, safety, or welfare, or who is so far addicted to the use of a controlled substance as to have lost the power of self-control with reference to [his] [her] addiction.]⁷

You are instructed that [name of substance(s)] is a controlled substance.

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

[A]ny person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician. Such use is not limited to the use of drugs on a particular day, or within a matter of days or weeks before, but rather that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct. A person may be an unlawful current user of a controlled substance even though the substance is not being used at the precise time the person seeks to acquire a firearm or receives or possesses a firearm. An inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time, e.g., a conviction for use or possession of a controlled substance within the past year; multiple arrests for such offenses within the past 5 years if the most recent arrest occurred within the past year; or persons found through a drug test to use a controlled substance unlawfully, provided that the test was administered within the past year.

2. This definition is taken from 21 USC802(1).

3. "Knowingly" is found in the penalty section of the statute, § 924.

4. Adapted generally from the instruction used in Barrett v. United States, 423 U.S. 212, 225 (1976).

5. This definition is taken from 18 USC 921(a)(3). Other portions of this definition should be used where appropriate.

6. See Note 1.

7. See Note 2.

Committee Comments

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

The crime of being a [drug user] [drug addict] in possession of a firearm, as charged in [Count of] the indictment, has three elements, which are:

One, the defendant [was an unlawful user of a controlled substance, that is, (name of substance)]1 [was a drug addict]2;

Two, the defendant knowingly3 [possessed] [received] [a firearm] [ammunition], that is (describe weapon or ammunition), while [he] [she] was [an unlawful user of a controlled substance] [a drug addict]; and

Three, the [firearm] [ammunition] was transported across a state line at some time during or before the defendant's possession of it.

If you have found beyond a reasonable doubt that the firearm in question was manufactured in a state other than (name state in which possession occurred) and that the defendant possessed that firearm in the State of (name state in which possession occurred) then you may, but are not required to, find that it was transported across a state line.4

The term "firearm" means any weapon (including a starter gun) which will or is designed to or may be readily converted to expel a projectile by the action of an explosive.5

[The phrase "unlawful user of a controlled substance" means a person who uses a controlled substance in a manner other than as prescribed by a licensed physician. The defendant must have been actively engaged in use of [a] controlled substance[s] during the time [he] [she] possessed the [firearm] [ammunition], but the law does not require that [he] [she] used the controlled substance[s] at the precise time [he] [she] possessed the [firearm] [ammunition]. Such use is not limited to the use of drugs on a particular day, or within a matter of days or weeks before, but rather that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct. [An inference that a person [was] [is] a user of a controlled substance may be drawn from evidence of a pattern of use or possession of a controlled substance that reasonably covers the time the [firearm] [ammunition] was possessed.]6

[The term "drug addict" means any individual who habitually uses any controlled substance so as to endanger the public morals, health, safety, or welfare, or who is so far addicted to the use of a controlled substance as to have lost the power of self-control with reference to [his] [her] addiction.]7

You are instructed that [name of substance(s)] is a controlled substance.

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

[A]ny person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician. Such use is not limited to the use of drugs on a particular day, or within a matter of days or weeks before, but rather that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct. A person may be an unlawful current user of a controlled substance even though the substance is not being used at the precise time the person seeks to acquire a firearm or receives or possesses a firearm. An inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time, e.g., a conviction for use or possession of a controlled substance within the past year; multiple arrests for such offenses within the past 5 years if the most recent arrest occurred within the past year; or persons found through a drug test to use a controlled substance unlawfully, provided that the test was administered within the past year.

The Eighth Circuit in United States v. Turnbull, 349 F.3d 558, 562 (8th Cir. 2003) found the Treasury Department’s definition "entirely consistent with any standard for unlawful use to be gleaned from our prior decisions" and that the district court acted within its discretion when it incorporated §478.11's definition in its instructions. The Eighth Circuit has held that the government need not prove that the defendant was actually using drugs at the precise moment he possessed the firearm. Rather, the "plain language [of § 922(g)(3)] requires that the government only prove [the defendant] was an ‘unlawful user’ . . . during the time he possessed firearms." United States v. McIntosh, 23 F.3d 1454, 1458 (8th Cir. 1994).

2. This definition is taken from 21 USC802(1).

3. "Knowingly" is found in the penalty section of the statute, § 924.

4. Adapted generally from the instruction used in Barrett v. United States, 423 U.S. 212, 225 (1976).

5. This definition is taken from 18 USC 921(a)(3). Other portions of this definition should be used where appropriate.

6. See Note 1.

7. See Note 2.

Committee Comments

No 2000 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.924 FIREARMS -POSSESSION IN FURTHERANCE OF A
CRIME OF VIOLENCE/ DRUG TRAFFICKING OFFENSE
(18 USC 924(c))*

FORECITE National™ Materials Related To This Instruction:

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

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

See FORECITE National™ Federal Models By Offense: Using Or Carrying A Firearm During And In Relation To Drug Trafficking Or Crime Of Violence (18 USC 924(c))

The crime of possessing a firearm¹ in furtherance of a [crime of violence]² [drug trafficking crime] as charged in [Count _____ of] the indictment has [two] [three] elements, which are:³

One, the defendant committed the crime[s] of (describe crime[s]);⁴ and

Two, the defendant knowingly⁵ possessed a firearm in furtherance of [that] [those] crime[s] [and]

[Three, the firearm was a[n] (describe, e.g., semi-automatic assault weapon, short-barreled rifle, short-barreled shotgun, machine gun, destructive device, or firearm equipped with a silencer or muffler).]⁶

[Three, the defendant used the firearm to cause the death of (specify person killed).]⁷

[The phrase "in furtherance of" should be given its plain meaning, that is, the act of furthering, advancing, or helping forward. The phrase "in furtherance of" is a requirement that the defendant possess the firearm with the intent that it advance, assist or help commit the crime, not that it actually did so.]⁸

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. See 18 USC 921(a)(3), 921(a)(23) and 921(a)(24) and 26 USC 5845(b). "Firearm" normally will not require definition for the jury. Under 18 USC 924(c)(1), the penalty for use of a machine gun, silencer or muffler has been substantially increased, e.g., thirty (30) years. Under 18 USC 924(c)(1), the penalty for use of a semi-automatic assault weapon has been increased to ten (10) years. The definition of these weapons can be rather technical and not necessarily intuitive. See, e.g., 18 USC 921(a)(30) & 922, Appendix and 26 USC 5645. Where the third optional element is included in this instruction because the government seeks an enhanced penalty for use of an assault weapon, machine gun, silencer or muffler, or destructive device, the Committee recommends that the jury should be instructed as to the statutory definitions at the request of either party. Where more than one firearm is charged in the same count, a special verdict may be helpful. See Instruction 11.03. Cf. United States v. Friend, 50 F.3d 548, 554 (8th Cir. 1995) (government did not object to lesser-included offense instruction of using a firearm with no silencer).

2. Currently defined by 18 USC 924(c)(3); see also 18 USC 16.

3. The committee has omitted "use" and "carry" from the main body of the instruction because it believes that the prosecution will opt for the generally broader "possess in furtherance" language of the statute in formulating charges in indictments. However, in those instances in which the indictment charges the " use" of a firearm, the following definition of that term should be included in the instruction:

[The phrase "used [a] firearm[s]" means that the firearm was actively employed in the course of the commission of the (insert crime[s]). You may find that a firearm was used during the commission of the crime[s] of (insert crime) if you find that (it was [brandished] [displayed] [bartered] [used to strike someone] [fired]) (the defendant [attempted to fire the firearm] [traded or offered to trade a firearm without handling it] [made references to a firearm that was in the defendant's possession]) (describe other conduct consistent with the active-employment use of a firearm).]

The United States Supreme Court, in Bailey v. United States, 516 U.S. 137, 145 (1995), has determined that "the language, context, and history of section 924(c)(1) indicate that the Government must show active employment of the firearm" when the case is submitted under the "use" prong of the statute. This holding overrules an established line of cases that utilized the "accessibility and proximity test" previously employed by this and other circuits. The language of section 924(c)(1), supported by its history and context, compels the conclusion that Congress intended "use" in the active sense of "to avail oneself of." Id.

In order to meet this requirement, the firearm need not have a role in the crime as a weapon. See Smith v. United States, 508 U.S. 223, 241 (1993) (holding that a criminal who trades his firearm for drugs "uses" it during and in relation to a drug trafficking offense within the meaning of section 924(c)). Bailey, 516 U.S. at 145.

Where "carry" is charged in the indictment, it should be noted, "carrying" does not require that the defendant had the weapon on his person. United States v. Nelson, 109 F.3d 1323 (8th Cir. 1997); United States v. Barry, 98 F.3d 373, 378 (8th Cir. 1996),. "Carries," within the meaning of section 924(c)(1), includes carrying a weapon in a vehicle. United States v. Nelson; United States v. Freisinger, 937 F.2d 383, 387 (8th Cir. 1991). It is not necessary to show that the defendant used the weapon in any affirmative manner to prove that the defendant carried the weapon. Bailey v. United States, 516 U.S. at 145 (a firearm can be carried without being used, e.g., when an offender keeps a gun hidden in his clothing throughout a drug transaction).

Courts have held that it is not plain error to fail to give a definition of "carrying" because it is a commonly understood term. See United States v. Rhodenizer, 106 F.3d 222, 225 (8th Cir. 1997); United States v. Behler, 100 F.3d 632 (8th Cir. 1996) (where the defendant fails to offer an instruction defining "carry," the ordinary meaning of the word should apply).

If a definition of "carrying" is to be given, the Committee recommends the following be inserted after element Three:

[You may find that a firearm was "carried" during the commission of the crime[s] of (insert crime) if you find that the defendant [had a firearm on his person] [was transporting a firearm in a vehicle] [(describe other included conduct consistent with carrying a firearm)].

For additional discussion of the scope of the term "carry," see Smith v. United States, 508 U.S. 223 (1993); United States v. White, 81 F.3d 80 (8th Cir. 1996); United States v. Willis, 89 F.3d at 1379.

The use or carrying of a "firearm," as defined in 18 USC 921(a)(3), clearly is a statutory element of the offense which must be submitted to the jury. Element Two, supra. See also United States v. Rodriguez, 841 F. Supp. 79 (E.D.N.Y. 1994) (whether a firearm threaded for a silencer next to a silencer was "equipped" with a silencer within the meaning of the statute was an issue for the jury), aff'd, 53 F.3d 545, 546 (2d Cir. 1995).

The "in relation to" element must be included in the instructions in those instances where "use" or "carry" is charged. Smith v. United States, 508 U.S. 223, 237 (1993).

In Bradshaw v. United States, 153 F.3d 704, 707 (8^th Cir. 1998) this circuit approved the following language:

In determining whether a defendant used or carried a firearm, you may consider all of the factors received in evidence in the case including the nature of the underlying drug trafficking crime alleged, the proximity of the defendant to the firearm in question, the usefulness of the firearm to the crime alleged, and the circumstances surrounding the presence of the firearm.

In Bailey v. United States, 516 U.S. 137 (1995), the Court enumerated various examples of conduct that would constitute the active employment of a firearm in relation to the predicate offense and also stated that a firearm could "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." Id. The Committee believes that other conduct can also constitute active employment of a firearm and that latitude should be accorded to the trial court to fashion an appropriate instruction when the evidence supports submission on the issue of "use."

4. The question of whether the crime is a crime of violence or a drug trafficking crime is a question of law for the court. United States v. Moore, 38 F.3d 977, 979 (8th Cir. 1994) (district judge correctly applied a categorical analysis to the elements of involuntary manslaughter as defined in 18 USC 1112 and determined as a matter of law that it was a crime of violence). The trial court should make its finding on the record.

5. Section 924(c) as written does not require that possession, use or carrying of a weapon be done "knowingly." However, "the existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence." Staples v. United States, 511 U.S. 600, 605 (1994). Most jurisdictions that have addressed the issue require knowledge. The Eighth Circuit has implied that knowingly is required. See Bradshaw v. United States, 153 F.3d 704 (8^th Cir. 1998); United States v. Coyle, 998 F.2d 548, 551 (8th Cir. 1993), cert. denied sub nom., Swedzinski v. United States, 510 U.S. 1095 (1994). See also United States v. Wilson, 884 F.2d 174, 178-79 (5th Cir. 1989). Other circuits’ pattern jury instructions require knowingly also. See First, Fifth, Seventh, Ninth and Eleventh Circuit Pattern Jury Instructions and 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 39.16-.20 (5^th ed. 2000). Thus, the Committee believes that "knowingly" is required even though section 924(c) does not expressly require that the act be done knowingly.

6. This element should be considered only when the government seeks an enhanced sentence associated with a particular type of firearm, e.g., a semi-automatic assault weapon or a machine gun. See United States v. Simms, 18 F.3d 588, 592 (8th Cir. 1994) (generally the prosecution must prove only that the defendant used or carried a firearm and did so in relation to the predicate, e.g., drug trafficking, crime); United States v. Warren, 16 F.3d 247, 252 (8th Cir. 1994) (a section 924(c) conviction requires that a defendant use or carry a firearm during and in relation to either a drug trafficking crime or a crime of violence). Where an enhanced sentence is sought, the government must prove that the firearm was not just any firearm, but of the type specifically proscribed.

The Committee believes that actual knowledge of the specific characteristics of the firearm resulting in enhancement of the punishment is not required in an 18 USC 924(c) prosecution. United States v. Harris, 959 F.2d 246, 257-61 (D.C. Cir. 1992). Although it may be argued that the rationale of United States v. X-Citement Video, Inc., 513 U.S. 64 (1994) requires a mens rea finding as to the characteristics of the firearm, it is the Committee's opinion that the X-Citement Video rationale does not apply to an "element" that only establishes applicability of an enhanced penalty, as opposed to liability for violation of the statute. X-Citement Video involved a prosecution under 18 USC 2252, and the Court held that the government needed to prove not only that the defendant knew the depiction was sexually explicit, but also that the defendant knew the performer was a minor.]

The Committee also believes that Staples v. United States, 511 U.S. 600 (1994) is distinguishable. Where a defendant is charged with merely possessing a proscribed firearm such as a sawed-off shotgun or machine gun under 26 USC 5861(d), there is no doubt that the mens rea requirement of the offense includes knowledge that the firearm possessed had characteristics that make it a "firearm" under that statute. The Court in Staples held that Congress would have spoken more clearly if it had intended to permit severe punishment of "traditionally lawful conduct" and of those "wholly ignorant of the offending characteristics of their weapons." Before a defendant can be found guilty under 18 USC 924(c), however, the government must first prove that the defendant committed a "crime of violence" or a "drug trafficking crime." See United States v. Hawkins, 59 F.3d 723, 729 (8th Cir. 1995) ("mere possession" of a firearm is insufficient); United States v. Simms, 18 F.3d 588, 592 (8th Cir. 1994). The distinction between the scienter requirements of 26 USC 5861 and 18 USC 924(c) were carefully analyzed in United States v. Harris, 959 F.2d 246, 257-61 (D.C. Cir. 1992). Employing the same analysis the Supreme Court later used in Staples, the D.C. Circuit concluded that the defendant's conviction for using a machine gun in violation of 18 USC 924(c) could stand without proof that the defendant "knew the precise nature of the weapon," but that the conviction for possessing the same weapon in violation of 26 USC 5861 could not. Harris, 959 F.2d at 259 (finding that knowingly using a firearm in relation to a drug distribution offense established the required mental state and analogizing to cases where the defendants receive enhanced penalties based on possession of different kinds of illegal drugs without the government showing the defendant knew the exact nature of a given illegal substance.

A defendant may be held liable under section 924(c) for the acts of others, based not on actual knowledge, but that the use or carrying of the firearm was reasonably foreseeable in furtherance of the offense, e.g., a drug conspiracy. United States v. Friend, 50 F.3d 548, 554 (8th Cir. 1995); United States v. Lucas, 932 F.2d 1210, 1220 (8th Cir.) (citing Pinkerton v. United States, 328 U.S. 640, 647-48 (1946)). The mens rea requirement is satisfied by the defendant's agreement to join in an agreement to commit other crimes; however, there is no requirement that the defendant have actual knowledge of the specific type of firearm. See Friend, 50 F.3d at 554 (evidence supported foreseeability of firearm but not silencer). The Committee recommends that the reasonable foreseeability requirement be given if the jury is to be given a vicarious liability Pinkerton instruction or Instruction 5.01 (aiding and abetting). See Friend, 50 F.3d at 554; United States v. Comeaux, 955 F.2d 586, 591 (8th Cir. 1992) (Pinkerton vicarious liability instruction where the defendants were indicted as aiders and abettors), cert. denied sub nom., Roberson v. United States, 506 U.S. 944 (1992).

7. Title 18 USC 924(j) is not independent of section 924(c) and the punishment provisions of that section. Section 924(j) is an additional aggravating punishment for the scheme set out in section 924(c). "Although section 924(j) does not explicitly contain the same express mandatory cumulative punishment language as found in section 924(c), it incorporates section 924(c) by reference without disclaiming the cumulative punishment scheme which is so clearly set out in section 924(c). United States v. Allen, 247 F.3d 741,769, (8^th Cir. 2001).

Where the indictment charges a violation of section 924(c) which caused death of a person under section 924(j), the Court must instruct the jury, consistent with the facts of the case, on the elements of murder, voluntary manslaughter and involuntary manslaughter since the maximum sentence to be imposed is dependent on a determination of the nature of the crime committed which caused the death. See 18 USC 924(j)(1) and (2).

This circuit has not decided whether a specific intent to kill is an element of the offense of murder in the first degree committed during a violation of section 924(c). United States v. Allen, 247 F.3d at 783-84 (citations omitted). The element of "malice aforethought" may be established may be established under a felony murder theory. "We agree with the Tenth Circuit’s interpretation of section 1111(a) in a case such as this one (murder committed during armed bank robbery) that ‘first degree murder is defined as including any murder which is either premeditated or committed in the perpetration of any of the listed felonies, which include robbery.’" Id. Further, an instruction requiring a jury to find, beyond a reasonable doubt, that a defendant was aware that a serious risk of death may occur in the course of an armed robbery is adequate to support a conviction. Id. at 785. The panel’s decision in Allen also concluded that the aiding and abetting instructions on each count given by the District Court were sufficient to supply a specific intent element as a matter of law. Id. Aiding and abetting a violation of 924(j) the government must prove: (1) the defendant must "have known the offense of using or carrying a firearm during and in relation to a bank robbery was being committed or going to be committed;" (2) the defendant "intentionally acted in some way for the purpose of causing, encouraging, or aiding the commission of using or carrying of a firearm during and in relation to a bank robbery and that . . . was murdered in the perpetration of that robbery;" and (3) the defendant "was aware of a serious risk of death attending his conduct. Id. at 784, n.19 (8^th Cir. 2001).

8. United States v. Kent, 531 F.3d 642 (8^th Cir. 2008).

Committee Comments

Brandishing and discharge of a weapon are sentencing enhancements and not elements of this offense and thus, do not need to pleaded and proven to a jury beyond a reasonable doubt. Harris v. United States, 536 U.S. 545 (2002).

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

6.18.924C FIREARMS -POSSESSION IN FURTHERANCE OF A
CRIME OF VIOLENCE/ DRUG TRAFFICKING OFFENSE
(18 USC 924(c)) *

The crime of possessing a firearm¹ in furtherance of a [crime of violence]² [drug trafficking crime]³as charged in Count _____ of the indictment has [two] [three] elements, which are:⁴

One, the defendant committed the crime[s] of (describe crime[s];)⁵ and

Two, the defendant knowingly⁶ possessed a firearm in furtherance of (that) (those) crime(s) [and]

[Three, the firearm was a[n] (describe, e.g., semi-automatic assault weapon, short-barreled rifle, short-barreled shotgun, machine gun, destructive device, or firearm equipped with a silencer or muffler.)]⁷

[Three, the defendant used the firearm to cause the death of (specify person killed).];⁸

[The phrase "possessed in furtherance of" means the firearm must have some purpose or effect with respect to (insert crime[s]); its presence or involvement cannot be the result of accident or coincidence.] [The firearm must facilitate or have the potential to facilitate the offense of (insert crime[s]).] ⁹

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

* This statute was revised in 1998. This instruction is to be used for offenses committed after November 13, 1998.

Notes on Use

1. See 18 USC 921(a)(3), 921(a)(23) and 921(a)(24) and 26 USC 5845(b). "Firearm" normally will not require definition for the jury. Under 118 USC 924(c)(1) as amended effective November 18, 1988, the penalty for use of a machine gun, silencer or muffler has been substantially increased, e.g., thirty (30) years. Under 18 USC 924(c)(1), as amended effective September 13, 1994, the penalty for use of a semi-automatic assault weapon has been increased to ten (10) years. The definition of these weapons can be rather technical and not necessarily intuitive. See, e.g., 18 USC 921(a)(30) & 922, Appendix and 26 USC 5645. Where the third optional element is included in this instruction because the government seeks an enhanced penalty for use of an assault weapon, machine gun, silencer or muffler, or destructive device, the Committee recommends that the jury should be instructed as to the statutory definitions at the request of either party. Where more than one firearm is charged in the same count, a special verdict may be helpful. See Instruction 11.03. Cf. United States v. Friend, 50 F.3d 548, 554 (8th Cir. 1995) (government did not object to lesser included instruction of using a firearm with no silencer).

2. Currently defined by 18 USC 924(c)(3); see also 18 USC 16.

3. Defined by 18 USC 924(c)(2) as amended by the Anti-Drug Abuse Act of 1988, Pub. L. 100-690, 102 Stat. 4181, 4360 § 6212 (eff. Nov. 18, 1988). For crimes committed between November 15, 1986, and November 18, 1988, consistent with the 1988 amendment, applicable case law interpreted "drug trafficking crime" to include conspiracy to distribute and possession with intent to distribute controlled substances -- but not simple misdemeanor possession, e.g., 21 USC 844. See United States v. Matra, 841 F.2d at 843. Note, however, that where simple possession is in excess of five grams of cocaine base, that possession is a felony (21 USC 844) and thus is a "drug trafficking crime" under section 924(c)(2).

4. The committee has omitted "use" and "carry" from the main body of the instruction because it believes that the prosecution will opt for the generally broader "possess in furtherance" language of the statute in formulating charges in indictments. However, in those instances in which the indictment charges the " use" of a firearm, the following definition of that term should be included in the instruction:

[The phrase "used [a] firearm[s]" means that the firearm was actively employed in the course of the commission of the (insert crime[s]). You may find that a firearm was used during the commission of the crime[s] of (insert crime) if you find that (it was [brandished] [displayed] [bartered] [used to strike someone] [fired]) (the defendant [attempted to fire the firearm] [traded or offered to trade a firearm without handling it] [made references to a firearm that was in the defendant's possession]) (describe other conduct consistent with the active-employment use of a firearm).]

The United States Supreme Court, in Bailey, has determined that "the language, context, and history of section 924(c)(1) indicate that the Government must show active employment of the firearm" when the case is submitted under the "use" prong of the statute. This holding overrules an established line of cases that utilized the "accessibility and proximity test" previously employed by this and other circuits. The language of section 924(c)(1), supported by its history and context, compels the conclusion that Congress intended "use" in the active sense of "to avail oneself of." Id.

If a definition of "carrying" is to be given, the Committee recommends the following be inserted after element Three:

[You may find that a firearm was "carried" during the commission of the crime[s] of (insert crime) if you find that the defendant [had a firearm on his person] [was transporting a firearm in a vehicle] [(describe other included conduct consistent with carrying a firearm)].

The "in relation to" element must be included in the instructions in those instances where "use" or "carry" is charged. Smith v. United States, 508 U.S. 223, 237 (1993).

In Bradshaw v. United States, 153 F.3d 704, 707 (8^th Cir. 1998) this circuit approved the following language:

In determining whether a defendant used or carried a firearm, you may consider all of the factors received in evidence in the case including the nature of the underlying drug trafficking crime alleged, the proximity of the defendant to the firearm in question, the usefulness of the firearm to the crime alleged, and the circumstances surrounding the presence of the firearm.

5. The question of whether the crime is a crime of violence or a drug trafficking crime is a question of law for the court. United States v. Moore, 38 F.3d 977, 979 (8th Cir. 1994) (district judge correctly applied a categorical analysis to the elements of involuntary manslaughter as defined in 18 USC 1112 and determined as a matter of law that it was a crime of violence). The trial court should make its finding on the record.

6. Section 924(c) as written does not require that possession, use or carrying of a weapon be done "knowingly." However, "the existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence." Staples v. United States, 511 U.S. 600, 605 (1994). Most jurisdictions that have addressed the issue require knowledge. The Eighth Circuit has implied that knowingly is required. See Bradshaw v. United States, 153 F.3d 704 (8^th Cir. 1998); United States v. Coyle, 998 F.2d 548, 551 (8th Cir. 1993), cert. denied sub nom., Swedzinski v. United States, 510 U.S. 1095 (1994). See also United States v. Wilson, 884 F.2d 174, 178-79 (5th Cir. 1989). Other circuits’ pattern jury instructions require knowingly also. See First, Fifth, Seventh, Ninth and Eleventh Circuit Pattern Jury Instructions and 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 39.16-.20 (5^th ed. 2000). Thus, the Committee believes that "knowingly" is required even though section 924(c) does not expressly require that the act be done knowingly.

7. This element should be considered only when the government seeks an enhanced sentence associated with a particular type of firearm, e.g., a semi-automatic assault weapon or a machine gun. See United States v. Simms, 18 F.3d 588, 592 (8th Cir. 1994) (generally the prosecution must prove only that the defendant used or carried a firearm and did so in relation to the predicate, e.g., drug trafficking, crime); United States v. Warren, 16 F.3d 247, 252 (8th Cir. 1994) (a section 924(c) conviction requires that a defendant use or carry a firearm during and in relation to either a drug trafficking crime or a crime of violence). Where an enhanced sentence is sought, the government must prove that the firearm was not just any firearm, but of the type specifically proscribed.

8. Title 18 USC 924(j) is not independent of section 924(c) and the punishment provisions of that section. Section 924(j) is an additional aggravating punishment for the scheme set out in section 924(c). "Although section 924(j) does not explicitly contain the same express mandatory cumulative punishment language as found in section 924(c), it incorporates section 924(c) by reference without disclaiming the cumulative punishment scheme which is so clearly set out in section 924(c). United States v. Allen, 247 F.3d 741,769, (8^th Cir. 2001).

9. Muscarello v. United States, 524 U.S. 125, 135 (1998). The Committee believes that the language "during and in relation to" in those instances in which "use" or "carry" is charged and the phrase "in furtherance of" in those cases in which "possession" is charged were intended by Congress to be co-extensive. If the Court concludes that further definition of "in furtherance of" would be helpful to the jury, the instruction from Bradshaw v. United States, 153 F.3d 704, 707 (8^th Cir. 1998) may be used. See Note 4, supra.

Committee Comments

See Fifth Circuit Pattern Jury Instruction 2.48 (West 2001) and 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 39.17-.20 (5^th ed. 2000).

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

The crime of possessing a firearm1 in furtherance of a [crime of violence]2 [drug trafficking crime]3as charged in Count _____ of the indictment has [two] [three] elements, which are:4

One, the defendant committed the crime[s] of (describe crime[s];)5 and

Two, the defendant knowingly6 possessed a firearm in furtherance of (that) (those) crime(s) [and]

[Three, the firearm was a[n] (describe, e.g., semi-automatic assault weapon, short-barreled rifle, short-barreled shotgun, machine gun, destructive device, or firearm equipped with a silencer or muffler.)]7

[Three, the defendant used the firearm to cause the death of (specify person killed).];8

[The phrase "possessed in furtherance of" means the firearm must have some purpose or effect with respect to (insert crime[s]); its presence or involvement cannot be the result of accident or coincidence.] [The firearm must facilitate or have the potential to facilitate the offense of (insert crime[s]).] 9

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

* This statute was revised in 1998. This instruction is to be used for offenses committed after November 13, 1998.

Notes on Use

1. See 18 USC 921(a)(3), 921(a)(23) and 921(a)(24) and 26 USC 5845(b). "Firearm" normally will not require definition for the jury. Under 18 USC 924(c)(1) as amended effective November 18, 1988, the penalty for use of a machine gun, silencer or muffler has been substantially increased, e.g., thirty (30) years. Under 18 USC 924(c)(1), as amended effective September 13, 1994, the penalty for use of a semi-automatic assault weapon has been increased to ten (10) years. The definition of these weapons can be rather technical and not necessarily intuitive. See, e.g., 18 USC 921(a)(30) & 922, Appendix and 26 USC 5645. Where the third optional element is included in this instruction because the government seeks an enhanced penalty for use of an assault weapon, machine gun, silencer or muffler, or destructive device, the Committee recommends that the jury should be instructed as to the statutory definitions at the request of either party. Where more than one firearm is charged in the same count, a special verdict may be helpful. See Instruction 11.03. Cf. United States v. Friend, 50 F.3d 548, 554 (8th Cir. 1995) (government did not object to lesser included instruction of using a firearm with no silencer).

2. Currently defined by 18 USC 924(c)(3); see also 18 USC 16.

[The phrase "used [a] firearm[s]" means that the firearm was actively employed in the course of the commission of the (insert crime[s]). You may find that a firearm was used during the commission of the crime[s] of (insert crime) if you find that (it was [brandished] [displayed] [bartered] [used to strike someone] [fired]) (the defendant [attempted to fire the firearm] [traded or offered to trade a firearm without handling it] [made references to a firearm that was in the defendant's possession]) (describe other conduct consistent with the active-employment use of a firearm).]

The United States Supreme Court, in Bailey, has determined that "the language, context, and history of section 924(c)(1) indicate that the Government must show active employment of the firearm" when the case is submitted under the "use" prong of the statute. This holding overrules an established line of cases that utilized the "accessibility and proximity test" previously employed by this and other circuits. The language of section 924(c)(1), supported by its history and context, compels the conclusion that Congress intended 'use' in the active sense of 'to avail oneself of.'" Id.

If a definition of "carrying" is to be given, the Committee recommends the following be inserted after element Three:

[You may find that a firearm was "carried" during the commission of the crime[s] of (insert crime) if you find that the defendant [had a firearm on his person] [was transporting a firearm in a vehicle] [(describe other included conduct consistent with carrying a firearm)].

The "in relation to" element must be included in the instructions in those instances where "use" or "carry" is charged. Smith v. United States, 508 U.S. 223, 237 (1993).

In Bradshaw v. United States, 153 F.3d 704, 707 (8th Cir. 1998) this circuit approved the following language:

In determining whether a defendant used or carried a firearm, you may consider all of the factors received in evidence in the case including the nature of the underlying drug trafficking crime alleged, the proximity of the defendant to the firearm in question, the usefulness of the firearm to the crime alleged, and the circumstances surrounding the presence of the firearm.

6. Section 924(c) as written does not require that possession, use or carrying of a weapon be done "knowingly." However, "the existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence." Staples v. United States, 511 U.S. 600, 605 (1994). Most jurisdictions that have addressed the issue require knowledge. The Eighth Circuit has implied that knowingly is required. See Bradshaw v. United States, 153 F.3d 704 (8th Cir. 1998); United States v. Coyle, 998 F.2d 548, 551 (8th Cir. 1993), cert. denied sub nom., Swedzinski v. United States, 510 U.S. 1095 (1994). See also United States v. Wilson, 884 F.2d 174, 178-79 (5th Cir. 1989). Other circuits’ pattern jury instructions require knowingly also. See First, Fifth, Seventh, Ninth and Eleventh Circuit Pattern Jury Instructions and 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 39.16-.20 (5th ed. 2000). Thus, the Committee believes that "knowingly" is required even though section 924(c) does not expressly require that the act be done knowingly.

Committee Comments

See Fifth Circuit Pattern Jury Instruction 2.48 (West 2001) and 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 39.17-.20 (5th ed. 2000).

For 2000 version see below

******************************************************************************************************************

2000 Version

The crime of [using] [carrying] a firearm1 during and in relation to a [crime of violence]2 [drug trafficking crime]3, as charged in Count _____ of the indictment has [two] [three] essential elements, which are:

One, the defendant committed the crime[s] of (describe crime[s]);4

Two, during and in relation to5 the commission of [that] [those] crime[s], the defendant knowingly6 [used]7 [carried]8 [a] firearm[s]9[.][; and

Three, the firearm was a[n] (describe, e.g., semi-automatic assault weapon, short-barreled rifle, short-barreled shotgun, machine gun, destructive device, or firearm equipped with a silencer or muffler.).]10

[The phrase "used [a] firearm[s]" means that the firearm was actively employed in the course of the commission of the (insert crime[s]). You may find that a firearm was used during the commission of the crime[s] of (insert crime) if you find that (it was [brandished] [displayed] [bartered] [used to strike someone] [fired]) (the defendant [attempted to fire the firearm] [traded or offered to trade a firearm without handling it] [made references to a firearm that was in the defendant's possession]) (describe other conduct consistent with the active-employment use of a firearm).]11

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

* This statute was revised in 1998. This instruction is to be used for offenses committed prior to November 13, 1998.

Committee Comments

See generally United States v. Lyman, 892 F.2d 751 (8th Cir. 1989), cert. denied, 498 U.S. 810 (1990); United States v. Matra, 841 F.2d 837 (8th Cir. 1988). Cf. Staples v. United States, 511 U.S. 600, 114 S. Ct. 1793 (1994); United States v. Barr, 32 F.3d 1320 (8th Cir. 1994) (both cases applying an enhanced scienter requirement for prosecutions under 26 USC 5861(d) for possession of the types of weapons, e.g., sawed-off shotguns, which under 18 USC 924(c) carry more than the fiveyear penalty).

Notes on Use

1. See 18 USC§ 921(a)(3), 921(a)(23) and 921(a)(24) and 26 USC 5845(b). "Firearm" normally will not require definition for the jury. Under 18 USC 924(c)(1) as amended effective November 18, 1988, the penalty for use of a machine gun, silencer or muffler has been substantially increased, e.g., thirty (30) years. Under 18 USC 924(c)(1), as amended effective September 13, 1994, the penalty for use of a semi-automatic assault weapon has been increased to ten (10) years. The definition of these weapons can be rather technical and not necessarily intuitive. See, e.g., 18 USC§ 921(a)(30) & 922, Appendix and 26 USC 5645. Where the third optional element is included in this instruction because the government seeks an enhanced penalty for use of an assault weapon, machine gun, silencer or muffler, or destructive device, the Committee recommends that the jury should be instructed as to the statutory definitions at the request of either party.

2. Currently defined by 18 USC 924(c)(3); see also 18 USC 16.

5. The "in relation to" element must be included in the instructions. United States v. Stewart, 779 F.2d 538, 540 (9th Cir. 1985), cert. denied, 484 U.S. 867 (1987). The term may be further defined, see United States v. Brockington, 849 F.2d 872, 875-76 (4th Cir. 1988), but failure to do so is not error where a further definition would not have changed the result. United States v. Ramos, 861 F.2d 228, 231 (9th Cir. 1988).

In order to meet this requirement, the firearm need not have a role in the crime as a weapon. See Smith v. United States, 508 U.S. 223, 113 S. Ct. 2050, 2060 (1993) (holding that a criminal who trades his firearm for drugs "uses" it during and in relation to a drug trafficking offense within the meaning of section 924(c)). Bailey v. United States, 516 U.S. 137, ___, 116 S. Ct. 501, 507 (1995).

6. Section 924(c) as written does not require that the use or carrying of a weapon be done "knowingly." Section 924(c) is not a specific intent offense. United States v. Coyle, 998 F.2d 548, 551 (8th Cir. 1993), cert. denied sub nom., Swedzinski v. United States, 510 U.S. 1095, 114 S. Ct. 928 (1994). The Fifth Circuit has held that "knowledge of the facts constituting the offense" is the requisite scienter element of this statute. United States v. Wilson, 884 F.2d 174, 178-79 (5th Cir. 1989) (rejecting defendant's argument that under section 924(a)(1) the required scienter was "willfully"). That opinion went on to hold that the scienter element need not be expressly set out in the indictment if it can be fairly imported from the charge in the indictment. Id., 884 F.2d at 180-81. Accord United States v. Santeramo, 45 F.3d 622 (2d Cir. 1995). It has been the policy of this Committee not to use words such as "knowingly" in the elements instructions unless they appear in the statute, see Section 7.00, infra, or are clearly required by case law. The Committee believes, however, the safer practice is to include "knowingly" in the elements.

7. The United States Supreme Court, in Bailey, has determined that "the language, context, and history of § 924(c)(1) indicate that the Government must show active employment of the firearm" when the case is submitted under the "use" prong of the statute. This holding overrules an established line of cases that utilized the "accessibility and proximity test" previously employed by this and other circuits. The language of section 924(c)(1), supported by its history and context, compels the conclusion that Congress intended 'use' in the active sense of 'to avail oneself of.'" Id.

8. "Carrying" does not require that the defendant had the weapon on his person. United States v. Nelson, 109 F.3d 1323 (8th Cir. 1997); United States v. Barry, 98 F.3d 373, 378 (8th Cir. 1996), cert. denied, 519 U.S. 1140 (1997). "Carries," within the meaning of section 924(c)(1), includes carrying a weapon in a vehicle. United States v. Nelson, supra; United States v. Freisinger, 937 F.2d 383, 387 (8th Cir. 1991). It is not necessary to show that the defendant used the weapon in any affirmative manner to prove that defendant carried the weapon. Bailey v. United States, 516 U.S. 137, ___, 116 S. Ct. 501, 507 (1995) (a firearm can be carried without being used, e.g., when an offender keeps a gun hidden in his clothing throughout a drug transaction).

Courts have held that it is not plain error to fail to give a definition of "carrying" because it is a commonly understood term. See United States v. Rhodenizer, 106 F.3d 222, 225 (8th Cir. 1997); United States v. Behler, 100 F.3d 632 (8th Cir. 1996) (where defendant fails to offer an instruction defining "carry," the ordinary meaning of the word should apply).

If a definition of "carrying" is to be given, the Committee recommends the following be inserted after element Three:

[You may find that a firearm was "carried" during the commission of the crime[s] of (insert crime) if you find that the defendant [had a firearm on his person] [was transporting a firearm in a vehicle] [(describe other included conduct consistent with carrying a firearm)].

For additional discussion of the scope of the term "carry," see Smith v. United States, 508 U.S. 223, 113 S. Ct. 2050 (1993); United States v. White, 81 F.3d 80 (8th Cir. 1996); United States v. Willis, 89 F.3d at 1379.

9. The use or carrying of a "firearm," as defined in 18 USC 921(a)(3), clearly is a statutory element of the offense which must be submitted to the jury. Element Two, supra. See also United States v. Rodriguez, 841 F. Supp. 79 (E.D.N.Y. 1994) (whether a firearm threaded for a silencer next to a silencer was "equipped" with a silencer within the meaning of the statute was an issue for the jury), aff'd, 53 F.3d 545, 546 (2d Cir. 1995).

Where the firearm is of a type which triggers an enhanced penalty, it can be argued the enhancement may be so great that due process requires that the jury find beyond a reasonable doubt that the firearm was a particular type. See McMillian v. Pennsylvania, 477 U.S. 79, 88 (1986) (implied disapproval of a sentencing factor "tailored" by the legislature to be "a tail which wags the dog of the substantive offense"). But see United States v. Galloway, 976 F.2d 414, 426 (8th Cir. 1992) (en banc) (tripled sentencing range based on uncharged conduct did not require clear and convincing evidence, let alone beyond a reasonable doubt); United States v. Luciano-Mosquera, 63 F.3d 1142 (1st Cir. 1995) (in a machine gun prosecution it was not plain error for the court to instruct that an essential element was that "the defendant [ ] knowingly carried a firearm").

Where more than one firearm is charged in the same count, a special verdict may be helpful. See Instruction 11.03. Cf. United States v. Friend, 50 F.3d 548, 554 (8th Cir. 1995) (government did not object to lesser included instruction of using a firearm with no silencer).

10. The third element is applicable only when the government seeks an enhanced sentence associated with a particular type of firearm, e.g., a semi-automatic assault weapon or a machine gun. See United States v. Simms, 18 F.3d 588, 592 (8th Cir. 1994) (generally the prosecution must prove only that the defendant used or carried a firearm and did so in relation to the predicate, e.g., drug trafficking, crime); United States v. Warren, 16 F.3d 247, 252 (8th Cir. 1994) (a section 924(c) conviction requires that a defendant use or carry a firearm during and in relation to either a drug trafficking crime or a crime of violence). Where an enhanced sentence is sought, the government must prove that the firearm was not just any firearm, but of the type specifically proscribed. See United States v. Rodriguez, 841 F. Supp. 79 (E.D.N.Y. 1994) (whether firearm was "equipped" with a silencer within meaning of statute was an issue for the jury), aff'd, 53 F.3d 545, 546 (2d Cir. 1995).

The Committee believes that actual knowledge of the specific characteristics of the firearm resulting in enhancement of the punishment is not required in an 18 USC 924 (c) prosecution. Although it may be argued that the rationale of United States v. X-Citement Video, Inc., 513 U.S. 64, 115 S. Ct. 464, 465 (1994) requires a mens rea finding as to the characteristics of the firearm, it is the Committee's opinion that the X-Citement Video rationale does not apply to an "element" that only establishes applicability of an enhanced penalty, as opposed to liability for violation of the statute. X-Citement Video involved a prosecution under 18 USC 2252, and the Court held that the government needed to prove not only that the defendant knew the depiction was sexually explicit, but also that the defendant knew the performer was a minor.]

The Committee also believes that Staples v. United States, 511 U.S. 600, 114 S. Ct. 1793 (1994) is distinguishable. Where a defendant is charged with merely possessing a proscribed firearm such as a sawed-off shotgun or machine gun under 26 USC 5861(d), there is no doubt that the mens rea requirement of the offense includes knowledge that the firearm possessed had characteristics that make it a "firearm" under that statute. The Court in Staples held that Congress would have spoken more clearly if it had intended to permit severe punishment of "traditionally lawful conduct" and of those "wholly ignorant of the offending characteristics of their weapons." Before a defendant can be found guilty under 18 USC 924(c), however, the government must first prove that the defendant committed a "crime of violence" or a "drug trafficking crime." See United States v. Hawkins, 59 F.3d 723, 729 (8th Cir. 1995) ("mere possession" of a firearm is insufficient); United States v. Simms, 18 F.3d 588, 592 (8th Cir. 1994). The distinction between the scienter requirements of 26 USC 5861 and 18 USC 924(c) were carefully analyzed in United States v. Harris, 959 F.2d 246, 257-61 (D.C. Cir.), cert. denied, 506 U.S. 932 (1992). Employing the same analysis the Supreme Court later used in Staples, the D.C. Circuit concluded that defendant's conviction for using a machine gun in violation of 18 USC 924(c) could stand without proof that the defendant "knew the precise nature of the weapon," but that the conviction for possessing the same weapon in violation of 26 USC 5861 could not. 959 F.2d at 259 (finding that knowingly using a firearm in relation to a drug distribution offense established the required mental state and analogizing to cases where defendants receive enhanced penalties based on possession of different kinds of illegal drugs without the government showing the defendant knew the exact nature of a given illegal substance.

A defendant may be held liable under section 924(c) for the acts of others, based not on actual knowledge, but the government must prove that the use or carrying of the firearm was reasonably foreseeable in furtherance of the offense, e.g., a drug conspiracy. United States v. Friend, 50 F.3d 548, 554 (8th Cir. 1995); United States v. Lucas, 932 F.2d 1210, 1220 (8th Cir.) (citing Pinkerton v. United States, 328 U.S. 640, 647-48 (1946)), cert. denied, 502 U.S. 949 (1991). The mens rea requirement is satisfied by the defendant's agreement to join in an agreement to commit other crimes; however, there is no requirement that the defendant have actual knowledge of the specific type of firearm. See Friend, 50 F.3d at 554 (evidence supported foreseeability of firearm but not silencer). The Committee recommends that the reasonable foreseeability requirement be given if the jury is to be given a vicarious liability Pinkerton instruction or Instruction 5.01 (aiding and abetting). See Friend, 50 F.3d at 554; United States v. Comeaux, 955 F.2d 586, 591 (8th Cir. 1992) (Pinkerton vicarious liability instruction where defendants were indicted as aiders and abettors), cert. denied sub nom., Roberson v. United States, 506 U.S. 944, 113 S. Ct. 387 (1992).

11. In Bailey v. United States, 516 U.S. 137, 116 S. Ct. 501 (1995), the Court enumerated various examples of conduct that would constitute the active employment of a firearm in relation to the predicate offense and also stated that a firearm could "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." Id. The Committee believes that other conduct can also constitute active employment of a firearm and that latitude should be accorded to the trial court to fashion an appropriate instruction when the evidence supports submission on the issue of "use."

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1001A CONCEALING A MATERIAL FACT
FROM A GOVERNMENTAL AGENCY

(18 USC 1001)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: False Statements To Federal Agencies And Agents (18 USC 1001)

The crime of [falsifying a material fact] [concealing a material fact] in a matter with a governmental agency, as charged in [Count _____ of] the indictment, has four elements, which are:

One, the defendant knowingly, voluntarily and intentionally [falsified] [concealed] (describe material fact falsified or concealed, e.g., the true purchase price of the ABC Building) in (describe the matter within agency jurisdiction, e.g., a loan closing statement submitted to XYZ Association);¹

Two, the defendant did so by use of a [trick] [scheme] [device], that is, a course of action intended to deceive others;²

Three, the fact was material to the (name agency, e.g., Federal Home Loan Bank Board);³ and

Four, the (describe matter, e.g., loan closing statement) was a matter within the jurisdiction of (name agency, e.g., Federal Home Loan Bank Board).⁴ You may find that this element has been satisfied if you find that the (name of agency)'s function includes (describe evidence adduced to show agency jurisdiction, e.g., "reviewing lending practices of XYZ Association").

A fact is "material" if it has a natural tendency to influence, or is capable of influencing, the decision of the agency. [However, whether a fact is "material" does not depend on whether a course of action intended to deceive others actually succeeded.]⁵

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. Attention must be paid to sufficiently describing the matter within federal jurisdiction. The example given in Element One of this instruction suggests a way to characterize a matter involving a document submitted to a local agency. The examples given in Element One of Instruction 6.18.1001B and Element One of Instruction 6.18.1001C suggest a way to characterize a matter involving a statement made directly to a federal agency.

2. This element contains the definition of "scheme or device" from Seventh Circuit Federal Jury Instructions: Criminal at 242 (1999).

3. Materiality is an element of the second ("false statement") clause of 18 USC 1001 and it is a constitutional violation and reversible error for the trial court to refuse to submit the issue to the jury. United States v. Gaudin, 515 U.S. 506, 523 (1995) (unanimous opinion). Three justices might have reached a different conclusion regarding the second clause of 18 USC 1001, if the government had not conceded that materiality is an element. Id. at 523 (Rehnquist, C.J., concurring). Because the first ("concealment") clause explicitly refers to a "material fact," there can be no doubt that Gaudin also requires that the issue of materiality be submitted to the jury in "concealment" cases.

4. The statutory requirement that the matter be "within the jurisdiction" of any department or agency of the United States appears to be an element of the offense. Traditionally, this issue has been treated as a question of law for the court. Terry v. United States, 131 F.2d 40, 44 (8th Cir. 1942) (decided under 18 USC 80, a predecessor to sections 287 and 1001). However, the logic applied in United States v. Gaudin to the issue of "materiality," may similarly apply to the issue of departmental/agency jurisdiction. Accordingly, the Committee recommends that the third element be added to previous versions of this instruction. However, the Committee believes that whether an entity is a department or agency of the United States need not be determined by the jury, but is a question of law which should be found by the Court, on the record, before submitting the case to the jury. "Department or agency" is defined in 18 U.S.C. § 6; see also 5 USC 101 (executive departments); United States v. Gould, 536 F.2d 216 (8th Cir. 1976) (if the court reaches a "conclusion through an exercise in statutory interpretation" about a particular issue, the conclusion is a legislative fact that need not be submitted to the jury).

5. See United States v. Gaudin, 515 U.S. at 508 (agreed definition); United States v. Adler, 623 F.2d 1287, 1292 n.7 (8th Cir. 1980) ("A writing or document is materially false if such writing has a natural tendency to influence or is capable of influencing the decision of the government agency making the determination required in the matter."); United States v. Johnson, 937 F.2d 392, 396 (8th Cir. 1991) ("[a]ctual reliance by the government is not necessary"); Blake v. United States, 323 F.2d 245, 247 (8th Cir. 1963) (same).

Committee Comments

See Seventh Circuit Federal Jury Instructions: Criminal at 239, 240, 241, 242, 243, 244, 245, 246, 247 (1999); United States v. Swaim, 757 F.2d 1530, 1533 (5th Cir. 1985); United States v. Diogo, 320 F.2d 898, 902 (2d Cir. 1963).

See Committee Comments, Instruction 6.18.1001B, infra.

The requirement of a "trick, scheme, or device" is discussed in United States v. London, 550 F.2d 206, 211-14 (5th Cir. 1977). "Willfully" and "knowingly" are defined in United States v. Markham, 537 F.2d 187, 194 (5th Cir. 1976).

The government must prove an affirmative act by which a material fact is actively concealed. United States v. Shannon, 836 F.2d 1125, 1130 (8th Cir. 1988).

Nondisclosure or partial disclosure may constitute concealment under section 1001. United States v. Olin Mathieson, 368 F.2d 525 (2d Cir. 1966). However, in such cases the Government must prove that the defendant had a legal duty to disclose. United States v. Larson, 796 F.2d 244, 246 (8th Cir. 1986); United States v. Anzalone, 766 F.2d 676, 682-83 (1st Cir. 1985); United States v. Irwin, 654 F.2d 671, 678-79 (10th Cir. 1981). Whether the defendant had a legal duty to disclose is a question of law for the court. United States v. DeRosa, 783 F.2d 1401, 1407 (9th Cir. 1986).

In Hubbard v. United States, 514 U.S. 695, 715 (1995), the Supreme Court held that "a federal court is neither a ‘department’ nor an ‘agency’ within the meaning of § 1001," overruling United States v. Bramblett, 348 U.S. 503 (1955), which had held that the word "department" used in section 1001 was meant to extend the statute’s reach to all three branches of government. The False Statements Accountability Act of 1996, Pub. L. 104-292, HR 3166 (Oct. 11, 1996), revised section 1001 to cover statements that are made to all three branches of the federal government, effectively overruling Hubbard.

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

The crime of [falsifying a material fact] [concealing a material fact] in a matter with a governmental agency, as charged in [Count _____ of] the indictment, has four elements, which are:

One, the defendant knowingly, voluntarily and intentionally [falsified] [concealed] (describe material fact falsified or concealed, e.g., the true purchase price of the ABC Building) in (describe the matter within agency jurisdiction, e.g., a loan closing statement submitted to XYZ Association);¹

Two, the defendant did so by use of a [trick] [scheme] [device], that is, a course of action intended to deceive others;²

Three, the fact was material to the (name agency, e.g., Federal Home Loan Bank Board);³ and

Four, the (describe matter, e.g., loan closing statement) was a matter within the jurisdiction of (name agency, e.g., Federal Home Loan Bank Board).⁴ You may find that this element has been satisfied if you find that the (name of agency)'s function includes (describe evidence adduced to show agency jurisdiction, e.g., "reviewing lending practices of XYZ Association").

A fact is "material" if it has a natural tendency to influence, or is capable of influencing, the decision of the agency. [However, whether a fact is "material" does not depend on whether a course of action intended to deceive others actually succeeded.]⁵

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

2. This element contains the definition of "scheme or device" from Seventh Circuit Federal Jury Instructions: Criminal at 242 (1999).

4. The statutory requirement that the matter be "within the jurisdiction" of any department or agency of the United States appears to be an element of the offense. Traditionally, this issue has been treated as a question of law for the court. Terry v. United States, 131 F.2d 40, 44 (8th Cir. 1942) (decided under 18 USC 80, a predecessor to sections 287 and 1001). However, the logic applied in United States v. Gaudin to the issue of "materiality," may similarly apply to the issue of departmental/agency jurisdiction. Accordingly, the Committee recommends that the third element be added to previous versions of this instruction. However, the Committee believes that whether an entity is a department or agency of the United States need not be determined by the jury, but is a question of law which should be found by the Court, on the record, before submitting the case to the jury. "Department or agency" is defined in 18 USC 6; see also 5 USC 101 (executive departments); United States v. Gould, 536 F.2d 216 (8th Cir. 1976) (if the court reaches a "conclusion through an exercise in statutory interpretation" about a particular issue, the conclusion is a legislative fact that need not be submitted to the jury).

Committee Comments

See Committee Comments, Instruction 6.18.1001B, infra.

The Government must prove an affirmative act by which a material fact is actively concealed. United States v. Shannon, 836 F.2d 1125, 1130 (8th Cir. 1988).

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

The crime of [falsifying a material fact] [concealing a material fact] in a matter with a governmental agency, as charged in [Count _____ of] the indictment, has four elements, which are:

One, the defendant knowingly, voluntarily and intentionally [falsified] [concealed] (describe material fact falsified or concealed, e.g., the true purchase price of the ABC Building) in (describe the matter within agency jurisdiction, e.g., a loan closing statement submitted to XYZ Association);1

Two, the defendant did so by use of a [trick] [scheme] [device], that is, a course of action intended to deceive others;2

Three, the fact was material to the (name agency, e.g., Federal Home Loan Bank Board);3 and

Four, the (describe matter, e.g., loan closing statement) was a matter within the jurisdiction of (name agency, e.g., Federal Home Loan Bank Board).4 You may find that this element has been satisfied if you find that the (name of agency)'s function includes (describe evidence adduced to show agency jurisdiction, e.g., "reviewing lending practices of XYZ Association").

A fact is "material" if it has a natural tendency to influence, or is capable of influencing, the decision of the agency. [However, whether a fact is "material" does not depend on whether a course of action intended to deceive others actually succeeded.]5

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

2. This element contains the definition of "scheme or device" from Seventh Circuit Federal Jury Instructions: Criminal at 242 (1999).

4. The statutory requirement that the matter be "within the jurisdiction" of any department or agency of the United States appears to be an element of the offense. Traditionally, this issue has been treated as a question of law for the court. Terry v. United States, 131 F.2d 40, 44 (8th Cir. 1942) (decided under 18 USC 80, a predecessor to sections 287 and 1001). However, the logic applied in United States v. Gaudin to the issue of "materiality," may similarly apply to the issue of departmental/agency jurisdiction. Accordingly, the Committee recommends that the third element be added to previous versions of this instruction. However, the Committee believes that whether an entity is a department or agency of the United States need not be determined by the jury, but is a question of law which should be found by the Court, on the record, before submitting the case to the jury. "Department or agency" is defined in 18 USC 6; see also 5 USC 101 (executive departments); United States v. Gould, 536 F.2d 216 (8th Cir. 1976) (if the court reaches a "conclusion through an exercise in statutory interpretation" about a particular issue, the conclusion is a legislative fact that need not be submitted to the jury).

Committee Comments

See Committee Comments, Instruction 6.18.1001B, infra.

The government must prove an affirmative act by which a material fact is actively concealed. United States v. Shannon, 836 F.2d 1125, 1130 (8th Cir. 1988).

For 2000 version see below

******************************************************************************************************************

2000 Version

The crime of [falsifying a material fact] [concealing a material fact] in a matter with a governmental agency, as charged in [Count _____ of] the indictment, has four essential elements, which are:

One, the defendant knowingly, voluntarily and intentionally [falsified] [concealed] (describe material fact falsified or concealed, e.g., the true purchase price of the ABC Building) in (describe the matter within agency jurisdiction, e.g., a loan closing statement submitted to XYZ Association);1

Two, the defendant did so by use of a [trick] [scheme] [device], that is, a course of action intended to deceive others;2

Three, the fact was material to the (name agency, e.g., Federal Home Loan Bank Board);3 and

Four, the (describe matter, e.g., loan closing statement) was a matter within the jurisdiction of (name agency, e.g., Federal Home Loan Bank Board).4 You may find that this element has been satisfied if you find that the (name of agency)'s function includes (describe evidence adduced to show agency jurisdiction, e.g., "reviewing lending practices of XYZ Association").

A fact is "material" if it has a natural tendency to influence, or is capable of influencing, the decision of the agency. [However, whether a fact is "material" does not depend on whether a course of action intended to deceive others actually succeeded.]5

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Committee Comments

See Seventh Circuit Federal Jury Instructions: Criminal at 239-47 (1999); United States v. Swaim, 757 F.2d 1530, 1533 (5th Cir.), cert. denied, 474 U.S. 825 (1985); United States v. Diogo, 320 F.2d 898, 902 (2d Cir. 1963).

See Committee Comments, Instruction 6.18.1001B, infra.

The government must prove an affirmative act by which a material fact is actively concealed. United States v. Shannon, 836 F.2d 1125, 1130 (8th Cir.), cert. denied, 486 U.S. 1058 (1988).

Nondisclosure or partial disclosure may constitute concealment under section 1001. United States v. Olin Mathieson, 368 F.2d 525 (2d Cir. 1966). However, in such cases the Government must prove that the defendant had a legal duty to disclose. United States v. Larson, 796 F.2d 244, 246 (8th Cir. 1986); United States v. Anzalone, 766 F.2d 676, 682-83 (1st Cir. 1985); United States v. Irwin, 654 F.2d 671, 678-79 (10th Cir. 1981), cert. denied, 455 U.S. 1016 (1982). Whether defendant had a legal duty to disclose is a question of law for the court. United States v. DeRosa, 783 F.2d 1401, 1407 (9th Cir.), cert. denied, 477 U.S. 908 (1986).

In Hubbard v. United States, 514 U.S. 695, 115 S. Ct. 1754, 1765 (1995), the Supreme Court held that "a federal court is neither a ‘department’ nor an ‘agency’ within the meaning of § 1001," overruling United States v. Bramblett, 348 U.S. 503, 75 S. Ct. 504 (1955), which had held that the word "department" used in section 1001 was meant to extend the statute’s reach to all three branches of government. The False Statements Accountability Act of 1996, Pub. L. 104-292, HR 3166 (Oct. 11, 1996), revised section 1001 to cover statements that are made to all three branches of the federal government, effectively overruling Hubbard.

Notes on Use

1. Attention must be paid to sufficiently describing the matter within federal jurisdiction. The example given in Element One of this instruction suggests a way to characterize a matter involving a document submitted to a local agency. The examples given in Element One of Instruction 6.18.1001B and Element One of Instruction 6.18.1001C suggest a way to characterize a matter involving a statement made directly to a federal agency.

2. This element contains the definition of "scheme or device" from Seventh Circuit Federal Jury Instructions: Criminal at 242 (1999).

3. Materiality is an essential element of the second ("false statement") clause of 18 USC 1001 and it is a constitutional violation and reversible error for the trial court to refuse to submit the issue to the jury. United States v. Gaudin, 515 U.S. 506, ___, ___, 115 S. Ct. 2310, 2311, 2320 (1995) (unanimous opinion). Three justices might have reached a different conclusion regarding the second clause of 18 USC 1001, if the government had not conceded that materiality is an essential element. Id. at ____, 115 S. Ct. at 2320 (Rehnquist, C.J., concurring). Because the first ("concealment") clause explicitly refers to a "material fact," there can be no doubt that Gaudin also requires that the issue of materiality be submitted to the jury in "concealment" cases.

4. The statutory requirement that the matter be "within the jurisdiction" of any department or agency of the United States appears to be an essential element of the offense. Traditionally, this issue has been treated as a question of law for the court. Terry v. United States, 131 F.2d 40, 44 (8th Cir. 1942) (decided under 18 USC 80, a predecessor to sections 287 and 1001). However, the logic applied in United States v. Gaudin to the issue of "materiality," may similarly apply to the issue of departmental/ agency jurisdiction. Accordingly, the Committee recommends that the third element be added to previous versions of this instruction. However, the Committee believes that whether an entity is a department or agency of the United States need not be determined by the jury, but is a question of law which should be found by the Court, on the record, before submitting the case to the jury. "Department or agency" is defined in 18 USC 6; see also 5 USC 101 (executive departments); United States v. Gould, 536 F.2d 216 (8th Cir. 1976) (if the court reaches a "conclusion through an exercise in statutory interpretation" about a particular issue, the conclusion is a legislative fact that need not be submitted to the jury).

5. See United States v. Gaudin, 515 U.S. at ___, 115 S. Ct. at 2313 (agreed definition); United States v. Adler, 623 F.2d 1287, 1292 n.7 (8th Cir. 1980) ("A writing or document is materially false if such writing has a natural tendency to influence or is capable of influencing the decision of the government agency making the determination required in the matter."); United States v. Johnson, 937 F.2d 392, 396 (8th Cir. 1991) ("[a]ctual reliance by the government is not necessary"); Blake v. United States, 323 F.2d 245, 247 (8th Cir. 1963) (same).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1001B FALSE STATEMENT TO GOVERNMENTAL AGENCY

(18 USC 1001)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: False Statements To Federal Agencies And Agents (18 USC 1001)

The crime of making a [false] [fictitious] [fraudulent] material [statement] [representation] in a matter within the jurisdiction of a governmental agency, as charged in [Count _____ of] the indictment, has three elements which are:

One, the defendant knowingly, voluntarily and intentionally made a [false] [fictitious] [fraudulent] [statement] [representation] in (describe matter within agency jurisdiction, e.g., a U.S. customs declaration);¹

Two, the [statement] [representation] was material² to the (name agency, e.g., U.S. Customs Service); and

Three, the (describe matter, e.g., U.S. customs declaration) was a matter within the jurisdiction of (name agency, e.g., U.S. Customs Service)³. You may find that this element has been satisfied if you find that the (name of agency)'s function includes (describe evidence adduced to show agency jurisdiction, e.g., "collecting duties on goods entering the United States").

[A statement is "false" or "fictitious," if untrue when made, and then known to be untrue by the person making it or causing it to be made.] [A statement or representation is "fraudulent," if known to be untrue, and made or caused to be made with the intent to deceive the governmental agency to whom it was submitted.]⁴

A [statement] [representation] is "material," if it has a natural tendency to influence, or is capable of influencing, the decision of the agency. [However, whether a [statement] [representation] is "material" does not depend on whether the agency was actually deceived.]⁵

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. Attention must be paid to sufficiently describing the matter within federal jurisdiction. The example given in Element One of Instruction 6.18.1001A, supra, suggests a way to characterize a matter involving a document submitted to a local non-federal agency. The examples given in Element One of this instruction and Element One of Instruction 6.18.1001C, infra, suggest a way to characterize a matter involving a statement made directly to a federal agency.

2. Contrary to long-standing Circuit holdings, the issue of materiality is an element of the offense which must be decided by the jury. See Committee Comments, infra, and United States v. Gaudin, 515 U.S. 506 (1995).

3. The statutory requirement that the matter be "within the jurisdiction" of any department or agency of the United States appears to be an element of the offense. Traditionally, this issue has been treated as a question of law for the court. Terry v. United States, 131 F.2d 40, 44 (8th Cir. 1942) (decided under 18 USC 80, a predecessor to sections 287 and 1001). However, the logic applied in United States v. Gaudin to the issue of "materiality," may similarly apply to the issue of departmental/agency jurisdiction. Accordingly, the Committee recommends that the third element be added to previous versions of this instruction. However, the Committee believes that whether an entity is a department or agency of the United States need not be determined by the jury, but is a question of law which should be found by the Court, on the record, before submitting the case to the jury. "Department or agency" is defined in 18 USC 6; see also 5 USC 101 (executive departments); United States v. Gould, 536 F.2d 216 (8th Cir. 1976) (if the court reaches a "conclusion through an exercise in statutory interpretation" about a particular issue, the conclusion is a legislative fact that need not be submitted to the jury).

4. Definitions of "false," "fictitious" and "fraudulent" should be given. See 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 40.07 (5th ed. 2000); Seventh Circuit Federal Jury Instructions: Criminal at 243 (1999) on which this instruction is based.

5. "Materiality involves only the capability of influencing an agency's governmental functions, i.e., does the statement have a 'natural tendency to influence or is it capable of influencing agency decision.'" United States v. Whitaker, 848 F.2d at 916 (citing United States v. Popow, 821 F.2d 483 (8th Cir. 1987) (citing United States v. Richmond, 700 F.2d at 1188)). See also United States v. Voorhees, 593 F.2d 346, 349 (8th Cir. 1979). Gaudin did not disturb this well-recognized definition. 515 U.S. at 508. See also United States v. Adler, 623 F.2d 1287, 1292 n.7 (8th Cir. 1980) ("[a] writing or document is materially false if such writing has a natural tendency to influence or is capable of influencing the decision of the government agency making the determination required in the matter"). Actual reliance by the government or success of the attempted deception is not necessary. See United States v. Johnson, 937 F.2d 392, 396 (8th Cir. 1991); Blake v. United States, 323 F.2d 245, 247 (8th Cir. 1963).

Committee Comments

See United States v. Whitaker, 848 F.2d 914, 917 (8th Cir. 1988); United States v. Gilbertson, 588 F.2d 584, 589 (8th Cir. 1978); United States v. Lanier, 578 F.2d 1246, 1250-52 (8th Cir. 1978); United States v. Chandler, 752 F.2d 1148, 1150 (6th Cir. 1985); 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 40.05-.08 (5th ed. 2000); Seventh Circuit Federal Jury Instructions: Criminal at 239, 240, 241, 242, 243, 244, 245, 246, 247 (1999). See generally White Collar Crime: False Statements, 18 Am. Crim. L. Rev. 273 (1980).

Most courts set out the elements as this circuit did in Whitaker, as follows: (1) a statement; (2) which is false; (3) and material; (4) made knowingly and willingly and (5) within the government jurisdiction. 848 F.2d at 917; United States v. Lichenstein, 610 F.2d 1272, 1276 (5th Cir. 1980); United States v. Godwin, 566 F.2d 975, 976 (5th Cir. 1978) (per curiam). See also United States v. Johnson, 937 F.2d 392, 396 (8th Cir. 1991) (same elements in different order).

In order to fall within a federal agency's jurisdiction, it is not necessary that the false statement be presented directly to a federal agency; it is sufficient if the statement is made in some intended relationship to a matter within an agency's jurisdiction. United States v. Richmond, 700 F.2d 1183, 1187-88 (8th Cir. 1983). See also United States v. Rodgers, 466 U.S. 475 (1984); United States v. Bass, 472 F.2d 207, 212 (8th Cir. 1973) and cases cited therein.

The defendant need not have actual knowledge that he is making a statement within the jurisdiction of a federal agency. United States v. Yermian, 468 U.S. 63, 75 (1984); United States v. Hildebrandt, 961 F.2d 116, 119 (8th Cir. 1992). Nor must the intended victim of the deceit be the federal government. Yermian, 468 U.S. at 69.

While materiality is not an explicit requirement of the second clause of section 1001, the Supreme Court has assumed that it is and has held that it is a constitutional violation and reversible error to refuse to submit the issue to the jury. United States v. Gaudin, 515 U.S. 506, 523 (1995) (Rehnquist, C.J., concurring and noting and that the Court did not resolve the conflict among the circuits but merely assumed that materiality is an element of the false statement clause of section 1001).

The acts must be done "knowingly and willfully." "Knowingly" under this clause of the statute has been generally defined as "with knowledge" and "willfully" as "deliberately" or "deliberately with knowledge." McBride v. United States, 225 F.2d 249, 253-55 (5th Cir. 1955); Neely v. United States, 300 F.2d 67, 72-73 (9th Cir. 1962); United States v. Mekjian, 505 F.2d 1320, 1324-25 (5th Cir. 1975).

As to the element of knowingly, it is reasonable for the court to inform the jury that they must attempt to view this element by looking at whether the evidence showed that the defendant knew he filled out the form falsely.

United States v. Cox, 696 F.2d 1294, 1297 (11th Cir. 1983). "Knowingly" includes knowledge of the falsity. United States v. Lanier, 578 F.2d at 1252.

Knowledge of falsity also arises under this clause of section 1001 in the definition of "false" and "fictitious." "False" and "fictitious" are standardly defined as in this instruction.

"Willfully" is construed as requiring that the conduct be intentional, i.e., that statements in the invoices be intentionally false. United States v. Richmond, 700 F.2d at 1191-92. Such intent can be shown by proving intent to defraud. Id. at 1194. However, "intent to defraud--that is the intent to deprive someone of something by means of deceit" is not required by section 1001. United States v. Lichenstein, 610 F.2d at 1277; United States v. Godwin, 566 F.2d at 976. Intent under section 1001 passes an intent to deceive, id., an intent or design to induce belief in the falsity or an intent to mislead, Lichenstein, 610 F.2d at 1277, or an intent to disrupt agency functions by false statements. Id., 610 F.2d at 1278.

In addition to being one of the ways in which willfulness can be established, the issue of "intent to deceive" also arises where "fraudulent" statements are charged. "Fraudulent" is standardly defined as in this instruction.

In one opinion in this circuit, United States v. Martin, 772 F.2d 1442 (8th Cir. 1985), the court indicated "intent to deceive" may be an element. The Committee has examined this opinion and does not believe that it is authority for adding this concept as an additional element, but that "intent to deceive" is relevant in analyzing the element of willfulness and in defining "fraudulent."

Specifically, in United States v. Martin, the defendant raised the issue of "intent to deceive" by arguing that his claim was not "fraudulent." Both parties agreed "intent to deceive" was an issue, and the court addressed "intent to deceive" as an element when it should have been treated as part of the definition of "fraudulent." The court was never asked to decide how it became an issue. Thus, the Committee is treating the unanalyzed and unsupported statement in the opinion that "intent to deceive" is an element of 18 USC 1001 as dicta and not controlling. See United States v. Marvin, 687 F.2d 1221, 1225 (8th Cir. 1982).

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

The crime of making a [false] [fictitious] [fraudulent] material [statement] [representation] in a matter within the jurisdiction of a governmental agency, as charged in [Count _____ of] the indictment, has three elements which are:

One, the defendant knowingly, voluntarily and intentionally made a [false] [fictitious] [fraudulent] [statement] [representation] in (describe matter within agency jurisdiction, e.g., a U.S. customs declaration);¹

Two, the [statement] [representation] was material² to the (name agency, e.g., U.S. Customs Service); and

Three, the (describe matter, e.g., U.S. customs declaration) was a matter within the jurisdiction of (name agency, e.g., U.S. Customs Service)³. You may find that this element has been satisfied if you find that the (name of agency)'s function includes (describe evidence adduced to show agency jurisdiction, e.g., "collecting duties on goods entering the United States").

[A statement is "false" or "fictitious," if untrue when made, and then known to be untrue by the person making it or causing it to be made.] [A statement or representation is "fraudulent," if known to be untrue, and made or caused to be made with the intent to deceive the governmental agency to whom it was submitted.]⁴

A [statement] [representation] is "material," if it has a natural tendency to influence, or is capable of influencing, the decision of the agency. [However, whether a [statement] [representation] is "material" does not depend on whether the agency was actually deceived.]⁵

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

Committee Comments

As to the element of knowingly, it is reasonable for the court to inform the jury that they must attempt to view this element by looking at whether the evidence showed that the defendant knew he filled out the form falsely.

United States v. Cox, 696 F.2d 1294, 1297 (11th Cir. 1983). "Knowingly" includes knowledge of the falsity. United States v. Lanier, 578 F.2d at 1252.

Knowledge of falsity also arises under this clause of section 1001 in the definition of "false" and "fictitious." "False" and "fictitious" are standardly defined as in this instruction.

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

The crime of making a [false] [fictitious] [fraudulent] material [statement] [representation] in a matter within the jurisdiction of a governmental agency, as charged in [Count _____ of] the indictment, has three elements which are:

One, the defendant knowingly, voluntarily and intentionally made a [false] [fictitious] [fraudulent] [statement] [representation] in (describe matter within agency jurisdiction, e.g., a U.S. customs declaration);1

Two, the [statement] [representation] was material2 to the (name agency, e.g., U.S. Customs Service); and

Three, the (describe matter, e.g., U.S. customs declaration) was a matter within the jurisdiction of (name agency, e.g., U.S. Customs Service)3. You may find that this element has been satisfied if you find that the (name of agency)'s function includes (describe evidence adduced to show agency jurisdiction, e.g., "collecting duties on goods entering the United States").

[A statement is "false" or "fictitious," if untrue when made, and then known to be untrue by the person making it or causing it to be made.] [A statement or representation is "fraudulent," if known to be untrue, and made or caused to be made with the intent to deceive the governmental agency to whom it was submitted.]4

A [statement] [representation] is "material," if it has a natural tendency to influence, or is capable of influencing, the decision of the agency. [However, whether a [statement] [representation] is "material" does not depend on whether the agency was actually deceived.]5

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

Committee Comments

As to the element of knowingly, it is reasonable for the court to inform the jury that they must attempt to view this element by looking at whether the evidence showed that the defendant knew he filled out the form falsely.

United States v. Cox, 696 F.2d 1294, 1297 (11th Cir. 1983). "Knowingly" includes knowledge of the falsity. United States v. Lanier, 578 F.2d at 1252.

Knowledge of falsity also arises under this clause of section 1001 in the definition of "false" and "fictitious." "False" and "fictitious" are standardly defined as in this instruction.

For 2000 version see below

******************************************************************************************************************

2000 Version

The crime of making a [false] [fictitious] [fraudulent] material [statement] [representation] in a matter within the jurisdiction of a governmental agency, as charged in [Count _____ of] the indictment, has three essential elements which are:

One, the defendant knowingly, voluntarily and intentionally made a [false] [fictitious] [fraudulent] [statement] [representation] in (describe matter within agency jurisdiction, e.g., a U.S. customs declaration);1

Two, the [statement] [representation] was material2 to the (name agency, e.g., U.S. Customs Service); and

Three, the (describe matter, e.g., U.S. customs declaration) was a matter within the jurisdiction of (name agency, e.g., U.S. Customs Service)3. You may find that this element has been satisfied if you find that the (name of agency)'s function includes (describe evidence adduced to show agency jurisdiction, e.g., "collecting duties on goods entering the United States").

[A statement is "false" or "fictitious," if untrue when made, and then known to be untrue by the person making it or causing it to be made.] [A statement or representation is "fraudulent," if known to be untrue, and made or caused to be made with the intent to deceive the governmental agency to whom it was submitted.]4

A [statement] [representation] is "material," if it has a natural tendency to influence, or is capable of influencing, the decision of the agency. [However, whether a [statement] [representation] is "material" does not depend on whether the agency was actually deceived.]5

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Committee Comments

See United States v. Whitaker, 848 F.2d 914, 917 (8th Cir. 1988); United States v. Gilbertson, 588 F.2d 584, 589 (8th Cir. 1978); United States v. Lanier, 578 F.2d 1246, 1250-52 (8th Cir.), cert. denied, 439 U.S. 856 (1978); United States v. Chandler, 752 F.2d 1148, 1150 (6th Cir. 1985); 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal §§ 37.05- 37.08 (4th ed. 1990); Seventh Circuit Federal Jury Instructions: Criminal at 239-47 (1999); See generally White Collar Crime: False Statements, 18 Am. Crim. L. Rev. 273 (1980).

Most courts set out the essential elements as this circuit did in Whitaker, as follows: (1) a statement; (2) which is false; (3) and material; (4) made knowingly and willingly and (5) within the government jurisdiction. 848 F.2d at 917; United States v. Lichenstein, 610 F.2d 1272, 1276 (5th Cir.), cert. denied, 447 U.S. 907 (1980); United States v. Godwin, 566 F.2d 975, 976 (5th Cir. 1978) (per curiam). See also United States v. Johnson, 937 F.2d 392, 396 (8th Cir. 1991) (same elements in different order).

The defendant need not have actual knowledge that he is making a statement within the jurisdiction of a federal agency. United States v. Yermian, 468 U.S. 63, 75 (1984); United States v. Hildebrandt, 961 F.2d 116, 119 (8th Cir.), cert. denied, 506 U.S. 878 (1992). Nor must the intended victim of the deceit be the federal government. Yermian, 468 U.S. at 69.

While materiality is not an explicit requirement of the second clause of section 1001, the Supreme Court has assumed that it is and has held that it is a constitutional violation and reversible error to refuse to submit the issue to the jury. United States v. Gaudin, 515 U.S. 506, ___, ___, 115 S. Ct. 2310, 2311, 2320 (1995) (Rehnquist, C.J., concurring and noting and that the Court did not resolve the conflict among the circuits but merely assumed that materiality is an element of the false statement clause of section 1001).

The acts must be done "knowingly and willfully." "Knowingly" under this clause of the statute has been generally defined as "with knowledge" and "willfully" as "deliberately" or "deliberately with knowledge." McBride v. United States, 225 F.2d 249, 253-55 (5th Cir. 1955), cert. denied, 350 U.S. 934 (1956); Neely v. United States, 300 F.2d 67, 72-73 (9th Cir.), cert. denied, 369 U.S. 864 (1962); United States v. Mekjian, 505 F.2d 1320, 1324-25 (5th Cir. 1975).

As to the element of knowingly, it is reasonable for the court to inform the jury that they must attempt to view this element by looking at whether the evidence showed that the defendant knew he filled out the form falsely.

United States v. Cox, 696 F.2d 1294, 1297 (11th Cir.), cert. denied, 464 U.S. 827 (1983). "Knowingly" includes knowledge of the falsity. United States v. Lanier, 578 F.2d at 1252.

Knowledge of falsity also arises under this clause of section 1001 in the definition of "false" and "fictitious." "False" and "fictitious" are standardly defined as in this instruction.

In one opinion in this circuit, United States v. Martin, 772 F.2d 1442 (8th Cir. 1985), the court indicated "intent to deceive" may be an element. The Committee has examined this opinion and does not believe that it is authority for adding this concept as an additional essential element, but that "intent to deceive" is relevant in analyzing the element of willfulness and in defining "fraudulent."

Specifically, in United States v. Martin, the defendant raised the issue of "intent to deceive" by arguing that his claim was not "fraudulent." Both parties agreed "intent to deceive" was an issue, and the court addressed "intent to deceive" as an element when it should have been treated as part of the definition of "fraudulent." The court was never asked to decide how it became an issue. Thus, the Committee is treating the unanalyzed and unsupported statement in the opinion that "intent to deceive" is an essential element of 18 USC 1001 as dicta and not controlling. See United States v. Marvin, 687 F.2d 1221, 1225 (8th Cir. 1982), cert. denied, 460 U.S. 1081 (1983).

Notes on Use

1. Attention must be paid to sufficiently describing the matter within federal jurisdiction. The example given in Element One of 6.18.1001A, supra, suggests a way to characterize a matter involving a document submitted to a local non-federal agency. The examples given in Element One of this instruction and Element One of 6.18.1001C, infra, suggest a way to characterize a matter involving a statement made directly to a federal agency.

2. Contrary to long-standing Circuit holdings, the issue of materiality is an essential element of the offense which must be decided by the jury. See Committee Comments, supra, and United States v. Gaudin, 515 U.S. 506, 115 S. Ct. 2310 (1995).

3. The statutory requirement that the matter be "within the jurisdiction" of any department or agency of the United States appears to be an essential element of the offense. Traditionally, this issue has been treated as a question of law for the court. Terry v. United States, 131 F.2d 40, 44 (8th Cir. 1942) (decided under 18 USC 80, a predecessor to sections 287 and 1001). However, the logic applied in United States v. Gaudin to the issue of "materiality," may similarly apply to the issue of departmental/ agency jurisdiction. Accordingly, the Committee recommends that the third element be added to previous versions of this instruction. However, the Committee believes that whether an entity is a department or agency of the United States need not be determined by the jury, but is a question of law which should be found by the Court, on the record, before submitting the case to the jury. "Department or agency" is defined in 18 USC 6; see also 5 USC 101 (executive departments); United States v. Gould, 536 F.2d 216 (8th Cir. 1976) (if the court reaches a "conclusion through an exercise in statutory interpretation" about a particular issue, the conclusion is a legislative fact that need not be submitted to the jury).

4. Definitions of "false," "fictitious" and "fraudulent" should be given. See 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 37.08 (4th ed. 1990); Seventh Circuit Federal Jury Instructions: Criminal at 243 (1999) on which this instruction is based.

5. "Materiality involves only the capability of influencing an agency's governmental functions, i.e., does the statement have a 'natural tendency to influence or is it capable of influencing agency decision.'" United States v. Whitaker, 848 F.2d at 916 (citing United States v. Popow, 821 F.2d 483 (8th Cir. 1987) (citing United States v. Richmond, 700 F.2d at 1188)). See also United States v. Voorhees, 593 F.2d 346, 349 (8th Cir.), cert. denied, 441 U.S. 936 (1979). Gaudin did not disturb this well-recognized definition. 515 U.S. at ___; 115 S. Ct. at 2313. See also United States v. Adler, 623 F.2d 1287, 1292 n.7 (8th Cir. 1980) ("[a] writing or document is materially false if such writing has a natural tendency to influence or is capable of influencing the decision of the government agency making the determination required in the matter"). Actual reliance by the government or success of the attempted deception is not necessary. See United States v. Johnson, 937 F.2d 392, 396 (8th Cir. 1991); Blake v. United States, 323 F.2d 245, 247 (8th Cir. 1963).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1001C USING A FALSE DOCUMENT

(18 USC 1001)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: False Statements To Federal Agencies And Agents (18 USC 1001)

The crime of [making] [using] a false [writing] [document] in a matter within the jurisdiction of a governmental agency, as charged in [Count _____ of] the indictment, has four elements, which are:

One, the defendant voluntarily and intentionally [made] [used] a [writing] [document] containing a [false] [fictitious] [fraudulent] [statement] [entry] in (describe matter within agency jurisdiction, e.g., an application for an S.B.A. loan);¹

Two, at the time the defendant did so, he knew that the [writing] [document] contained a [false] [fictitious] [fraudulent] [statement] [entry];

Three, the [false] [fictitious] [fraudulent] [statement] [entry] was material to the (name of agency, e.g., Small Business Administration)²; and

Four, the (describe matter, e.g., an application for an S.B.A. loan) was a matter within the jurisdiction of the (name agency, e.g., Small Business Administration).³ (You may find that this element has been satisfied if you find that the (name of agency)'s function includes (describe evidence adduced to show agency jurisdiction, e.g., "acting on applications for loans.")

[A statement or entry is "fraudulent," if known by the defendant to be untrue, and made or used by the defendant with the intent to deceive the governmental agency to whom submitted.]⁴

A [writing] [document] is "material" if it has a natural tendency to influence, or is capable of influencing, the decision of the agency. [However, whether a [writing] [document] is "material" does not depend on whether the [agency] was actually deceived.]⁵

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

1. Attention must be paid to sufficiently describing the matter within federal jurisdiction. The example given in Element One of Instruction 6.18.1001A suggests a way to characterize a matter involving a document submitted to a local agency. The examples given in Element One of Instruction 6.18.1001B, supra, and Element One of this instruction suggest a way to characterize a matter involving a statement made directly to a federal agency.

2. Materiality is an element of the second ("false statement") clause of 18 USC 1001 and it is a constitutional violation and reversible error for the trial court to refuse to submit the issue to the jury. United States v. Gaudin, 515 U.S. 506, 523 (1995) (unanimous opinion). Three justices might have reached a different conclusion regarding the second clause of 18 USC 1001, if the government had not conceded that materiality is an element. Id. at 2320 (Rehnquist, C.J., concurring). Because the first ("concealment") clause explicitly refers to a "material fact," there can be no doubt that Gaudin also requires that the issue of materiality be submitted to the jury in "concealment" cases.

3. The statutory requirement that the matter be "within the jurisdiction" of any department or agency of the United States appears to be an element of the offense. Traditionally, this issue has been treated as a question of law for the court. Terry v. United States, 131 F.2d 40, 44 (8th Cir. 1942) (decided under 18 USC 80, a predecessor to sections 287 and 1001). However, the logic applied in Gaudin to the issue of "materiality," may similarly apply to the issue of departmental/agency jurisdiction. Accordingly, the Committee recommends that the third element be added to previous versions of this instruction. However, the Committee believes that whether an entity is a department or agency of the United States need not be determined by the jury, but is a question of law which should be found by the Court, on the record, before submitting the case to the jury. "Department or agency" is defined in 18 USC 6; see also 5 USC 101 (executive departments); United States v. Gould, 536 F.2d 216 (8th Cir. 1976) (if the court reaches a "conclusion through an exercise in statutory interpretation" about a particular issue, the conclusion is a legislative fact that need not be submitted to the jury).

4. The definition of "false and fictitious" is not given because the definition contains nothing that is not already in the elements. See Instruction 6.18.1001B, supra. "Fraudulent" is defined. See 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 40.08 (5th ed. 2000); Seventh Circuit Federal Jury Instructions: Criminal at 243 (1999).

5. See United States v. Gaudin, 515 U.S. at 508 (agreed definition); United States v. Adler, 623 F.2d 1287, 1292 n.7 (8th Cir. 1980) ("A writing or document is materially false if such writing has a natural tendency to influence or is capable of influencing the decision of the governmental agency making the determination required in the matter."); United States v. Johnson, 937 F.2d 392, 396 (8th Cir. 1991) (actual reliance by the government or success of the attempted deception is not necessary); Blake v. United States, 323 F.2d 245, 247 (8th Cir. 1963) (same).

Committee Comments

See 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 40.09-.12 (5th ed. 2000); United States v. Hicks, 619 F.2d 752, 754 (8th Cir. 1980); Ebeling v. United States, 248 F.2d 429, 438 (8th Cir. 1957); Seventh Circuit Federal Jury Instructions: Criminal at .241 (1999).

In Hicks, the court states that "willfully" should be interpreted "as that term is now generally understood in the field of federal criminal law," referring to former § 14.06 of Devitt & Blackmar (now 1A Kevin E. O’Malley, et al., Federal Jury Practice and Instructions, Criminal: § 17.05 (5th ed. 2000)) and cases cited therein. These cases support a definition of "voluntarily and intentionally." Alternatively, "deliberately" could be used. See Committee Comments, Instruction 6.18.1001B, supra. "Knowingly and intentionally" was used in the instruction in Ebeling.

The specific knowledge required by this clause of the statute is set forth in Element Two.

In Ebeling, the court held that the false documents themselves did not have to be submitted to the government if it was intended "to bear a relation or purpose as to some matter which is within the jurisdiction of a department or agency of the United States." 248 F.2d at 434. In that case, the court found that phony purchase orders, shipping tickets and invoices created by a government contractor and its subcontractor as backup for a false amount claimed under the contract were covered section by 1001, even though the backup was not directly submitted for payment.

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

The crime of [making] [using] a false [writing] [document] in a matter within the jurisdiction of a governmental agency, as charged in [Count _____ of] the indictment, has four elements, which are:

One, the defendant voluntarily and intentionally [made] [used] a [writing] [document] containing a [false] [fictitious] [fraudulent] [statement] [entry] in (describe matter within agency jurisdiction, e.g., an application for an S.B.A. loan);¹

Two, at the time the defendant did so, he knew that the [writing] [document] contained a [false] [fictitious] [fraudulent] [statement] [entry];

Three, the [false] [fictitious] [fraudulent] [statement] [entry] was material to the (name of agency, e.g., Small Business Administration)²; and

Four, the (describe matter, e.g., an application for an S.B.A. loan) was a matter within the jurisdiction of the (name agency, e.g., Small Business Administration).³ (You may find that this element has been satisfied if you find that the (name of agency)'s function includes (describe evidence adduced to show agency jurisdiction, e.g., "acting on applications for loans.")

[A statement or entry is "fraudulent," if known by the defendant to be untrue, and made or used by the defendant with the intent to deceive the governmental agency to whom submitted.]⁴

A [writing] [document] is "material" if it has a natural tendency to influence, or is capable of influencing, the decision of the agency. [However, whether a [writing] [document] is "material" does not depend on whether the [agency] was actually deceived.]⁵

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

3. The statutory requirement that the matter be "within the jurisdiction" of any department or agency of the United States appears to be an element of the offense. Traditionally, this issue has been treated as a question of law for the court. Terry v. United States, 131 F.2d 40, 44 (8th Cir. 1942) (decided under 18 USC 80, a predecessor to sections 287 and 1001). However, the logic applied in Gaudin to the issue of "materiality," may similarly apply to the issue of departmental/agency jurisdiction. Accordingly, the Committee recommends that the third element be added to previous versions of this instruction. However, the Committee believes that whether an entity is a department or agency of the United States need not be determined by the jury, but is a question of law which should be found by the Court, on the record, before submitting the case to the jury. "Department or agency" is defined in 18 USC 6; see also 5 USC 101 (executive departments); United States v. Gould, 536 F.2d 216 (8th Cir. 1976) (if the court reaches a "conclusion through an exercise in statutory interpretation" about a particular issue, the conclusion is a legislative fact that need not be submitted to the jury).

Committee Comments

The specific knowledge required by this clause of the statute is set forth in Element Two.

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

The crime of [making] [using] a false [writing] [document] in a matter within the jurisdiction of a governmental agency, as charged in [Count _____ of] the indictment, has four elements, which are:

One, the defendant voluntarily and intentionally [made] [used] a [writing] [document] containing a [false] [fictitious] [fraudulent] [statement] [entry] in (describe matter within agency jurisdiction, e.g., an application for an S.B.A. loan);1

Two, at the time the defendant did so, he knew that the [writing] [document] contained a [false] [fictitious] [fraudulent] [statement] [entry];

Three, the [false] [fictitious] [fraudulent] [statement] [entry] was material to the (name of agency, e.g., Small Business Administration)2; and

Four, the (describe matter, e.g., an application for an S.B.A. loan) was a matter within the jurisdiction of the (name agency, e.g., Small Business Administration).3 (You may find that this element has been satisfied if you find that the (name of agency)'s function includes (describe evidence adduced to show agency jurisdiction, e.g., "acting on applications for loans.")

[A statement or entry is "fraudulent," if known by the defendant to be untrue, and made or used by the defendant with the intent to deceive the governmental agency to whom submitted.]4

A [writing] [document] is "material" if it has a natural tendency to influence, or is capable of influencing, the decision of the agency. [However, whether a [writing] [document] is "material" does not depend on whether the [agency] was actually deceived.]5

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Notes on Use

3. The statutory requirement that the matter be "within the jurisdiction" of any department or agency of the United States appears to be an element of the offense. Traditionally, this issue has been treated as a question of law for the court. Terry v. United States, 131 F.2d 40, 44 (8th Cir. 1942) (decided under 18 USC 80, a predecessor to sections 287 and 1001). However, the logic applied in Gaudin to the issue of "materiality," may similarly apply to the issue of departmental/agency jurisdiction. Accordingly, the Committee recommends that the third element be added to previous versions of this instruction. However, the Committee believes that whether an entity is a department or agency of the United States need not be determined by the jury, but is a question of law which should be found by the Court, on the record, before submitting the case to the jury. "Department or agency" is defined in 18 USC 6; see also 5 USC 101 (executive departments); United States v. Gould, 536 F.2d 216 (8th Cir. 1976) (if the court reaches a "conclusion through an exercise in statutory interpretation" about a particular issue, the conclusion is a legislative fact that need not be submitted to the jury).

Committee Comments

The specific knowledge required by this clause of the statute is set forth in Element Two.

For 2000 version see below

******************************************************************************************************************

2000 Version

The crime of [making] [using] a false [writing] [document] in a matter within the jurisdiction of a governmental agency, as charged in [Count _____ of] the indictment, has four essential elements, which are:

One, the defendant voluntarily and intentionally [made] [used] a [writing] [document] containing a [false] [fictitious] [fraudulent] [statement] [entry] in (describe matter within agency jurisdiction, e.g., an application for an S.B.A. loan);1

Two, at the time the defendant did so, he knew that the [writing] [document] contained a [false] [fictitious] [fraudulent] [statement] [entry];

Three, the [false] [fictitious] [fraudulent] [statement] [entry] was material to the (name of agency, e.g., Small Business Administration)2; and

Four, the (describe matter, e.g., an application for an S.B.A. loan) was a matter within the jurisdiction of the (name agency, e.g., Small Business Administration).3 (You may find that this element has been satisfied if you find that the (name of agency)'s function includes (describe evidence adduced to show agency jurisdiction, e.g., "acting on applications for loans.")

[A statement or entry is "fraudulent," if known by the defendant to be untrue, and made or used by the defendant with the intent to deceive the governmental agency to whom submitted.]4

A [writing] [document] is "material" if it has a natural tendency to influence, or is capable of influencing, the decision of the agency. [However, whether a [writing] [document] is "material" does not depend on whether the [agency] was actually deceived.]5

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Committee Comments

See 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal §§ 37.09- 37.12 (4th ed. 1990); United States v. Hicks, 619 F.2d 752, 754 (8th Cir. 1980); Ebeling v. United States, 248 F.2d 429, 438 (8th Cir.), cert. denied, 355 U.S. 907 (1957); Seventh Circuit Federal Jury Instructions: Criminal at .241 (1999).

In Hicks, the court states that "willfully" should be interpreted "as that term is now generally understood in the field of federal criminal law," referring to former § 14.06 of Devitt & Blackmar (now 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 17.02 (4th ed. 1992)) and cases cited therein. These cases support a definition of "voluntarily and intentionally." Alternatively, "deliberately" could be used. See Committee Comments, Instruction 6.18.1001B, supra. "Knowingly and intentionally" was used in the instruction in Ebeling.

The specific knowledge required by this clause of the statute is set forth in Element Two.

In Hubbard v. United States, 514 U.S. 695, ___, 115 S. Ct. 1754, 1765 (1995), the Supreme Court held that "a federal court is neither a ‘department’ nor an ‘agency’ within the meaning of § 1001," overruling United States v. Bramblett, 348 U.S. 503, 75 S. Ct. 504 (1955), which had held that the word "department" used in section 1001 was meant to extend the statute’s reach to all three branches of government. The False Statements Accountability Act of 1996, Pub. L. 104-292, HR 3166 (Oct. 11, 1996), revised section 1001 to cover statements that are made to all three branches of the federal government, effectively overruling Hubbard.

Notes on Use

1. Attention must be paid to sufficiently describing the matter within federal jurisdiction. The example given in Element One of Instruction 6.18.1001A suggests a way to characterize a matter involving a document submitted to a local agency. The examples given in Element One of Instruction 6.18.1001B, supra, and Element One of this instruction suggest a way to characterize a matter involving a statement made directly to a federal agency.

2. Materiality is an essential element of the second ("false statement") clause of 18 USC 1001 and it is a constitutional violation and reversible error for the trial court to refuse to submit the issue to the jury. United States v. Gaudin, 515 U.S. 506, ___, ___, 115 S. Ct. 2310, 2311, 2320 (1995) (unanimous opinion). Three justices might have reached a different conclusion regarding the second clause of 18 USC 1001, if the government had not conceded that materiality is an essential element. Id. at 2320 (Rehnquist, C.J., concurring). Because the first ("concealment") clause explicitly refers to a "material fact," there can be no doubt that Gaudin also requires that the issue of materiality be submitted to the jury in "concealment" cases.

4. The definition of "false and fictitious" is not given because the definition contains nothing that is not already in the essential elements. See Instruction 6.18.1001B, supra. "Fraudulent" is defined. See 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 37.12 (4th ed. 1990); Seventh Circuit Federal Jury Instructions: Criminal at 243 (1999).

5. See United States v. Gaudin, 515 U.S. at ___, 115 S. Ct. at 2313 (agreed definition); United States v. Adler, 623 F.2d 1287, 1292 n.7 (8th Cir. 1980) ("A writing or document is materially false if such writing has a natural tendency to influence or is capable of influencing the decision of the governmental agency making the determination required in the matter."); United States v. Johnson, 937 F.2d 392, 396 (8th Cir. 1991) (actual reliance by the government or success of the attempted deception is not necessary); Blake v. United States, 323 F.2d 245, 247 (8th Cir. 1963) (same).