8TH CIRCUIT MODEL INSTRUCTIONS 2000

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

Final Instructions: Elements of Offenses (6.18.1005 - 6.18.1956J)

        6.18.1005         False Entry In Bank Records (18 USC 1005) (Third Paragraph)
        6.18.1006A      False Entries In Federal Credit Institution Records (18 USC 1006) (First Paragraph)
        6.18.1006B      Participation In Federal Credit Institution Transactions (18 USC 1006 Third Paragraph)
        6.18.1014         False Statement To A Financial Institution (18 USC 1014)
         6.18.1071        Concealing A Person From Arrest (18 USC 1071)
        6.18.1111         Introductory Comments to Homicide Instructions
        6.18.1111A      Murder, First Degree, Within Special Maritime and Territorial Jurisdiction of the
                                United States (18 USC 1111)
        6.18.1111A-1 "Malice Aforethought" Defined
        6.18.1111A-2 "Premeditation" Defined
        6.18.1111A-3   Heat of Passion or Sudden Quarrel Caused by Adequate Provocation, Defined
        6.18.1111B      Murder, Second Degree, Within Special Maritime and Territorial Jurisdiction of the
                                 United States (18 USC 1111)
        6.18.1112A      Voluntary Manslaughter, Within Special Maritime and Territorial Jurisdiction of the
                                 United States (18 USC 1112)
        6.18.1112B      Involuntary Manslaughter, Within Special Maritime and Territorial Jurisdiction of the
                                 United States (18 USC 1112)
        6.18.1114A      Murder, First Degree, Federal Victim (18 USC 1114)
        6.18.1114B      Murder, Second Degree, Federal Victim (18 USC 1114)
        6.18.1114C      Voluntary Manslaughter, Federal Victim (18 USC 1114)
        6.18.1114D      Involuntary Manslaughter, Federal Victim (18 USC 1114)
        6.18.1341         Mail Fraud (18 USC 1341)
        6.18.1344         Bank Fraud (18 USC 1344)
        6.18.1503A      Corruptly Endeavoring to Influence a Juror (18 USC 1503)
        6.18.1503B       Influencing A Juror By Threats (18 USC 1503)
        6.18.1503C      Obstruction Of Justice (18 USC 1503)
        6.18.1510         Obstruction Of Criminal Investigations (18 USC 1510(a))
        6.18.1512         Tampering With A Witness (18 USC 1512(b)(1))
        6.18.1513         Retaliating Against A Witness (18 USC 1513)
        6.18.1621         Perjury (18 USC 1621)
        6.18.1622         Subornation Of Perjury (18 USC 1622)
        6.18.1623         False Declaration Before Court Or Grand Jury (18 USC 1623)
        6.18.1708A      Mail Theft (18 USC 1708) (First Paragraph)
        6.18.1708B       Possession Of Stolen Mail (18 USC 1708) (Third Paragraph)
        6.18.1709A       Embezzlement Of Mail (18 USC 1709) (First Clause)
        6.18.1709B       Theft of Mail by Postal Service Employee (18 USC 1709) (Second Clause)
        6.18.1951         Interference With Commerce By Means Of Extortion (18 USC 1951) (Hobbs Act)
        6.18.1955         Illegal Gambling Business (18 USC 1955)
        6.18.1956A       Money Laundering -- Financial Transaction To Promote Specified Unlawful
                                  Activity (18 USC 1956(a)(1)(A)(i))
        6.18.1956B       Money Laundering -- Financial Transaction To Conceal Proceeds
                                  (18 USC 1956(a)(1)(B)(i))
        6.18.1956C       Money Laundering -- Financial Transaction To Avoid Reporting
                                  Requirements (18 USC 1956(a)(1)(B)(ii))
        6.18.1956D       Money Laundering -- Movement Of Monetary Instruments And Funds To
                                  Promote Specified Unlawful Activity (18 USC 1956(a)(2)(A))
        6.18.1956E        Money Laundering -- Movement Of Monetary Instruments And Funds To
                                  Conceal Proceeds (18 USC 1956(a)(2)(B)(i))
        6.18.1956F        Money Laundering -- Movement Of Monetary Instruments And Funds To
                                  Avoid Reporting Requirements (18 USC 1956(a)(2)(B)(ii))
        6.18.1956G        Money Laundering "Sting" -- Financial Transaction With Intent To Promote
                                  Specified Unlawful Activity (18 USC 1956(a)(3)(A))
        6.18.1956H       Money Laundering "Sting" -- Financial Transaction With Intent To Conceal
                                  Nature Of Property (18 USC 1956(a)(3)(B))
        6.18.1956I         Money Laundering "Sting" -- Financial Transaction With Intent To Avoid
                                  Transaction Reporting Requirement (18 USC 1956(a)(3)(C))
        6.18.1956J         Supplemental Instructions

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1005 FALSE ENTRY IN BANK RECORDS
(18 USC 1005)
(Third Paragraph)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: False Statements In Bank Records (18 USC 1005)

The crime of making a false entry in bank records, as charged in [Count _____ of] the indictment, has four elements, which are:

One, that the defendant¹ made or caused to be made a false entry [concerning a material fact]² in a [book] [report] [statement] of (name of bank or other covered institution)³;

Two, the defendant knew the entry was false;

Three,⁴ [the defendant did so with the intent [to injure] [to defraud] [the bank] [(or describe other entity or person covered by the statute allegedly intended to be injured or defrauded, i.e., "any other company, body politic or corporate, or any individual person")];]

[the defendant did so with the intent to deceive an officer of the bank (or describe other entity or person covered by the statute allegedly intended to be deceived, i.e., "the Comptroller of the Currency, or the Federal Deposit Insurance Corporation, or any agent or examiner appointed to examine the affairs of such bank or company, or the Board of Governors of the Federal Reserve System");] and

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

An entry is "false" if untrue when made. An entry may be false if it records a transaction which did not occur, or fails to record a transaction which did occur and should have been accurately recorded, or inaccurately reports or records a transaction.

[To act with "intent to injure" means to act with intent to cause pecuniary loss.] [To act with "intent to defraud" means to act with intent to deceive or cheat, ordinarily for the purpose of causing a financial loss to someone else or bringing about a financial gain to the defendant or another.] [To act with "intent to deceive" means to act with intent to mislead or to cause a person to believe that which is false.]⁵

[A fact is "material" if it has a natural tendency to influence, or is capable of influencing the decision of the institution. (Whether a fact is material does not depend on whether a course of action intended to deceive others actually succeeded.)]⁶

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

Notes on Use

1. The Federal Judicial Center Pattern Jury Instructions list as an element that the defendant be an employee of the bank. The third paragraph of the statute does not make this distinction and proscribes "whoever," not merely officers, from making false entries. United States v. Edick, 432 F.2d 350, 352-53 (4th Cir. 1970).

2. Although neither 18 USC 1005 nor § 1006 expressly require the false statement or entry to be of a "material fact," both the Eleventh Circuit and the Fifth Circuit impose such a requirement, albeit without much discussion. United States v. Rapp, 871 F.2d 957, 963-64 (11th Cir. 1989) (citing United States v. Jackson, 621 F.2d 216, 219 (5th Cir. 1980)) (section 1005); United States v. Beuttenmuller, 29 F.3d 973, 982 (5th Cir. 1994) (section 1006). Both circuits suggest using the definition of materiality approved for section 1001 instructions. The Eighth Circuit has not specifically addressed this issue. In Feingold v. United States, 49 F.3d 437 (8th Cir. 1995), the court mentioned the requirement of materiality in conjunction with a section 1001 charge, but did not make any reference to a materiality issue in a section 1005 charge that was discussed in the preceding sentence. The issue apparently was not raised, and was not discussed in the appellate opinion.

In section 1001, materiality is important because the statute requires that the statement be of a material fact and no intent to deceive or defraud is required for conviction. The statutory language in sections 1005 and 1006 does not include a requirement of materiality, but does impose a requirement that the government prove an intent to defraud or deceive. Materiality of the statement would seem less significant if the individual seeks to deceive or defraud. The requirement of materiality was arguably intentionally left out of sections 1005 and 1006 for that reason, although no court has yet so stated. In the absence of case law on point, the Committee recommends requiring that materiality be found by the jury. If it is an element, under the holding of United States v. Gaudin, 515 U.S. 506 (1995), it is a jury issue and must be instructed.

3. The types of institutions covered include the Federal Reserve Bank, member banks of the Federal Reserve System, national banks, bank holding companies, and any state bank, banking association, trust company or savings bank, the deposits of which are insured by the Federal Deposit Insurance Corporation.

4. Intent to deceive rather than defraud or injure may be alleged in the indictment, and the jury should be instructed accordingly. The defendant does not have to know that his act violates the law and is not entitled to an instruction defining "specific intent." United States v. Dougherty, 763 F.2d 970, 973-74 (8th Cir. 1985).

In the event the indictment alleges and the evidence at trial supports the submission to the jury of more than one mental state, for example, intent to defraud the bank and intent to deceive the comptroller of currency, the jury may be instructed that they can find the defendant guilty if they find unanimously and beyond a reasonable doubt that the government has proven at least one theory. See generally United States v. Gipson, 553 F.2d 453 (5th Cir. 1977); United States v. Frazin, 780 F.2d 1461, 1468 (9th Cir. 1977).

5. "Intent to deceive" is defined according to United States v. Godwin, 566 F.2d 975 (5th Cir. 1978).

6. 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) ("Actual reliance by the government 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 § 41.03 (5th ed. 2000); Fifth Circuit Pattern Jury Instructions: Criminal § 2.31 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 33 (1997); Federal Judicial Center, Pattern Criminal Jury Instructions § 81 (1988). United States v. Biggerstaff, 383 F.2d 675 (4th Cir. 1967).

"[S]ection 1005 is intended to be broad enough to cover any document or record of the bank that would reveal pertinent information for the officers or directors of the bank." United States v. Foster, 566 F.2d 1045, 1052 (6th Cir. 1977).

"The essence of the offense is making or causing to be made a bank entry which represents what is not true or does not exist." United States v. Steffen, 641 F.2d 591, 597 (8th Cir. 1981). "An omission where an honest entry would otherwise be made can be a false entry for section 1005 purposes." United States v. Copple, 827 F.2d 1182, 1187 (8th Cir. 1987). For example, omitting information that would show the true nature of a transaction can be a violation. United States v. Austin, 823 F.2d 257 (8th Cir. 1987). For other examples of false entries, see United States v. Dougherty, 763 F.2d 970 (8th Cir. 1985) (failure to record improper issuance of bankers' acceptances); United States v. Mohr, 728 F.2d 1132 (8th Cir. 1984) (exceeding loan limit and concealing documents); United States v. Ness, 665 F.2d 248 (8th Cir. 1981) (check-rolling without deposits to customer accounts, which were not really legitimate loans); United States v. Steffen, 641 F.2d 591 (8th Cir. 1981) (forged minutes of board of directors' meeting); United States v. Bevans, 496 F.2d 494 (8th Cir. 1974) (rollover of insufficient fund checks and their treatment as new checks each day to avoid posting as overdrafts).

Coffin v. United States, 156 U.S. 432, 463 (1895), held that "the making of a false entry is a concrete offense which is not committed where the transaction entered actually took place, and is entered exactly as it occurred." However, the Coffin holding has been modified, and a literally true and accurate entry may still be false if it records a fraudulent transaction, contains a half truth, or conceals a material fact. Agnew v. United States, 165 U.S. 36, 52-54 (1897); United States v. Walker, 871 F.2d 1298, 1308 (6th Cir. 1989); United States v. Gleason, 616 F.2d 2, 29 (2d Cir. 1979); United States v. Krepps, 605 F.2d 101, 109 (3d Cir. 1979).

The person responsible for the false entries need not have actually made the entry himself; it is enough that he set into motion the actions that necessarily resulted in the making of the entry in the normal course of business. United States v. Wolf, 820 F.2d 1499, 1504 (9th Cir. 1987); United States v. Krepps, 605 F.2d 101, 109 n.28 (3d Cir. 1979).

Intent to injure, defraud, or deceive is an element. No other definition of "specific intent," i.e., willfulness in the sense of a purpose to violate the law is necessary. United States v. Dougherty, 763 F.2d 970, 973-74 (8th Cir. 1985). Consistent with the Dougherty opinion, and with the recommendation in Instruction 7.02, "willfully" is not included in the description of the mental element for this offense. Cases that include "willfully" in the description of the mental element of a section 1005 offense use the term in the sense of acting voluntarily and intentionally rather than as a "specific intent" requirement of the statute. For example, the Fifth Circuit instruction does not include "willfully" as part of the mental element of a section 1005 violation, and United States v. Jackson, 621 F.2d 216, 219 (5th Cir. 1980), lists section 1005 elements without mentioning "willfully." A recent case, United States v. Kington, 875 F.2d 1091, 1104 (5th Cir. 1989), cites Jackson in listing section 1005 elements. However, in denying a rehearing in Kington, the court stated at 878 F.2d 815, 817, "[w]e note in particular that the district court's intent instruction on the section 1005 count required both willfulness and an intent to injure or defraud." Also, in a recent case, the Eleventh Circuit said, "[t]o substantiate the [section 1005 violations] the government must prove . . . that Rapp knowingly and willfully made, or directed or authorized the making of, a false entry concerning a material fact in a book or record . . . with knowledge of its falsity and with the intent to defraud or deceive . . . ." United States v. Rapp, 871 F.2d 957, 963 (11th Cir. 1989) (citing Jackson as the source of these elements). Under paragraph three of section 1005 it is error to give a "reckless disregard" instruction, since "reckless disregard" does not adequately reflect the statutorily required mental state. See United States v. Welliver, 601 F.2d 203, 210 (5th Cir. 1979); United States v. Adamson, 700 F.2d 953, 964 (5th Cir. 1983). Although materiality is not statutorily required, some circuits have imposed the requirement. See cases cited in Note 2, supra. Until the Eighth Circuit addresses the issue, the Committee recommends including materiality in the jury instructions and allowing the jury to decide the issue.

In cases where violations of civil rules and regulations are shown by the evidence, it may be appropriate to instruct the jury that they are not to consider violations of such regulations as a crime. See United States v. Kindig, 854 F.2d 703, 707 n.1 (5th Cir. 1988).

(For 2008 version see below).

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

2008 Version

The crime of making a false entry in bank records, as charged in [Count _____ of] the indictment, has four elements, which are:

One, that the defendant¹ made or caused to be made a false entry [concerning a material fact]² in a [book] [report] [statement] of (name of bank or other covered institution)³;

Two, the defendant knew the entry was false;

Three,⁴ [the defendant did so with the intent [to injure] [to defraud] [the bank] [(or describe other entity or person covered by the statute allegedly intended to be injured or defrauded, i.e., "any other company, body politic or corporate, or any individual person")];]

[the defendant did so with the intent to deceive an officer of the bank (or describe other entity or person covered by the statute allegedly intended to be deceived, i.e., "the Comptroller of the Currency, or the Federal Deposit Insurance Corporation, or any agent or examiner appointed to examine the affairs of such bank or company, or the Board of Governors of the Federal Reserve System");] and

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

An entry is "false" if untrue when made. An entry may be false if it records a transaction which did not occur, or fails to record a transaction which did occur and should have been accurately recorded, or inaccurately reports or records a transaction.

[To act with "intent to injure" means to act with intent to cause pecuniary loss.] [To act with "intent to defraud" means to act with intent to deceive or cheat, ordinarily for the purpose of causing a financial loss to someone else or bringing about a financial gain to the defendant or another.] [To act with "intent to deceive" means to act with intent to mislead or to cause a person to believe that which is false.]⁵

[A fact is "material" if it has a natural tendency to influence, or is capable of influencing the decision of the institution. (Whether a fact is material does not depend on whether a course of action intended to deceive others actually succeeded.)]⁶

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

Notes on Use

5. "Intent to deceive" is defined according to United States v. Godwin, 566 F.2d 975 (5th Cir. 1978).

Committee Comments

(For 2006 version see below)

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

2006 Version

The crime of making a false entry in bank records, as charged in [Count _____ of] the indictment, has four elements, which are:

One, that the defendant1 made or caused to be made a false entry [concerning a material fact]2 in a [book] [report] [statement] of (name of bank or other covered institution)3;

Two, the defendant knew the entry was false;

Three,4 [the defendant did so with the intent [to injure] [to defraud] [the bank] [(or describe other entity or person covered by the statute allegedly intended to be injured or defrauded, i.e., "any other company, body politic or corporate, or any individual person")];]

[the defendant did so with the intent to deceive an officer of the bank (or describe other entity or person covered by the statute allegedly intended to be deceived, i.e., "the Comptroller of the Currency, or the Federal Deposit Insurance Corporation, or any agent or examiner appointed to examine the affairs of such bank or company, or the Board of Governors of the Federal Reserve System");] and

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

An entry is "false" if untrue when made. An entry may be false if it records a transaction which did not occur, or fails to record a transaction which did occur and should have been accurately recorded, or inaccurately reports or records a transaction.

[To act with "intent to injure" means to act with intent to cause pecuniary loss.] [To act with "intent to defraud" means to act with intent to deceive or cheat, ordinarily for the purpose of causing a financial loss to someone else or bringing about a financial gain to the defendant or another.] [To act with "intent to deceive" means to act with intent to mislead or to cause a person to believe that which is false.]5

[A fact is "material" if it has a natural tendency to influence, or is capable of influencing the decision of the institution. (Whether a fact is material does not depend on whether a course of action intended to deceive others actually succeeded.)]6

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

Notes on Use

5. "Intent to deceive" is defined according to United States v. Godwin, 566 F.2d 975 (5th Cir. 1978).

Committee Comments

For 2000 version see below

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

2000 Version

The crime of making a false entry in bank records, as charged in [Count _____ of] the indictment, has four essential elements, which are:

One, that defendant1 made or caused to be made a false entry [concerning a material fact]2 in a [book] [report] [statement] of (name of bank or other covered institution)3;

Two, the defendant knew the entry was false;

Three,4 [the defendant did so with the intent [to injure] [to defraud] [the bank] [(or describe other entity or person covered by the statute allegedly intended to be injured or defrauded, i.e., "any other company, body politic or corporate, or any individual person")];]

[the defendant did so with the intent to deceive an officer of the bank (or describe other entity or person covered by the statute allegedly intended to be deceived, i.e., "the Comptroller of the Currency, or the Federal Deposit Insurance Corporation, or any agent or examiner appointed to examine the affairs of such bank or company, or the Board of Governors of the Federal Reserve System");] and

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

An entry is "false" if untrue when made. An entry may be false if it records a transaction which did not occur, or fails to record a transaction which did occur and should have been accurately recorded, or inaccurately reports or records a transaction.

[To act with "intent to injure" means to act with intent to cause pecuniary loss.] [To act with "intent to defraud" means to act with intent to deceive or cheat, ordinarily for the purpose of causing a financial loss to someone else or bringing about a financial gain to defendant or another.] [To act with "intent to deceive" means to act with intent to mislead or to cause a person to believe that which is false.]5

[A fact is "material" if it has a natural tendency to influence, or is capable of influencing the decision of the institution. (Whether a fact is material does not depend on whether a course of action intended to deceive others actually succeeded.)]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 § 50.09 (Cum. Supp. 1997); Fifth Circuit Pattern Jury Instructions: Criminal § 2.31 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 33 (1997); Federal Judicial Center, Pattern Criminal Jury Instructions § 81 (1988). United States v. Biggerstaff, 383 F.2d 675 (4th Cir. 1967).

"The essence of the offense is making or causing to be made a bank entry which represents what is not true or does not exist." United States v. Steffen, 641 F.2d 591, 597 (8th Cir.), cert. denied, 452 U.S. 943 (1981). "An omission where an honest entry would otherwise be made can be a false entry for section 1005 purposes." United States v. Copple, 827 F.2d 1182, 1187 (8th Cir. 1987). For example, omitting information that would show the true nature of a transaction can be a violation. United States v. Austin, 823 F.2d 257 (8th Cir. 1987). For other examples of false entries, see United States v. Dougherty, 763 F.2d 970 (8th Cir. 1985) (failure to record improper issuance of bankers' acceptances); United States v. Mohr, 728 F.2d 1132 (8th Cir. 1984) (exceeding loan limit and concealing documents); United States v. Ness, 665 F.2d 248 (8th Cir. 1981) (check-rolling without deposits to customer accounts, which were not really legitimate loans); United States v. Steffen, 641 F.2d 591 (8th Cir.), cert. denied, 452 U.S. 943 (1981) (forged minutes of board of directors' meeting); United States v. Bevans, 496 F.2d 494 (8th Cir. 1974) (rollover of insufficient fund checks and their treatment as new checks each day to avoid posting as overdrafts).

Coffin v. United States, 156 U.S. 432, 463 (1895), held that "the making of a false entry is a concrete offense which is not committed where the transaction entered actually took place, and is entered exactly as it occurred." However, the Coffin holding has been modified, and a literally true and accurate entry may still be false if it records a fraudulent transaction, contains a half truth, or conceals a material fact. Agnew v. United States, 165 U.S. 36, 52-54 (1897); United States v. Walker, 871 F.2d 1298, 1308 (6th Cir. 1989); United States v. Gleason, 616 F.2d 2, 29 (2d Cir. 1979), cert. denied, 444 U.S. 1082 (1980); United States v. Krepps, 605 F.2d 101, 109 (3d Cir. 1979).

Intent to injure, defraud, or deceive is an essential element. No other definition of "specific intent," i.e., willfulness in the sense of a purpose to violate the law is necessary. United States v. Dougherty, 763 F.2d 970, 973-74 (8th Cir. 1985). Consistent with the Dougherty opinion, and with the recommendation in Instruction 7.02, "willfully" is not included in the description of the mental element for this offense. Cases that include "willfully" in the description of the mental element of a section 1005 offense use the term in the sense of acting voluntarily and intentionally rather than as a "specific intent" requirement of the statute. For example, the Fifth Circuit instruction does not include "willfully" as part of the mental element of a section 1005 violation, and United States v. Jackson, 621 F.2d 216, 219 (5th Cir. 1980), lists section 1005 elements without mentioning "willfully." A recent case, United States v. Kington, 875 F.2d 1091, 1104 (5th Cir. 1989), cites Jackson in listing section 1005 elements. However, in denying a rehearing in Kington, the court stated at 878 F.2d 815, 817, "[w]e note in particular that the district court's intent instruction on the section 1005 count required both willfulness and an intent to injure or defraud." Also, in a recent case, the Eleventh Circuit said, "[t]o substantiate the [section 1005 violations] the government must prove . . . that Rapp knowingly and willfully made, or directed or authorized the making of, a false entry concerning a material fact in a book or record . . . with knowledge of its falsity and with the intent to defraud or deceive . . . ." United States v. Rapp, 871 F.2d 957, 963 (11th Cir. 1989) (citing Jackson as the source of these elements). Under paragraph three of section 1005 it is error to give a "reckless disregard" instruction, since "reckless disregard" does not adequately reflect the statutorily required mental state. See United States v. Welliver, 601 F.2d 203, 210 (5th Cir. 1979); United States v. Adamson, 700 F.2d 953, 964 (5th Cir.), cert. denied, 464 U.S. 833 (1983). Although materiality is not statutorily required, some circuits have imposed the requirement. See cases cited in Note 2, infra. Until the Eighth Circuit addresses the issue, the Committee recommends including materiality in the jury instructions and allowing the jury to decide the issue.

Notes on Use

1. The Federal Judicial Center Pattern Jury Instructions list as an essential element that the defendant be an employee of the bank. The third paragraph of the statute does not make this distinction and proscribes "whoever," not merely officers, from making false entries. United States v. Edick, 432 F.2d 350, 352-53 (4th Cir. 1970).

In section 1001, materiality is important because the statute requires that the statement be of a material fact and no intent to deceive or defraud is required for conviction. The statutory language in sections 1005 and 1006 does not include a requirement of materiality, but does impose a requirement that the government prove an intent to defraud or deceive. Materiality of the statement would seem less significant if the individual seeks to deceive or defraud. The requirement of materiality was arguably intentionally left out of sections 1005 and 1006 for that reason, although no court has yet so stated. In the absence of case law on point, the Committee recommends requiring that materiality be found by the jury. If it is an element, under the holding of United States v. Gaudin, 515 U.S. 506, 115 S. Ct. 2310 (1995), it is a jury issue and must be instructed.

5. "Intent to deceive" is defined according to United States v. Godwin, 566 F.2d 975 (5th Cir. 1978).

6. 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) ("Actual 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

6.18.1006A FALSE ENTRIES IN FEDERAL CREDIT
INSTITUTION RECORDS
(18 USC 1006) (First Paragraph)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: False Entries In Federal Credit Institution Records (18 USC 1006)

The crime of making a false entry in credit institution records, as charged in [Count _____ of] the indictment, has [four] [five] elements, which are:

One, the defendant was [an officer of] [an agent of] [an employee of] [connected in a capacity with]¹ (name of covered agency or institution);²

Two, the defendant made or caused to be made a false entry [concerning a material fact]³ in a [book of] [report of] [statement of or to] (name of agency or institution);

Three, the defendant knew the entry was false;

Four,⁴ the defendant did so with the intent to [defraud the institution (or describe other covered entity or person allegedly intended to be defrauded, i.e., "any other company, body politic or corporate, or any individual");] [deceive an [officer] [auditor] [examiner] [agent] of [the institution] [department or agency of the United States.]⁵

[Five, (name of institution) was (describe federal relation, e.g., accounts insured by the Administrator of the National Credit Union Administration).]⁶

An entry is "false" if untrue when made. An entry may be false if it records a transaction which did not occur, or fails to record a transaction which did occur and should have been accurately recorded, or inaccurately reports or records a transaction.

[To act with "intent to defraud" means to act with intent to deceive or cheat, ordinarily for the purpose of causing a financial loss to someone else or bringing about a financial gain to the defendant or another.] [To act with "intent to deceive" means to act with intent to mislead or to cause a person to believe that which is false.]⁷

[A fact is "material" if it has a natural tendency to influence, or is capable of influencing the decision of the institution. (Whether a fact is material does not depend on whether a course of action is intended to deceive others actually succeeded.)]⁸

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

Notes on Use

1. The language in the statute, "connected in any capacity with," is construed broadly to effectuate congressional intent by protecting federally insured lenders from fraud. United States v. Prater, 805 F.2d 1441, 1446 (11th Cir. 1986); United States v. Payne, 750 F.2d 844, 853 (11th Cir. 1985).

2. The types of agencies and institutions covered include among others: Federal Deposit Insurance Corporation, National Credit Union Administration, Office of Thrift Supervision, Resolution Trust Corporation, and any lending, mortgage, insurance, credit or savings and loan corporation or association acting under the laws of the United States or any institution the accounts of which are insured by the Federal Deposit Insurance Corporation or the National Credit Union Administration Board.

3. Although neither 18 USC 1005 nor § 1006 expressly require the false statement or entry to be of a "material fact," both the Eleventh Circuit and the Fifth Circuit impose such a requirement, albeit without much discussion. United States v. Rapp, 871 F.2d 957, 963-64 (11th Cir. 1989) (citing United States v. Jackson, 621 F.2d 216, 219 (5th Cir. 1980)) (section 1005); United States v. Beuttenmuller, 29 F.3d 973, 982 (5th Cir. 1994) (section 1006). Both circuits suggest using the definition of materiality approved for section 1001 instructions. The Eighth Circuit has not specifically addressed this issue. In Feingold v. United States, 49 F.3d 437 (8th Cir. 1995), the court mentioned the requirement of materiality in conjunction with a section 1001 charge, but did not make any reference to a materiality issue in a section 1005 charge that was discussed in the preceding sentence. The issue apparently was not raised, and was not discussed in the appellate opinion.

4. The jury should be instructed on intent to defraud or to deceive according to the allegations of the indictment.

5. Intent to injure, defraud, or deceive is an element. No other definition of "specific intent," i.e., willfulness in the sense of a purpose to violate the law is necessary. United States v. Dougherty, 763 F.2d 970, 973-74 (8th Cir. 1985). Consistent with the Dougherty opinion, and with the recommendation in Instruction 7.02, infra, "willfully" is not included in the description of the mental element for this offense. Cases that include "willfully" in the description of the mental element of a section 1005 violation, and United States v. Jackson, 621 F.2d 216, 219 (5th Cir. 1980), list section 1005 elements without mentioning "willfully." United States v. Kington, 875 F.2d 1091, 1104 (5th Cir. 1989), cites Jackson in listing section 1005 elements. However, in denying a rehearing in Kington, the court stated at 878 F.2d 815, 817, "[w]e note in particular that the district court's intent instruction on the section 1005 count required both willfulness and an intent to injure or defraud." Also, the Eleventh Circuit said, "[t]o substantiate the [section 1005 violations] the government must prove . . . that Rapp knowingly and willfully made, or directed or authorized the making of, a false entry concerning a material fact in a book or record . . . with knowledge of its falsity and with the intent to defraud or deceive . . . ." United States v. Rapp, 871 F.2d 957, 963 (11th Cir. 1989) (citing Jackson as the source of these elements).

6. Use this paragraph where the false entry is in a report of a lending institution rather than one of the federal agencies named in the statute. The Federal Savings and Loan Insurance Corporation was abolished in 1989. Institutions formerly insured by FSLIC are now insured by FDIC. Section 1006 was amended one year later to account for this change and the legal effect of the delay is unclear.

7. "Intent to deceive" is defined according to United States v. Godwin, 566 F.2d 975 (5th Cir. 1978).

8. 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) ("Actual reliance by the government is not necessary."); Blake v. United States, 323 F.2d 245, 247 (8th Cir. 1963) (same).

Committee Comments

See United States v. Tullos, 868 F.2d 689, 693-94 (5th Cir. 1989); United States v. Stovall, 825 F.2d 817, 822 (5th Cir.), opinion amended, 833 F.2d 526 (5^th Cir. 1987).

A false entry in the records of a federal lending institution in violation of section 1006 and willful misapplication of the funds of a federal lending institution in violation of section 657 are separate offenses. United States v. Stovall, 825 F.2d at 822-23.

Failure to disclose a bank officer's interest in a loan, and failure to disclose nominee status of a borrower, constitute false entries. United States v. Rochester, 898 F.2d 971, 978 (5th Cir. 1990); United States v. Tullos, 868 F.2d at 694 n.6.

United States v. Payne, 750 F.2d 844, 861 (11th Cir. 1985), holds that the "exculpatory no" doctrine, which developed as an exception to 18 USC 1001, is applicable to prosecutions under section 1006.

Tullos and Stovall include "knowingly and willfully" in defining the mental element of a section 1006 offense. The Committee believes that the reasoning of United States v. Dougherty, 763 F.2d 970, 973-74 (8th Cir. 1985), applies, and that there is no need to instruct on an element of willfulness. Intent to defraud or to deceive correctly defines the mental element of the offense. See, e.g., United States v. Rochester, 898 F.2d 971, 979 (5th Cir. 1990); United States v. Payne, 750 F.2d 844, 858 (11th Cir. 1989); United States v. Chenaur, 552 F.2d 294, 297 n.3 and 299 n.7 (9th Cir. 1977); United States v. Hykel, 461 F.2d 721, 723 (3d Cir. 1972); Beaudine v. United States, 368 F.2d 417, 420 n.4 (5th Cir. 1966). Although materiality is not statutorily required, some circuits have imposed the requirement. See cases cited in Note 2, supra. Until the Eighth Circuit addresses the issue, the Committee recommends including materiality in the jury instructions and allowing the jury to decide the issue.

In cases where violations of civil rules and regulations are shown by the evidence, it may be appropriate to instruct the jury that they are not to consider violations of such regulations as a crime. See United States v. Kindig, 854 F.2d 703, 707 n.1 (5th Cir. 1988).

(For 2008 version see below).

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

2008 Version

The crime of making a false entry in credit institution records, as charged in [Count _____ of] the indictment, has [four] [five] elements, which are:

One, the defendant was [an officer of] [an agent of] [an employee of] [connected in a capacity with]¹ (name of covered agency or institution);²

Two, the defendant made or caused to be made a false entry [concerning a material fact]³ in a [book of] [report of] [statement of or to] (name of agency or institution);

Three, the defendant knew the entry was false;

Four,⁴ the defendant did so with the intent to [defraud the institution (or describe other covered entity or person allegedly intended to be defrauded, i.e., "any other company, body politic or corporate, or any individual");] [deceive an [officer] [auditor] [examiner] [agent] of [the institution] [department or agency of the United States.]⁵

[Five, (name of institution) was (describe federal relation, e.g., accounts insured by the Administrator of the National Credit Union Administration).]⁶

An entry is "false" if untrue when made. An entry may be false if it records a transaction which did not occur, or fails to record a transaction which did occur and should have been accurately recorded, or inaccurately reports or records a transaction.

[To act with "intent to defraud" means to act with intent to deceive or cheat, ordinarily for the purpose of causing a financial loss to someone else or bringing about a financial gain to the defendant or another.] [To act with "intent to deceive" means to act with intent to mislead or to cause a person to believe that which is false.]⁷

[A fact is "material" if it has a natural tendency to influence, or is capable of influencing the decision of the institution. (Whether a fact is material does not depend on whether a course of action is intended to deceive others actually succeeded.)]⁸

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

Notes on Use

4. The jury should be instructed on intent to defraud or to deceive according to the allegations of the indictment.

7. "Intent to deceive" is defined according to United States v. Godwin, 566 F.2d 975 (5th Cir. 1978).

Committee Comments

See United States v. Tullos, 868 F.2d 689, 693-94 (5th Cir. 1989); United States v. Stovall, 825 F.2d 817, 822 (5th Cir.), opinion amended, 833 F.2d 526 (5^th Cir. 1987).

In cases where violations of civil rules and regulations are shown by the evidence, it may be appropriate to instruct the jury that they are not to consider violations of such regulations as a crime. See United States v. Kindig, 854 F.2d 703, 707 n.1 (5th Cir. 1988).

(For 2006 version see below)

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

2006 Version

The crime of making a false entry in credit institution records, as charged in [Count _____ of] the indictment, has [four] [five] elements, which are:

One, the defendant was [an officer of] [an agent of] [an employee of] [connected in a capacity with]1 (name of covered agency or institution);2

Two, the defendant made or caused to be made a false entry [concerning a material fact]3 in a [book of] [report of] [statement of or to] (name of agency or institution);

Three, the defendant knew the entry was false;

Four,4 the defendant did so with the intent to [defraud the institution (or describe other covered entity or person allegedly intended to be defrauded, i.e., "any other company, body politic or corporate, or any individual");] [deceive an [officer] [auditor] [examiner] [agent] of [the institution] [department or agency of the United States.]5

[Five, (name of institution) was (describe federal relation, e.g., accounts insured by the Administrator of the National Credit Union Administration).]6

An entry is "false" if untrue when made. An entry may be false if it records a transaction which did not occur, or fails to record a transaction which did occur and should have been accurately recorded, or inaccurately reports or records a transaction.

[To act with "intent to defraud" means to act with intent to deceive or cheat, ordinarily for the purpose of causing a financial loss to someone else or bringing about a financial gain to the defendant or another.] [To act with "intent to deceive" means to act with intent to mislead or to cause a person to believe that which is false.]7

[A fact is "material" if it has a natural tendency to influence, or is capable of influencing the decision of the institution. (Whether a fact is material does not depend on whether a course of action is intended to deceive others actually succeeded.)]8

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

Notes on Use

4. The jury should be instructed on intent to defraud or to deceive according to the allegations of the indictment.

7. "Intent to deceive" is defined according to United States v. Godwin, 566 F.2d 975 (5th Cir. 1978).

Committee Comments

See United States v. Tullos, 868 F.2d 689, 693-94 (5th Cir. 1989); United States v. Stovall, 825 F.2d 817, 822 (5th Cir.), opinion amended, 833 F.2d 526 (5th Cir. 1987).

In cases where violations of civil rules and regulations are shown by the evidence, it may be appropriate to instruct the jury that they are not to consider violations of such regulations as a crime. See United States v. Kindig, 854 F.2d 703, 707 n.1 (5th Cir. 1988).

For 2000 version see below

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

2000 Version

The crime of making a false entry in credit institution records, as charged in [Count _____ of] the indictment, has [four] [five] essential elements, which are:

One, the defendant was [an officer of] [an agent of] [an employee of] [connected in a capacity with]1 (name of covered agency or institution);2

Two, the defendant made or caused to be made a false entry [concerning a material fact]3 in a [book of] [report of] [statement of or to] (name of agency or institution);

Three, the defendant knew the entry was false;

Four,4 the defendant did so with the intent to [defraud the institution (or describe other covered entity or person allegedly intended to be defrauded, i.e., "any other company, body politic or corporate, or any individual");] [deceive an [officer] [auditor] [examiner] [agent] of [the institution] [department or agency of the United States.]5 [

Five, (name of institution) was (describe federal relation, e.g., accounts insured by the Administrator of the National Credit Union Administration).]6

An entry is "false" if untrue when made. An entry may be false if it records a transaction which did not occur, or fails to record a transaction which did occur and should have been accurately recorded, or inaccurately reports or records a transaction.

[To act with "intent to defraud" means to act with intent to deceive or cheat, ordinarily for the purpose of causing a financial loss to someone else or bringing about a financial gain to defendant or another.] [To act with "intent to deceive" means to act with intent to mislead or to cause a person to believe that which is false.]7

[A fact is "material" if it has a natural tendency to influence, or is capable of influencing the decision of the institution. (Whether a fact is material does not depend on whether a course of action is intended to deceive others actually succeeded.)]8

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

Committee Comments

See United States v. Tullos, 868 F.2d 689, 693-94 (5th Cir. 1989); United States v. Stovall, 825 F.2d 817, 822 (5th Cir. 1987).

Tullos and Stovall include "knowingly and willfully" in defining the mental element of a section 1006 offense. The Committee believes that the reasoning of United States v. Dougherty, 763 F.2d 970, 973- 74 (8th Cir. 1985), applies, and that there is no need to instruct on an element of willfulness. Intent to defraud or to deceive correctly defines the mental element of the offense. See, e.g., United States v. Rochester, 898 F.2d 971, 979 (5th Cir. 1990); United States v. Payne, 750 F.2d 844, 858 (11th Cir. 1989); United States v. Chenaur, 552 F.2d 294, 297 n.3 and 299 n.7 (9th Cir. 1977); United States v. Hykel, 461 F.2d 721, 723 (3d Cir. 1972); Beaudine v. United States, 368 F.2d 417, 420 n.4 (5th Cir. 1966). Although materiality is not statutorily required, some circuits have imposed the requirement. See cases cited in Note 2, infra. Until the Eighth Circuit addresses the issue, the Committee recommends including materiality in the jury instructions and allowing the jury to decide the issue.

Notes on Use

In section 1001, materiality is important because the statute requires that the statement be of a material fact and no intent to deceive or defraud is required for conviction. The statutory language in sections 1005 and 1006 does not include a requirement of materiality, but does impose a requirement that the government prove an intent to defraud or deceive. Materiality of the statement would seem less significant if the individual seeks to deceive or defraud. The requirement of materiality was arguably intentionally left out of sections 1005 and 1006 for that reason, although no court has yet so stated. In the absence of case law on point, the Committee recommends requiring that materiality be found by the jury. If it is an element, under the holding of United States v. Gaudin, 515 U.S. 506, 115 S. Ct. 2310 (1995), it is a jury issue and must be instructed.

4. The jury should be instructed on intent to defraud or to deceive according to the allegations of the indictment.

5. Intent to injure, defraud, or deceive is an essential element. No other definition of "specific intent," i.e., willfulness in the sense of a purpose to violate the law is necessary. United States v. Dougherty, 763 F.2d 970, 973-74 (8th Cir. 1985). Consistent with the Dougherty opinion, and with the recommendation in Instruction 7.02, infra, "willfully" is not included in the description of the mental element for this offense. Cases that include "willfully" in the description of the mental element of a section 1005 violation, and United States v. Jackson, 621 F.2d 216, 219 (5th Cir. 1980), list section 1005 elements without mentioning "willfully." United States v. Kington, 875 F.2d 1091, 1104 (5th Cir. 1989), cites Jackson in listing section 1005 elements. However, in denying a rehearing in Kington, the court stated at 878 F.2d 815, 817, "[w]e note in particular that the district court's intent instruction on the section 1005 count required both willfulness and an intent to injure or defraud." Also, the Eleventh Circuit said, "[t]o substantiate the [section 1005 violations] the government must prove . . . that Rapp knowingly and willfully made, or directed or authorized the making of, a false entry concerning a material fact in a book or record . . . with knowledge of its falsity and with the intent to defraud or deceive . . . ." United States v. Rapp, 871 F.2d 957, 963 (11th Cir. 1989) (citing Jackson as the source of these elements).

7. "Intent to deceive" is defined according to United States v. Godwin, 566 F.2d 975 (5th Cir. 1978).

8. 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) ("Actual 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

6.18.1006B PARTICIPATION IN FEDERAL CREDIT
INSTITUTION TRANSACTIONS
(18 USC 1006, Third Paragraph)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Participation In Federal Credit Institution Transactions (18 USC 1006)

The crime of (describe offense charged, e.g., receiving benefits through a transaction of a credit institution), as charged in [Count _____ of] the indictment, has [three] [four] elements, which are:

One, the defendant was [an officer of] [an agent of] [an employee of] [connected in a capacity with]¹ (name of covered agency or institution)²;

Two, the defendant [participated in] [shared in] [directly or indirectly received] any [money] [profit] [property] [benefit] through [a transaction] [a loan] [a commission] [a contract] [an act] of (name of covered agency or institution);

Three, the defendant did so with the intent to defraud [the United States] [an agency of the United States] (name of covered agency or institution);

[Four, (name of institution) was (describe federal relation, e.g., accounts insured by the Administrator of the National Credit Union Administration).]³

To act with "intent to defraud" means to act with intent to deceive or cheat, ordinarily for the purpose of causing a financial loss to someone else or bringing about a financial gain to the defendant or another.

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

Notes on Use

1. Title 18 USC 1005 was amended by the Financial Institutions Reform, Recovery and Enforcement Act (FIRREA) of 1989 to include a paragraph similar to the third clause of 18 USC 1006. Presumably, this instruction can serve as a pattern for section 1005 offenses under the new provision. The language in the statute, "connected in any capacity with," is construed broadly to effectuate congressional intent by protecting federally insured lenders from fraud. United States v. Prater, 805 F.2d 1441, 1446 (11th Cir. 1986); United States v. Payne, 750 F.2d 844, 853 (11th Cir. 1985).

3. Use this paragraph where the illegal participation or receipt of benefits is in connection with a transaction of a lending institution rather than one of the federal agencies named in the statute. The Federal Savings and Loan Insurance Corporation was abolished in 1989. Institutions formerly insured by FSLIC are now insured by FDIC. Section 1006 was amended one year later to account for this change, and the legal effect of the delay is unclear.

Committee Comments

See United States v. Griffin, 579 F.2d 1104, 1108 (8th Cir. 1978); United States v. Chenaur, 552 F.2d 294, 297 n.3 (9th Cir. 1977); United States v. Hykel, 461 F.2d 721, 723 (3d Cir. 1972).

Participation or benefit with intent to defraud is sufficient; there is no need to show actual loss to the institution. United States v. Rice, 645 F.2d 691 (9th Cir. 1981); United States v. Chenaur, 552 F.2d at 299; Beaudine v. United States, 368 F.2d 417, 420 (5th Cir. 1966).

The offense of misapplication of funds (18 USC 657) is different from the offense of fraudulent participation in the benefits of a loan (18 USC 1006). United States v. Rochester, 898 F.2d 971, 980 (5th Cir. 1990).

Although case law discusses willfulness as an intent element of a section 1006 violation, see, e.g., United States v. Rochester, 898 F.2d at 978-79, the Committee believes the rationale of United States v. Dougherty, 763 F.2d 970, 973-74 (8th Cir. 1985), controls, and that a "specific intent" instruction should not be given. Griffin lists as the fourth element of a section 1006 violation "that such act or acts were done knowingly and willfully." 579 F.2d at 1108. However, Dougherty was decided after Griffin, and "specific intent," apart from intent to defraud or deceive, does not appear to be required by section 1006.

See also Committee Comments and Notes on Use, Instruction 6.18.1006A, supra.

(For 2008 version see below).

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

2008 Version

The crime of (describe offense charged, e.g., receiving benefits through a transaction of a credit institution), as charged in [Count _____ of] the indictment, has [three] [four] elements, which are:

One, the defendant was [an officer of] [an agent of] [an employee of] [connected in a capacity with]¹ (name of covered agency or institution)²;

Two, the defendant [participated in] [shared in] [directly or indirectly received] any [money] [profit] [property] [benefit] through [a transaction] [a loan] [a commission] [a contract] [an act] of (name of covered agency or institution);

Three, the defendant did so with the intent to defraud [the United States] [an agency of the United States] (name of covered agency or institution);

[Four, (name of institution) was (describe federal relation, e.g., accounts insured by the Administrator of the National Credit Union Administration).]³

To act with "intent to defraud" means to act with intent to deceive or cheat, ordinarily for the purpose of causing a financial loss to someone else or bringing about a financial gain to the defendant or another.

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

Notes on Use

Committee Comments

See United States v. Griffin, 579 F.2d 1104, 1108 (8th Cir. 1978); United States v. Chenaur, 552 F.2d 294, 297 n.3 (9th Cir. 1977); United States v. Hykel, 461 F.2d 721, 723 (3d Cir. 1972).

See also Committee Comments and Notes on Use, Instruction 6.18.1006A, supra.

(For 2006 version see below)

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

2006 Version

The crime of (describe offense charged, e.g., receiving benefits through a transaction of a credit institution), as charged in [Count _____ of] the indictment, has [three] [four] elements, which are:

One, the defendant was [an officer of] [an agent of] [an employee of] [connected in a capacity with]1 (name of covered agency or institution)2;

Two, the defendant [participated in] [shared in] [directly or indirectly received] any [money] [profit] [property] [benefit] through [a transaction] [a loan] [a commission] [a contract] [an act] of (name of covered agency or institution);

Three, the defendant did so with the intent to defraud [the United States] [an agency of the United States] (name of covered agency or institution);

[Four, (name of institution) was (describe federal relation, e.g., accounts insured by the Administrator of the National Credit Union Administration).]3

To act with "intent to defraud" means to act with intent to deceive or cheat, ordinarily for the purpose of causing a financial loss to someone else or bringing about a financial gain to the defendant or another.

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

Notes on Use

Committee Comments

See United States v. Griffin, 579 F.2d 1104, 1108 (8th Cir. 1978); United States v. Chenaur, 552 F.2d 294, 297 n.3 (9th Cir. 1977); United States v. Hykel, 461 F.2d 721, 723 (3d Cir. 1972).

See also Committee Comments and Notes on Use, Instruction 6.18.1006A, supra.

For 2000 version see below

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

2000 Version

The crime of (describe offense charged, e.g., receiving benefits through a transaction of a credit institution), as charged in [Count _____ of] the indictment, has [three] [four] essential elements, which are:

One, the defendant was [an officer of] [an agent of] [an employee of] [connected in a capacity with]1 (name of covered agency or institution)2;

Two, the defendant [participated in] [shared in] [directly or indirectly received] any [money] [profit] [property] [benefit] through [a transaction] [a loan] [a commission] [a contract] [an act] of (name of covered agency or institution);

Three, the defendant did so with the intent to defraud [the United States] [an agency of the United States] (name of covered agency or institution);

[Four, (name of institution) was (describe federal relation, e.g., accounts insured by the Administrator of the National Credit Union Administration).]3

To act with "intent to defraud" means to act with intent to deceive or cheat, ordinarily for the purpose of causing a financial loss to someone else or bringing about a financial gain to defendant or another.

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

Committee Comments

See United States v. Griffin, 579 F.2d 1104, 1108 (8th Cir. 1978); United States v. Chenaur, 552 F.2d 294, 297 n.3 (9th Cir. 1977); United States v. Hykel, 461 F.2d 721, 723 (3d Cir. 1972).

See also Committee Comments and Notes on Use, Instruction 6.18.1006A, supra.

Notes on Use

1. 18 USC 1005 was amended by the Financial Institutions Reform, Recovery and Enforcement Act (FIRREA) of 1989 to include a paragraph similar to the third clause of 18 USC 1006. Presumably, this instruction can serve as a pattern for section 1005 offenses under the new provision. The language in the statute, "connected in any capacity with," is construed broadly to effectuate congressional intent by protecting federally insured lenders from fraud. United States v. Prater, 805 F.2d 1441, 1446 (11th Cir. 1986); United States v. Payne, 750 F.2d 844, 853 (11th Cir. 1985).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1014 FALSE STATEMENT TO A FINANCIAL INSTITUTION
(18 USC 1014)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Making A False Statement Or Report (18 USC 1014)

The crime of making a false statement to a financial institution, as charged in [Count _____ of] the indictment, has three elements, which are:¹

One, the defendant knowingly made a false statement (describe the alleged false statement, e.g., that the defendant had no current indebtedness to another financial institution) to (name of financial institution);

Two, the defendant made the false statement for the purpose of influencing the action of (name of financial institution) upon (describe transaction, e.g., an application for a loan);

Three, that (name of financial institution) was (describe federal relation, e.g., insured by the FDIC) at the time the statement was made².

A statement is "false" if untrue when made.

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

Notes on Use

1. In United States v. Wells, 519 U.S. 482 (1997), the Supreme Court held that materiality is not an element of section 1014, and remanded the case. On remand, the court of appeals held that "in light of the Supreme Court decision in this case, any reference to materiality in the jury instruction is unnecessary and has the potential to cause confusion." United States v. Wells, 519 U.S. 482 (1997). This revised instruction removes all references to materiality.

2. In United States v. Carlisle, 118 F.3d 1271, 1274 (8th Cir. 1997), the court noted the importance of proof of federal relation at the time of the offense.

Committee Comments

See Fifth Circuit Pattern Jury Instructions: Criminal § 2.52 (1997). Williams v. United States, 458 U.S. 279, 284 (1982); United States v. Concemi, 957 F.2d 942, 951 (1st Cir. 1992); United States v. Haddock, 956 F.2d 1534, 1549 (10th Cir. 1992); United States v. Huntress, 956 F.2d 1309, 1317 (5th Cir. 1992); United States v. Bonnette, 663 F.2d 495, 497 (4th Cir. 1981).

Reliance is not an element of a section 1014 violation. It is not necessary to prove that the financial institution was influenced by or actually relied on the false statement. United States v. Copple, 827 F.2d 1182, 1187 (8th Cir. 1987); United States v. Bonnette, 663 F.2d at 498. Materiality, likewise, is not an element of section 1014. United States v. Wells, 519 U.S. 482 (1997).

A number of false statements in a single document constitutes only one violation of section 1014. United States v. Sue, 586 F.2d 70 (8th Cir. 1978).

(For 2008 version see below).

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

2008 Version

The crime of making a false statement to a financial institution, as charged in [Count _____ of] the indictment, has three elements, which are:¹

One, the defendant knowingly made a false statement (describe the alleged false statement, e.g., that the defendant had no current indebtedness to another financial institution) to (name of financial institution);

Two, the defendant made the false statement for the purpose of influencing the action of (name of financial institution) upon (describe transaction, e.g., an application for a loan);

Three, that (name of financial institution) was (describe federal relation, e.g., insured by the FDIC) at the time the statement was made².

A statement is "false" if untrue when made.

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

Notes on Use

2. In United States v. Carlisle, 118 F.3d 1271, 1274 (8th Cir. 1997), the court noted the importance of proof of federal relation at the time of the offense.

Committee Comments

A number of false statements in a single document constitutes only one violation of section 1014. United States v. Sue, 586 F.2d 70 (8th Cir. 1978).

(For 2006 version see below)

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

2006 Version

The crime of making a false statement to a financial institution, as charged in [Count _____ of] the indictment, has three elements, which are:1

One, the defendant knowingly made a false statement (describe the alleged false statement, e.g., that the defendant had no current indebtedness to another financial institution) to (name of financial institution);

Two, the defendant made the false statement for the purpose of influencing the action of (name of financial institution) upon (describe transaction, e.g., an application for a loan);

Three, that (name of financial institution) was (describe federal relation, e.g., insured by the FDIC) at the time the statement was made2.

A statement is "false" if untrue when made.

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

Notes on Use

2. In United States v. Carlisle, 118 F.3d 1271, 1274 (8th Cir. 1997), the court noted the importance of proof of federal relation at the time of the offense.

Committee Comments

A number of false statements in a single document constitutes only one violation of section 1014. United States v. Sue, 586 F.2d 70 (8th Cir. 1978).

For 2000 version see below

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

2000 Version

The crime of making a false statement to a financial institution, as charged in [Count _____ of] the indictment, has three essential elements, which are:1

One, the defendant knowingly made a false statement (describe the alleged false statement, e.g., that defendant had no current indebtedness to another financial institution) to (name of financial institution);

Two, the defendant made the false statement for the purpose of influencing the action of (name of financial institution) upon (describe transaction, e.g., an application for a loan);

Three, that (name of financial institution) was (describe federal relation, e.g., insured by the FDIC) at the time the statement was made2. A statement is "false" if untrue when made.

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

Committee Comments

A number of false statements in a single document constitutes only one violation of section 1014. United States v. Sue, 586 F.2d 70 (8th Cir. 1978).

Notes on Use

1. In United States v. Wells, 519 U.S. 482, 117 S. Ct. 921 (1997), the Supreme Court held that materiality is not an element of section 1014, and remanded the case. On remand, the court of appeals held that "in light of the Supreme Court decision in this case, any reference to materiality in the jury instruction is unnecessary and has the potential to cause confusion." United States v. Wells, No. 93-3924, slip op. at 6 (8th Cir. Oct. 14, 1997). This revised instruction removes all references to materiality.

2. In United States v. Carlisle, 118 F.3d 1271, 1274 (8th Cir. 1997), the court noted the importance of proof of federal relation at the time of the offense.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1071 CONCEALING A PERSON FROM ARREST
(18 USC 1071)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Concealing Person From Arrest (18 USC 1071)

The crime of concealing a person from arrest as charged in [Count ___ of] the indictment, has four essential elements, which are:

One, a federal warrant had been issued for the arrest of (name of the person named in the arrest warrant) [for the crime of (specify offense)] [after conviction of (specify offense)];

Two, the defendant knew the warrant had been issued;

Three, with that knowledge, the defendant harbored or concealed (name of the person named in the arrest warrant); and

Four, the defendant intended to prevent the discovery or arrest of (name of the person named in the arrest warrant).

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

Committee Comments

A similar instruction was cited with approval by the Eighth Circuit in United States v. Hayes, 518 F.3d 989 (8^th Cir. 2008). It remains an open question whether merely lying about a fugitive’s whereabouts is sufficient to support a conviction for this offense. Id.

New; no 2008 version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1111 INTRODUCTORY COMMENTS TO HOMICIDE INSTRUCTIONS

Committee Comments

Federal Jurisdiction under 18 USC 7

Federal jurisdiction may be exclusive or concurrent. Certain statutes, such as 18 USC 1114, base federal jurisdiction on the identity of the victim. Other statutes, such as 18 USC 1111, base federal jurisdiction on where the crime occurs. These latter statutes, the federal enclave laws, permit federal courts to serve as a forum for the prosecution of certain crimes when they occur within the "special maritime and territorial jurisdiction of the United States," 18 USC 7.

The phrase "within the exclusive jurisdiction of the United States" applies to crimes committed within the premises, grounds, forts, arsenals, navy-yards, and other places within the boundaries of a state or within a territory over which the Federal Government has jurisdiction. In re Gon-shay-ee, 130 U.S. 343, 351 (1889). Currently, 18 USC 7 describes those same places more expansively and affixes to them the phrase "special maritime and territorial jurisdiction of the United States." The statute defines this as including, among other things, the high seas, any other waters within the admiralty and maritime jurisdiction of the United States and without jurisdiction of any particular state, any American vessel on the waters of any of the Great Lakes or on any of the waters connecting the Great Lakes, and any American aircraft while in flight over the high seas, or over any other waters within the admiralty and maritime jurisdiction of the United States. Although not enumerated in section 7, federal jurisdiction extends to crimes committed in Indian country under 18 USC 1152, and exclusive federal jurisdiction is granted over certain enumerated offenses, including murder and manslaughter, committed by an Indian within Indian country (18 USC 1153).

Federal jurisdiction under 18 USC 1111 and 1112 ultimately depends on the location of the offense. The location is determined by where the injury was inflicted or other means employed which caused the death, without regard to where the death actually occurred. 18 USC 3236; United States v. Parker, 622 F.2d 298, 302 (8th Cir. 1980). If injuries are inflicted both outside and inside the federal boundary, the Eighth Circuit adopts a proximate cause analysis and requires the government to prove beyond a reasonable doubt that the victim died as a proximate result of the injuries inflicted within the federal boundary. Id.

It is unclear in light of United States v. Gaudin, 515 U.S. 506 (1995), whether the element of federal jurisdiction is a question of law to be determined by the court or a question of fact to be determined by the jury. However, the Eighth Circuit in United States v. Stands, 105 F.3d 1565, 1575 (8th Cir. 1997), held that the location of the crime is a factual issue for the jury, but it is for the court, not the jury, to determine whether that land is in Indian country and thus within federal jurisdiction.

Injection of Defenses

See Instruction 9.05.

In the Eighth Circuit, it is well established that a defendant is entitled to an instruction on his theory of the case if there is evidence to support it and a proper request has been made. United States v. Long Crow, 37 F.3d 1319, 1323 (8th Cir. 1994) (quoting United States v. Brown, 540 F.2d 364, 380 (8th Cir. 1976)). The evidence need not be overwhelming, and a defendant is entitled to an instruction on a theory of defense even though the evidentiary basis for that theory is "weak, inconsistent, or of doubtful credibility." United States v. Scout, 112 F.3d 955, 960 (8th Cir. 1997) (citing Closs v. Leapley, 18 F.3d 574, 580 (8th Cir. 1994)); but see Long Crow, 37 F.3d at 1323 (the defendant must establish the insanity defense "by clear and convincing evidence"). Nonetheless, a defendant still has the burden of producing some evidence to support his theory. See Hall v. United States, 46 F.3d 855 (8th Cir. 1995) (there must be evidence upon which a jury could rationally sustain the defense).

Self-Defense

See Instructions 3.09, supra, and 9.04, infra.

When evidence is introduced which supports a claim of self-defense, the government must prove the absence of self-defense beyond a reasonable doubt. See United States v. Scout, 112 F.3d at 960 (citing United States v. Alvarez, 755 F.2d 830, 842 n.12 (11th Cir. 1985)). In other words, the absence of self-defense is not an element of the crime; rather, it is an affirmative defense on which the defendant bears the burden of production. Once the defendant has met this burden, the government must satisfy the burden of persuasion and negate self-defense. Id.

When self-defense is raised, instructions should be modified to include an additional element, that "the defendant did not kill (name of victim) in self-defense." An explanation of self-defense should also be included.

Heat of Passion

See Instruction 9.05, infra.

The prosecution must prove beyond a reasonable doubt the absence of heat of passion when the issue is properly raised in a homicide case. Mullaney v. Wilbur, 421 U.S. 684, 697-98 (1975).

Lesser-Included Offense

"The defendant may be found guilty of an offense necessarily included in the offense charged . . . ." FRCP 31(c). See Instruction 3.10, supra.

The Eighth Circuit has formulated a five-point test to determine when a lesser-included offense instruction should be given. United States v. Parker, 32 F.3d 395, 400-01 (8th Cir. 1994) (citing United States v. Thompson, 492 F.2d 359, 362 (8th Cir. 1974)):

A defendant is entitled to an instruction on a lesser-included offense if: (1) a proper request is made; (2) the elements of the lesser offense are identical to part of the elements of the greater offense; (3) there is some evidence which would justify conviction of the lesser offense; (4) the proof on the element or elements differentiating the two crimes is sufficiently in dispute so that the jury may consistently find the defendant innocent of the greater and guilty of the lesser-included offense; and (5) there is mutuality, i.e., a charge may be demanded by either the prosecution or the defense.

See also United States v. Eagle Hawk, 815 F.2d 1213, 1215 (8th Cir. 1987), and United States v. Neiss, 684 F.2d 570, 571 (8th Cir. 1982).

(For 2008 version see below).

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

2008 Version

Federal Jurisdiction under 18 USC 7

Injection of Defenses

See Instruction 9.05.

Self-Defense

See Instructions 3.09, supra, and 9.04, infra.

Heat of Passion

See Instruction 9.05, infra.

The prosecution must prove beyond a reasonable doubt the absence of heat of passion when the issue is properly raised in a homicide case. Mullaney v. Wilbur, 421 U.S. 684, 697-98 (1975).

Lesser-Included Offense

"The defendant may be found guilty of an offense necessarily included in the offense charged . . . ." FRCP 31(c). See Instruction 3.10, supra.

A defendant is entitled to an instruction on a lesser-included offense if: (1) a proper request is made; (2) the elements of the lesser offense are identical to part of the elements of the greater offense; (3) there is some evidence which would justify conviction of the lesser offense; (4) the proof on the element or elements differentiating the two crimes is sufficiently in dispute so that the jury may consistently find the defendant innocent of the greater and guilty of the lesser-included offense; and (5) there is mutuality, i.e., a charge may be demanded by either the prosecution or the defense.

See also, United States v. Eagle Hawk, 815 F.2d 1213, 1215 (8th Cir. 1987), and United States v. Neiss, 684 F.2d 570, 571 (8th Cir. 1982).

(For 2006 version see below)

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

2006 Version

Federal Jurisdiction under 18 USC 7

Injection of Defenses

See Instruction 9.05.

Self-Defense

See Instructions 3.09, supra, and 9.04, infra.

Heat of Passion

See Instruction 9.05, infra.

The prosecution must prove beyond a reasonable doubt the absence of heat of passion when the issue is properly raised in a homicide case. Mullaney v. Wilbur, 421 U.S. 684, 697-98 (1975).

Lesser-Included Offense

"The defendant may be found guilty of an offense necessarily included in the offense charged . . . ." FRCP 31(c). See Instruction 3.10, supra.

A defendant is entitled to an instruction on a lesser-included offense if: (1) a proper request is made; (2) the elements of the lesser offense are identical to part of the elements of the greater offense; (3) there is some evidence which would justify conviction of the lesser offense; (4) the proof on the element or elements differentiating the two crimes is sufficiently in dispute so that the jury may consistently find the defendant innocent of the greater and guilty of the lesser-included offense; and (5) there is mutuality, i.e., a charge may be demanded by either the prosecution or the defense.

See also, United States v. Eagle Hawk, 815 F.2d 1213, 1215 (8th Cir. 1987), and United States v. Neiss, 684 F.2d 570, 571 (8th Cir. 1982).

No 2000 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1111A
MURDER, FIRST DEGREE, WITHIN SPECIAL MARITIME AND TERRITORIAL JURISDICTION
OF THE UNITED STATES (18 USC 1111)¹

FORECITE National™ Materials Related To This Instruction:

FORECITE National™ Chapter 92: Homicide

See generally FORECITE National™ 92.7 [Intentional Murder].

See generally FORECITE National™ 92.9 [Felony Murder, Statutorily Specified Offenses].

See generally FORECITE National™ 92.15 [Assault With Intent To Commit Murder].

See generally FORECITE National™ 92.16 [Conspiracy To Commit Murder].

See FORECITE National™ Federal Models By Offense: Murder (First Degree) (18 USC 1111)

The crime of murder in the first degree [, as charged in [Count __] of the indictment,] has four elements, which are:

One, the defendant unlawfully killed^{2 3} (name of victim);

Two, the defendant did so with malice aforethought as defined in instruction ________;⁴

Three, the killing was premeditated⁵ as defined in instruction _______;⁶ and

Four, the killing occurred at (describe location where killing is alleged to have occurred upon which jurisdiction is based).⁷

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

Notes on Use

1. Numerous statutes refer to section 1111. This instruction may be modified for these situations.

2. The statute states that the defendant must "unlawfully" kill. The issue of whether the defendant unlawfully killed is injected in a number of ways, as for instance when the defendant raises the defense of self-defense or defense of others. Those defenses are addressed by adding the appropriate language based on instruction 3.09 to this instruction, rather than by adding another element to this instruction. The burden of proof remains on the government to disprove self-defense once the defense is raised.

3. "Caused the death of" may be used instead of "killed."

4. If the defense of heat of passion is raised, the instruction should be modified to add "and not in the heat of passion as submitted in instruction ___." The Supreme Court has held that the prosecution must "prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case." Mullaney v. Wilbur, 421 U.S. 684, 697-98, 704 (1975).

5. This element may be modified to state "the defendant premeditated upon the death of (name of victim)."

6. When any other form of first degree murder is at issue (i.e., a murder "perpetrated by poison, lying in wait . . . or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, burglary, or robbery..."), the instruction relative to premeditation should be appropriately modified. (For example, in a case where the killing occurred during a robbery, the third element should be stricken, and a new element should be added requiring "the killing of [victim] was committed during the perpetration of a robbery." This element should be followed by language which defines accurately the necessary elements of the offense in question, in this example, robbery.)

7. It is the Committee's opinion that the issue of where the killing occurred is a question of fact to be determined by the jury but the issue of federal jurisdiction is a question of law to be determined by the court. See United States v. Gaudin, 515 U.S. 506 (1995). See also United States v. Stands, 105 F.3d 1565, 1575 (8th Cir. 1997) (the location of the crime is a factual issue for the jury, but it is for the court, not the jury, to determine whether that land is in Indian country and thus within federal jurisdiction). If, however, the court should desire to submit the issue of federal jurisdiction to the jury, a fifth element may be added, as follows:

[Five, (describe alleged location) is within the (describe basis under which the location is within the special maritime or territorial jurisdiction of the United States, e.g., the boundaries of the Sioux Indian reservation).]

If this is done, the first sentence should be modified to state that the crime has five elements.

See 18 USC 7 for the definition of "special maritime and territorial jurisdiction of the United States," and 18 USC 1152 and 1153 for federal jurisdiction over Indian country and Indians. The Committee recommends adding the appropriate definition with the statutory phrase.

Committee Comments

See 18 USC 1111 and Introductory Comments. See generally, Beardslee v. United States, 387 F.2d 280 (8th Cir. 1967). Aside from the forms of first degree murder which are "perpetrated by poison, lying in wait," etc., the necessary feature of first degree murder which distinguishes it from second degree murder is the element of "premeditation." Beardslee v. United States. This factor is covered by the third element above. In United States v. Downs, 56 F.3d 973 (8th Cir. 1995), the Eighth Circuit describes the three nonexclusive categories of evidence which are reviewed in determining sufficiency of evidence of premeditation:

(1) facts about how and what the defendant did prior to the actual killing which show he was engaged in activity directed toward the killing, that is, planning activity; (2) facts about the defendant’s prior relationship and conduct with the victim from which motive may be inferred; and (3) facts about the nature of the killing from which it may be inferred that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a preconceived design.

Downs, 56 F.3d at 975. Intention and premeditation may be established by circumstantial evidence. United States v. Blue Thunder, 604 F.2d 550 (8th Cir. 1979); United States v. Black Elk, 579 F.2d 49, 51 (8th Cir. 1978); cf., United States v. Thompson, 492 F.2d 359, 362 (8th Cir. 1974) (insufficient circumstantial evidence of intent).

In Ball v. United States, 140 U.S. 118, 133 (1891), the Supreme Court recognized the applicability of the common law’s year-and-a-day rule to federal prosecutions for murder. The Eighth Circuit, in dicta, has recognized that the government must allege and prove that death occurred within a year and a day of the infliction of injury, Merrill v. United States, 599 F.2d 240, 241-42 (8th Cir. 1979). Unless there is an issue in the case as to whether death occurred more than a year and a day beyond infliction of the fatal injury, the Committee does not believe it is necessary to instruct on the issue.

Second degree murder can be a lesser-included offense under a charge of first degree murder. See Introductory Comments, supra.

(For 2008 version see below).

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

2008 Version

The crime of murder in the first degree [, as charged in [Count __] of the indictment,] has four elements, which are:

One, the defendant unlawfully killed^{2 3} (name of victim);

Two, the defendant did so with malice aforethought as defined in instruction ________;⁴

Three, the killing was premeditated⁵ as defined in instruction _______;⁶ and

Four, the killing occurred at (describe location where killing is alleged to have occurred upon which jurisdiction is based).⁷

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

Notes on Use

1. Numerous statutes refer to section 1111. This instruction may be modified for these situations.

3. "Caused the death of" may be used instead of "killed."

5. This element may be modified to state "the defendant premeditated upon the death of (name of victim)."

[Five, (describe alleged location) is within the [describe basis under which the location is within the special maritime or territorial jurisdiction of the United States, e.g., the boundaries of the Sioux Indian reservation.]

If this is done, the first sentence should be modified to state that the crime has five elements.

See 18 USC 7 for the definition of "special maritime and territorial jurisdiction of the United States," and 18 USC§ 1152 and 1153 for federal jurisdiction over Indian country and Indians. The Committee recommends adding the appropriate definition with the statutory phrase.

Committee Comments

(1) facts about how and what the defendant did prior to the actual killing which show he was engaged in activity directed toward the killing, that is, planning activity; (2) facts about the defendant’s prior relationship and conduct with the victim from which motive may be inferred; and (3) facts about the nature of the killing from which it may be inferred that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a preconceived design.

Second degree murder can be a lesser-included offense under a charge of first degree murder. See Introductory Comments, supra.

(For 2006 version see below)

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

2006 Version

The crime of murder in the first degree [, as charged in [Count __] of the indictment,] has four elements, which are:

One, the defendant unlawfully killed2 3 (name of victim);

Two, the defendant did so with malice aforethought as defined in instruction ________;4

Three, the killing was premeditated5 as defined in instruction _______;6 and

Four, the killing occurred at (describe location where killing is alleged to have occurred upon which jurisdiction is based).7

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

Notes on Use

1. Numerous statutes refer to section 1111. This instruction may be modified for these situations.

3. "Caused the death of" may be used instead of "killed."

5. This element may be modified to state "the defendant premeditated upon the death of (name of victim)."

[Five, (describe alleged location) is within the [describe basis under which the location is within the special maritime or territorial jurisdiction of the United States, e.g., the boundaries of the Sioux Indian reservation.]

If this is done, the first sentence should be modified to state that the crime has five elements.

Committee Comments

(1) facts about how and what the defendant did prior to the actual killing which show he was engaged in activity directed toward the killing, that is, planning activity; (2) facts about the defendant’s prior relationship and conduct with the victim from which motive may be inferred; and (3) facts about the nature of the killing from which it may be inferred that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a preconceived design.

Second degree murder can be a lesser-included offense under a charge of first degree murder. See Introductory Comments, supra.

No 2000 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1111A-1
"MALICE AFORETHOUGHT" DEFINED

FORECITE National™ Materials Related To This Instruction:

See generally FORECITE National™ 92.16 [Conspiracy To Commit Murder].

See FORECITE National™ Federal Models By Offense: Murder (First Degree) (18 USC 1111)

As used in these instructions, "malice aforethought" means an intent, at the time of a killing, willfully to take the life of a human being, or an intent willfully to act in callous and wanton disregard of the consequences to human life; but "malice aforethought" does not necessarily imply any ill will, spite or hatred towards the individual killed.¹ ²

In determining whether [the victim] was unlawfully killed with malice aforethought, you should consider all the evidence concerning the facts and circumstances preceding, surrounding and following the killing which tend to shed light upon the question of intent.

Notes on Use

1. This instruction should be modified in the case of felony murder or murder for hire. As here stated, the instruction is designed for situations where a defendant is accused as the principal.

2. If the court wishes to further define malice and "callous and wanton disregard," the Eighth Circuit has stated: "Malice may be established by evidence of conduct which is reckless and wanton, and a gross deviation from a reasonable standard of care, of such a nature that a jury is warranted in inferring that the defendant was aware of a serious risk of death or serious bodily harm." United States v. Johnson, 879 F.2d 331, 334 (8^th Cir. 1989) (quoting United States v. Black Elk, 579 F.2d 49, 51 (8^th Cir. 1978)).

(For 2008 version see below).

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

2008 Version

As used in these instructions, "malice aforethought" means an intent, at the time of a killing, willfully to take the life of a human being, or an intent willfully to act in callous and wanton disregard of the consequences to human life; but "malice aforethought" does not necessarily imply any ill will, spite or hatred towards the individual killed.¹ ²

In determining whether [the victim] was unlawfully killed with malice aforethought, you should consider all the evidence concerning the facts and circumstances preceding, surrounding and following the killing which tend to shed light upon the question of intent.

Notes on Use

1. This instruction should be modified in the case of felony murder or murder for hire. As here stated, the instruction is designed for situations where a defendant is accused as the principal.

(For 2006 version see below)

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

2006 Version

As used in these instructions, "malice aforethought" means an intent, at the time of a killing, willfully to take the life of a human being, or an intent willfully to act in callous and wanton disregard of the consequences to human life; but "malice aforethought" does not necessarily imply any ill will, spite or hatred towards the individual killed.1 2

In determining whether [the victim] was unlawfully killed with malice aforethought, you should consider all the evidence concerning the facts and circumstances preceding, surrounding and following the killing which tend to shed light upon the question of intent.

Notes on Use

1. This instruction should be modified in the case of felony murder or murder for hire. As here stated, the instruction is designed for situations where a defendant is accused as the principal.

2. If the court wishes to further define malice and "callous and wanton disregard," the Eighth Circuit has stated: "Malice may be established by evidence of conduct which is reckless and wanton, and a gross deviation from a reasonable standard of care, of such a nature that a jury is warranted in inferring that the defendant was aware of a serious risk of death or serious bodily harm." United States v. Johnson, 879 F.2d 331, 334 (8th Cir. 1989) (quoting United States v. Black Elk, 579 F.2d 49, 51 (8th Cir. 1978)).

No 2000 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1111A-2
"PREMEDITATION" DEFINED

FORECITE National™ Materials Related To This Instruction:

See generally FORECITE National™ 92.16 [Conspiracy To Commit Murder].

See FORECITE National™ Federal Models By Offense: Murder (First Degree) (18 USC 1111)

A killing is premeditated when it is intentional and the result of planning or deliberation. The amount of time needed for premeditation of a killing depends on the person and the circumstances. It must be long enough for the defendant, after forming the intent to kill, to be fully conscious of his intent, and to have thought about the killing.

[For there to be premeditation the defendant must think about the taking of a human life before acting. The amount of time required for premeditation cannot be arbitrarily fixed. The time required varies as the minds and temperaments of people differ and according to the surrounding circumstances in which they may be placed. Any interval of time between forming the intent to kill, and acting on that intent, which is long enough for the defendant to be fully conscious and mindful of what [he] [she] intended and willfully set about to do, is sufficient to justify the finding of premeditation.]¹

Notes on Use

1. The instruction may be submitted with the bracketed paragraph included if the court wishes to provide further description to the jury of premeditation.

(For 2008 version see below).

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

2008 Version

A killing is premeditated when it is intentional and the result of planning or deliberation. The amount of time needed for premeditation of a killing depends on the person and the circumstances. It must be long enough for the defendant, after forming the intent to kill, to be fully conscious of his intent, and to have thought about the killing.

[For there to be premeditation the defendant must think about the taking of a human life before acting. The amount of time required for premeditation cannot be arbitrarily fixed. The time required varies as the minds and temperaments of people differ and according to the surrounding circumstances in which they may be placed. Any interval of time between forming the intent to kill, and acting on that intent, which is long enough for the defendant to be fully conscious and mindful of what [he] [she] intended and willfully set about to do, is sufficient to justify the finding of premeditation.]¹

Notes on Use

1. The instruction may be submitted with the bracketed paragraph included if the court wishes to provide further description to the jury of premeditation.

(For 2006 version see below)

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

2006 Version

A killing is premeditated when it is intentional and the result of planning or deliberation. The amount of time needed for premeditation of a killing depends on the person and the circumstances. It must be long enough for the defendant, after forming the intent to kill, to be fully conscious of his intent, and to have thought about the killing.

[For there to be premeditation the defendant must think about the taking of a human life before acting. The amount of time required for premeditation cannot be arbitrarily fixed. The time required varies as the minds and temperaments of people differ and according to the surrounding circumstances in which they may be placed. Any interval of time between forming the intent to kill, and acting on that intent, which is long enough for the defendant to be fully conscious and mindful of what [he] [she] intended and willfully set about to do, is sufficient to justify the finding of premeditation.]1

Notes on Use

1. The instruction may be submitted with the bracketed paragraph included if the court wishes to provide further description to the jury of premeditation.

No 2000 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1111A-3 HEAT OF PASSION OR SUDDEN QUARREL
CAUSED BY ADEQUATE PROVOCATION, DEFINED

FORECITE National™ Materials Related To This Instruction:

See generally FORECITE National™ 92.16 [Conspiracy To Commit Murder].

See FORECITE National™ Federal Models By Offense: Murder (First Degree) (18 USC 1111)

The defendant acted upon heat of passion [or sudden quarrel]¹ caused by adequate provocation, if:

One, the defendant was provoked in a way that would cause a reasonable person to lose [his] [her] self-control;²

Two, a reasonable person subject to the same provocation would not have regained self-control in the time between the provocation and the killing; and

Three, the defendant did not regain [his] [her] self-control in the time between the provocation and the killing.

Heat of passion [or sudden quarrel] may result from anger, rage, resentment, terror or fear. The question is whether the defendant, while in such an emotional state, lost self-control and acted on impulse and without reflection.

Provocation, in order to be adequate under the law, must be such as would naturally induce a reasonable person in the passion of the moment to temporarily lose self-control and kill on impulse and without reflection. [A blow or other personal violence may constitute adequate provocation, but trivial or slight provocation, entirely disproportionate to the violence of the retaliation, is not adequate provocation.]³

It must be such provocation as would arouse a reasonable person. [If the provocation aroused the defendant because he was voluntarily intoxicated, and would not have aroused a sober person, it does not reduce the offense to manslaughter.]⁴

Notes on Use

1. The Committee recommends that "sudden quarrel" not be included in the verdict director, as heat of passion now appears to subsume "sudden quarrel." See Notes on Use to Instruction 6.18.1112A, infra. See United States v. Martinez, 988 F.2d 685, 690-96 (7^th Cir. 1993), for an extensive description of the history of the defense of "sudden quarrel" or "mutual combat," in which the Court concludes that the term may be "an anachronism with no meaning not adequately served by a proper definition of heat of passion." See also United States v. McRae, 593 F.2d 700, 705 (5^th Cir. 1979) ("it is surely not the quarrel that signifies but the heat of passion that it occasions"). Cases in the Eighth Circuit, however, typically state that voluntary manslaughter requires evidence of a killing upon sudden quarrel or heat of passion. See, e.g., United States v. Eagle Elk, 658 F.2d 644, 648 (8th Cir. 1981).

If "sudden quarrel" is included, the Committee recommends it be defined. See United States v. Martinez, 988 F.2d at 696, quoting 2 LaFave and Scott, Substantive Criminal Law § 7.10(b)(2) at 256 (1986), in which "mutual combat" is defined as meaning that the parties "willingly engage in mutual combat, and during the fight one kills the other as the result of an intention to do so formed during the struggle."

2. There is case law holding the provocation must be sudden. See United States v. Bordeaux, 980 F.2d 534, 537 (8^th Cir. 1992) ("A defendant’s anger with the victim, however, is not sufficient to establish heat of passion without an element of sudden provocation. Evidence of ‘a string of prior arguments and a continuing dispute,’ without any indication of some sort of instant incitement . . . ," is not sufficient.)

3. Courts typically add, "Mere words alone, no matter how abusive or insulting, are not adequate provocation." This is the common law rule. However, there is a trend in the case law that words alone will sometimes suffice if the words are informational (conveying information of a fact which constitutes reasonable provocation when that fact is observed) rather than merely insulting or abusive words. LaFave & Scott, Substantive Criminal Law (1986), § 7.10(6). But see Robinson, Criminal Law Defenses (1984), Vol. I, § 102(b) (the one exception to the common law rule appears to be the confession of adultery).

4. While the issue is not clearly resolved in the Eighth Circuit, the Committee recommends this language be used only if there is evidence the defendant was voluntarily intoxicated. See United States v. F.D.L., 836 F.2d 1113, 1116-18 (8^th Cir. 1988). Where adequate provocation or heat of passion is raised as a defense and the defendant wishes to offer evidence of his intoxication, the trend seems to be that the provocation must be that which will arouse a reasonable sober person. See LaFave & Scott, Substantive Criminal Law, § 4.10.

When voluntary intoxication is raised as an insanity defense, it will be disallowed by statute and case law. 18 USC 17 and the legislative history (S. Rep. 225, 98^th Cong., 1^st Sess. 222 at 229 (1983) ("the voluntary use of alcohol or drugs, even if they render the defendant unable to appreciate the nature and quality of his acts, does not constitute insanity . . . ."); United States v. F.D.L., 836 F.2d at 1116. It is the general rule, however, that voluntary intoxication may negate specific intent but not general intent. United States v. Johnston, 543 F.2d 55 (8^th Cir. 1976). See Montana v. Egelhoff, 518 U.S. 37 (1996); United States v. Johnson, 879 F.2d 331, n.1 (8^th Cir. 1989).

(For 2008 version see below).

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

2008 Version

The defendant acted upon heat of passion [or sudden quarrel]¹ caused by adequate provocation, if:

One, the defendant was provoked in a way that would cause a reasonable person to lose [his] [her] self-control;²

Two, a reasonable person subject to the same provocation would not have regained self-control in the time between the provocation and the killing; and

Three, the defendant did not regain [his] [her] self-control in the time between the provocation and the killing.

Heat of passion [or sudden quarrel] may result from anger, rage, resentment, terror or fear. The question is whether the defendant, while in such an emotional state, lost self-control and acted on impulse and without reflection.

Provocation, in order to be adequate under the law, must be such as would naturally induce a reasonable person in the passion of the moment to temporarily lose self-control and kill on impulse and without reflection. [A blow or other personal violence may constitute adequate provocation, but trivial or slight provocation, entirely disproportionate to the violence of the retaliation, is not adequate provocation.]³

It must be such provocation as would arouse a reasonable person. [If the provocation aroused the defendant because he was voluntarily intoxicated, and would not have aroused a sober person, it does not reduce the offense to manslaughter.]⁴

Notes on Use

(For 2006 version see below)

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

2006 Version

The defendant acted upon heat of passion [or sudden quarrel]1 caused by adequate provocation, if:

One, the defendant was provoked in a way that would cause a reasonable person to lose [his] [her] self-control;2

Two, a reasonable person subject to the same provocation would not have regained self-control in the time between the provocation and the killing; and

Three, the defendant did not regain [his] [her] self-control in the time between the provocation and the killing.

Heat of passion [or sudden quarrel] may result from anger, rage, resentment, terror or fear. The question is whether the defendant, while in such an emotional state, lost self-control and acted on impulse and without reflection.

Provocation, in order to be adequate under the law, must be such as would naturally induce a reasonable person in the passion of the moment to temporarily lose self-control and kill on impulse and without reflection. [A blow or other personal violence may constitute adequate provocation, but trivial or slight provocation, entirely disproportionate to the violence of the retaliation, is not adequate provocation.]3

It must be such provocation as would arouse a reasonable person. [If the provocation aroused the defendant because he was voluntarily intoxicated, and would not have aroused a sober person, it does not reduce the offense to manslaughter.]4

Notes on Use

1. The Committee recommends that "sudden quarrel" not be included in the verdict director, as heat of passion now appears to subsume "sudden quarrel." See Notes on Use to Instruction 6.18.1112A, infra. See United States v. Martinez, 988 F.2d 685, 690-96 (7th Cir. 1993), for an extensive description of the history of the defense of "sudden quarrel" or "mutual combat," in which the Court concludes that the term may be "an anachronism with no meaning not adequately served by a proper definition of heat of passion." See also United States v. McRae, 593 F.2d 700, 705 (5th Cir. 1979) ("it is surely not the quarrel that signifies but the heat of passion that it occasions"). Cases in the Eighth Circuit, however, typically state that voluntary manslaughter requires evidence of a killing upon sudden quarrel or heat of passion. See, e.g., United States v. Eagle Elk, 658 F.2d 644, 648 (8th Cir. 1981).

2. There is case law holding the provocation must be sudden. See United States v. Bordeaux, 980 F.2d 534, 537 (8th Cir. 1992) ("A defendant’s anger with the victim, however, is not sufficient to establish heat of passion without an element of sudden provocation. Evidence of ‘a string of prior arguments and a continuing dispute,’ without any indication of some sort of instant incitement . . . ," is not sufficient.)

4. While the issue is not clearly resolved in the Eighth Circuit, the Committee recommends this language be used only if there is evidence the defendant was voluntarily intoxicated. See United States v. F.D.L., 836 F.2d 1113, 1116-18 (8th Cir. 1988). Where adequate provocation or heat of passion is raised as a defense and the defendant wishes to offer evidence of his intoxication, the trend seems to be that the provocation must be that which will arouse a reasonable sober person. See LaFave & Scott, Substantive Criminal Law, § 4.10.

When voluntary intoxication is raised as an insanity defense, it will be disallowed by statute and case law. 18 USC 17 and the legislative history (S. Rep. 225, 98th Cong., 1st Sess. 222 at 229 (1983) ("the voluntary use of alcohol or drugs, even if they render the defendant unable to appreciate the nature and quality of his acts, does not constitute insanity . . . ."); United States v. F.D.L., 836 F.2d at 1116. It is the general rule, however, that voluntary intoxication may negate specific intent but not general intent. United States v. Johnston, 543 F.2d 55 (8th Cir. 1976). See Montana v. Egelhoff, 518 U.S. 37 (1996); United States v. Johnson, 879 F.2d 331, n.1 (8th Cir. 1989).

No 2000 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1111B
MURDER, SECOND DEGREE, WITHIN SPECIAL MARITIME AND TERRITORIAL JURISDICTION
OF THE UNITED STATES (18 USC 1111)¹

FORECITE National™ Materials Related To This Instruction:

See generally FORECITE National™ 92.16 [Conspiracy To Commit Murder].

See FORECITE National™ Federal Models By Offense: Murder (Second Degree) (18 USC 1111)

The crime of murder in the second degree [, as charged in [Count ___ of] the indictment,] has [three] [four] elements, which are:

One, the defendant unlawfully killed^{2, 3} (name of victim);

Two, the defendant did so with malice aforethought as defined in instruction ________;⁴ [and]

Three, the killing occurred within (describe location where killing is alleged to have occurred upon which jurisdiction is based) [.; and

Four, (describe alleged location) is within the (describe basis under which the location is within the special maritime or territorial jurisdiction of the United States, e.g., the boundaries of the Sioux Indian reservation.]^{5, 6}

(Insert paragraph describing Government’s burden of proof; see Instruction 3.09, supra. See also Instruction 3.10, supra.)

Notes on Use

1. Numerous statutes incorporate section 1111 as an element. This instruction may be modified to apply to these offenses.

2. The statute states that the defendant must "unlawfully" kill. The issue of whether the defendant unlawfully killed is injected when the defendant raises the defense of self-defense or defense of others. Those defenses are addressed by adding the appropriate language based on Instruction 3.09 to this instruction, rather than by adding another element to this instruction.

The burden of proof remains on the government to disprove self-defense once the defense is raised.

3. "Caused the death of" may be used instead of "killed."

5. See Introductory Comments and 18 USC 7 for the definition of "special maritime and territorial jurisdiction of the United States," and 18 USC 1152 and 1153 for federal jurisdiction over Indian country and Indians.

6. It is unclear whether the element of federal jurisdiction is a question of law to be determined by the court or a question of fact to be determined by the jury. See United States v. Gaudin, 515 U.S. 506 (1995). But see United States v. Stands, 105 F.3d 1565, 1575 (8th Cir. 1997) (the location of the crime is a factual issue for the jury, but it is for the court, not the jury, to determine whether that land is in Indian country and thus within federal jurisdiction).

Committee Comments

See Committee Comments, Instruction 6.18.1111A, and Introductory Comments, supra.

Section 1111(a), Title 18, United States Code, provides that premeditated, unlawful killing is murder in the first degree, and further provides that killing a human being in the perpetration of specified felonies is murder in the first degree. "Any other murder is murder in the second degree." Id. "To convict of second degree murder, the jury must find that the defendant killed the victim with 'malice aforethought.'" United States v. Bordeaux, 980 F.2d 534, 536 (8th Cir. 1992). Second degree murder can be a lesser-included offense under a charge of first degree murder. See Introductory Comments, supra.

(For 2008 version see below).

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

2008 Version

The crime of murder in the second degree [, as charged in [Count ___ of] the indictment,] has [three] [four] elements, which are:

One, the defendant unlawfully killed^{2, 3} (name of victim);

Two, the defendant did so with malice aforethought as defined in instruction ________;⁴ [and]

Three, the killing occurred within (describe location where killing is alleged to have occurred upon which jurisdiction is based) [.; and

Four, (describe alleged location) is within the (describe basis under which the location is within the special maritime or territorial jurisdiction of the United States, e.g., the boundaries of the Sioux Indian reservation.]^{5, 6}

(Insert paragraph describing Government’s burden of proof; see Instruction 3.09, supra. See also Instruction 3.10, supra.)

Notes on Use

1. Numerous statutes incorporate section 1111 as an element. This instruction may be modified to apply to these offenses.

The burden of proof remains on the government to disprove self-defense once the defense is raised.

3. "Caused the death of" may be used instead of "killed."

5. See Introductory Comments and 18 USC 7 for the definition of "special maritime and territorial jurisdiction of the United States," and 18 USC§ 1152 and 1153 for federal jurisdiction over Indian country and Indians.

Committee Comments

See Committee Comments, Instruction 6.18.1111A, and Introductory Comments, supra.

(For 2006 version see below)

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

2006 Version

The crime of murder in the second degree [, as charged in [Count ___ of] the indictment,] has [three] [four] elements, which are:

One, the defendant unlawfully killed2, 3 (name of victim);

Two, the defendant did so with malice aforethought as defined in instruction ________;4 [and]

Three, the killing occurred within (describe location where killing is alleged to have occurred upon which jurisdiction is based) [.; and

Four, (describe alleged location) is within the (describe basis under which the location is within the special maritime or territorial jurisdiction of the United States, e.g., the boundaries of the Sioux Indian reservation.]5, 6

(Insert paragraph describing Government’s burden of proof; see Instruction 3.09, supra. See also Instruction 3.10, supra.)

Notes on Use

1. Numerous statutes incorporate section 1111 as an element. This instruction may be modified to apply to these offenses.

The burden of proof remains on the government to disprove self-defense once the defense is raised.

3. "Caused the death of" may be used instead of "killed."

Committee Comments

See Committee Comments, Instruction 6.18.1111A, and Introductory Comments, supra.

No 2000 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1112A VOLUNTARY MANSLAUGHTER, WITHIN SPECIAL
MARITIME AND TERRITORIAL JURISDICTION OF THE UNITED STATES
(18 USC 1112)

FORECITE National™ Materials Related To This Instruction:

FORECITE National™ Chapter 92: Homicide

See generally FORECITE National™ 92.3 [Voluntary Manslaughter].

See FORECITE National™ Federal Models By Offense: Voluntary Manslaughter (18 USC 1112)

The crime of voluntary manslaughter [, as charged in [Count ___ of] the indictment,] has threeelements, which are:

One, the defendant voluntarily, intentionally, and unlawfully killed (name of victim);^{1, 2}

Two, the defendant acted [in the heat of passion] [upon sudden quarrel]³ caused by adequate provocation, as defined in instruction _____; [and]

Three, the killing occurred within (describe location where killing is alleged to have occurred upon which jurisdiction is based) [.; and

Four, (describe alleged location) is within the (describe basis under which the location is within the special maritime or territorial jurisdiction of the United States, e.g., the boundaries of the Sioux Indian reservation).]⁴

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

Notes on Use

1. If there is evidence of justification or excuse, the following language should be included after the final element:

"A killing is 'unlawful' within the meaning of this instruction if it was [neither] [not] [justifiable] [nor] [excusable]."

2. "Caused the death of" may be used instead of "killed."

3. The Committee recommends that "sudden quarrel" not be included, as heat of passion now appears to include "sudden quarrel." See United States v. Martinez, 988 F.2d 685, 690-96 (7th Cir. 1993), for an extensive description of the history of the defense of "sudden quarrel," in which the Court concludes that the term "sudden quarrel" may be "an anachronism with no meaning not adequately served by a proper definition of heat of passion." See also United States v. McRae, 593 F.2d 700, 705 (5th Cir. 1979) ("it is surely not the quarrel that signifies but the heat of passion that it occasions"). Cases in the Eighth Circuit, however, typically state that voluntary manslaughter requires evidence of a killing upon sudden quarrel or heat of passion. See, e.g., United States v. Eagle Elk, 658 F.2d 644, 648 (8th Cir. 1981).

4. It is unclear whether the element of federal jurisdiction is a question of law to be determined by the court or fact to be determined by the jury. After United States v. Gaudin, 515 U.S. 506 (1995), the Committee believes courts will hold that federal jurisdiction is an element of § 1112 and will require that the issue be submitted to the jury. But see United States v. Stands, 105 F.3d 1565, 1575 (8th Cir. 1997) (the location of the crime is a factual issue for the jury, but it is for the court, not the jury, to determine whether that land is in Indian country and thus within federal jurisdiction). If, however, the court should desire to submit the element of federal jurisdiction to the jury, the following could be added as element five:

[Five, (describe alleged location) is within the (describe basis under which the location is within the special maritime or territorial jurisdiction of the United States, e.g., the boundaries of the Sioux Indian reservation).]

Committee Comments

See Committee Comments, Instruction 6.18.1111A, supra, and Introductory Comments.

Voluntary manslaughter is the unlawful killing without malice, upon a sudden quarrel or heat of passion. 18 USC 1112. The element of malice aforethought distinguishes between murder and manslaughter. United States v. Weise, 89 F.3d 502, 505 (8th Cir. 1996); United States v. Bordeaux, 980 F.2d 534, 536 (8th Cir. 1992). The offense of voluntary manslaughter requires evidence of a killing upon sudden quarrel or heat of passion, which eliminates the mental element of malice required for murder, United States v. Bordeaux, 980 F.2d at 537 (citing United States v. Elk, 658 F.2d 644, 648 (8th Cir. 1981)).

Voluntary manslaughter can be a lesser-included offense under a charge of first degree or second degree murder, and involuntary manslaughter can be a lesser-included offense under a charge of voluntary manslaughter. See Introductory Comments, supra.

JUSTIFICATION OR EXCUSE

If there is evidence of justification or excuse, the jury should be instructed that an "unlawful killing" is one that is not justifiable or excusable. Justification or excuse may include self-defense, defense of others, the right to prevent at least certain felonies, coercion or necessity, mental disorder, and other factual situations sufficient to remove the matter from the criminal arena. See LaFave and Scott, Substantive Criminal Law (1986), Vol. 2, § 7.10 et seq.; Wharton's Criminal Law (1994), Vol. 2, § 120 et seq.

Where the justification or excuse is not "perfect," i.e., it does not meet all the elements for the defense, some cases and state criminal codes have concluded that the "imperfect" defense may warrant the killing being manslaughter rather than murder. Other cases decline to accept this approach and instead treat the issue as part of adequate provocation. LaFave & Scott, supra.

SELF-DEFENSE

See Instruction 9.04, infra.

When a defendant presents evidence in support of a claim of self-defense, the government must prove the absence of self-defense beyond a reasonable doubt. See United States v. Scout, 112 F.3d at 960 (citing United States v. Alvarez, 755 F.2d 830, 842 n.12 (11th Cir. 1985)). In other words, the absence of self-defense is not an element of the crime; rather, it is an affirmative defense on which the defendant bears the burden of production. Alvarez, 755 F.2d at 714 n.1. Once the defendant has met this burden, the government must satisfy the burden of persuasion and negate self-defense. Id.

Failure to provide a separate instruction explaining that the government bears the burden of proof on self-defense can constitute reversible error. See, e.g., United States v. Corrigan, 548 F.2d 879, 883-84 (10th Cir. 1977).

The Committee recommends adding a fifth element to this instruction when self-defense is an issue. See Note 2, supra.

(For 2008 version see below).

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

2008 Version

The crime of voluntary manslaughter [, as charged in [Count ___ of] the indictment,] has threeelements, which are:

One, the defendant voluntarily, intentionally, and unlawfully killed (name of victim);^{1, 2}

Two, the defendant acted [in the heat of passion] [upon sudden quarrel]³ caused by adequate provocation, as defined in instruction _____; [and]

Three, the killing occurred within (describe location where killing is alleged to have occurred upon which jurisdiction is based) [.; and

Four, (describe alleged location) is within the (describe basis under which the location is within the special maritime or territorial jurisdiction of the United States, e.g., the boundaries of the Sioux Indian reservation).]⁴

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

Notes on Use

1. If there is evidence of justification or excuse, the following language should be included after the final element:

"A killing is 'unlawful' within the meaning of this instruction if it was [neither] [not] [justifiable] [nor] [excusable]."

2. "Caused the death of" may be used instead of "killed."

[Five, (describe alleged location) is within the [describe basis under which the location is within the special maritime or territorial jurisdiction of the United States, e.g., the boundaries of the Sioux Indian reservation.]

Committee Comments

See Committee Comments, Instruction 6.18.1111A, and Introductory Comments.

JUSTIFICATION OR EXCUSE

SELF-DEFENSE

See Instruction 9.04, infra.

The Committee recommends adding a fifth element to this instruction when self-defense is an issue. See Note 2, supra.

(For 2006 version see below)

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

2006 Version

The crime of voluntary manslaughter [, as charged in [Count ___ of] the indictment,] has three elements, which are:

One, the defendant voluntarily, intentionally, and unlawfully killed (name of victim);1, 2

Two, the defendant acted [in the heat of passion] [upon sudden quarrel] 3 caused by adequate provocation, as defined in instruction _____; [and]

Three, the killing occurred within (describe location where killing is alleged to have occurred upon which jurisdiction is based) [.; and

Four, (describe alleged location) is within the (describe basis under which the location is within the special maritime or territorial jurisdiction of the United States, e.g., the boundaries of the Sioux Indian reservation).]4

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

Notes on Use

1. If there is evidence of justification or excuse, the following language should be included after the final element:

"A killing is 'unlawful' within the meaning of this instruction if it was [neither] [not] [justifiable] [nor] [excusable]."

2. "Caused the death of" may be used instead of "killed."

[Five, (describe alleged location) is within the [describe basis under which the location is within the special maritime or territorial jurisdiction of the United States, e.g., the boundaries of the Sioux Indian reservation.]

Committee Comments

See Committee Comments, Instruction 6.18.1111A, supra, and Introductory Comments.

JUSTIFICATION OR EXCUSE

SELF-DEFENSE

See Instruction 9.04, infra.

The Committee recommends adding a fifth element to this instruction when self-defense is an issue. See Note 2, supra.

No 2000 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1112B INVOLUNTARY MANSLAUGHTER, WITHIN SPECIAL
MARITIME AND TERRITORIAL JURISDICTION OF THE UNITED STATES
(18 USC 1112)

FORECITE National™ Materials Related To This Instruction:

FORECITE National™ Chapter 92: Homicide

See generally FORECITE National™ 92.4 [Involuntary Manslaughter].

See FORECITE National™ Federal Models By Offense: Involuntary Manslaughter (18 USC 1112)

The crime of involuntary manslaughter[, as charged in [Count ___ of] the indictment,] has [four] [five] elements, which are:

One, ________ (name of victim) is dead;

Two, the defendant caused the death of the victim, as charged;

[Three, the death of the victim occurred as a result of an act done by the defendant during the commission of [an unlawful act¹ not amounting to a felony] [a lawful act, done either in an unlawful manner or with wanton or reckless disregard for human life, which might produce death] (describe act, e.g., was driving in excess of the speed limit);] or

[Three, [the defendant knew that his conduct was a threat to the lives of others][it was reasonably foreseeable that the defendant’s conduct might be a threat to the lives of others];] [and]

Four, the killing occurred within (describe location where killing is alleged to have occurred upon which jurisdiction is based).²

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

Notes on Use

1. If there is evidence of justification or excuse, the following language should be included after the final element:

"A killing is 'unlawful' within the meaning of this instruction if it was [neither] [not] [justifiable] [nor] [excusable]."

See Committee Comments to Instruction 6.18.1112A regarding justification and excuse.

2. It is unclear whether the element of federal jurisdiction is a question of law to be determined by the court or fact to be determined by the jury. After United States v. Gaudin, 515 U.S. 506 (1995), the Committee believes courts will hold that federal jurisdiction is an element of § 1112 and will require that the issue be submitted to the jury. But see United States v. Stands, 105 F.3d 1565, 1575 (8th Cir. 1997) (the location of the crime is a factual issue for the jury, but it is for the court, not the jury, to determine whether that land is in Indian country and thus within federal jurisdiction). If, however, the court should desire to submit the element of federal jurisdiction to the jury, the following could be added as element five:

[Five, (describe alleged location) is within the (describe basis under which the location is within the special maritime or territorial jurisdiction of the United States, e.g., the boundaries of the Sioux Indian reservation).]

Committee Comments

See Committee Comments, Instruction 6.18.1112A, and Introductory Comments.

Involuntary manslaughter can be a lesser-included offense of voluntary manslaughter under 18 USC 1112. See Introductory Comments, supra. United States v. One Star, 979 F.2d 1319 (8th Cir. 1992).

Under 18 USC 1112, there are two types of involuntary manslaughter. Involuntary manslaughter can either occur in the commission of (1) an unlawful act or (2) a lawful act in an unlawful manner or without due caution. United States v. McMillan, 820 F.2d 251, 257 (8th Cir. 1987).

In determining what constitutes an "unlawful act" under 18 USC 1112, the Assimilative Crimes Act, 18 USC 13, permits resort to state law when the acts of the defendant are not punishable under any enactment of Congress. See United States v. Butler, 541 F.2d 730, 735-36 (8th Cir. 1976); see also United States v. Bald Eagle, 849 F.2d 361 n.2 (8th Cir. 1988).

"The requisite mental state for involuntary manslaughter is 'gross' or 'criminal' negligence, a far more serious level of culpability than that of ordinary tort negligence, but still short of the extreme recklessness, or malice required for murder." United States v. One Star, 979 F.2d 1319, 1321 (8th Cir. 1992). "It is well settled that involuntary manslaughter is a lesser-included offense of murder." Ibid.

Actual knowledge of a threat to the lives of others, or knowledge of circumstances that would allow the defendant to foresee the life-threatening nature of his conduct, is a separate element of the crime which must be established in addition to gross negligence. United States v. Opsta, 659 F.2d 848, 849 (8th Cir. 1981) (citing United States v. Schmidt, 626 F.2d 616, 617 (8th Cir. 1980)).

There is authority for the proposition that self-defense is inconsistent with a charge of involuntary manslaughter, so that it would be error to submit on the lesser-included offense of involuntary manslaughter when the defendant asserts self-defense. Such an instruction would abrogate the complete nature of self-defense as a defense. United States v. Iron Shield, 697 F.2d 845 (8th Cir. 1983) (citing United States v. Smith, 521 F.2d 374, 377 (10th Cir. 1975)).

(For 2008 version see below).

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

2008 Version

The crime of involuntary manslaughter[, as charged in [Count ___ of] the indictment,] has [four] [five] elements, which are:

One, ________ (name of victim) is dead;

Two, the defendant caused the death of the victim, as charged;

[Three, the death of the victim occurred as a result of an act done by the defendant during the commission of [an unlawful act¹ not amounting to a felony] [a lawful act, done either in an unlawful manner or with wanton or reckless disregard for human life, which might produce death] (describe act, e.g., was driving in excess of the speed limit);] or

[Three, [the defendant knew that his conduct was a threat to the lives of others][it was reasonably foreseeable that the defendant’s conduct might be a threat to the lives of others];] [and]

Four, the killing occurred within (describe location where killing is alleged to have occurred upon which jurisdiction is based).²

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

Notes on Use

1. If there is evidence of justification or excuse, the following language should be included after the final element:

"A killing is 'unlawful' within the meaning of this instruction if it was [neither] [not] [justifiable] [nor] [excusable]."

See Committee Comments to Instruction 6.18.1112A regarding justification and excuse.

[Five, (describe alleged location) is within the [describe basis under which the location is within the special maritime or territorial jurisdiction of the United States, e.g., the boundaries of the Sioux Indian reservation.]

Committee Comments

See Committee Comments, Instruction 6.18.1112A, and Introductory Comments.

Involuntary manslaughter can be a lesser-included offense of voluntary manslaughter under 18 USC 1112. See Introductory Comments, supra. United States v. One Star, 979 F.2d 1319 (8th Cir. 1992).

(For 2006 version see below)

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

2006 Version

The crime of involuntary manslaughter[, as charged in [Count ___ of] the indictment,] has [four] [five] elements, which are:

One, ________ (name of victim) is dead;

Two, the defendant caused the death of the victim, as charged;

[Three, the death of the victim occurred as a result of an act done by the defendant during the commission of [an unlawful act1 not amounting to a felony] [a lawful act, done either in an unlawful manner or with wanton or reckless disregard for human life, which might produce death] (describe act, e.g., was driving in excess of the speed limit);] or

[Three, [the defendant knew that his conduct was a threat to the lives of others][it was reasonably foreseeable that the defendant’s conduct might be a threat to the lives of others];] [and]

Four, the killing occurred within (describe location where killing is alleged to have occurred upon which jurisdiction is based).2

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

Notes on Use

1. If there is evidence of justification or excuse, the following language should be included after the final element:

"A killing is 'unlawful' within the meaning of this instruction if it was [neither] [not] [justifiable] [nor] [excusable]."

See Committee Comments to Instruction 6.18.1112A regarding justification and excuse.

[Five, (describe alleged location) is within the [describe basis under which the location is within the special maritime or territorial jurisdiction of the United States, e.g., the boundaries of the Sioux Indian reservation.]

Committee Comments

See Committee Comments, Instruction 6.18.1112A, and Introductory Comments.

Involuntary manslaughter can be a lesser-included offense of voluntary manslaughter under 18 USC 1112. See Introductory Comments, supra. United States v. One Star, 979 F.2d 1319 (8th Cir. 1992).

No 2000 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1114A
MURDER, FIRST DEGREE, FEDERAL VICTIM
(18 USC 1114)

FORECITE National™ Materials Related To This Instruction:

FORECITE National™ Chapter 92: Homicide

See FORECITE National™ Federal Models By Offense: Killing Or Attempting To Kill Federal Officer Or Employee (18 USC 1114)

The crime of murder in the first degree [, as charged in [Count ___ of] the indictment,] has four elements, which are:

One, the defendant unlawfully killed^{1 2} (name of victim);

Two, the defendant did so with malice aforethought and not in the heat of passion;³

Three, the killing was premeditated⁴ as defined in instruction ______;⁵ and

Four, (name of victim) was killed [while engaged in his/her official duties] [on account of the performance of his/her official duties] as an [officer] [employee] of the United States.

The defendant does not have to know that (the victim) was a federal officer.

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

Notes on Use

1. The statute states that the defendant must "unlawfully" kill. The issue of whether the defendant unlawfully killed is injected in a number of ways, as for instance when the defendant raises the defense of self-defense or defense of others. Those defenses are addressed by adding the appropriate language based on Instruction 3.09 to this instruction, rather than by adding another element to this instruction. The burden of proof remains on the government to disprove self-defense once the defense is raised.

2. "Caused the death of" may be used instead of "killed."

3. If the defense of heat of passion is raised, the instruction should be modified to add "and not in the heat of passion as submitted in instruction ___." The Supreme Court has held that the prosecution must "prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case." Mullaney v. Wilbur, 421 U.S. 684, 697-98, 704 (1975).

4. This element may be modified to state "the defendant premeditated upon the death of (name of victim)."

5. When any other form of first degree murder is at issue (i.e., a murder "perpetrated by poison, lying in wait . . . or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnaping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, burglary, or robbery. . . ."), the instruction relative to premeditation should be appropriately modified. (For example, in a case where the killing occurred during a robbery, the third element should be stricken, and a new element should be added requiring "the killing of [victim] was committed during the perpetration of a robbery." This element should be followed by language which defines accurately the necessary elements of the offense in question, in this example, robbery.)

Committee Comments

See 18 USC 1111, 1114; Introductory Comments Comments; and Instructions 6.18.1111A, 6.18.1112A, supra.

See Committee Comments, Instructions 6.18.1111A, 6.18.1112A, supra.

OFFICIAL DUTY

The test for determining whether a federal officer or employee is engaged in the performance of an official duty is whether the officer or employee was acting within the scope of employment or engaging in a "personal frolic." United States v. Street, 66 F.3d 969, 978 (8^th Cir. 1995). The scope of what the agent is employed to do is not defined by whether the officer or employee was abiding by the controlling laws and regulations at the time of the incident. Id. Moreover, the scope of employment is not defined by the job description. Id. Instead, in the Eighth Circuit, the scope of employment is interpreted broadly by looking to whether the officer or employee's actions fall within the agency's overall mission. Id. The statute was intended by Congress to protect federal officers and facilitating the accomplishment of federal law enforcement functions. Id. at 974.

FEDERAL OFFICER

A defendant need not be aware that the victim is a federal officer. United States v. Feola, 420 U.S. 671, 684 (1975).

A state, local or tribal officer may also be a federal officer due to cross-deputization by a federal agency. If deputized officers are pursuing duties in furtherance of their federal deputization, they are federal officers for purposes of 18 USC 111 and 1114. United States v. Schrader, 10 F.3d 1345, 1350-51 (8th Cir. 1993). (For example, section 1114 provides that any officer or employee of the Indian field service of the United States is protected under the statute. The Bureau of Indian Affairs is part of the Indian field service of the United States. Tribal police officers who are employed by a tribe under a contract with the Bureau of Indian Affairs to provide aid in the enforcement or carrying out in Indian country of a law of either the United States or an Indian tribe are federal officers for the purpose of 18 USC 111. United States v. Young, 85 F.3d 334 (8^th Cir. 1996).) Whether an officer is a federal officer is a issue of law for the court; whether the person is in fact an officer and whether he was performing federal law enforcement functions are questions for the jury. United States v. Oakie, 12 F.3d 1436, 1439-40 (8^th Cir. 1993).

(For 2008 version see below).

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2008 Version

The crime of murder in the first degree [, as charged in [Count ___ of] the indictment,] has four elements, which are:

One, the defendant unlawfully killed^{1 2} (name of victim);

Two, the defendant did so with malice aforethought and not in the heat of passion;³

Three, the killing was premeditated⁴ as defined in instruction ______;⁵ and

Four, (name of victim) was killed [while engaged in his/her official duties] [on account of the performance of his/her official duties] as an [officer] [employee] of the United States.

The defendant does not have to know that (the victim) was a federal officer.

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

Notes on Use

2. "Caused the death of" may be used instead of "killed."

4. This element may be modified to state "the defendant premeditated upon the death of (name of victim)."

Committee Comments

See 18 USC 1111, 1114; Introductory Comments Comments; and Instructions 6.18.1111A, 6.18.1112A, supra.

See Committee Comments, Instructions 6.18.1111A, 6.18.1112A, supra.

OFFICIAL DUTY

FEDERAL OFFICER

A defendant need not be aware that the victim is a federal officer. United States v. Feola, 420 U.S. 671, 684 (1975).

(For 2006 version see below)

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2006 Version

The crime of murder in the first degree [, as charged in [Count ___ of] the indictment,] has four elements, which are:

One, the defendant unlawfully killed1 2 (name of victim);

Two, the defendant did so with malice aforethought and not in the heat of passion;3

Three, the killing was premeditated4 as defined in instruction ______;5 and

Four, (name of victim) was killed [while engaged in his/her official duties] [on account of the performance of his/her official duties] as an [officer] [employee] of the United States.

The defendant does not have to know that (the victim) was a federal officer.

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

Notes on Use

2. "Caused the death of" may be used instead of "killed."

4. This element may be modified to state "the defendant premeditated upon the death of (name of victim)."

Committee Comments

See 18 USC 1111, 1114; Introductory Comments; and Instructions 6.18.1111A, 6.18.1112A, supra.

See Committee Comments, Instructions 6.18.1111A and 6.18.1112A, supra.

OFFICIAL DUTY

The test for determining whether a federal officer or employee is engaged in the performance of an official duty is whether the officer or employee was acting within the scope of employment or engaging in a "personal frolic." United States v. Street, 66 F.3d 969, 978 (8th Cir. 1995). The scope of what the agent is employed to do is not defined by whether the officer or employee was abiding by the controlling laws and regulations at the time of the incident. Id. Moreover, the scope of employment is not defined by the job description. Id. Instead, in the Eighth Circuit, the scope of employment is interpreted broadly by looking to whether the officer or employee's actions fall within the agency's overall mission. Id. The statute was intended by Congress to protect federal officers and facilitating the accomplishment of federal law enforcement functions. Id. at 974.

FEDERAL OFFICER

A defendant need not be aware that the victim is a federal officer. United States v. Feola, 420 U.S. 671, 684 (1975).

A state, local or tribal officer may also be a federal officer due to cross-deputization by a federal agency. If deputized officers are pursuing duties in furtherance of their federal deputization, they are federal officers for purposes of 18 USC 111 and 1114. United States v. Schrader, 10 F.3d 1345, 1350-51 (8th Cir. 1993). (For example, section 1114 provides that any officer or employee of the Indian field service of the United States is protected under the statute. The Bureau of Indian Affairs is part of the Indian field service of the United States. Tribal police officers who are employed by a tribe under a contract with the Bureau of Indian Affairs to provide aid in the enforcement or carrying out in Indian country of a law of either the United States or an Indian tribe are federal officers for the purpose of 18 USC 111. United States v. Young, 85 F.3d 334 (8th Cir. 1996).) Whether an officer is a federal officer is a issue of law for the court; whether the person is in fact an officer and whether he was performing federal law enforcement functions are questions for the jury. United States v. Oakie, 12 F.3d 1436, 1439-40 (8th Cir. 1993).

No 2000 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1114B
MURDER, SECOND DEGREE, FEDERAL VICTIM
(18 USC 1114)

FORECITE National™ Materials Related To This Instruction:

FORECITE National™ Chapter 92: Homicide

See FORECITE National™ Federal Models By Offense: Killing Or Attempting To Kill Federal Officer Or Employee (18 USC 1114)

The crime of murder in the second degree [, as charged in [Count ___ of] the indictment,] has three elements, which are:

One, the defendant unlawfully killed^{1 2} (name of victim);

Two, the defendant did so with malice aforethought as defined in instruction ____;³ and

Three, (name of victim) was killed [while engaged in his/her official duties] [on account of the performance of his/her official duties] as an [officer] [employee] of the United States.

The defendant does not have to know that (the victim) was a federal officer.

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

Notes on Use

1. The statute states that the defendant must "unlawfully" kill. The issue of whether the defendant unlawfully killed is injected in a number of ways, as, for instance, when the defendant raises the defense of self-defense or defense of others. Those defenses are addressed by adding the appropriate language based on instruction 3.09 to this instruction, rather than by adding another element to this instruction. The burden of proof remains on the government to disprove self-defense once the defense is raised.

2. "Caused the death of" may be used instead of "killed."

Committee Comments

See 18 USC 1111, 1114; Introductory Comments; and Instructions 6.18.1111A, 6.18.1112A, supra.

See Committee Comments, Instructions 6.18.1111A, 6.18.1112A, and 6.18.1114A, supra.

(For 2008 version see below).

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

2008 Version

The crime of murder in the second degree [, as charged in [Count ___ of] the indictment,] has three elements, which are:

One, the defendant unlawfully killed^{1 2} (name of victim);

Two, the defendant did so with malice aforethought as defined in instruction ____;³ and

Three, (name of victim) was killed [while engaged in his/her official duties] [on account of the performance of his/her official duties] as an [officer] [employee] of the United States.

The defendant does not have to know that (the victim) was a federal officer.

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

Notes on Use

2. "Caused the death of" may be used instead of "killed."

Committee Comments

See 18 USC 1111, 1114; Introductory Comments; and Instructions 6.18.1111A, 6.18.1112A, supra.

See Committee Comments, Instructions 6.18.1111A, 6.18.1112A, and 6.18.1114A, supra.

(For 2006 version see below)

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2006 Version

The crime of murder in the second degree [, as charged in [Count ___ of] the indictment,] has three elements, which are:

One, the defendant unlawfully killed1 2 (name of victim);

Two, the defendant did so with malice aforethought as defined in instruction ____;3 and

Three, (name of victim) was killed [while engaged in his/her official duties] [on account of the performance of his/her official duties] as an [officer] [employee] of the United States.

The defendant does not have to know that (the victim) was a federal officer.

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

Notes on Use

2. "Caused the death of" may be used instead of "killed."

Committee Comments

See 18 USC 1111, 1114; Introductory Comments; and Instructions 6.18.1111A, 6.18.1112A, supra.

See Committee Comments, Instructions 6.18.1111A, 6.18.1112A, and 6.18.1114A, supra.

No 2000 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1114C
VOLUNTARY MANSLAUGHTER, FEDERAL VICTIM
(18 USC 1114)

FORECITE National™ Materials Related To This Instruction:

FORECITE National™ Chapter 92: Homicide

See FORECITE National™ Federal Models By Offense: Killing Or Attempting To Kill Federal Officer Or Employee (18 USC 1114)

The crime of voluntary manslaughter [, as charged in [Count ___ of] the indictment,] has three elements, which are:

One, the defendant voluntarily, intentionally, and unlawfully killed (name of victim);^{2 3}

Two, the defendant acted upon [in the heat of passion] [sudden quarrel]⁴ caused by adequate provocation, as defined in instruction ____; and

Three, (name of victim) was killed [while engaged in his/her official duties] [on account of the performance of his/her official duties] as an [officer] [employee] of the United States.

The defendant does not have to know that (name of victim) was a federal officer.

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

Notes on Use

1. If there is evidence of justification or excuse, the following language should be included after the final element:

"A killing is 'unlawful' within the meaning of this instruction if it was [neither] [not] [justifiable] [nor] [excusable]."

2. "Caused the death of" may be used instead of "killed."

Committee Comments

See 18 USC 1111, 1114; Introductory Comments; and Instructions 6.18.1111A, 6.18.1112A, supra.

See Committee Comments, Instructions 6.18.1111A, 6.18.1112A, and 6.18.1114A, supra.

(For 2008 version see below).

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2008 Version

The crime of voluntary manslaughter [, as charged in [Count ___ of] the indictment,] has three elements, which are:

One, the defendant voluntarily, intentionally, and unlawfully killed (name of victim);^{2 3}

Two, the defendant acted upon [in the heat of passion] [sudden quarrel]⁴ caused by adequate provocation, as defined in instruction ____; and

Three, (name of victim) was killed [while engaged in his/her official duties] [on account of the performance of his/her official duties] as an [officer] [employee] of the United States.

The defendant does not have to know that (name of victim) was a federal officer.

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

Notes on Use

1. If there is evidence of justification or excuse, the following language should be included after the final element:

"A killing is 'unlawful' within the meaning of this instruction if it was [neither] [not] [justifiable] [nor] [excusable]."

2. "Caused the death of" may be used instead of "killed."

Committee Comments

See 18 USC 1111, 1114; Introductory Comments; and Instructions 6.18.1111A, 6.18.1112A, supra.

See Committee Comments, Instructions 6.18.1111A, 6.18.1112A, and 6.18.1114A, supra.

(For 2006 version see below)

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

2006 Version

The crime of voluntary manslaughter [, as charged in [Count ___ of] the indictment,] has three elements, which are:

One, the defendant voluntarily, intentionally, and unlawfully killed (name of victim);2 3

Two, the defendant acted upon [in the heat of passion] [sudden quarrel]4 caused by adequate provocation, as defined in instruction ____; and

Three, (name of victim) was killed [while engaged in his/her official duties] [on account of the performance of his/her official duties] as an [officer] [employee] of the United States.

The defendant does not have to know that (name of victim) was a federal officer.

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

Notes on Use

1. If there is evidence of justification or excuse, the following language should be included after the final element:

"A killing is 'unlawful' within the meaning of this instruction if it was [neither] [not] [justifiable] [nor] [excusable]."

2. "Caused the death of" may be used instead of "killed."

Committee Comments

See 18 USC 1111, 1114; Introductory Comments; and Instructions 6.18.1111A, 6.18.1112A, supra.

See Committee Comments, Instructions 6.18.1111A, 6.18.1112A, and 6.18.1114A, supra.

No 2000 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1114D
INVOLUNTARY MANSLAUGHTER, FEDERAL VICTIM
(18 USC 1114)

FORECITE National™ Materials Related To This Instruction:

FORECITE National™ Chapter 92: Homicide

See FORECITE National™ Federal Models By Offense: Killing Or Attempting To Kill Federal Officer Or Employee (18 USC 1114)

The crime of involuntary manslaughter [, as charged in [Count ___ of] the indictment,] has four elements, which are:

One, ________ (name of victim) is dead;

Two, the defendant caused the death of the victim, as charged;

[Three, the death of the victim occurred as a result of an act done by the defendant during the commission of [an unlawful act¹ not amounting to a felony] [a lawful act, done either in an unlawful manner or with wanton or reckless disregard for human life, which might produce death] (describe act, e.g., was driving in excess of the speed limit); or]

[Three, [the defendant knew that his conduct was a threat to the lives of others][it was reasonably foreseeable that the defendant’s conduct might be a threat to the lives of others];] and

Four, (name of victim) [was killed] [died] [while engaged in his/her official duties] [on account of the performance of his/her official duties] as an [officer] [employee] of the United States.

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

Notes on Use

1. If there is evidence of justification or excuse, the following language should be included after the final element:

"A killing is 'unlawful' within the meaning of this instruction if it was [neither] [not] [justifiable] [nor] [excusable]."

See Committee Comments to Instruction 6.18.1112A regarding justification and excuse.

Committee Comments

See 18 USC 1111, 1114; Introductory Comments; and Instructions 6.18.1111A, 6.18.1112A, supra.

See Committee Comments, Instructions 6.18.1111A, 6.18.1112A, and 6.18.1114A, supra.

For 2008 version see below).

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2008 Version

The crime of involuntary manslaughter [, as charged in [Count ___ of] the indictment,] has four elements, which are:

One, ________ (name of victim) is dead;

Two, the defendant caused the death of the victim, as charged;

[Three, the death of the victim occurred as a result of an act done by the defendant during the commission of [an unlawful act¹ not amounting to a felony] [a lawful act, done either in an unlawful manner or with wanton or reckless disregard for human life, which might produce death] (describe act, e.g., was driving in excess of the speed limit); or]

[Three, [the defendant knew that his conduct was a threat to the lives of others][it was reasonably foreseeable that the defendant’s conduct might be a threat to the lives of others];] and

Four, (name of victim) [was killed] [died] [while engaged in his/her official duties] [on account of the performance of his/her official duties] as an [officer] [employee] of the United States.

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

Notes on Use

1. If there is evidence of justification or excuse, the following language should be included after the final element:

"A killing is 'unlawful' within the meaning of this instruction if it was [neither] [not] [justifiable] [nor] [excusable]."

See Committee Comments to Instruction 6.18.1112A regarding justification and excuse.

Committee Comments

See 18 USC 1111, 1114; Introductory Comments; and Instructions 6.18.1111A, 6.18.1112A, supra.

See Committee Comments, Instructions 6.18.1111A, 6.18.1112A, and 6.18.1114A, supra.

(For 2006 version see below)

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

2006 Version

The crime of involuntary manslaughter [, as charged in [Count ___ of] the indictment,] has four elements, which are:

One, ________ (name of victim) is dead;

Two, the defendant caused the death of the victim, as charged;

[Three, the death of the victim occurred as a result of an act done by the defendant during the commission of [an unlawful act1 not amounting to a felony] [a lawful act, done either in an unlawful manner or with wanton or reckless disregard for human life, which might produce death] (describe act, e.g., was driving in excess of the speed limit); or]

[Three, [the defendant knew that his conduct was a threat to the lives of others][it was reasonably foreseeable that the defendant’s conduct might be a threat to the lives of others];] and

Four, (name of victim) [was killed] [died] [while engaged in his/her official duties] [on account of the performance of his/her official duties] as an [officer] [employee] of the United States.

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

Notes on Use

1. If there is evidence of justification or excuse, the following language should be included after the final element:

"A killing is 'unlawful' within the meaning of this instruction if it was [neither] [not] [justifiable] [nor] [excusable]."

See Committee Comments to Instruction 6.18.1112A regarding justification and excuse.

Committee Comments

See 18 USC 1111, 1114; Introductory Comments; and Instructions 6.18.1111A, 6.18.1112A, supra.

See Committee Comments, Instructions 6.18.1111A, 6.18.1112A, and 6.18.1114A, supra.

No 2000 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1341 MAIL FRAUD

(18 USC 1341)

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

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Mail Fraud (18 USC 1341)

The crime of [mail] fraud, as charged in [Count _____ of] the indictment, has [three] [four] elements, which are:

One, the defendant voluntarily and intentionally [devised or made up a scheme to defraud another out of [money, property or property rights] [the intangible right to honest services]¹] [participated in a scheme to defraud with knowledge of its fraudulent nature] [devised or participated in a scheme to obtain [money, property or property rights] [the intangible right to honest services] by means of material false representations or promises]² [which scheme is described as follows: (describe scheme in summary form or in manner charged in the indictment)];³

Two, the defendant did so with the intent to defraud; [and]

Three, the defendant used, or caused to be used, [the mail] [a private interstate carrier] [a commercial interstate carrier]⁴ in furtherance of, or in an attempt to carry out, some essential step in the scheme; [and]

[Four, the scheme was in connection with the conduct of telemarketing.]

[Four, the scheme was in connection with the conduct of telemarketing and

(a) victimized ten or more persons over the age of 55, or

(b) targeted persons over the age of 55.]

[Four, that the scheme affected a financial institution.]⁵

The phrase "scheme to defraud" includes any plan or course of action intended to deceive or cheat another out of [money, property or property rights] [the intangible right to honest services] by [employing material falsehoods] [concealing material facts] [omitting material facts]. It also means the obtaining of [money or property] [the intangible right to honest services] from another by means of material false representations or promises. A scheme to defraud need not be fraudulent on its face but must include some sort of fraudulent misrepresentation or promise reasonably calculated to deceive a reasonable person.⁶

A statement or representation is "false" when it is untrue when made or effectively conceals or omits a material fact.⁷

A [fact] [falsehood] [representation] [promise] is "material" if it has a natural tendency to influence, or is capable of influencing, the decision of a reasonable person in deciding whether to engage or not to engage in a particular transaction.⁸ [However, whether a [fact] [falsehood] [representation] [promise] is "material" does not depend on whether the person was actually deceived.]⁹

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] or [loss of property or property rights] [loss of an intangible right to honest services] to another or bringing about some financial gain to oneself or another to the detriment of a third party.¹⁰ [With respect to false statements, the defendant must have known the statement was untrue when made or have made the statement with reckless indifference to its truth or falsity.]¹¹

[The term property rights, as used in the mail fraud statute, includes intangible as well as tangible property rights. It includes any property right which has a value – not necessarily a monetary value – to the owner of the property right. For example, a scheme to deprive a company of the exclusive use of confidential business information obtained by the employees would be a scheme to deprive the company of intangible property rights.]¹²

It is not necessary that the use of [the mail] [an interstate carrier] by the participants themselves be contemplated or that the defendant do any actual [mailing] [sending of material by an interstate carrier] or specifically intend that [the mail] [an interstate carrier] be used. It is sufficient if [the mail] [an interstate carrier] was in fact used to carry out the scheme and the use of [the mail] [an interstate carrier] by someone was reasonably foreseeable.¹³

[Mailings] [Deliveries by an interstate carrier] which are designed to lull victims into a false sense of security, postpone inquiries or complaints, or make the transaction less suspect are [mailings] [deliveries] in furtherance of the scheme.]¹⁴

[Each separate use of [the mail] [an interstate carrier] in furtherance of the scheme to defraud constitutes a separate offense.]¹⁵

[The [mail] fraud counts of the indictment charge that each defendant, along with the other defendants, devised or participated in a scheme. The Government need not prove, however, that the defendants met together to formulate the scheme charged, or that there was a formal agreement among them, in order for them to be held jointly responsible for the operation of the scheme and the use of [the mail] [an interstate carrier] for the purpose of accomplishing the scheme. It is sufficient if only one person conceives the scheme and the others knowingly, voluntarily and intentionally join in and participate in some way in the operation of the scheme in order for such others to be held jointly responsible.]¹⁶

[It is not necessary that the Government prove [all of the details alleged in the indictment concerning the precise nature and purpose of the scheme] [that the material [mailed] [sent by an interstate carrier] was itself false or fraudulent] [that the alleged scheme actually succeeded in defrauding anyone] [that the use of [the mail] [an interstate carrier] was intended as the specific or exclusive means of accomplishing the alleged fraud].]¹⁷

[If you find proof beyond a reasonable doubt of a business custom (describe custom, e.g., to date stamp only items received through the mail), that is evidence from which you may, but are not required to, find or infer that [the mail] [an interstate carrier] was used to deliver those items.]¹⁸

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

Notes on Use

1. Depriving another of the intangible right of honest services is covered by the mail fraud statute. 18 USC 1346. In United States v. Jain, 93 F.3d 436 (8th Cir. 1996), the court held that in a private sector (as opposed to public corruption) honest services mail fraud, the government must show an intent to harm the victim before mail fraud is proven.

2. The proper mail fraud theory charged in the indictment should be selected and included in the body of the instruction. If more than one theory is part of the evidence in the case, and the theories constitute a separate offense or an element of the offense, such alternatives can be submitted in the disjunctive and the jury instructed that all jurors must agree as to the particular theory. United States v. Blumeyer, 114 F.3d 758 (8th Cir. 1997). In such a case, the jury may be instructed as follows:

You need not find that all of the theories charged in Count ___ of the indictment are proven; instead, you must find unanimously and beyond a reasonable doubt that at least one of the theories set out in Count __ of the indictment is proven.

If more than one false promise or statement is part of the evidence in the case, and the promises or statements set out different ways of committing the offense but do not constitute a separate offense or an element of the offense, then the jury may be instructed that all the jurors need not agree as to the particular theory, or the particular false promise or statement, that was made. In such a case, the jury may be instructed as follows:

Count ___ of the indictment accuses the defendant of committing the crime of ___ in more than one possible way. The first is that he ___. The second is that he ___. The government does not have to prove all of these for you to return a guilty verdict on this charge. Proof beyond a reasonable doubt of any one of these ways is enough. In order to return a guilty verdict, all twelve of you must agree that at least one of these has been proved; however, all of you need not agree that the same one has been proved.

See Schad v. Arizona, 501 U.S. 624 (1991) (plurality opinion), in which the Supreme Court rejected the approach of requiring unanimity when the means used to commit an offense simply satisfy an element of a crime and do not themselves constitute a separate offense or an element of an offense. In these circumstances, unanimity is not required. Id. at 630-33. On the other hand, if the means used to commit an offense are deemed an element of the crime, unanimity is required. See also Richardson v. United States, 526 U.S. 813, 817 (1999) (plurality opinion), in which the Court again distinguished the elements of a crime from the means used to commit the elements of the crime. If a fact is an element, "a jury in a federal criminal case cannot convict unless it unanimously finds that the Government has proved [it]." Id. On the other hand, if the fact is defined as a means of committing the crime, "a federal jury need not always decide unanimously which of several possible sets of underlying brute facts make up a particular element, say, which of several possible means the defendant used to commit an element of the crime." Richardson, 526 U.S. at 817 (citing Schad v. Arizona, 501 U.S. 624 (1991)).

3. In a simple case a brief description of the fraud should be given in the first element. An example would be:

One, that the defendant devised a scheme to defraud the brokerage firm of Smith & Jones by pledging counterfeit stock certificates as collateral on margin loans given to the defendant, thus causing a loss to Smith & Jones of 5 million dollars.

Some schemes will be too complicated to lend themselves to short descriptions. In those schemes the court may more fully summarize the scheme or refer to the description of the scheme contained in the indictment.

In submitting a summary of the scheme to the jury, the court should be aware that on occasion some allegations and misrepresentations charged in the indictment are not proven. These may be deleted from the summary; however, the court should be aware that if many allegations are not proven, there may be a material and prejudicial variance between what is alleged in the indictment and what is proven at trial.

4. After September 13, 1994, 18 USC 1341 covers schemes carried out by depositing matter to be sent or delivered by any private or commercial interstate carrier.

5. A fourth element is required when the indictment alleges any facts that would result in enhanced penalties under 18 USC 1341, 2326. See Apprendi v. New Jersey, 530 U.S. 466 (2000). Consideration should also be given to the use of a special verdict form (interrogatories to follow finding of guilt).

6. "Intent to defraud" and "scheme to defraud" should be defined in the instruction. "A scheme to defraud need not be fraudulent on its face, but ‘must involve some sort of fraudulent misrepresentations or omissions reasonably calculated to deceive persons of ordinary prudence and comprehension.’" United States v. Goodman, 984 F.2d 235, 237 (8th Cir. 1993).

7. Preston v. United States, 312 F.3d 959 (8^th Cir. 2002).

8. Preston v. United States, 312 F.3d 959 (8^th Cir. 2002).

9. See United States v. Henderson, 416 F.3d 686 (8^th Cir. 2005) (material under 42 USC 408(a)(3, 4); United States v. Mitchell, 388 F.3d 1139 (8^th Cir. 2004) (18 USC 1001 (materiality)).

10. United States v. Ervasti, 201 F.3d 1029 (8^th Cir. 2000). False statements have been defined as those which were known to be untrue at the time they were made, or made with reckless indifference as to their truth or falsity, and made with the intent to deceive. United States v. Marley, 549 F.2d 561 (8th Cir. 1977). Reckless indifference is sufficient in these cases, and a deliberate ignorance instruction, Model Instruction 7.04, should not be necessary. Mattingly v. United States, 924 F.2d 785 (8th Cir. 1991), is not applicable to these cases.

11. United States v. Casperson, 773 F.2d 216 (8^th Cir. 1985).

12. 18 USC 1346. In Carpenter v. United States, 484 U.S. 19 (1987), the Supreme Court adopted a very broad definition of property rights under the mail and wire fraud statutes. The Court stated that the statute covered intangible as well as tangible property rights and included the Wall Street Journal's right to control the use of information obtained by its reporters in the course of their duties. The Court held that the right of the Journal to decide how and when to use its confidential business information obtained by its reporters was a property right and that a scheme to deprive the Journal of this confidential business information was a scheme within the scope of the mail fraud statutes, even if no monetary loss to the Journal was caused by the scheme.

In United States v. Shyres, 898 F.2d 647, 652 (8th Cir. 1990), the court held that the right to exercise control over spending is a property right protected by the mail fraud statute and approved the following instruction:

The term "property rights" as used in the mail fraud statute includes intangible as well as tangible property. Intangible property rights include any valuable right considered as a source of wealth, and include the right to exercise control over how one's money is spent.

See also United States v. Granberry, 908 F.2d 278 (8th Cir. 1990).

However, the Supreme Court held in Cleveland v. United States, 532 U.S. 12 (2000), that state and municipal licenses are not property under the mail fraud statute.

13. See 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 47.04 (5th ed. 2000). See also Pereira v. United States, 347 U.S. 1, 8-9 (1954), which holds as follows:

The elements of the offense of mail fraud under 18 USC (Supp. V) § 1341 are (1) a scheme to defraud, and (2) the mailing of a letter, etc., for the purpose of executing the scheme. It is not necessary that the scheme contemplate the use of the mails as an essential element. United States v. Young, 232 U.S. 155 (1914). Here, the scheme to defraud is established, and the mailing of the check by the bank, incident to an essential part of the scheme, is established. There remains only the question whether Pereira "caused" the mailing. That question is easily answered. Where one does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended, then he "causes" the mails to be used. United States v. Kenofskey, 243 U.S. 440 (1917).

This Circuit has defined "reasonably foreseeable" in a variety of contexts. In a mail fraud scheme in which an insurance company was a victim, the court stated as follows:

One who engages in carrying out a scheme to defraud is therefore responsible . . . for a use made of the mail to effect a necessary or facilitating incident thereof where such use is from the nature of the business and the incident one of such ordinary course as to constitute a matter of natural expectability. A use of the mail which is of such a general expectable occurrence is entitled to be found to be reasonably foreseeable. Thus, we observed generally . . . as to the ordinary course of such an insurance business as is here involved:

Certainly in dealing with insurance agents it will be contemplated that the mails will have to be employed in carrying on business with the different companies for whom the agent does business.

United States v. Minkin, 504 F.2d 350, 353-54 (8th Cir. 1974) (citation omitted).

In United States v. Boyd, 606 F.2d 792, 794 (8th Cir. 1979), the court held:

Conduct is within the mail fraud statute when, as in this case, the use of the mails for the purpose of executing the flow of payoff funds is a reasonably foreseeable possibility in furthering the transaction.

See also United States v. Rabbitt, 583 F.2d 1014, 1022-23 (8th Cir. 1978).

In United States v. Brown, 540 F.2d 364, 376 (8th Cir. 1976), the court stated:

[T]hus . . . Brown was on notice that transfer of funds from Reliance to Mansion House by mail rather than by hand delivery was a reasonable possibility. This was sufficient evidence from which the jury could find that Brown caused the use of the mails to accomplish the ultimate objective of the scheme.

14. United States v. Sampson, 371 U.S. 75 (1962); United States v. Brown, 540 F.2d 364, 376 (8th Cir. 1976); United States v. Tackett, 646 F.2d 1240, 1243 (8th Cir. 1981).

In Schmuck v. United States, 489 U.S. 705, 713 (1989), the Court held that all mailings that are in any way part of the execution of the scheme will supply the mailing element of the offense even if the mailing later may turn out to be counterproductive and allow the discovery of the scheme.

15. 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 47.15 (5th ed. 2000); Atkinson v. United States, 344 F.2d 97 (8th Cir. 1965); United States v. Calvert, 523 F.2d 895, 903 n.6, 914 (8th Cir. 1975).

16. Reistroffer v. United States, 258 F.2d 379, 395 (8th Cir. 1958); United States v. Porter, 441 F.2d 1204, 1211 (8th Cir. 1971).

17. See 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 47.04 (5th ed. 2000); United States v. West, 549 F.2d 545, 552 (8th Cir. 1977); United States v. Gross, 416 F.2d 1205, 1210 (8th Cir. 1969); Atkinson v. United States, 344 F.2d 97, 98 (8th Cir. 1965); United States v. Calvert, 523 F.2d 895, 912 (8th Cir. 1975) (use of mail need not be specifically nor exclusively intended).

18. United States v. Shyres, 898 F.2d 647, 658 (8th Cir. 1990); United States v. Cady, 567 F.2d 771, 775 (8th Cir. 1977); United States v. Minkin, 504 F.2d 350, 352-53 (8th Cir. 1974); United States v. Joyce, 499 F.2d 9, 17 (7th Cir. 1974); Bolen v. United States, 303 F.2d 870, 875 (9th Cir. 1962). Likewise mailing can be inferred from the presence of a regular postmark. United States v. Noelke, 1 Fed. 426 (C.C.N.Y. 1880). See also Instruction 4.13, supra, on specific inferences.

Committee Comments

The crime of mail fraud is very broad in scope. As the Eighth Circuit restated in United States v. Bishop, 825 F.2d 1278, 1280 (8th Cir. 1987):

The crime of mail fraud is broad in scope; . . . the fraudulent aspect of the scheme to "defraud" is measured by a nontechnical standard . . . . Law puts its imprimatur on the accepted moral standards and condemns conduct which fails to match the "reflection of moral uprightness, of fundamental honesty, fair play and right dealing in the general business life of the members of society." This is indeed broad. For as Judge Holmes once observed, "The law does not define fraud; it needs no definition. It is as old as falsehood and as versatile as human ingenuity."

The definition of "scheme" as used in these instructions is very old and is similar to one of the first definitions used in this circuit in United States v. Dexter, 154 Fed. 890, 896 (N.D. Ia. 1907). The court there stated:

A scheme may be said to be a design or plan formed to accomplish some purpose. An artifice may be said to be an ingenious contrivance or device of some kind and when use in a bad sense of the word corresponds with trick or fraud. Hence, a scheme or artifice to defraud within the meaning of this statute would be to form some plan or devise some trick to perpetrate a fraud upon another.

The scheme must be one "reasonably calculated to deceive persons of ordinary prudence and comprehension." United States v. Goodman, 984 F.2d 235, 237 (8th Cir. 1993), and must employ material falsehoods. Neder v. United States, 527 U.S. 1 (1999). A scheme under the statute encompasses false representations as to future intentions as well as existing facts. Durland v. United States, 161 U.S. 306 (1896). Indeed, as stated above, a scheme to defraud may be actionable even though no actual misrepresentations are made. See United States v. Clausen, 792 F.2d 102, 104-05 (8th Cir. 1986). A scheme to defraud may also involve the concealment of material facts. United States v. Bessesen, 433 F.2d 861, 863, 864 (8th Cir. 1970).

Because of the diverse types of mail fraud schemes prosecuted, it is difficult to tailor a "model" instruction that does not refer to the indictment in the case. Because of the broad application of the mail fraud statute, it will be necessary to define certain terms in the instructions to the jury.

In Clausen, the court stated that the mail fraud statute prohibited both schemes to defraud and the obtaining of money and property by means of false pretenses. The court held that false pretenses were not essential in order to prove a scheme to defraud. Thus, it is proper to instruct the jury that the mail fraud statute may be violated either by devising a scheme to defraud or by obtaining money or property by means of false or fraudulent pretenses, representations or promises.

One who participates in an ongoing mail fraud devised by others is guilty of the crime of mail fraud. United States v. Wilson, 506 F.2d 1252, 1258 (7th Cir. 1974).

Intent to defraud is an element of mail fraud. DeMier v. United States, 616 F.2d 366, 369 (8th Cir. 1980). Thus, good faith can be a theory of defense. United States v. Arnold, 543 F.2d 1224 (8th Cir. 1976). A defendant is entitled to an instruction on a good faith theory of defense and one should be given if there is evidence to support the theory, United States v. Casperson, 773 F.2d 216, 222-24 (8th Cir. 1985); United States v. Sherer, 653 F.2d 334, 337 (8th Cir. 1981), but not where the defendant denies the conduct which is charged and the issue is one of credibility. United States v. Kimmel, 777 F.2d 290, 292-93 (5th Cir. 1985). See Instruction 9.08, infra, for good faith instructions. See also 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 47.16 (5th ed. 2000).

The elements of wire fraud in violation of 18 USC 1343 are identical to the elements of mail fraud with one exception; the defendant must cause interstate wire facilities to be used instead of the mail. See generally, United States v. Tackett, 646 F.2d 1240, 1242-43 (8th Cir. 1981); United States v. Mendenhall, 597 F.2d 639, 641 (8th Cir. 1979); United States v. West, 549 F.2d 545, 549-53 (8th Cir. 1977); United States v. Gross, 416 F.2d 1205, 1209-10 (8th Cir. 1969). But see United States v. Bryant, 766 F.2d 370 (8th Cir. 1985).

Each use of the mail or the wires is a separate offense notwithstanding the fact that the defendant devised only one scheme to defraud. See, e.g., United States v. Massa, 740 F.2d 629, 645-46 (8th Cir. 1984); United States v. Calvert, 523 F.2d 895, 914 (8th Cir. 1975).

If a conspiracy to commit mail fraud is charged, one should be aware that the Eighth Circuit at the present time requires proof that the conspiracy "contemplated the use of the mails." United States v. Donahue, 539 F.2d 1131, 1135, 1136 (8th Cir. 1976). That decision relied heavily on the case of Blue v. United States, 138 F.2d 351 (6th Cir. 1943). In United States v. Reed, 721 F.2d 1059 (6th Cir. 1983), the Sixth Circuit rejected Blue in its entirety and held that only a reasonably foreseeable use of the mail need be proven in a conspiracy case. Of the circuits which have decided this issue, it appears that only the Eighth Circuit requires that a mail fraud conspiracy "contemplate the use of the mails." United States v. Craig, 573 F.2d 455 (7th Cir. 1977).

(For 2008 version see below).

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2008 Version

The crime of [mail] fraud, as charged in [Count _____ of] the indictment, has [three] [four] elements, which are:

One, the defendant voluntarily and intentionally [devised or made up a scheme to defraud another out of [money, property or property rights] [the intangible right to honest services]¹] [participated in a scheme to defraud with knowledge of its fraudulent nature] [devised or participated in a scheme to obtain [money, property or property rights] [the intangible right to honest services] by means of material false representations or promises]² [which scheme is described as follows: (describe scheme in summary form or in manner charged in the indictment)];³

Two, the defendant did so with the intent to defraud; [and]

Three, the defendant used, or caused to be used, [the mail] [a private interstate carrier] [a commercial interstate carrier]⁴ in furtherance of, or in an attempt to carry out, some essential step in the scheme; [and]

[Four, the scheme was in connection with the conduct of telemarketing.]

[Four, the scheme was in connection with the conduct of telemarketing and

(a) victimized ten or more persons over the age of 55, or

(b) targeted persons over the age of 55.]

[Four, that the scheme affected a financial institution.]⁵

The phrase "scheme to defraud" includes any plan or course of action intended to deceive or cheat another out of [money, property or property rights] [the intangible right to honest services] by [employing material falsehoods] [concealing material facts] [omitting material facts]. It also means the obtaining of [money or property] [the intangible right to honest services] from another by means of material false representations or promises. A scheme to defraud need not be fraudulent on its face but must include some sort of fraudulent misrepresentation or promise reasonably calculated to deceive a reasonable person.⁶

A statement or representation is "false" when it is untrue when made or effectively conceals or omits a material fact.⁷

A [fact] [falsehood] [representation] [promise] is "material" if it has a natural tendency to influence, or is capable of influencing, the decision of a reasonable person in deciding whether to engage or not to engage in a particular transaction.⁸ [However, whether a [fact] [falsehood] [representation] [promise] is "material" does not depend on whether the person was actually deceived.]⁹

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] or [loss of property or property rights] [loss of an intangible right to honest services] to another or bringing about some financial gain to oneself or another to the detriment of a third party.¹⁰ [With respect to false statements, the defendant must have known the statement was untrue when made or have made the statement with reckless indifference to its truth or falsity.]¹¹

[The term property rights, as used in the mail fraud statute, includes intangible as well as tangible property rights. It includes any property right which has a value – not necessarily a monetary value – to the owner of the property right. For example, a scheme to deprive a company of the exclusive use of confidential business information obtained by the employees would be a scheme to deprive the company of intangible property rights.]¹²

It is not necessary that the use of [the mail] [an interstate carrier] by the participants themselves be contemplated or that the defendant do any actual [mailing] [sending of material by an interstate carrier] or specifically intend that [the mail] [an interstate carrier] be used. It is sufficient if [the mail] [an interstate carrier] was in fact used to carry out the scheme and the use of [the mail] [an interstate carrier] by someone was reasonably foreseeable.¹³

[Mailings] [Deliveries by an interstate carrier] which are designed to lull victims into a false sense of security, postpone inquiries or complaints, or make the transaction less suspect are [mailings] [deliveries] in furtherance of the scheme.]¹⁴

[Each separate use of [the mail] [an interstate carrier] in furtherance of the scheme to defraud constitutes a separate offense.]¹⁵

[The [mail] fraud counts of the indictment charge that each defendant, along with the other defendants, devised or participated in a scheme. The Government need not prove, however, that the defendants met together to formulate the scheme charged, or that there was a formal agreement among them, in order for them to be held jointly responsible for the operation of the scheme and the use of [the mail] [an interstate carrier] for the purpose of accomplishing the scheme. It is sufficient if only one person conceives the scheme and the others knowingly, voluntarily and intentionally join in and participate in some way in the operation of the scheme in order for such others to be held jointly responsible.]¹⁶

[It is not necessary that the Government prove [all of the details alleged in the indictment concerning the precise nature and purpose of the scheme] [that the material [mailed] [sent by an interstate carrier] was itself false or fraudulent] [that the alleged scheme actually succeeded in defrauding anyone] [that the use of [the mail] [an interstate carrier] was intended as the specific or exclusive means of accomplishing the alleged fraud].]¹⁷

[If you find proof beyond a reasonable doubt of a business custom (describe custom, e.g., to date stamp only items received through the mail), that is evidence from which you may, but are not required to, find or infer that [the mail] [an interstate carrier] was used to deliver those items.]¹⁸

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

Notes on Use

You need not find that all of the theories charged in Count ___ of the indictment are proven; instead, you must find unanimously and beyond a reasonable doubt that at least one of the theories set out in Count __ of the indictment is proven.

Count ___ of the indictment accuses the defendant of committing the crime of ___ in more than one possible way. The first is that he ___. The second is that he ___. The government does not have to prove all of these for you to return a guilty verdict on this charge. Proof beyond a reasonable doubt of any one of these ways is enough. In order to return a guilty verdict, all twelve of you must agree that at least one of these has been proved; however, all of you need not agree that the same one has been proved.

3. In a simple case a brief description of the fraud should be given in the first element. An example would be:

One, that the defendant devised a scheme to defraud the brokerage firm of Smith & Jones by pledging counterfeit stock certificates as collateral on margin loans given to the defendant, thus causing a loss to Smith & Jones of 5 million dollars.

4. After September 13, 1994, 18 USC 1341 covers schemes carried out by depositing matter to be sent or delivered by any private or commercial interstate carrier.

7. Preston v. United States, 312 F.3d 959 (8^th Cir. 2002).

8. Preston v. United States, 312 F.3d 959 (8^th Cir. 2002).

9. See United States v. Henderson, 416 F.3d 686 (8^th Cir. 2005) (material under 42 USC 408(a)(3, 4); United States v. Mitchell, 388 F.3d 1139 (8^th Cir. 2004) (18 USC 1001 (materiality)).

10. United States v. Ervasti, 201 F.3d 1029 (8^th Cir. 2000). False statements have been defined as those which were known to be untrue at the time they were made, or made with reckless indifference as to their truth or falsity, and made with the intent to deceive. United States v. Marley, 549 F.2d 561 (8th Cir. 1977). Reckless indifference is sufficient in these cases, and a deliberate ignorance instruction, Model Instruction 7.04, should not be necessary. Mattingly v. United States, 924 F.2d 785 (8th Cir. 1991), is not applicable to these cases.

11. United States v. Casperson, 773 F.2d 216 (8^th Cir. 1985).

The term "property rights" as used in the mail fraud statute includes intangible as well as tangible property. Intangible property rights include any valuable right considered as a source of wealth, and include the right to exercise control over how one's money is spent.

See also United States v. Granberry, 908 F.2d 278 (8th Cir. 1990).

However, the Supreme Court held in Cleveland v. United States, 532 U.S. 12 (2000), that state and municipal licenses are not property under the mail fraud statute.

13. See 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 47.04 (5th ed. 2000). See also, Pereira v. United States, 347 U.S. 1, 8-9 (1954), which holds as follows:

The elements of the offense of mail fraud under 18 USC (Supp. V) § 1341 are (1) a scheme to defraud, and (2) the mailing of a letter, etc., for the purpose of executing the scheme. It is not necessary that the scheme contemplate the use of the mails as an essential element. United States v. Young, 232 U.S. 155 (1914). Here, the scheme to defraud is established, and the mailing of the check by the bank, incident to an essential part of the scheme, is established. There remains only the question whether Pereira "caused" the mailing. That question is easily answered. Where one does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended, then he "causes" the mails to be used. United States v. Kenofskey, 243 U.S. 440 (1917).

This Circuit has defined "reasonably foreseeable" in a variety of contexts. In a mail fraud scheme in which an insurance company was a victim, the court stated as follows:

One who engages in carrying out a scheme to defraud is therefore responsible . . . for a use made of the mail to effect a necessary or facilitating incident thereof where such use is from the nature of the business and the incident one of such ordinary course as to constitute a matter of natural expectability. A use of the mail which is of such a general expectable occurrence is entitled to be found to be reasonably foreseeable. Thus, we observed generally . . . as to the ordinary course of such an insurance business as is here involved:

Certainly in dealing with insurance agents it will be contemplated that the mails will have to be employed in carrying on business with the different companies for whom the agent does business.

United States v. Minkin, 504 F.2d 350, 353-54 (8th Cir. 1974) (citation omitted).

In United States v. Boyd, 606 F.2d 792, 794 (8th Cir. 1979), the court held:

Conduct is within the mail fraud statute when, as in this case, the use of the mails for the purpose of executing the flow of payoff funds is a reasonably foreseeable possibility in furthering the transaction.

See also United States v. Rabbitt, 583 F.2d 1014, 1022-23 (8th Cir. 1978).

In United States v. Brown, 540 F.2d 364, 376 (8th Cir. 1976), the court stated:

[T]hus . . . Brown was on notice that transfer of funds from Reliance to Mansion House by mail rather than by hand delivery was a reasonable possibility. This was sufficient evidence from which the jury could find that Brown caused the use of the mails to accomplish the ultimate objective of the scheme.

14. United States v. Sampson, 371 U.S. 75 (1962); United States v. Brown, 540 F.2d 364, 376 (8th Cir. 1976); United States v. Tackett, 646 F.2d 1240, 1243 (8th Cir. 1981).

16. Reistroffer v. United States, 258 F.2d 379, 395 (8th Cir. 1958); United States v. Porter, 441 F.2d 1204, 1211 (8th Cir. 1971).

Committee Comments

The crime of mail fraud is very broad in scope. As the Eighth Circuit restated in United States v. Bishop, 825 F.2d 1278, 1280 (8th Cir. 1987):

The crime of mail fraud is broad in scope; . . . the fraudulent aspect of the scheme to "defraud" is measured by a nontechnical standard . . . . Law puts its imprimatur on the accepted moral standards and condemns conduct which fails to match the "reflection of moral uprightness, of fundamental honesty, fair play and right dealing in the general business life of the members of society." This is indeed broad. For as Judge Holmes once observed, "The law does not define fraud; it needs no definition. It is as old as falsehood and as versatile as human ingenuity."

A scheme may be said to be a design or plan formed to accomplish some purpose. An artifice may be said to be an ingenious contrivance or device of some kind and when use in a bad sense of the word corresponds with trick or fraud. Hence, a scheme or artifice to defraud within the meaning of this statute would be to form some plan or devise some trick to perpetrate a fraud upon another.

One who participates in an ongoing mail fraud devised by others is guilty of the crime of mail fraud. United States v. Wilson, 506 F.2d 1252, 1258 (7th Cir. 1974).

(For 2006 version see below)

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2006 Version

The crime of [mail] fraud, as charged in [Count _____ of] the indictment, has [three] [four] elements, which are:

One, the defendant voluntarily and intentionally [devised or made up a scheme to defraud another out of [money, property or property rights] [the intangible right to honest services]1] [participated in a scheme to defraud with knowledge of its fraudulent nature] [devised or participated in a scheme to obtain [money, property or property rights] [the intangible right to honest services] by means of material false representations or promises]2 [which scheme is described as follows: (describe scheme in summary form or in manner charged in the indictment)];3

Two, the defendant did so with the intent to defraud; [and]

Three, the defendant used, or caused to be used, [the mail] [a private interstate carrier] [a commercial interstate carrier]4 in furtherance of, or in an attempt to carry out, some essential step in the scheme; [and]

[Four, the scheme was in connection with the conduct of telemarketing.]

[Four, the scheme was in connection with the conduct of telemarketing and

(a) victimized ten or more persons over the age of 55, or

(b) targeted persons over the age of 55.]

[Four, that the scheme affected a financial institution.]5

The phrase "scheme to defraud" includes any plan or course of action intended to deceive or cheat another out of [money, property or property rights] [the intangible right to honest services] by [employing material falsehoods] [concealing material facts] [omitting material facts]. It also means the obtaining of [money or property] [the intangible right to honest services] from another by means of material false representations or promises. A scheme to defraud need not be fraudulent on its face but must include some sort of fraudulent misrepresentation or promise reasonably calculated to deceive a reasonable person.6

A statement or representation is "false" when it is untrue when made or effectively conceals or omits a material fact.7

A [fact] [falsehood] [representation] [promise] is "material" if it has a natural tendency to influence, or is capable of influencing, the decision of a reasonable person in deciding whether to engage or not to engage in a particular transaction.8 [However, whether a [fact] [falsehood] [representation] [promise] is "material" does not depend on whether the person was actually deceived.]9

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] or [loss of property or property rights] [loss of an intangible right to honest services] to another or bringing about some financial gain to oneself or another to the detriment of a third party.10 [With respect to false statements, the defendant must have known the statement was untrue when made or have made the statement with reckless indifference to its truth or falsity.]11

[The term property rights, as used in the mail fraud statute, includes intangible as well as tangible property rights. It includes any property right which has a value – not necessarily a monetary value – to the owner of the property right. For example, a scheme to deprive a company of the exclusive use of confidential business information obtained by the employees would be a scheme to deprive the company of intangible property rights.]12

It is not necessary that the use of [the mail] [an interstate carrier] by the participants themselves be contemplated or that the defendant do any actual [mailing] [sending of material by an interstate carrier] or specifically intend that [the mail] [an interstate carrier] be used. It is sufficient if [the mail] [an interstate carrier] was in fact used to carry out the scheme and the use of [the mail] [an interstate carrier] by someone was reasonably foreseeable.13

[Mailings] [Deliveries by an interstate carrier] which are designed to lull victims into a false sense of security, postpone inquiries or complaints, or make the transaction less suspect are [mailings] [deliveries] in furtherance of the scheme.]14

[Each separate use of [the mail] [an interstate carrier] in furtherance of the scheme to defraud constitutes a separate offense.]15

[The [mail] fraud counts of the indictment charge that each defendant, along with the other defendants, devised or participated in a scheme. The Government need not prove, however, that the defendants met together to formulate the scheme charged, or that there was a formal agreement among them, in order for them to be held jointly responsible for the operation of the scheme and the use of [the mail] [an interstate carrier] for the purpose of accomplishing the scheme. It is sufficient if only one person conceives the scheme and the others knowingly, voluntarily and intentionally join in and participate in some way in the operation of the scheme in order for such others to be held jointly responsible.]16

[It is not necessary that the Government prove [all of the details alleged in the indictment concerning the precise nature and purpose of the scheme] [that the material [mailed] [sent by an interstate carrier] was itself false or fraudulent] [that the alleged scheme actually succeeded in defrauding anyone] [that the use of [the mail] [an interstate carrier] was intended as the specific or exclusive means of accomplishing the alleged fraud.]17

[If you find proof beyond a reasonable doubt of a business custom (describe custom, e.g., to date stamp only items received through the mail), that is evidence from which you may, but are not required to, find or infer that [the mail] [an interstate carrier] was used to deliver those items.]18

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

Notes on Use

You need not find that all of the theories charged in Count ___ of the indictment are proven; instead, you must find unanimously and beyond a reasonable doubt that at least one of the theories set out in Count __ of the indictment is proven.

Count ___ of the indictment accuses the defendant of committing the crime of ___ in more than one possible way. The first is that he ___. The second is that he ___. The government does not have to prove all of these for you to return a guilty verdict on this charge. Proof beyond a reasonable doubt of any one of these ways is enough. In order to return a guilty verdict, all twelve of you must agree that at least one of these has been proved; however, all of you need not agree that the same one has been proved.

3. In a simple case a brief description of the fraud should be given in the first element. An example would be:

One, that the defendant devised a scheme to defraud the brokerage firm of Smith & Jones by pledging counterfeit stock certificates as collateral on margin loans given to the defendant, thus causing a loss to Smith & Jones of 5 million dollars.

4. After September 13, 1994, 18 USC 1341 covers schemes carried out by depositing matter to be sent or delivered by any private or commercial interstate carrier.

7. Preston v. United States, 312 F.3d 959 (8th Cir. 2002).

8. Preston v. United States, 312 F.3d 959 (8th Cir. 2002).

9. See United States v. Henderson, 416 F.3d 686 (8th Cir. 2005) (material under 42 USC 408(a)(3, 4); United States v. Mitchell, 388 F.3d 1139 (8th Cir. 2004) (18 USC 1001 (materiality)).

10. United States v. Ervasti, 201 F.3d 1029 (8th Cir. 2000). False statements have been defined as those which were known to be untrue at the time they were made, or made with reckless indifference as to their truth or falsity, and made with the intent to deceive. United States v. Marley, 549 F.2d 561 (8th Cir. 1977). Reckless indifference is sufficient in these cases, and a deliberate ignorance instruction, Model Instruction 7.04, should not be necessary. Mattingly v. United States, 924 F.2d 785 (8th Cir. 1991), is not applicable to these cases.

11. United States v. Casperson, 773 F.2d 216 (8th Cir. 1985).

The term "property rights" as used in the mail fraud statute includes intangible as well as tangible property. Intangible property rights include any valuable right considered as a source of wealth, and include the right to exercise control over how one's money is spent.

See also United States v. Granberry, 908 F.2d 278 (8th Cir. 1990).

However, the Supreme Court held in Cleveland v. United States, 532 U.S. 12 (2000), that state and municipal licenses are not property under the mail fraud statute.

The elements of the offense of mail fraud under 18 USC (Supp. V) § 1341 are (1) a scheme to defraud, and (2) the mailing of a letter, etc., for the purpose of executing the scheme. It is not necessary that the scheme contemplate the use of the mails as an essential element. United States v. Young, 232 U.S. 155 (1914). Here, the scheme to defraud is established, and the mailing of the check by the bank, incident to an essential part of the scheme, is established. There remains only the question whether Pereira "caused" the mailing. That question is easily answered. Where one does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended, then he "causes" the mails to be used. United States v. Kenofskey, 243 U.S. 440 (1917).

This Circuit has defined "reasonably foreseeable" in a variety of contexts. In a mail fraud scheme in which an insurance company was a victim, the court stated as follows:

One who engages in carrying out a scheme to defraud is therefore responsible . . . for a use made of the mail to effect a necessary or facilitating incident thereof where such use is from the nature of the business and the incident one of such ordinary course as to constitute a matter of natural expectability. A use of the mail which is of such a general expectable occurrence is entitled to be found to be reasonably foreseeable. Thus, we observed generally . . . as to the ordinary course of such an insurance business as is here involved:

Certainly in dealing with insurance agents it will be contemplated that the mails will have to be employed in carrying on business with the different companies for whom the agent does business.

United States v. Minkin, 504 F.2d 350, 353-54 (8th Cir. 1974) (citation omitted).

In United States v. Boyd, 606 F.2d 792, 794 (8th Cir. 1979), the court held:

Conduct is within the mail fraud statute when, as in this case, the use of the mails for the purpose of executing the flow of payoff funds is a reasonably foreseeable possibility in furthering the transaction.

See also United States v. Rabbitt, 583 F.2d 1014, 1022-23 (8th Cir. 1978).

In United States v. Brown, 540 F.2d 364, 376 (8th Cir. 1976), the court stated:

[T]hus . . . Brown was on notice that transfer of funds from Reliance to Mansion House by mail rather than by hand delivery was a reasonable possibility. This was sufficient evidence from which the jury could find that Brown caused the use of the mails to accomplish the ultimate objective of the scheme.

14. United States v. Sampson, 371 U.S. 75 (1962); United States v. Brown, 540 F.2d 364, 376 (8th Cir. 1976); United States v. Tackett, 646 F.2d 1240, 1243 (8th Cir. 1981).

16. Reistroffer v. United States, 258 F.2d 379, 395 (8th Cir. 1958); United States v. Porter, 441 F.2d 1204, 1211 (8th Cir. 1971).

Committee Comments

The crime of mail fraud is very broad in scope. As the Eighth Circuit restated in United States v. Bishop, 825 F.2d 1278, 1280 (8th Cir. 1987):

The crime of mail fraud is broad in scope; . . . the fraudulent aspect of the scheme to "defraud" is measured by a nontechnical standard . . . . Law puts its imprimatur on the accepted moral standards and condemns conduct which fails to match the "reflection of moral uprightness, of fundamental honesty, fair play and right dealing in the general business life of the members of society." This is indeed broad. For as Judge Holmes once observed, "The law does not define fraud; it needs no definition. It is as old as falsehood and as versatile as human ingenuity."

A scheme may be said to be a design or plan formed to accomplish some purpose. An artifice may be said to be an ingenious contrivance or device of some kind and when use in a bad sense of the word corresponds with trick or fraud. Hence, a scheme or artifice to defraud within the meaning of this statute would be to form some plan or devise some trick to perpetrate a fraud upon another.

One who participates in an ongoing mail fraud devised by others is guilty of the crime of mail fraud. United States v. Wilson, 506 F.2d 1252, 1258 (7th Cir. 1974).

For 2000 version see below

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

2000 Version

The crime of [mail] fraud, as charged in [Count _____ of] the indictment, has four essential elements, which are:

One, the defendant voluntarily and intentionally [devised or made up a scheme to defraud another out of [money, property or property rights] [the intangible right to honest services]1] [participated in a scheme to defraud with knowledge of its fraudulent nature] [devised or participated in a scheme to obtain [money, property or property rights] [the intangible right to honest services] by means of material false representations or promises]2 [which scheme is described as follows: (describe scheme in summary form or in manner charged in the indictment)];3

Two, the defendant did so with the intent to defraud;

Three, it was reasonably foreseeable that [the mail] [a private interstate carrier] [a commercial interstate carrier]4 would be used; and

Four, [the mail] [a private interstate carrier] [a commercial interstate carrier] was used in furtherance of some essential step in the scheme.

The phrase "scheme to defraud" includes any plan or course of action intended to deceive or cheat another out of [money, property or property rights] [the intangible right to honest services] by [employing material falsehoods] [concealing material facts] [omitting material facts]. It also means the obtaining of [money or property] [the intangible right to honest services] from another by means of material false representations or promises.5

A statement or representation is "false" when it is untrue when made or effectively conceals or omits a material fact. A [fact] [falsehood] [representation] [promise] is "material" if it has a natural tendency to influence, or is capable of influencing, the decision of a reasonable person in deciding whether to engage or not to engage in a particular transaction. [However, whether a [fact] [falsehood] [representation] [promise] is "material" does not depend on whether the person was actually deceived.]

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] or [loss of property or property rights] [loss of an intangible right to honest services] to another or bringing about some financial gain to oneself or another to the detriment of a third party.6 [With respect to false statements the defendant must have known the statement was untrue when made or have made the statement with reckless indifference to its truth or falsity.]7

[The term property rights, as used in the mail fraud statute, includes intangible as well as tangible property rights. It includes any property right which has a value -- not necessarily a monetary value -- to the owner of the property right. For example, a scheme to deprive a company of the exclusive use of confidential business information obtained by the employees would be a scheme to deprive the company of intangible property rights.]8

It is not necessary that the use of [the mail] [an interstate carrier] by the participants themselves be contemplated or that the defendant do any actual [mailing] [sending of material by an interstate carrier] or specifically intend that [the mail] [an interstate carrier] be used. It is sufficient if [the mail] [an interstate carrier] was in fact used to carry out the scheme and the use of [the mail] [an interstate carrier] by someone was reasonably foreseeable.9

[Mailings] [Deliveries by an interstate carrier] which are designed to lull victims into a false sense of security, postpone inquiries or complaints, or make the transaction less suspect are [mailings] [deliveries] in furtherance of the scheme.]10

[Each separate use of [the mail] [an interstate carrier] in furtherance of the scheme to defraud constitutes a separate offense.]11

[The [mail] fraud counts of the indictment charge that each defendant, along with the other defendants, devised or participated in a scheme. The Government need not prove, however, that the defendants met together to formulate the scheme charged, or that there was a formal agreement among them, in order for them to be held jointly responsible for the operation of the scheme and the use of [the mail] [an interstate carrier] for the purpose of accomplishing the scheme. It is sufficient if only one person conceives the scheme and the others knowingly, voluntarily and intentionally join in and participate in some way in the operation of the scheme in order for such others to be held jointly responsible.]12

[It is not necessary that the Government prove [all of the details alleged in the indictment concerning the precise nature and purpose of the scheme] [that the material [mailed] [sent by an interstate carrier] was itself false or fraudulent] [that the alleged scheme actually succeeded in defrauding anyone] [that the use of [the mail] [an interstate carrier] was intended as the specific or exclusive means of accomplishing the alleged fraud.]]13

[If you find proof beyond a reasonable doubt of a business custom (describe custom, e.g., to date stamp only items received through the mail), that is evidence from which you may, but are not required to, find or infer that [the mail] [an interstate carrier] was used to deliver those items.]14

(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 §§ 40.01-40.17 (4th ed. 1990); Seventh Circuit Federal Jury Instructions: Criminal at 259 (1999); United States v. Leyden, 842 F.2d 1026, 1028 (8th Cir. 1988); United States v. Pintar, 630 F.2d 1270, 1280 (8th Cir. 1980); Carpenter v. United States, 484 U.S. 19 (1987); Pereira v. United States, 347 U.S. 1, 8-9 (1954).

The crime of mail fraud is very broad in scope. As the Eighth Circuit restated in United States v. Bishop, 825 F.2d 1278 (8th Cir. 1987) (quoting United States v. States, 488 F.2d 761, 764 (8th Cir. 1973), cert. denied, 417 U.S. 909 (1974) and Blachly v. United States, 380 F.2d 665, 671 (5th Cir. 1967)):

The crime of mail fraud is broad in scope; . . . the fraudulent aspect of the scheme to "defraud" is measured by a nontechnical standard . . . . Law puts its imprimatur on the accepted moral standards and condemns conduct which fails to match the "reflection of moral uprightness, of fundamental honesty, fair play and right dealing in the general business life of the members of society." This is indeed broad. For as Judge Holmes once observed, "The law does not define fraud; it needs no definition. It is as old as falsehood and as versatile as human ingenuity."

Bishop, 825 F.2d at 1280.

The definition of "scheme" as used in these instructions is very old and is similar to one of the first definitions used in this circuit in United States v. Dexter, 154 Fed. 890 (N.D. Iowa 1907). The court states in that case:

A scheme may be said to be a design or plan formed to accomplish some purpose. An artifice may be said to be an ingenious contrivance or device of some kind and when use in a bad sense of the word corresponds with trick or fraud. Hence, a scheme or artifice to defraud within the meaning of this statute would be to form some plan or devise some trick to perpetrate a fraud upon another.

154 F.2d at 896.

The scheme must be one "reasonably calculated to deceive persons of ordinary prudence and comprehension." Silverman v. United States, 213 F.2d 405, 407 (5th Cir.), cert. denied, 318 U.S. 828 (1954), and must employ material falsehoods. Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827 (1999). A scheme under the statute encompasses false representations as to future intentions as well as existing facts. Durland v. United States, 161 U.S. 306 (1896). Indeed, as stated above, a scheme to defraud may be actionable even though no actual misrepresentations are made. See United States v. Clausen, 792 F.2d 102, 104-05 (8th Cir.), cert. denied, 479 U.S. 858 (1986). A scheme to defraud may also involve the concealment of material facts. Blachly v. United States, 380 F.2d 665 (5th Cir. 1967); United States v. Bessesen, 433 F.2d 861, 863, 864 (8th Cir. 1970), cert. denied, 401 U.S. 1009 (1971).

One who participates in an ongoing mail fraud devised by others is guilty of the crime of mail fraud. United States v. Wilson, 506 F.2d 1252, 1258 (7th Cir. 1974).

Intent to defraud is an element of mail fraud. DeMier v. United States, 616 F.2d 366, 369 (8th Cir. 1980). Thus, good faith can be a theory of defense. United States v. Arnold, 543 F.2d 1224 (8th Cir. 1976), cert. denied, 429 U.S. 1051 (1977). A defendant is entitled to an instruction on a good faith theory of defense and one should be given if there is evidence to support the theory, United States v. Casperson, 773 F.2d 216, 222-24 (8th Cir. 1985); United States v. Scherer, 653 F.2d 334, 337 (8th Cir.), cert. denied, 454 U.S. 1034 (1981), but not where the defendant denies the conduct which is charged and the issue is one of credibility. United States v. Kimmel, 777 F.2d 290, 292-93 (5th Cir. 1985), cert. denied, 476 U.S. 1104 (1986) and United States v. Wilkinson, 460 F.2d 725 (5th Cir. 1972). See Instruction 9.08, infra, for good faith instructions. See also 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 40.14 (4th ed. 1990)

The elements of wire fraud in violation of 18 USC 1343 are identical to the elements of mail fraud with one exception; the defendant must cause interstate wire facilities to be used instead of the mail. See generally, United States v. Tackett, 646 F.2d 1240, 1242-43 (8th Cir. 1981); United States v. Mendenhall, 597 F.2d 639, 641 (8th Cir.), cert. denied, 444 U.S. 855 (1979); United States v. West, 549 F.2d 545, 549-553 (8th Cir.), cert. denied, 430 U.S. 956 (1977); United States v. Gross, 416 F.2d 1205, 1209-1210 (8th Cir. 1969), cert. denied, 397 U.S. 1013 (1970). But see United States v. Bryant, 766 F.2d 370 (8th Cir. 1985), cert. denied, 474 U.S. 1054 (1986).

Each use of the mail or the wires is a separate offense notwithstanding the fact that the defendant devised only one scheme to defraud. See, e.g., United States v. Massa, 740 F.2d 629, 645-46 (8th Cir. 1984), cert. denied, 471 U.S. 1115 (1985); United States v. Calvert, 523 F.2d 895, 914 (8th Cir. 1975), cert. denied, 424 U.S. 911 (1976).

If a conspiracy to commit mail fraud is charged, one should be aware that the Eighth Circuit at the present time requires proof that the conspiracy "contemplated the use of the mails." United States v. Donahue, 539 F.2d 1131, 1135, 1136 (8th Cir. 1976). That decision relied heavily on the case of Blue v. United States, 138 F.2d 351 (6th Cir. 1943), cert. denied, 322 U.S. 736 (1944). In United States v. Reed, 721 F.2d 1059 (6th Cir. 1983), the Sixth Circuit rejected Blue in its entirety and held that only a reasonably foreseeable use of the mail need be proven in a conspiracy case. Of the circuits which have decided this issue, it appears that only the Eighth Circuit requires that a mail fraud conspiracy "contemplate the use of the mails." United States v. Craig, 573 F.2d 455 (7th Cir. 1977), cert. denied, 439 U.S. 820 (1978).

Notes on Use

1. Depriving another of the intangible right of honest services is covered by the mail fraud statute where the offense occurs after November 18, 1988. 18 USC 1346. The Eighth Circuit has held that 18 USC 1346 effectively overruled the opinion in McNally v. United States, 483 U.S. 350, 107 S. Ct. 2875 (1987). United States v. Blumeyer, 114 F.3d 758 (8th Cir. 1997). In United States v. Jain, 93 F.3d 436 (8th Cir. 1996), the court held that in a private sector (as opposed to public corruption) honest services mail fraud, the government must show an intent to harm the victim before mail fraud is proven. For a discussion of the extent of 18 USC 1346, see 25 Am. Crim. L. Rev. 743 (1988).

2. The proper mail fraud theory charged in the indictment should be selected. If more than one theory is submitted to the jury, the jury should be instructed that they can find the defendant guilty if they find unanimously and beyond a reasonable doubt that the government has proven at least one theory. See generally, United States v. Gipson, 553 F.2d 453 (5th Cir. 1977); United States v. Frazin, 780 F.2d 1461, 1468 (9th Cir.), cert. denied sub nom., Miller v. United States, 479 U.S. 839 (1986); 91 Harv. L. Rev. 499 (1977).

3. In a simple case a brief description of the fraud should be given in the first element. An example would be:

One, that the defendant devised a scheme to defraud the brokerage firm of Smith & Jones by pledging counterfeit stock certificates as collateral on margin loans given to the defendant, thus causing a loss to Smith & Jones of 5 million dollars.

4. After September 13, 1994, 18 USC 1341 covers schemes carried out by depositing matter to be sent or delivered by any private or commercial interstate carrier.

5. "Intent to defraud" and "scheme to defraud" should be defined in the instruction. The definitions of "scheme to defraud" and "intent to defraud" are taken essentially from 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal §§ 40.13, 40.14 (4th ed. 1990) and the materiality requirement has been added consistent with Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827 (1999) and United States v. Gaudin, 515 U.S. 506, ___, 115 S. Ct. 2310, 2313 (1995). Similar definitions of "intent to defraud" and "scheme to defraud" are contained in Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 41.1 (1997) and Fifth Circuit Pattern Jury Instructions: Criminal § 2.60 (1997).

6. Since the decision of the Supreme Court in v. McNally v. United States, 483 U.S. 350, 107 S. Ct. 2875 (1987), it is important to instruct the jury in a mail fraud case, where the offense occurs prior to November 18, 1988, that a scheme to defraud have as its object or effect the deprivation of money or property rights from the victim of the fraud. The Court in McNally reversed a long line of cases which held that the mail fraud statute proscribed schemes to defraud citizens of their intangible right to honest and impartial government. The Court stated, "The mail fraud statute clearly protects property rights, but does not refer to the intangible rights of citizenry to good government." 483 U.S. at 356, 107 S. Ct. at 2879.

The Court did state that the meaning of the phrase "scheme and artifice to defraud" should be interpreted broadly as to the meaning of property rights.

7. See 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 47.04 (4th ed. 1990), third paragraph. False statements have been defined as those which were known to be untrue at the time they were made, or made with reckless indifference as to their truth or falsity, and made with the intent to deceive. United States v. Marley, 549 F.2d 561 (8th Cir. 1977). Reckless indifference is sufficient in these cases, and a deliberate ignorance instruction, Model Instruction 7.04, should not be necessary. Mattingly v. United States, 924 F.2d 785 (8th Cir. 1991) is not applicable to these cases.

8. After November 18, 1988 a scheme to deprive another of the intangible right of honest services is covered. 18 USC 1346. It will not be necessary to define property rights in a case where it is apparent that the object of the scheme is money or tangible property.

In Carpenter v. United States, 484 U.S. 19 (1987), the Supreme Court adopted a very broad definition of property rights under the mail and wire fraud statutes. The Court stated that the statute covered intangible as well as tangible property rights and included the Wall Street Journal's right to control the use of information obtained by its reporters in the course of their duties. The Court held that the right of the Journal to decide how and when to use its confidential business information obtained by its reporters was a property right and that a scheme to deprive the Journal of this confidential business information was a scheme within the scope of the mail fraud statutes, even if no monetary loss to the Journal was caused by the scheme.

The term "property rights" as used in the mail fraud statute includes intangible as well as tangible property. Intangible property rights include any valuable right considered as a source of wealth, and include the right to exercise control over how one's money is spent.

See also United States v. Granberry, 908 F.2d 278 (8th Cir. 1990).

9. See 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 47.10 (4th ed. 1990); Pereira v. United States, 347 U.S. 1, 8-9 (1954), which holds as follows:

The elements of the offense of mail fraud under 18 USC (Supp. V) § 1341 are (1) a scheme to defraud, and (2) the mailing of a letter, etc., for the purpose of executing the scheme. It is not necessary that the scheme contemplate the use of the mails as an essential element. United States v. Young, 232 U.S. 155. Here, the scheme to defraud is established, and the mailing of the check by the bank, incident to an essential part of the scheme, is established. There remains only the question whether Pereira "caused" the mailing. That question is easily answered. Where one does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended, then he "causes" the mails to be used. United States v. Kenofskey, 243 U.S. 440 (1917).

This Circuit has defined "reasonably foreseeable" in a variety of contexts. In a mail fraud scheme in which an insurance company was a victim, the court stated as follows:

One who engages in carrying out a scheme to defraud is therefore responsible . . . for a use made of the mail to effect a necessary or facilitating incident thereof where such use is from the nature of the business and the incident one of such ordinary course as to constitute a matter of natural expectability. A use of the mail which is of such a general expectable occurrence is entitled to be found to be reasonably foreseeable. Thus, we observed generally . . . as to the ordinary course of such an insurance business as is here involved:

Certainly in dealing with insurance agents it will be contemplated that the mails will have to be employed in carrying on business with the different companies for whom the agent does business.

United States v. Minkin, 504 F.2d 350, 353-54 (8th Cir. 1974), cert. denied, 420 U.S. 926 (1975) (citation omitted).

In United States v. Boyd, 606 F.2d 792 (8th Cir. 1979), the court held:

Conduct is within the mail fraud statute when, as in this case, the use of the mails for the purpose of executing the flow of payoff funds is a reasonably foreseeable possibility in furthering the transaction.

606 F.2d at 794. See also United States v. Rabbitt, 583 F.2d 1014, 1022-23 (8th Cir. 1978), cert. denied, 439 U.S. 1116 (1979).

In United States v. Brown, 540 F.2d 364 (8th Cir. 1976), the court stated:

[T]hus . . . Brown was on notice that transfer of funds from Reliance to Mansion House by mail rather than by hand delivery was a reasonable possibility. This was sufficient evidence from which the jury could find that Brown caused the use of the mails to accomplish the ultimate objective of the scheme.

540 F.2d at 376.

10. United States v. Sampson, 371 U.S. 75 (1962); United States v. Brown, 540 F.2d 364, 376 (8th Cir. 1976); United States v. Tackett, 646 F.2d 1240, 1243 (8th Cir. 1981).

In Schmuck v. United States, 489 U.S. 705, 713, 109 S. Ct. 1443, 1449 (1989), the Court held that all mailings that are in any way part of the execution of the scheme will supply the mailing element of the offense even if the mailing later may turn out to be counterproductive and allow the discovery of the scheme.

11. 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 47.18 (4th ed. 1990); Atkinson v. United States, 344 F.2d 97 (8th Cir.), cert. denied, 382 U.S. 867 (1965); United States v. Calvert, 523 F.2d 895, 903 n.6, 914 (8th Cir. 1975), cert. denied, 424 U.S. 911 (1976).

12. Reistroffer v. United States, 258 F.2d 379, 395 (8th Cir. 1958), cert. denied, 358 U.S. 927 (1959); United States v. Porter, 441 F.2d 1204, 1211 (8th Cir.), cert. denied, 404 U.S. 911 (1971).

13. See Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 41.1 (1997); Fifth Circuit Pattern Jury Instructions: Criminal § 2.60 (1997); 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal §§ 47.08, 47.09 (4th ed. 1990); Seventh Circuit Federal Jury Instructions: Criminal at 260 (1999); United States v. Joyce, 499 F.2d 9 (7th Cir.), cert. denied, 419 U.S. 1031 (1974). United States v. West, 549 F.2d 545, 552 (8th Cir.), cert. denied, 430 U.S. 956 (1977); United States v. Gross, 416 F.2d 1205, 1210 (8th Cir. 1969), cert. denied, 397 U.S. 1013 (1970); Atkinson v. United States, 344 F.2d 97, 98 (8th Cir.), cert. denied, 382 U.S. 867 (1965); United States v. Calvert, 523 F.2d 895, 912 (8th Cir. 1975), cert. denied, 424 U.S. 911 (1976) (use of mail need not be specifically nor exclusively intended).

14. United States v. Shyres, 898 F.2d 647, 658 (8th Cir. 1990); United States v. Cady, 567 F.2d 771, 775 (8th Cir. 1977), cert. denied, 435 U.S. 944 (1978); United States v. Minkin, 504 F.2d 350, 352-53 (8th Cir. 1974), cert. denied, 420 U.S. 926 (1975); United States v. Joyce, 499 F.2d 9, 17 (7th Cir.), cert. denied, 419 U.S. 1031 (1974); Bolen v. United States, 303 F.2d 870, 875 (9th Cir. 1962). Likewise mailing can be inferred from the presence of a regular postmark. United States v. Noelke, 1 Fed. 426 (C.C.N.Y. 1880). See also Model Instruction 4.13, supra, on specific inferences.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1344 BANK FRAUD
(18 USC 1344)

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

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Bank Fraud (18 USC 1344)

The crime of bank fraud, as charged in [Count of] the indictment, has three elements, which are:

One, the defendant knowingly [executed] [attempted to execute] [participated in] a scheme [to defraud a financial institution] [to obtain [monies] [funds] [credits]¹ [owned by] [under the custody and control of] a financial institution by means of material [falsehoods] [fraudulent pretenses] [false or fraudulent representations] [false or fraudulent promises]].

Two, the defendant did so with intent to defraud; and

Three, the financial institution was [chartered by the United States Government] [insured by the United States Government]².

The phrase "scheme to defraud" includes any plan or course of action intended to deceive or cheat another out of [money, property or property rights] by [employing material falsehoods] [concealing material facts] [omitting material facts]. It also means the obtaining of [money or property] from a financial institution by means of material false representations or promises.⁵

A [fact] [falsehood] [representation] [pretense] [promise] is "false" when it is untrue when made or effectively conceals or omits a material fact. A [fact] [falsehood] [representation] [pretense] [promise] is "material" if it has a natural tendency to influence, or is capable of influencing, the decision of the institution in deciding whether to engage or not to engage in a particular transaction.. [However, whether a [fact] [falsehood] [representation] [promise] is "material" does not depend on whether the institution was actually deceived.] ³

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

Notes on Use

1. The statute also covers "assets, securities or other property." 18 USC 1344(a)(2). In addition 18 USC 1346 provides: "For the purposes of this Chapter, the term 'scheme or artifice to defraud' includes a scheme or artifice to deprive another of the intangible right of honest services." This provision became effective November 18, 1988.

2. Section 1344(b) lists five types of financial institutions which can be a "federally chartered or insured financial institution."

3. The materiality element and definition are added consistent with Neder v. United States, 527 U.S. 1 (1999) and United States v. Gaudin, 515 U.S. 506, 509 (1995).

Committee Comments

See United States v. Stone, 890 F.2d 418 (8th Cir. 1989); United States v. Goldblatt, 813 F.2d 619, 624 (3d Cir. 1987); United States v. Swearingen, 858 F.2d 1555, 1556-57 (11th Cir. 1988). See also United States v. Bales, 813 F.2d 1289, 1293 (4th Cir. 1987). (Brought under sections 1004 and 1344.)

The legislative history of the 1984 bank fraud statute indicates that Congress intended that it be afforded the same broad application as the mail fraud statute. United States v. Rimell, 21 F.3d 281, 287 (8th Cir. 1994); United States v. Bonallo, 858 F.2d 1427, 1432 (9th Cir. 1988). Since the bank fraud statute was patterned after the mail and wire fraud statutes, cases interpreting those statutes may apply to the bank fraud provisions. See, e.g., United States v. Greene, 670 F. Supp. 337, 340 (M.D. Fla. 1987).

In United States v. Stone, this Circuit held that the element of "knowingly" supplied the required mens rea for a violation of 18 USC 1344.

As in the mail fraud cases, it is not necessary for the government to show that the financial institution suffered a loss or was actually defrauded or that the defendant personally benefitted from the scheme. United States v. Goldblatt, 813 F.2d at 624-25.

The term "scheme and artifice to defraud" includes any plan or pattern of conduct using false or fraudulent pretenses or representations. United States v. Swearingen, 858 F.2d at 1557. See also United States v. Whitty, 688 F. Supp. 48, 54-55 (D. Me. 1988).

Although the statute is to be afforded broad application, it does not cover a traditional "pigeon-drop" scheme where the funds that were at one time under the control of the bank were legitimately withdrawn and then given to the defendants. United States v. Blackmon, 839 F.2d 900, 904-07 (2d Cir. 1988). Each check presented to a covered financial institution in a check-kiting scheme can be a separate violation of section 1344. United States v. Poliak, 823 F.2d 371, 372 (9th Cir. 1987).

See also United States v. Taggatz, 831 F.2d 1355 (7th Cir. 1987) (check-kiting). United States v. Robichaux, 698 F. Supp. 107, 110-11 (E.D. La. 1988) (conspiracy). United States v. Spambanato, 687 F. Supp. 46 (D. Conn. 1988) (restitution), aff’d, 876 F.2d 5 (2d Cir. 1989). United States v. Carroll, 663 F. Supp. 210 (D. Md. 1986) (Federal Rules of Evidence).

(For 2008 version see below).

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

2008 Version

The crime of bank fraud, as charged in [Count of] the indictment, has three elements, which are:

One, the defendant knowingly [executed] [attempted to execute] [participated in] a scheme [to defraud a financial institution] [to obtain [monies] [funds] [credits]¹ [owned by] [under the custody and control of] a financial institution by means of material [falsehoods] [fraudulent pretenses] [false or fraudulent representations] [false or fraudulent promises]].

Two, the defendant did so with intent to defraud; and

Three, the financial institution was [chartered by the United States Government] [insured by the United States Government]².

The phrase "scheme to defraud" includes any plan or course of action intended to deceive or cheat another out of [money, property or property rights] by [employing material falsehoods] [concealing material facts] [omitting material facts]. It also means the obtaining of [money or property] from a financial institution by means of material false representations or promises.⁵

A [fact] [falsehood] [representation] [pretense] [promise] is "false" when it is untrue when made or effectively conceals or omits a material fact. A [fact] [falsehood] [representation] [pretense] [promise] is "material" if it has a natural tendency to influence, or is capable of influencing, the decision of the institution in deciding whether to engage or not to engage in a particular transaction.. [However, whether a [fact] [falsehood] [representation] [promise] is "material" does not depend on whether the institution was actually deceived.] ³

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

Notes on Use

2. Section 1344(b) lists five types of financial institutions which can be a "federally chartered or insured financial institution."

3. The materiality element and definition are added consistent with Neder v. United States, 527 U.S. 1 (1999) and United States v. Gaudin, 515 U.S. 506, 509 (1995).

Committee Comments

In United States v. Stone, this Circuit held that the element of "knowingly" supplied the required mens rea for a violation of 18 USC 1344.

(For 2006 version see below)

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

2006 Version

The crime of bank fraud, as charged in [Count of] the indictment, has three elements, which are:

One, the defendant knowingly [executed] [attempted to execute] [participated in] a scheme [to defraud a financial institution] [to obtain [monies] [funds] [credits]1 [owned by] [under the custody and control of] a financial institution by means of material [falsehoods] [fraudulent pretenses] [false or fraudulent representations] [false or fraudulent promises]].

Two, the defendant did so with intent to defraud; and

Three, the financial institution was [chartered by the United States Government] [insured by the United States Government]2.

The phrase "scheme to defraud" includes any plan or course of action intended to deceive or cheat another out of [money, property or property rights] by [employing material falsehoods] [concealing material facts] [omitting material facts]. It also means the obtaining of [money or property] from a financial institution by means of material false representations or promises.5

A [fact] [falsehood] [representation] [pretense] [promise] is "false" when it is untrue when made or effectively conceals or omits a material fact. A [fact] [falsehood] [representation] [pretense] [promise] is "material" if it has a natural tendency to influence, or is capable of influencing, the decision of the institution in deciding whether to engage or not to engage in a particular transaction.. [However, whether a [fact] [falsehood] [representation] [promise] is "material" does not depend on whether the institution was actually deceived.] 3

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

Notes on Use

2. Section 1344(b) lists five types of financial institutions which can be a "federally chartered or insured financial institution."

3. The materiality element and definition are added consistent with Neder v. United States, 527 U.S. 1 (1999) and United States v. Gaudin, 515 U.S. 506, 509 (1995).

Committee Comments

In United States v. Stone, this Circuit held that the element of "knowingly" supplied the required mens rea for a violation of 18 USC 1344.

See also United States v. Taggatz, 831 F.2d 1355 (7th Cir. 1987) (check-kiting). United States v. Robichaux, 698 F. Supp. 107, 110-11 (E.D. La. 1988) (conspiracy). United States v. Spambanato, 687 F. Supp. 46 (D. Conn. 1988) (restitution). United States v. Carroll, 663 F. Supp. 210 (D. Md. 1986) (Federal Rules of Evidence).

For 2000 version see below

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

2000 Version

The crime of bank fraud, as charged in [Count of] the indictment, has three essential elements, which are:

One, the defendant knowingly [executed] [attempted to execute] [participated in] a scheme [to defraud a financial institution] [to obtain [monies] [funds] [credits]1 [owned by] [under the custody and control of] a financial institution by means of material [falsehoods] [fraudulent pretenses] [false or fraudulent representations] [false or fraudulent promises]].

Two, the defendant did so with intent to defraud; and

Three, the financial institution was [chartered by the United States Government] [insured by the United States Government]2.

The phrase "scheme to defraud" includes any plan or course of action intended to deceive or cheat another out of [money, property or property rights] by [employing material falsehoods] [concealing material facts] [omitting material facts]. It also means the obtaining of [money or property] from a financial institution by means of material false representations or promises.5

A [fact] [falsehood] [representation] [pretense] [promise] is "false" when it is untrue when made or effectively conceals or omits a material fact. A [fact] [falsehood] [representation] [pretense] [promise] is "material" if it has a natural tendency to influence, or is capable of influencing, the decision of the institution in deciding whether to engage or not to engage in a particular transaction.. [However, whether a [fact] [falsehood] [representation] [promise] is "material" does not depend on whether the institution was actually deceived.] 3

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

Committee Comments

See United States v. Stone, 890 F.2d 418 (8th Cir. 1989); United States v. Goldblatt, 813 F.2d 619, 624 (3d Cir. 1987); United States v. Swearingen, 858 F.2d 1555, 1556-57 (11th Cir. 1988), cert. denied, 489 U.S. 1083 (1989). See also United States v. Bales, 813 F.2d 1289, 1293 (4th Cir. 1987). [Brought under sections 1004 and 1344.]

In United States v. Stone, this Circuit held that the element of "knowingly" supplied the required mens rea for a violation of 18 USC 1344.

The term "scheme and artifice to defraud" includes any plan or pattern of conduct using false or fraudulent pretenses or representations. United States v. Swearingen, 858 F.2d at 1557. See also United States v. Whitty, 688 F. Supp. 48, 54-55 (D. Me. 1988).

Although the statute is to be afforded broad application, it does not cover a traditional "pigeon-drop" scheme where the funds that were at one time under the control of the bank were legitimately withdrawn and then given to the Defendants. United States v. Blackmon, 839 F.2d 900, 904-07 (2d Cir. 1988). Each check presented to a covered financial institution in a check-kiting scheme can be a separate violation of section 1344. United States v. Poliak, 823 F.2d 371, 372 (9th Cir. 1987), cert. denied, 485 U.S. 1029 (1988).

See also United States v. Taggatz, 831 F.2d 1355 (7th Cir. 1987) (check-kiting). United States v. Robichaux, 698 F. Supp. 107, 110-11 (E.D. La. 1988) (conspiracy). United States v. Spambanato, 687 F. Supp. 46 (D. Conn. 1988) (restitution). United States v. Carroll, 663 F. Supp. 210 (D. Md. 1986) (Federal Rules of Evidence).

Notes on Use

2. Section 1344(b) lists five types of financial institutions which can be a "federally chartered or insured financial institution."

3. The materiality element and definition are added consistent with Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827 (1999) and United States v. Gaudin, 515 U.S. 506, ___, 115 S. Ct. 2310, 2313 (1995).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1503A
CORRUPTLY ENDEAVORING TO INFLUENCE A JUROR
(18 USC 1503)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Corruptly Influencing A Juror (18 USC 1503)

The crime of corruptly endeavoring to influence a juror¹, as charged in [Count _____ of] the indictment, has three elements, which are:

One, (name of juror) was a [grand] juror in (describe judicial proceeding);²

Two, the defendant knew that (describe judicial proceeding) was pending; [and]

Three, the defendant corruptly endeavored³ to [influence] [intimidate] [impede] (name of juror) in the discharge of his duty as a [grand] juror[; and]

[Four, (state the sentencing fact that triggers a higher maximum sencence,⁴ e.g., the crime under consideration by the juror was (name the Class A or Class B felony charged⁵).]

The phrase "corruptly endeavored" means that the defendant voluntarily and intentionally (describe obstructive act)⁶ and that in doing so, acted with the intent⁷ to [influence (judicial) (grand jury) proceedings so as to benefit himself or another] [subvert or undermine the due administration of justice].⁸ [The endeavor need not have been successful, but it must have had at least a reasonable tendency to impede the [grand] juror in the discharge of his duties.]

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

Notes on Use

1. This clause of the statute also applies to officers of the court and certain officials.

2. The instruction is designed for the usual case in which the pendency of a judicial proceeding is undisputed. If this question is disputed, it should be submitted to the jury under proper definitional instructions. See United States v. Vesich, 724 F.2d 451, 454 (5th Cir.), reh. denied, 726 F.2d 168 (5th Cir. 1984). Section 1503 typically applies "after the commencement of formal judicial proceedings." United States v. Werlinger, 894 F.2d 1015, 1016 n.3 (8^th Cir. 1990). A criminal action remains "pending" during the one-year period within which to file a motion to reduce sentence pursuant to Federal Rule of Criminal Procedure 35(b). United States v. Novak, 217 F.3d 566, 572-73 (8^th Cir. 2000), or until disposition of the defendant’s direct appeal. United States v. Johnson, 605 F.2d 729 (4^th Cir. 1979).

3. The jury should be instructed on the meaning of "corruptly endeavored" as used by the statute. As the discussion in the Committee Comments, infra, illustrates, no one definition has been agreed on and different definitions may apply to different factual situations. The court of appeals "prefer[s] instructions phrased not in abstract legalisms, but rather in concrete terms that intelligibly describe the actual evidence or contentions of the parties." United States v. Feldhacker, 849 F.2d 293, 297 (8th Cir. 1988).

A definition which best suits the case should be formulated and used. At a minimum, there should be an intent to act and knowledge that obstruction would or could result from such act. United States v. Aguilar, 515 U.S. 593, 599 (1995). For a discussion of the meaning of the phrase "knowingly . . . corruptly," as used in 18 USC 1512(b)(2)(A), see Arthur Andersen LLP v. United States, 544 U.S. 696, 706 (2005). (The Committee notes that in Fn 9 in Andersen, the Court observed that § 1503 "lack[s] the modifier ‘knowingly,’ making any analogy [to the definition of corruptly in § 151] inexact.") The Committee recommends that in formulating a definition, words such as "knowingly," "willfully" and "specific intent" not be used in favor of words which precisely describe the mental state involved. See Instructions 7.01-.03, infra.

4. Section 1503(b) creates enhanced penalties where a juror is killed, where an attempt on the life of a juror failed, or where the offense was committed against a petit juror, in a case in which a class A or B felony was charged. In Jones v. United States, 526 U.S. 227 (1999), dealing with a carjacking offense under 18 USC 2119, the Supreme Court stated, in footnote 6, "[u]nder the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." The Supreme Court made clear in Apprendi v. New Jersey, 530 U.S. 466 (2000), that the principle it enunciated in Jones was a rule of constitutional law applicable to all prosecutions.

5. If a killing or attempted killing is charged, see Instructions 6.18.1111, 6.18.1112, and 8.01 (attempt).

6. See United States v. Frank, 354 F.3d 910, 921 (8^th Cir. 2004) for a discussion of whether section 1503 requires commission of an overt act.

7. The government need not prove that the defendant’s only or even main purpose was to obstruct the due administration of justice. See United States v. Machi, 811 F.2d 991, 996-97 (7^th Cir. 1987).

8. This definition is a generic one. If the circumstances of the case call for a more specific definition, the Committee Comments on the "endeavor" and "corruptly" requirements of the statute should aid in fashioning one.

Committee Comments

See 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 48.03 (5th ed. 2000).

The first two clauses of section 1503, covered by Instructions 6.18.1503A and B, relate to interference with or injury to actual grand jurors, petit jurors, or court officers in the discharge of their duties. United States v. Aguilar, 515 U.S. 593, 598 (1995). The third clause referred to as the "Omnibus Clause," and covered by Instruction 6.18.1503C, is a catchall provision which, inter alia, prohibits persons from corruptly endeavoring to influence, obstruct, or impede the due administration of justice. Id. These instructions apply to counts alleging that the defendant endeavored to obstruct justice, not to counts alleging actual obstruction.

The following discussion relates to all three clauses of section 1503, but most particularly to the Omnibus Clause, which, because it is the most general in nature, presents the most issues.

Pendency of judicial proceedings. Except where retaliation is charged, a prerequisite to prosecution under all clauses of section 1503 is a pending judicial proceeding. United States v. Risken, 788 F.2d 1361, 1368 (8th Cir. 1986). (In United States v. Novak, 217 F.3d 566, 572 (8^th Cir. 2000), the court questioned this prerequisite, noting that "there is nothing on the face of § 1503 requiring a pending proceeding," but assumed, arguendo, the existence of the requirement.) A grand jury proceeding is considered a pending proceeding. Riskin. The question of when a grand jury investigation commences for the purposes of section 1503 is addressed in United States v. Vesich, 724 F.2d 451, 454-55 (5th Cir. 1984), reh. denied, 726 F.2d 168 (5th Cir. 1984). See also United States v. Nelson, 852 F.2d 706, 709-11 (3d Cir. 1988); United States v. Steele, 241 F.3d 302 (3d Cir. 2001). A term of supervised release also can constitute a pending proceeding, if the obstructive conduct occurs "‘within the time after sentencing for filing a request for reduction of sentence pursuant to Rule 35(b).’" United States v. Novak, 217 F.3d at 572.

The defendant must know of the pendency of a judicial proceeding. Pettibone v. United States, 148 U.S. 197, 206-07 (1893); United States v. Vesich, 724 F.2d at 457. Such knowledge may be inferred from the circumstances and need not be detailed. Id. The defendant need not know that the proceeding is federal in nature. United States v. Ardito, 782 F.2d 358, 360-62 (2d Cir. 1986). In United States v. McKnight, 799 F.2d 443, 447 (8th Cir. 1986), the court held it was not plain error where the court had not specifically instructed the jury that the defendant must have had knowledge of the judicial proceeding. The court had instructed the jury that the defendant must have acted "knowingly." The Committee recommends that the precise knowledge be set forth in the instruction. See Element Two, supra.

"Corruptly endeavor" requirement. Although courts often define the words "corruptly" and "endeavor" separately, the Committee believes that to define them as a single phrase would result in less confusion and overlap. The following is a summary of case law as to the meaning of each word.

"Endeavor" requirement. As the Supreme Court stated in United States v. Russell, "[t]he word of the section is ‘endeavor’ and by using it the section got rid of the technicalities which might be urged as besetting the word ‘attempt’ and it describes any effort or essay to accomplish the evil purpose that the section was enacted to prevent." 255 U.S. at 143; Osborn v. United States, 385 U.S. 323, 332-33 (1966). However, the endeavor "must have a relationship in time, causation, or logic with the judicial proceedings. . . . [It] must have the ‘natural and probable effect’ of interfering with the due administration of justice." (citations omitted). United States v. Aguilar, 515 U.S. at 599. Therefore, a judge’s making of false statements to an FBI agent did not constitute obstruction in the absence of evidence the judge knew those false statements would be given to the grand jury. Id. at 600. On the other hand, submission to a sentencing judge of a false letter seeking leniency constituted obstruction, even though the government did not prove that the court’s sentencing decision was actually affected by the letter, because the letter was of the type normally received and relied upon by the judge. United States v. Collis, 128 F.3d 313 (6^th Cir. 1997).

Success is not a prerequisite to conviction under any of the clauses of section 1503. All that must be proved is that the defendant "corruptly endeavored" to obstruct justice. United States v. Aguilar, 515 U.S. 593, 599 (1995); United States v. Russell, 255 U.S. 138, 143 (1921); United States v. Jackson, 607 F.2d 1219, 1222-23 (8^th Cir. 1979); United States v. McCarty, 611 F.2d 220, 224 (8th Cir. 1979).

Endeavor defined.

The Seventh Circuit Model Instructions include the following definitions of endeavor:

Influencing - Definition of Endeavor. The word endeavor describes any effort or act to influence [a witness, a juror, an officer in or of any court of the United States]. The endeavor need not be successful, but it must have at least a reasonable tendency to impede the [witness, juror, officer] in the discharge of his duties.

Obstruction of Justice Generally - Definition of Endeavor. The word endeavor describes any effort or act to influence, obstruct, or impede the due administration of justice. The endeavor need not be successful, but it must have at least a reasonable tendency to influence, obstruct, or impede the due administration of justice.

Seventh Circuit Federal Jury Instructions Criminal (1999).

In United States v. Cioffi, 493 F.2d 1111, 1119 (2d Cir. 1974), "endeavor" was defined for the jury as "any effort or any act, however contrived, to obstruct, impede or interfere . . . ."

In United States v. Silverman, 745 F.2d 1386, 1396 n.12 (11th Cir. 1984), the definition of endeavor was altered to correspond to that case's definition of "corruptly." "[E]ndeavor means to undertake an act or to attempt to effectuate an arrangement or to try to do something, the natural and probable consequences of which is to influence, obstruct or impede the due administration of justice."

"Corruptly" requirement. The defendant must have acted "corruptly" in order to violate the first and last clauses of section 1503. "Corruptly" applies as an alternative to threats or force or threatening letter or communication. See United States v. Cioffi, 493 F.2d 1111, 1118 n.2 (2d Cir. 1974). Instruction 6.18.1503A covers corrupt endeavors to influence jurors and Instruction 6.18.1503B, infra, covers threats and force. Instruction 6.18.1503C, infra, covers conduct violating the last or "omnibus" clause of section 1503.

The "corruptly" requirement incorporates the scienter element of the statute. That said, courts have defined the mental state required by the word "corruptly" within at least four different, but often overlapping, categories: a. intent to influence or obstruct justice; b. intent to do the act which results in obstruction; c. wicked or evil purpose; and d. "per se" corruption. As the court noted in United States v. Brady, 168 F.3d 574, 578 (1^st Cir. 1999), a case involving a refusal to testify,:

The scienter element in the obstruction statute is the subject of more confusing case law than can be described in brief compass. In part, this results from the promiscuous use in the cases of the ambiguous word, "intent," which can mean either knowledge (of consequences) or purpose (to achieve them); in part, it results from the great range of varying motives that can underlie a refusal to testify (e.g., loyalty of various kinds, concern as to reputation, fear of reprisal, concern about self-incrimination.) Further, cases that purport to be setting legal standards are often instead concerned with the inferences to be drawn from particular facts.

The term "specific intent" is found in many definitions of "corruptly," including one approved by the Eighth Circuit: "In this case, the word ‘corruptly’ means willfully, knowingly and with specific intent to influence a juror to abrogate his or her legal duties as petit juror." United States v. Jackson, 607 F.2d at 1221-22. See also United States v. Quinn, 543 F.2d 640, 647 (8th Cir. 1976). But see United States v. Gage, 183 F.3d 711, 718-19 (7^th Cir. 1999) (Chief Judge Posner, concurring) (§ 1503 does not require specific intent).

The most common formulation of a definition of "corruptly" includes language that the obstructive act must be done with the intent to influence judicial or grand jury proceedings. As stated in United States v. Aguilar, 515 U.S. at 616, "[corruptly] 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.’" (J. Scalia, joined by J. Kennedy and Thomas, concurring, in part, and dissenting, in part) (internal cites omitted).

"[I]f the defendant lacks knowledge that his actions are likely to affect the judicial proceeding, he lacks the requisite intent to obstruct." Id. Intent can be inferred where the obstruction is a natural consequence of another intended act. Pettibone v. United States, 148 U.S. at 207; United States v. Jackson, 607 F.2d at 1221.

Vol. 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 48.04 (5th ed. 2000), provides the following definition: "[t]o act ‘corruptly’ as that word is used in these instructions means to act voluntarily and deliberately and for the purpose of improperly influencing, or obstructing, or interfering with the administration of justice."

The Seventh Circuit has approved the following instruction:

Corruptly means to act with the purpose of obstructing justice. The United States is not required to prove that the defendant’s only or even main purpose was to obstruct the due administration of justice. The government only has to establish that the defendant should have reasonably seen that the natural and probable consequences of his acts was the obstruction of justice. Intent may be inferred from all of the surrounding facts and circumstances. Any act, by any party, whether lawful or unlawful on its face, may violate section 1503 if performed with a corrupt motive.

United States v. Cueto, 151 F.3d 620, 630-31 (7^th Cir. 1998).

(For 2008 version see below).

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

2008 Version

The crime of corruptly endeavoring to influence a juror¹, as charged in [Count _____ of] the indictment, has three elements, which are:

One, (name of juror) was a [grand] juror in (describe judicial proceeding);²

Two, the defendant knew that (describe judicial proceeding) was pending; [and]

Three, the defendant corruptly endeavored³ to [influence] [intimidate] [impede] (name of juror) in the discharge of his duty as a [grand] juror[; and]

[Four, (state the sentencing fact that triggers a higher maximum sencence,⁴ e.g., the crime under consideration by the juror was (name the Class A or Class B felony charged⁵).]

The phrase "corruptly endeavored" means that the defendant voluntarily and intentionally (describe obstructive act)⁶ and that in doing so, acted with the intent⁷ to [influence (judicial) (grand jury) proceedings so as to benefit himself or another] [subvert or undermine the due administration of justice].⁸ [The endeavor need not have been successful, but it must have had at least a reasonable tendency to impede the [grand] juror in the discharge of his duties.]

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

Notes on Use

1. This clause of the statute also applies to officers of the court and certain officials.

A definition which best suits the case should be formulated and used. At a minimum, there should be an intent to act and knowledge that obstruction would or could result from such act. United States v. Aguilar, 515 U.S. 593, 599 (1995). For a discussion of the meaning of the phrase "knowingly . . . corruptly," as used in 18 USC 1512(b)(2)(A), see Arthur Andersen LLP v. United States, 544 U.S. 696, 706 (2005). (The Committee notes that in Fn 9 in Andersen, the Court observed that § 1503 "lack[s] the modifier ‘knowingly,’ making any analogy [to the definition of corruptly in § 1512] inexact.") The Committee recommends that in formulating a definition, words such as "knowingly," "willfully" and "specific intent" not be used in favor of words which precisely describe the mental state involved. See Instructions 7.01-.03, infra.

5. If a killing or attempted killing is charged, see Instructions 6.18.1111, 6.18.1112, and 8.01 (attempt).

6. See United States v. Frank, 354 F.3d 910, 921 (8^th Cir. 2004) for a discussion of whether section 1503 requires commission of an overt act.

Committee Comments

See 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 48.03 (5th ed. 2000).

The following discussion relates to all three clauses of section 1503, but most particularly to the Omnibus Clause, which, because it is the most general in nature, presents the most issues.

Endeavor defined.

The Seventh Circuit Model Instructions include the following definitions of endeavor:

Influencing - Definition of Endeavor. The word endeavor describes any effort or act to influence [a witness, a juror, an officer in or of any court of the United States]. The endeavor need not be successful, but it must have at least a reasonable tendency to impede the [witness, juror, officer] in the discharge of his duties.

Obstruction of Justice Generally - Definition of Endeavor. The word endeavor describes any effort or act to influence, obstruct, or impede the due administration of justice. The endeavor need not be successful, but it must have at least a reasonable tendency to influence, obstruct, or impede the due administration of justice.

Seventh Circuit Federal Jury Instructions Criminal (1999).

In United States v. Cioffi, 493 F.2d 1111, 1119 (2d Cir. 1974), "endeavor" was defined for the jury as "any effort or any act, however contrived, to obstruct, impede or interfere . . . ."

The scienter element in the obstruction statute is the subject of more confusing case law than can be described in brief compass. In part, this results from the promiscuous use in the cases of the ambiguous word, "intent," which can mean either knowledge (of consequences) or purpose (to achieve them); in part, it results from the great range of varying motives that can underlie a refusal to testify (e.g., loyalty of various kinds, concern as to reputation, fear of reprisal, concern about self-incrimination.) Further, cases that purport to be setting legal standards are often instead concerned with the inferences to be drawn from particular facts.

The Seventh Circuit has approved the following instruction:

Corruptly means to act with the purpose of obstructing justice. The United States is not required to prove that the defendant’s only or even main purpose was to obstruct the due administration of justice. The government only has to establish that the defendant should have reasonably seen that the natural and probable consequences of his acts was the obstruction of justice. Intent may be inferred from all of the surrounding facts and circumstances. Any act, by any party, whether lawful or unlawful on its face, may violate section 1503 if performed with a corrupt motive.

United States v. Cueto, 151 F.3d 620, 630-31 (7^th Cir. 1998).

(For 2006 version see below)

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

2006 Version

The crime of corruptly endeavoring to influence a juror1, as charged in [Count _____ of] the indictment, has three elements, which are:

One, (name of juror) was a [grand] juror in (describe judicial proceeding);2

Two, the defendant knew that (describe judicial proceeding) was pending; [and]

Three, the defendant corruptly endeavored3 to [influence] [intimidate] [impede] (name of juror) in the discharge of his duty as a [grand] juror[; and]

[Four, (state the sentencing fact that triggers a higher maximum sencence,4 e.g., the crime under consideration by the juror was (name the Class A or Class B felony charged5).]

The phrase "corruptly endeavored" means that the defendant voluntarily and intentionally (describe obstructive act)6 and that in doing so, acted with the intent7 to [influence (judicial) (grand jury) proceedings so as to benefit himself or another] [subvert or undermine the due administration of justice].8 [The endeavor need not have been successful, but it must have had at least a reasonable tendency to impede the [grand] juror in the discharge of his duties.]

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

Notes on Use

1. This clause of the statute also applies to officers of the court and certain officials.

2. The instruction is designed for the usual case in which the pendency of a judicial proceeding is undisputed. If this question is disputed, it should be submitted to the jury under proper definitional instructions. See United States v. Vesich, 724 F.2d 451, 454 (5th Cir.), reh. denied, 726 F.2d 168 (5th Cir. 1984). Section 1503 typically applies "after the commencement of formal judicial proceedings." United States v. Werlinger, 894 F.2d 1015, 1016 n.3 (8th Cir. 1990). A criminal action remains "pending" during the one-year period within which to file a motion to reduce sentence pursuant to Federal Rule of Criminal Procedure 35(b). United States v. Novak, 217 F.3d 566, 572-73 (8th Cir. 2000), or until disposition of the defendant’s direct appeal. United States v. Johnson, 605 F.2d 729 (4th Cir. 1979).

A definition which best suits the case should be formulated and used. At a minimum, there should be an intent to act and knowledge that obstruction would or could result from such act. United States v. Aguilar, 515 U.S. 593, 599 (1995). For a discussion of the meaning of the phrase "knowingly . . . corruptly," as used in 18 USC 1512(b)(2)(A), see Arthur Andersen LLP v. United States, 544 U.S. 696, 706 (2005). (The Committee notes that in Fn 9 in Andersen, the Court observed that § 1503 "lack[s] the modifier ‘knowingly,’ making any analogy [to the definition of corruptly in § 1512] inexact.") The Committee recommends that in formulating a definition, words such as "knowingly," "willfully" and "specific intent" not be used in favor of words which precisely describe the mental state involved. See Instructions 7.01-.03, infra.

5. If a killing or attempted killing is charged, see Instructions 6.18.1111, 6.18.1112, and 8.01 (attempt).

6. See United States v. Frank, 354 F.3d 910, 921 (8th Cir. 2004) for a discussion of whether section 1503 requires commission of an overt act.

Committee Comments

See 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 48.03 (5th ed. 2000).

The following discussion relates to all three clauses of section 1503, but most particularly to the Omnibus Clause, which, because it is the most general in nature, presents the most issues.

Pendency of judicial proceedings. Except where retaliation is charged, a prerequisite to prosecution under all clauses of section 1503 is a pending judicial proceeding. United States v. Risken, 788 F.2d 1361, 1368 (8th Cir. 1986). (In United States v. Novak, 217 F.3d 566, 572 (8th Cir. 2000), the court questioned this prerequisite, noting that "there is nothing on the face of § 1503 requiring a pending proceeding," but assumed, arguendo, the existence of the requirement.) A grand jury proceeding is considered a pending proceeding. Riskin. The question of when a grand jury investigation commences for the purposes of section 1503 is addressed in United States v. Vesich, 724 F.2d 451, 454-55 (5th Cir. 1984), reh. denied, 726 F.2d 168 (5th Cir. 1984). See also United States v. Nelson, 852 F.2d 706, 709-11 (3d Cir. 1988); United States v. Steele, 241 F.3d 302 (3d Cir. 2001). A term of supervised release also can constitute a pending proceeding, if the obstructive conduct occurs "‘within the time after sentencing for filing a request for reduction of sentence pursuant to Rule 35(b).’" United States v. Novak, 217 F.3d at 572.

Success is not a prerequisite to conviction under any of the clauses of section 1503. All that must be proved is that the defendant "corruptly endeavored" to obstruct justice. United States v. Aguilar, 515 U.S. 593, 599 (1995); United States v. Russell, 255 U.S. 138, 143 (1921); United States v. Jackson, 607 F.2d 1219, 1222-23 (8th Cir. 1979); United States v. McCarty, 611 F.2d 220, 224 (8th Cir. 1979).

Endeavor defined.

The Seventh Circuit Model Instructions include the following definitions of endeavor:

Influencing - Definition of Endeavor. The word endeavor describes any effort or act to influence [a witness, a juror, an officer in or of any court of the United States]. The endeavor need not be successful, but it must have at least a reasonable tendency to impede the [witness, juror, officer] in the discharge of his duties.

Obstruction of Justice Generally - Definition of Endeavor. The word endeavor describes any effort or act to influence, obstruct, or impede the due administration of justice. The endeavor need not be successful, but it must have at least a reasonable tendency to influence, obstruct, or impede the due administration of justice.

Seventh Circuit Federal Jury Instructions Criminal (1999).

In United States v. Cioffi, 493 F.2d 1111, 1119 (2d Cir. 1974), "endeavor" was defined for the jury as "any effort or any act, however contrived, to obstruct, impede or interfere . . . ."

The "corruptly" requirement incorporates the scienter element of the statute. That said, courts have defined the mental state required by the word "corruptly" within at least four different, but often overlapping, categories: a. intent to influence or obstruct justice; b. intent to do the act which results in obstruction; c. wicked or evil purpose; and d. "per se" corruption. As the court noted in United States v. Brady, 168 F.3d 574, 578 (1st Cir. 1999), a case involving a refusal to testify,:

The scienter element in the obstruction statute is the subject of more confusing case law than can be described in brief compass. In part, this results from the promiscuous use in the cases of the ambiguous word, "intent," which can mean either knowledge (of consequences) or purpose (to achieve them); in part, it results from the great range of varying motives that can underlie a refusal to testify (e.g., loyalty of various kinds, concern as to reputation, fear of reprisal, concern about self-incrimination.) Further, cases that purport to be setting legal standards are often instead concerned with the inferences to be drawn from particular facts.

The term "specific intent" is found in many definitions of "corruptly," including one approved by the Eighth Circuit: "In this case, the word ‘corruptly’ means willfully, knowingly and with specific intent to influence a juror to abrogate his or her legal duties as petit juror." United States v. Jackson, 607 F.2d at 1221-22. See also United States v. Quinn, 543 F.2d 640, 647 (8th Cir. 1976). But see United States v. Gage, 183 F.3d 711, 718-19 (7th Cir. 1999) (Chief Judge Posner, concurring) (§ 1503 does not require specific intent).

The Seventh Circuit has approved the following instruction:

Corruptly means to act with the purpose of obstructing justice. The United States is not required to prove that the defendant’s only or even main purpose was to obstruct the due administration of justice. The government only has to establish that the defendant should have reasonably seen that the natural and probable consequences of his acts was the obstruction of justice. Intent may be inferred from all of the surrounding facts and circumstances. Any act, by any party, whether lawful or unlawful on its face, may violate section 1503 if performed with a corrupt motive.

United States v. Cueto, 151 F.3d 620, 630-31 (7th Cir. 1998).

For 2000 version see below

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

2000 Version

The crime of corruptly influencing a juror1, as charged in [Count _____ of] the indictment, has three essential elements, which are:

One, (name of juror) was a [grand] juror in (describe judicial proceeding);2

Two, the defendant knew that (describe judicial proceeding) was pending; and

Three, the defendant corruptly3 endeavored4 to [influence] [intimidate] [impede] (name of juror) in the discharge of his duty as a [grand] juror.

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

Committee Comments

See Fifth Circuit Pattern Jury Instructions: Criminal § 2.67 (1997); 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 41.03 (4th ed. 1990); United States v. Fasolino, 586 F.2d 939 (2d Cir. 1978); United States v. Jackson, 607 F.2d 1219, 1222 (8th Cir. 1979), cert. denied, 444 U.S. 1080 (1980); United States v. Capo, 791 F.2d 1054, 1070 (2d Cir. 1986).

Except where retaliation is charged, a prerequisite to prosecution under all clauses of section 1503 is a pending judicial proceeding. United States v. Risken, 788 F.2d 1361, 1368 (8th Cir.), cert. denied, 479 U.S. 923 (1986); United States v. Johnson, 605 F.2d 729, 730 (4th Cir. 1979), cert. denied, 444 U.S. 1020 (1980). A grand jury proceeding is included. Riskin. The question of when a grand jury investigation commences for the purposes of section 1503 is addressed in United States v. Vesich, 724 F.2d 451, 454-55 (5th Cir. 1984), reh. denied, 726 F.2d 168 (5th Cir. 1984). See also United States v. Nelson, 852 F.2d 706, 709-11 (3d Cir.), cert. denied, 488 U.S. 909 (1988).

The defendant must know of the pendency of a judicial proceeding. Pettibone v. United States, 148 U.S. 197, 206-07 (1893); United States v. Vesich, 724 F.2d at 457. Such knowledge may be inferred from the circumstances and need not be detailed. Id. The defendant need not know that the proceeding is federal in nature. United States v. Ardito, 782 F.2d 358, 360-62 (2d Cir.), cert. denied, 475 U.S. 1141 (1986). In United States v. McKnight, 799 F.2d 443, 447 (8th Cir. 1986), the court held it was not plain error where the court had not specifically instructed the jury that defendant must have had knowledge of the judicial proceeding. The court had instructed the jury that the defendant must have acted "knowingly." The Committee recommends that the precise knowledge be set forth in the instruction. See Essential Element Two, supra.

Success is not a prerequisite to conviction under any of the clauses of section 1503. All that must be proved is that the defendant "endeavored" to obstruct justice. United States v. Aguilar, 515 U.S. 593, ___, 115 S. Ct. 2357, 2362 (1995); United States v. Russell, 255 U.S. 138, 143 (1921); United States v. Jackson, 607 F.2d at 1222-23; United States v. McCarty, 611 F.2d 220, 224 (8th Cir. 1979), cert. denied, 445 U.S. 930 (1980); United States v. Ogle, 613 F.2d 233, 239 (10th Cir. 1979), cert. denied, 449 U.S. 825, reh. denied, 449 U.S. 1026 (1980); United States v. Neiswender, 590 F.2d 1269, 1275 (4th Cir.), cert. denied, 441 U.S. 963 (1979). It does not matter if the result intended by the defendant was impossible to obtain. United States v. Nicosia, 638 F.2d 970, 975 (7th Cir. 1980), cert. denied, 452 U.S. 961 (1981).

In United States v. Russell, the Court held:

The word of the section is "endeavor" and by using it the section got rid of the technicalities which might be urged as besetting the word "attempt" and it describes any effort or essay to accomplish the evil purpose that the section was enacted to prevent.

255 U.S. at 143; Osborn v. United States, 385 U.S. 323, 332-33 (1966). "[A]n 'endeavor' under § 1503 does not require proof that would support a charge of attempt, i.e., an 'endeavor' is less than an attempt." United States v. Buffalano, 727 F.2d 50, 53 (2d Cir. 1984). See also United States v. Fasolino, 586 F.2d 939, 940-41 (2d Cir. 1978).

In United States v. Cioffi, 493 F.2d 1111, 1119 (2d Cir.), cert. denied, 419 U.S. 917 (1974), "endeavor" was defined for the jury as "any effort or any act, however contrived, to obstruct, impede or interfere . . . ."

In United States v. Silverman, 745 F.2d 1386, 1396 n.12 (11th Cir. 1984), the definition of endeavor was altered to correspond to that case's definition of "corruptly":

[E]ndeavor means to undertake an act or to attempt to effectuate an arrangement or to try to do something, the natural and probable consequences of which is to influence, obstruct or impede the due administration of justice.

See subsection "c." of these Comments for a further discussion of Silverman.

The defendant must have acted "corruptly" in order to violate the first and last clauses of section 1503. "Corruptly" applies as an alternative to threats or force or threatening letter or communication. See United States v. Cioffi, 493 F.2d 1111, 1118 n.2 (2d Cir. 1974). This instruction covers corrupt endeavors to influence jurors and Instruction 6.18.1503B, infra, covers threats and force. Instruction 6.18.1503C, infra, covers conduct violating the last or "omnibus" clause of section 1503.

No consistent definition of "corruptly" as used in this statute has developed in case law, and for this reason, no definition is suggested here. Courts have defined the mental state required by the word "corruptly" within at least four different, but often overlapping, categories: a. wicked or evil purpose; b. intent to influence or obstruct justice; c. intent to do the act which results in obstruction; and d. "per se" corruption.

a. Wicked or Evil Purpose. Several cases have held that "corruptly" means that a defendant acted with an improper motive or with an evil or wicked purpose. See United States v. Partin, 552 F.2d 621, 641 (5th Cir.), cert. denied, 434 U.S. 903 (1977); United States v. Ryan, 455 F.2d 728, 734 (9th Cir. 1971); United States v. Haldeman, 559 F.2d 31, 115 n.229 (D.C. Cir. 1976), cert. denied, 431 U.S. 933, reh. denied, 433 U.S. 916 (1977). "'Corruptly' applies to the ends of an actor's conduct rather than the means, so that any act, whether lawful or unlawful on its face, may abridge § 1503 if performed with a corrupt motive." United States v. Cintolo, 818 F.2d 980, 991-93 (1st Cir.), cert. denied, 484 U.S. 913 (1987).

The Eighth and Tenth Circuits have held that a trial court properly denied a defendant's request to have corruptly defined for the jury in terms of improper motive or bad, evil or wicked purpose. United States v. Jackson, 607 F.2d 1219, 1221-22 (8th Cir. 1979), cert. denied, 444 U.S. 1080 (1980); United States v. Ogle, 613 F.2d at 242.

In the cases which have approved such a definition of "corruptly," the definition has often been further modified to fall within one of the other categories. In Partin, the instruction defining "corruptly" further stated: "Any endeavor to influence or intimidate or impede a witness falls within the meaning of the word corruptly." 552 F.2d at 641. Likewise, in Haldeman, the instruction defining "corruptly" further stated:

In terms of proof, in order to convict any Defendant of obstruction of justice, you must be convinced beyond a reasonable doubt that the Defendant made some effort to impede or obstruct the Watergate investigation or the trial of the original Watergate defendants.

If you find, for example, that a Defendant participated in the payment of money to the original Watergate defendants for the purpose of keeping them quiet, you would be justified in finding that a corrupt endeavor to obstruct the due administration of justice occurred.

559 F.2d at 115 n.229. In Ryan, it was further held: "Specific intent to impede the administration of justice is an essential element of the offense." 455 F.2d at 734.

b. Intent to Influence or Obstruct. The act must be done with the intent to influence judicial or grand jury proceedings. United States v. Aguilar, 515 U.S. at ___, 115 S. Ct. at 2362. In an obstruction case, "if the defendant lacks knowledge that his actions are likely to affect the judicial proceeding, he lacks the requisite intent to obstruct." Id. However, intent can be inferred where the obstruction is a natural consequence of another intended act. Pettibone v. United States, 148 U.S. at 207; United States v. Jackson, 607 F.2d at 1221; United States v. Buffalano, 727 F.2d at 53-54; United States v. Petzold, 788 F.2d 1478, 1485 (11th Cir. 1986).

Many jurisdictions define "corruptly" in terms of acting with a "purpose" to influence a juror or obstruct justice or otherwise bring about a prohibited result.

"We hold that the word 'corruptly' as used in the statute means that the act must be done with the purpose of obstructing justice." United States v. Rasheed, 663 F.2d 843, 852 (9th Cir. 1981), cert. denied, 454 U.S. 1157 (1982). See also United States v. Jeter, 775 F.2d 670, 679 (6th Cir. 1985), cert. denied, 475 U.S. 1142 (1986); United States v. Machi, 811 F.2d 991, 997 (7th Cir. 1987). See also Haldeman, 559 F.2d at 115 n.229, quoted above.

See also United States v. Ogle, supra, which held:

[T]he term "corruptly" does not superimpose a special and additional element on the offense such as a desire to undermine the moral character of a juror. Rather, it is directed at an effort to bring about a particular result such as affecting the verdict . . . .

613 F.2d at 238.

The use of the word "purpose" is a good substitute for the use of the phrase "specific intent" which the Committee is recommending no longer be used in jury instructions. See Instruction 7.01, infra. "Specific intent" is found in many definitions of "corruptly," including one approved by this Circuit:

In this case, the word "corruptly" means willfully, knowingly and with specific intent to influence a juror to abrogate his or her legal duties as petit juror.

United States v. Jackson, 607 F.2d at 1221-22. See also United States v. Quinn, 543 F.2d 640, 647 (8th Cir. 1976).

2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 41.04 (4th ed. 1990) provides the following definition:

To act "corruptly" as that word is used in these instructions means to act voluntarily and deliberately and for the purpose of improperly influencing, or obstructing, or interfering with the administration of justice.

c. Intent to do an Act which Results in Obstruction. Some courts have moved away from a two-step analysis of intent, in which the jury is charged first with finding an intent to obstruct and second that such intent can be inferred from certain circumstances, to a one-step approach which defines the required intent as an intent to do an act with knowledge that obstruction will result. See United States v. Neiswender, supra. That case recognized that the same result would be arrived at by either approach, but preferred to shift the analysis away from one which involved making inferences.

Thus we hold that a defendant who intentionally undertakes an arrangement, the reasonable foreseeable consequence of which is to obstruct justice, violates § 1503 even if his hope is that the judicial machinery will not be seriously impaired.

590 F.2d at 1274.

Likewise the Eleventh Circuit has held that a requirement that the jury find an intent to obstruct is "too demanding":

One violates section 1503 by knowingly and purposefully undertaking an act, the natural and probable consequences of which is to influence, obstruct or impede due administration of justice.

United States v. Silverman, 745 F.2d 1386, 1396 (11th Cir. 1984).

And in Knight v. United States, 310 F.2d 305 (5th Cir. 1962), it was held: "This specific intent [to violate § 1503] must be to do some act or acts which tend to impede or influence, obstruct or impede the due administration of justice." 310 F.2d at 307.

d. "Per se" corruption. Although it is generally held that the question of whether an endeavor is corrupt is for the jury, United States v. Fasolino, 586 F.2d at 941; Knight v. United States, 310 F.2d at 307-08, in many of these cases, the court has further instructed the jury or held that any endeavor to obstruct is "per se" corrupt. See United States v. Partin, as quoted in these Comments; United States v. Ogle, supra, in which the court held "corruptly":

really means unlawful . . . . [A]n endeavor to influence a juror in the performance of his or her duty or to influence, obstruct or impede the due administration of justice is per se unlawful and is tantamount to doing the act corruptly.

613 F.2d at 242. See also United States v. Cioffi, 493 F.2d 1111, 1119 (2d Cir. 1974) in which the trial court instructed the jury that any endeavor, as defined, was corrupt. The definition given for endeavor in that case could be construed to encompass intent.

In other cases, courts have instructed the jury that particular conduct charged was corrupt. In United States v. Fasolino, the court instructed the jury that it could find appellant's intent to be corrupt if it determined that appellant knew that an attorney (Messina) had no personal knowledge about a defendant (Quaranta) or information relevant to his sentencing and that appellant "knew or thought that Mr. Messina had some friendship or special relationship or special association with Judge Curtin which [appellant] thought would, by itself, be persuasive with Judge Curtin." 586 F.2d at 941.

Most often, bribery or other payment of money has been defined as corrupt. See United States v. Haldeman, in which the court first defined "corruptly," then instructed the jury that the payment of money to persons to keep them quiet would be corrupt. See language quoted previously in these Comments. Such instructions are consistent with the cases which have held as a general rule that bribery is corrupt. See, e.g., United States v. Rasheed, 663 F.2d at 852.

Notes on Use

1. This clause of the statute also applies to officers of the court and certain officials.

3. The jury should be instructed on the meaning of "corruptly" in this statute. As the discussion in the Committee Comments, supra, illustrates, no one definition has been agreed on and different definitions may apply to different factual situations. The court of appeals "prefer[s] instructions phrased not in abstract legalisms, but rather in concrete terms that intelligibly describe the actual evidence or contentions of the parties." United States v. Feldhacker, 849 F.2d 293, 297 (8th Cir. 1988).

A definition which best suits the case should be formulated and used. At a minimum, there should be an intent to act and knowledge that obstruction would or could result from such act. United States v. Aguilar, supra. The Committee recommends that in formulating a definition, words such as "knowingly," "willfully" and "specific intent" not be used in favor of words which precisely describe the mental state involved. See Instructions 7.01-7.03, infra.

4. The jury should be instructed on the meaning of "endeavor." See the Committee Comments, supra, for possible definitions.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1503B
INFLUENCING A JUROR BY THREATS
(18 USC 1503)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Corruptly Influencing A Juror (18 USC 1503)

The crime of influencing a juror¹ by threats, as charged in [Count of] the indictment, has three elements, which are:

One, (name of juror) was a [grand] juror in (describe judicial proceeding);²

Two, the defendant knew that (describe judicial proceeding) was pending; and

Three, that the defendant endeavored³ to [influence] [intimidate] [impede] (name of juror) in the discharge of his duty as a [grand] juror by [threats] [force] [threatening letter] [threatening communication].

[Four, (state the sentencing fact that triggers a higher maximum sencence,⁴ e.g., the crime under consideration by the juror was (name the Class A or Class B felony charged⁵).]

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

Notes on Use

1. This clause of the statute also applies to officers of the court and certain other officials.

3. The jury should be instructed on the meaning of "endeavor." See Committee Comments, Instruction 6.18.1503A, supra, for possible definitions.

5. If a killing or attempted killing is charged, see Instructions 6.18.1111, 6.18.1112, and 8.01 (attempt).

Committee Comments

See Committee Comments, Instruction 6.18.1503A, supra.

(For 2008 version see below).

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

2008 Version

The crime of influencing a juror¹ by threats, as charged in [Count of] the indictment, has three elements, which are:

One, (name of juror) was a [grand] juror in (describe judicial proceeding);²

Two, the defendant knew that (describe judicial proceeding) was pending; and

Three, that the defendant endeavored³ to [influence] [intimidate] [impede] (name of juror) in the discharge of his duty as a [grand] juror by [threats] [force] [threatening letter] [threatening communication].

[Four, (state the sentencing fact that triggers a higher maximum sencence,⁴ e.g., the crime under consideration by the juror was (name the Class A or Class B felony charged⁵).]

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

Notes on Use

1. This clause of the statute also applies to officers of the court and certain other officials.

3. The jury should be instructed on the meaning of "endeavor." See Committee Comments, Instruction 6.18.1503A, supra, for possible definitions.

5. If a killing or attempted killing is charged, see Instructions 6.18.1111, 6.18.1112, and 8.01 (attempt).

Committee Comments

See Committee Comments, Instruction 6.18.1503A, supra.

(For 2006 version see below)

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

2006 Version

The crime of influencing a juror1 by threats, as charged in [Count of] the indictment, has three elements, which are:

One, (name of juror) was a [grand] juror in (describe judicial proceeding);2

Two, the defendant knew that (describe judicial proceeding) was pending; and

Three, that the defendant endeavored3 to [influence] [intimidate] [impede] (name of juror) in the discharge of his duty as a [grand] juror by [threats] [force] [threatening letter] [threatening communication].

[Four, (state the sentencing fact that triggers a higher maximum sencence,4 e.g., the crime under consideration by the juror was (name the Class A or Class B felony charged5).]

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

Notes on Use

1. This clause of the statute also applies to officers of the court and certain other officials.

3. The jury should be instructed on the meaning of "endeavor." See Committee Comments, Instruction 6.18.1503A, supra, for possible definitions.

5. If a killing or attempted killing is charged, see Instructions 6.18.1111, 6.18.1112, and 8.01 (attempt).

Committee Comments

See Committee Comments, Instruction 6.18.1503A, supra.

For 2000 version see below

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

2000 Version

The crime of influencing a juror1 by threats, as charged in [Count of] the indictment, has three essential elements, which are:

One, (name of juror) was a [grand] juror in (describe judicial proceeding);2

Two, defendant knew that (describe judicial proceeding) was pending; and

Three, that the defendant endeavored3 to [influence] [intimidate] [impede] (name of juror) in the discharge of his duty as a [grand] juror by [threats] [force] [threatening letter] [threatening communication].

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

Committee Comments

See Fifth Circuit Pattern Jury Instructions: Criminal § 2.67 (1997) and Committee Comments, Instruction 6.18.1503A, supra.

Proof of direct threats is not required. A communication can be threatening where it contains veiled threats by references to other persons or situations sufficient to frighten or intimidate the listener. United States v. Cioffi, 493 F.2d 1111, 1118 (2d Cir.), cert. denied, 419 U.S. 917 (1974).

Notes on Use

1. This clause of the statute also applies to officers of the court and certain other officials.

3. The jury should be instructed on the meaning of "endeavor." See Committee Comments, Instruction 6.18.1503A, supra, for possible definitions.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1503C
OBSTRUCTION OF JUSTICE
(18 USC 1503)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Obstructing Due Administration Of Justice (18 USC 1503)

The crime of obstruction of justice¹, as charged in [Count _____ of] the indictment, has three elements, which are:

One, the defendant (describe conduct and judicial proceeding², e.g., destroyed documents which had been subpoenaed in an investigation by a federal grand jury);

Two, the defendant knew that (describe judicial proceeding) was pending; and

Three, by (describe conduct, e.g., destroying said documents), the defendant corruptly endeavored³ to [influence] [obstruct] [impede] the due administration of justice.

[Four, (state the sentencing fact that triggers a higher maximum sencence,⁴ e.g., the crime under consideration by the juror was (name the Class A or Class B felony charged⁵).]

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

Notes on Use

1. "Obstruction of justice" refers to the conduct barred by the last clause of section 1503, known as the omnibus clause.

3. The jury should be instructed on the meaning of "corruptly endeavored" in this statute. As the discussion in the Committee Comments, Instruction 6.18.1503A, supra, illustrates, no one definition has been agreed on and different definitions may apply to different factual situations. A definition which best suits the case should be formulated and used. It should include an intent to act and knowledge that obstruction would or could result from such act. "[T]he act must have a relationship in time, causation or logic with the judicial proceedings," and "if the defendant lacks knowledge that his actions are likely to affect the judicial proceeding, he lacks the requisite intent to obstruct." United States v. Aguilar, 515 U.S. 593, 599 (1995). The Committee recommends that in formulating a definition of "corruptly endeavored," words such as "knowingly," "willfully" and "specific intent" not be used in favor of words which precisely describe the mental state involved. See Instructions 7.01-.03, infra.

5. If a killing or attempted killing is charged, see Instructions 6.18.1111, 6.18.1112, and 8.01 (attempt).

Committee Comments

See Committee Comments, Instruction 6.18.1503A, supra; United States v. Frank, 354 F.3d 910 (8^th Cir. 2004); United States v. Russell, 234 F.3d 404 (8^th Cir. 2000); United States v. Novak, 217 F.3d 566 (8^th Cir. 2000); United States v. Lefkowitz, 125 F.3d 608 (8^th Cir. 1997); United States v. McKnight, 799 F.2d 443, 446 (8th Cir. 1986).

The omnibus clause of section 1503 applies to witnesses and prospective witnesses where there is a pending judicial proceeding. United States v. Risken, 788 F.2d 1361, 1367-68 (8th Cir. 1986); United States v. Shannon, 836 F.2d 1125, 1128 (8th Cir. 1988). The Eighth Circuit has held that the witness need not be actually scheduled to testify nor must he or she actually give testimony at a later time. Shannon, id. However, in United States v. Aguilar, 515 U.S. at 601 , the Supreme Court held that the giving of false testimony to "an investigating agent who ha[d] not been subpoenaed or otherwise directed to appear before the grand jury" was not a violation of this section.

(For 2008 version see below).

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

2008 Version

The crime of obstruction of justice¹, as charged in [Count _____ of] the indictment, has three elements, which are:

One, the defendant (describe conduct and judicial proceeding², e.g., destroyed documents which had been subpoenaed in an investigation by a federal grand jury);

Two, the defendant knew that (describe judicial proceeding) was pending; and

Three, by (describe conduct, e.g., destroying said documents), the defendant corruptly endeavored³ to [influence] [obstruct] [impede] the due administration of justice.

[Four, (state the sentencing fact that triggers a higher maximum sencence,⁴ e.g., the crime under consideration by the juror was (name the Class A or Class B felony charged⁵).]

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

Notes on Use

1. "Obstruction of justice" refers to the conduct barred by the last clause of section 1503, known as the omnibus clause.

5. If a killing or attempted killing is charged, see Instructions 6.18.1111, 6.18.1112, and 8.01 (attempt).

Committee Comments

(For 2006 version see below)

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

2006 Version

The crime of obstruction of justice1, as charged in [Count _____ of] the indictment, has three elements, which are:

One, the defendant (describe conduct and judicial proceeding2, e.g., destroyed documents which had been subpoenaed in an investigation by a federal grand jury);

Two, the defendant knew that (describe judicial proceeding) was pending; and

Three, by (describe conduct, e.g., destroying said documents), the defendant corruptly endeavored3 to [influence] [obstruct] [impede] the due administration of justice.

[Four, (state the sentencing fact that triggers a higher maximum sencence,4 e.g., the crime under consideration by the juror was (name the Class A or Class B felony charged5).]

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

Notes on Use

1. "Obstruction of justice" refers to the conduct barred by the last clause of section 1503, known as the omnibus clause.

5. If a killing or attempted killing is charged, see Instructions 6.18.1111, 6.18.1112, and 8.01 (attempt).

Committee Comments

See Committee Comments, Instruction 6.18.1503A, supra; United States v. Frank, 354 F.3d 910 (8th Cir. 2004); United States v. Russell, 234 F.3d 404 (8th Cir. 2000); United States v. Novak, 217 F.3d 566 (8th Cir. 2000); United States v. Lefkowitz, 125 F.3d 608 (8th Cir. 1997); United States v. McKnight, 799 F.2d 443, 446 (8th Cir. 1986).

For 2000 version see below

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

2000 Version

The crime of obstruction of justice1, as charged in [Count _____ of] the indictment, has three essential elements, which are:

One, defendant (describe conduct and judicial proceeding2, e.g., destroyed documents which had been subpoenaed in an investigation by a federal grand jury);

Two, defendant knew that (describe judicial proceeding) was pending; and

Three, by (describe conduct, e.g., destroying said documents), the defendant corruptly3 endeavored4 to [influence] [obstruct] [impede] the due administration of justice.

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

Committee Comments

See United States v. McKnight, 799 F.2d 443, 446 (8th Cir. 1986); United States v. Silverman, 745 F.2d 1386, 1392 (11th Cir. 1984). See generally United States v. Cintolo, 818 F.2d 980, 990-97 (1st Cir.), cert. denied, 484 U.S. 913 (1987).

See Committee Comments, Instruction 6.18.1503A, supra.

Interference with the due administration of justice is "conduct designed to interfere with the process of arriving at an appropriate judgment in a pending case and which would disturb the ordinary and proper functions of the court." Haili v. United States, 260 F.2d 744, 746 (9th Cir. 1958). See further United States v. Rasheed, 663 F.2d 843, 851-52 (9th Cir. 1981), cert. denied, 454 U.S. 1157 (1982). See also 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 41.03 (4th ed. 1990).

The omnibus clause of section 1503 still applies to witnesses and prospective witnesses where there is a pending judicial proceeding. United States v. Riskin, 788 F.2d at 1367-68 (8th Cir.), cert. denied, 479 U.S. 923 (1986); United States v. Shannon, 836 F.2d 1125, 1128 (8th Cir.), cert. denied, 486 U.S. 1058 (1988). The Eighth Circuit has held that the witness need not be actually scheduled to testify nor must he or she actually give testimony at a later time. Shannon, id. However, in United States v. Aguilar, 515 U.S. 593 ___, 115 S. Ct. 2357, 2363 (1995), the Supreme Court held that the giving of false testimony to "an investigating agent who ha[d] not been subpoenaed or otherwise directed to appear before the grand jury" was not a violation of this section.

Notes on Use

1. "Obstruction of justice" refers to the conduct barred by the last clause of section 1503, known as the omnibus clause.

2. This instruction is designed for the usual case in which the pendency of a judicial proceeding is undisputed. If this question is disputed, it should be submitted to the jury under proper definitional instructions. See United States v. Vesich, 724 F.2d 451, 454 (5th Cir.), reh. denied, 726 F.2d 168 (5th Cir. 1984).

3. The jury should be instructed on the meaning of "corruptly" in this statute. As the discussion in the Committee Comments, Instruction § 6.18.1503A, supra, illustrates, no one definition has been agreed on and different definitions may apply to different factual situations. A definition which best suits the case should be formulated and used. It should include an intent to act and knowledge that obstruction would or could result from such act. "[T]he act must have a relationship in time, causation or logic with the judicial proceedings," and "if the defendant lacks knowledge that his actions are likely to affect the judicial proceeding, he lacks the requisite intent to obstruct." United States v. Aguilar, 515 U.S. at ___, 115 S. Ct. at 2362. The Committee recommends that in formulating a definition of "corruptly," words such as "knowingly," "willfully" and "specific intent" not be used in favor of words which precisely describe the mental state involved. See Instructions 7.01-7.03, infra.

4. The jury should be instructed on the meaning of "endeavor." See Committee Comments, Instruction 6.18.1503A, supra, for possible definitions.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1510
OBSTRUCTION OF CRIMINAL INVESTIGATIONS
(18 USC 1510(a))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Obstruction Of Criminal Investigations (18 USC 1510(a))

The crime of obstructing a criminal investigation by bribery, as charged in [Count of] the indictment, has three elements, which are:

One, the defendant [believed]¹ [knew] that (name of person) had information relating to (describe violation of a federal criminal statute, e.g., theft of Government property);

Two, the defendant [believed] [knew] that (name of person) might communicate the information to [a federal criminal investigator] [an agent of the (name of federal agency, e.g., Federal Bureau of Investigation)]²; and

Three, the defendant voluntarily and intentionally endeavored³ to [obstruct] [delay] [prevent] the communication of the information to [a federal criminal investigator] [an agent of the (name of federal agency, e.g., Federal Bureau of Investigation)]⁴ by [giving] [offering] [promising] something of value⁵ to (name of person).

[A "federal criminal investigator," as used in this instruction, is any individual duly authorized by a department, agency, or armed force of the United States to investigate or prosecute violations of federal criminal law.]⁶

[To "endeavor" means to make any effort, regardless of success.]³

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

Notes on Use

1. "[I]t is only necessary for a defendant to have believed that a witness might give information to federal officials, and to have prevented this communication, to violate 18 USC 1510." United States v. Leisure, 844 F.2d 1347, 1364 (8th Cir. 1988).

2. The defendant must know or believe that the intended recipient of the information is a federal investigator. United States v. Williams, 470 F.2d 1339, 1342 (8th Cir. 1973).

3. The statute says, "Whoever willfully endeavors by means of bribery to obstruct. . . ." [Emphasis added.] The Committee recommends that the instruction include the following definition: "To ‘endeavor’ means to make any effort, regardless of success." See United States v. Russell, 255 U.S. 138 (1921), quoted in Osborn v. United States, 385 U.S. 323, 333 (1966), and in Jackson v. United States, 444 U.S. 1080 (1980). An "endeavor" to obstruct can be less than an "attempt." See discussion in United States v. Leisure, 844 F.2d at 1366.

4. If the evidence shows that the defendant endeavored to obstruct communication to a particular agency or investigator, such agency or investigator can be described in elements One and Two.

5. See Instruction 6.18.201A.

6. "Criminal investigator" should be defined if the term is used in elements One and Two. The definition paraphrases the language in 18 USC 1510(c).

Committee Comments

See 2 J. Potuto, S. Saltzburg & H. Perlman, FEDERAL CRIMINAL JURY INSTRUCTIONS, § 51.07 (2d ed. 1993 Supp.); 1A L. Sand, et al., MODERN FEDERAL JURY INSTRUCTIONS, ¶ 46.03 (1995).

Section 1510(a) is limited to obstruction by means of bribery after amendments by the Victim and Witness Protection Act, effective October 12, 1982. United States v. Leisure, 844 F.2d 1347, 1364 (8th Cir. 1988). Obstruction of justice by means of threats or intimidation is covered by 18 USC 1512. Id.

The instruction does not require proof that the defendant had knowledge of an actual criminal investigation. See United States v. Leisure and Note 1, supra. The Seventh Circuit has remarked, in dicta, that, "It is unclear, however, whether the statute is applicable if there is no criminal investigation known to be in progress." United States v. Van Engel, 15 F.3d 623, 627 (7th Cir. 1993) (citing United States v. Daly, 842 F.2d 1380, 1390-91 (2d Cir. 1988), Leisure and United States v. Carzoli, 447 F.2d 774, 779 (7th Cir. 1971) ("An element of [a § 1510 offense] is an actual, existing investigation of possible violation of a criminal statute.")). Cf. United States v. Aguilar, 515 U.S. 593, 599 (1995) (not a violation of 18 USC 1503 to give false information to an FBI agent without proof that the defendant knew his actions were likely to affect a grand jury proceeding).

(For 2008 version see below).

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

2008 Version

6.18.1510A
OBSTRUCTION OF CRIMINAL INVESTIGATIONS
(18 USC 1510(a))

The crime of obstructing a criminal investigation by bribery, as charged in [Count of] the indictment, has three elements, which are:

One, the defendant [believed]¹ [knew] that (name of person) had information relating to (describe violation of a federal criminal statute, e.g., theft of Government property);

Two, the defendant [believed] [knew] that (name of person) might communicate the information to [a federal criminal investigator] [an agent of the (name of federal agency, e.g., Federal Bureau of Investigation)]²; and

Three, the defendant voluntarily and intentionally endeavored³ to [obstruct] [delay] [prevent] the communication of the information to [a federal criminal investigator] [an agent of the (name of federal agency, e.g., Federal Bureau of Investigation)]⁴ by [giving] [offering] [promising] something of value⁵ to (name of person).

[A "federal criminal investigator," as used in this instruction, is any individual duly authorized by a department, agency, or armed force of the United States to investigate or prosecute violations of federal criminal law.]⁶

[To "endeavor" means to make any effort, regardless of success.]³

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

Notes on Use

2. The defendant must know or believe that the intended recipient of the information is a federal investigator. United States v. Williams, 470 F.2d 1339, 1342 (8th Cir. 1973).

4. If the evidence shows that the defendant endeavored to obstruct communication to a particular agency or investigator, such agency or investigator can be described in elements One and Two.

5. See Instruction 6.18.201A.

6. "Criminal investigator" should be defined if the term is used in elements One and Two. The definition paraphrases the language in 18 USC 1510(c).

Committee Comments

See 2 J. Potuto, S. Saltzburg & H. Perlman, FEDERAL CRIMINAL JURY INSTRUCTIONS, § 51.07 (2d ed. 1993 Supp.); 1A L. Sand, et al., MODERN FEDERAL JURY INSTRUCTIONS, ¶ 46.03 (1995).

(For 2006 version see below)

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

2006 Version

The crime of obstructing a criminal investigation by bribery, as charged in [Count of] the indictment, has three elements, which are:

One, the defendant [believed]1 [knew] that (name of person) had information relating to (describe violation of a federal criminal statute, e.g., theft of Government property);

Two, the defendant [believed] [knew] that (name of person) might communicate the information to [a federal criminal investigator] [an agent of the (name of federal agency, e.g., Federal Bureau of Investigation)]2; and

Three, the defendant voluntarily and intentionally endeavored3 to [obstruct] [delay] [prevent] the communication of the information to [a federal criminal investigator] [an agent of the (name of federal agency, e.g., Federal Bureau of Investigation)]4 by [giving] [offering] [promising] something of value5 to (name of person).

[A "federal criminal investigator," as used in this instruction, is any individual duly authorized by a department, agency, or armed force of the United States to investigate or prosecute violations of federal criminal law.]6

[To "endeavor" means to make any effort, regardless of success.]3

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

Notes on Use

2. The defendant must know or believe that the intended recipient of the information is a federal investigator. United States v. Williams, 470 F.2d 1339, 1342 (8th Cir. 1973).

4. If the evidence shows that the defendant endeavored to obstruct communication to a particular agency or investigator, such agency or investigator can be described in elements One and Two.

5. See Instruction 6.18.201A.

6. "Criminal investigator" should be defined if the term is used in elements One and Two. The definition paraphrases the language in 18 USC 1510(c).

Committee Comments

See 2 J. Potuto, S. Saltzburg & H. Perlman, FEDERAL CRIMINAL JURY INSTRUCTIONS, § 51.07 (2d ed. 1993 Supp.); 1A L. Sand, et al., MODERN FEDERAL JURY INSTRUCTIONS, ¶ 46.03 (1995).

For 2000 version see below

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

2000 Version

The crime of obstructing a criminal investigation by bribery, as charged in [Count of] the indictment, has three essential elements, which are:

One, the defendant [believed]1 [knew] that (name of person) had information relating to (describe violation of a federal criminal statute, e.g., theft of Government property);

Two, defendant [believed] [knew] that (name of person) might communicate the information to [a federal criminal investigator] [an agent of the (name of federal agency, e.g., Federal Bureau of Investigation)]2; and

Three, defendant voluntarily and intentionally endeavored3 to [obstruct] [delay] [prevent] the communication of the information to [a federal criminal investigator] [an agent of the (name of federal agency, e.g., Federal Bureau of Investigation)]4 by [giving] [offering] [promising] something of value5 to (name of person).

[A "federal criminal investigator," as used in this instruction, is any individual duly authorized by a department, agency, or armed force of the United States to investigate or prosecute violations of federal criminal law.]6

[To "endeavor" means to make any effort, regardless of success.]3

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

Committee Comments

See 2 J. Potuto, S. Saltzburg & H. Perlman, FEDERAL CRIMINAL JURY INSTRUCTIONS, § 51.07 (2d ed. 1993 Supp.); 1A L. Sand, et al., MODERN FEDERAL JURY INSTRUCTIONS, ¶ 46.03 (1995).

Section 1510(a) is limited to obstruction by means of bribery after amendments by the Victim and Witness Protection Act, effective October 12, 1982. United States v. Leisure, 844 F.2d 1347, 1364 (8th Cir.), cert. denied, 488 U.S. 932 (1988). Obstruction of justice by means of threats or intimidation is covered by 18 USC 1512. Id.

The instruction does not require proof that defendant had knowledge of an actual criminal investigation. See United States v. Leisure, supra, and Note 1, infra. The Seventh Circuit has remarked, in dicta, that, "It is unclear, however, whether the statute is applicable if there is no criminal investigation known to be in progress." United States v. Van Engel, 15 F.3d 623, 627 (7th Cir. 1993), cert. denied, 511 U.S. 1142 (1994) (citing United States v. Daly, 842 F.2d 1380, 1390-91 (2d Cir.), cert. denied, 488 U.S. 821 (1988), Leisure, supra, and United States v. Carzoli, 447 F.2d 774, 779 (7th Cir. 1971), cert. denied, 404 U.S. 1015 (1972) ("An element of [a § 1510 offense] is an actual, existing investigation of possible violation of a criminal statute.")). Cf. United States v. Aguilar, 515 U.S. 593, ___, 115 S. Ct. 2357, 2362 (1995) (not a violation of 18 USC 1503 to give false information to an FBI agent without proof that defendant knew his actions were likely to affect a grand jury proceeding).

Notes on Use

2. Defendant must know or believe that the intended recipient of the information is a federal investigator. United States v. Williams, 470 F.2d 1339, 1342 (8th Cir.), cert. denied, 411 U.S. 936 (1973).

3. The statute says, "Whoever willfully endeavors by means of bribery to obstruct. . . ." [Emphasis added.] The Committee recommends that the instruction include the following definition: "To ‘endeavor’ means to make any effort, regardless of success." See United States v. Russell, 255 U.S. 138 (1921), quoted in Osborn v. United States, 385 U.S. 323, 333 (1966), and in United States v. Jackson, 444 U.S. 1080 (1980). An "endeavor" to obstruct can be less than an "attempt." See discussion in United States v. Leisure, supra, 844 F.2d at 1366.

4. If the evidence shows that defendant endeavored to obstruct communication to a particular agency or investigator, such agency or investigator can be described in elements One and Two.

5. See Instruction 6.18.201A. 6. "Criminal investigator" should be defined if the term is used in elements One and Two. The definition paraphrases the language in 18 USC 1510(c).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1512
TAMPERING WITH A WITNESS
(18 USC 1512(b)(1))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Tampering With A Witness (18 USC 1512(b)(1)(A))

The crime of tampering with a witness,¹ as charged in [Count of] the indictment, has two elements, which are:

One, the defendant knowingly used [intimidation]² [threats] [corrupt persuasion]³ against (name of witness); and

Two, the defendant did so with intent to [influence] [delay] [prevent] the testimony of (name of witness) in (insert title of official proceeding).^{4, 5, 6}

[To "intimidate" someone means intentionally to say or do something that would cause a person of ordinary sensibilities to be fearful of harm to himself or another. It is not necessary for the Government to prove that (name of witness) was actually frightened.]

[To corruptly persuade someone means to persuade with consciousness of wrongdoing.]

[To act with "intent to influence" the testimony of a person means to act for the purpose of getting the person to change or color or shade his or her testimony in some way. It is not necessary for the Government to prove that the person's testimony was, in fact, changed in any way.]

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

Notes on Use

1. The form chosen for this model instruction deals only with certain violations under the statute as set forth in 18 USC 1512(b)(1). As amended in 2002 (see Pub. L. No. 107-273, § 3001, 116 Stat. 1758 (2002)), section 1512(a)(1) prohibits the killing or attempting to kill a witness and other tampering involving an attempt to kill another person; section 1512(a)(2) prohibits the use of physical force or the threat of physical force in connection with witness tampering and other activities; section 1512(b)(1), (2), and (3) also prohibit other forms of witness tampering; section 1512(c) prohibits the destruction of evidence (see Pub. L. No. 107-204, § 1102, 116 Stat. 1745 (2002)); and section 1512(d) sets forth a misdemeanor offense of intentionally harassing another person. For offenses committed prior to the 2002 Amendments to the statutes, this instruction should be modified to reflect the statute as it was worded prior to the 2002 Amendments. Where other types of violations are involved, it will be necessary to change the form of the elements, and it may be necessary to add other elements as well.

2. Title 18 USC 1512(b)(1) specifically prohibits attempts to violate the statute. If an attempt offense is submitted, this instruction must be appropriately modified. See Instruction 8.01 of these Model Jury Instructions.

3. Under 18 USC 1515(a)(6), the term "‘corrupt persuasion’ does not include conduct which would be misleading conduct but for a lack of a state of mind." There must be consciousness of wrongdoing. See Arthur Anderson v. United States, 544 U.S. 696 (2005).

4. "Official proceeding" is defined in 18 USC 1515(a)(1). The defendant need not know that the proceeding was a federal proceeding. Further, it is not necessary that a proceeding actually be pending or about to be instituted. See 18 USC 1512(n)(1) and (g)(1). Additional definitions are contained in 18 USC 1515. The defendant must, however, contemplate some particular official proceeding in which the testimony might be material. See Arthur Anderson v. United States, 544 U.S. 696 (2005), and United States v. Aguilar, 515 U.S. 593, 599 (1995).

5. This crime allows for an enhancement of punishment where the violation "occurs in connection with a trial of a criminal case." 18 USC 1512(j). In such cases, therefore, the second element of the offense should specify that the official proceeding was a trial of a criminal case.

6. Title 18 USC 1512(e) provides: "In a prosecution for an offense under this section, it is an affirmative defense, as to which the defendant has the burden of proof by a preponderance of the evidence, that the conduct consisted solely of lawful conduct and that the defendant’s sole intention was to encourage, induce, or cause the other person to testify truthfully." Section 1515(c) states: "This chapter does not prohibit or punish the providing of lawful, bona fide, legal representation services in connection with or in anticipation of an official proceeding." These affirmative defenses should be submitted under appropriate instructions to the jury if there are facts to support these defenses at trial. See § 9.00 of these Pattern Instructions (affirmative defenses).

Committee Comments

See 18 USC 1512(f)(g) and (i) and 18 USC 1515 for provisions which define or modify this statute.

Before 1982, tampering with and retaliation against federal witnesses was covered exclusively by 18 USC 1503. See Instructions 6.18.1503A and 6.18.1503B, supra. Now, these offenses are specifically proscribed by 18 USC 1512 and 1513. Section 1512 was intended to provide greater protection for witnesses than did section 1503; however, section 1503 still applies to certain types of conduct involving witnesses. See United States v. Risken, 788 F.2d 1361, 1365-69 (8th Cir. 1986), for an extensive analysis and comparison of the respective scopes of sections 1503 and 1512.

(For 2008 version see below).

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

2008 Version

The crime of tampering with a witness,¹ as charged in [Count of] the indictment, has two elements, which are:

One, the defendant knowingly used [intimidation]² [threats] [corrupt persuasion]³ against (name of witness); and

Two, the defendant did so with intent to [influence] [delay] [prevent] the testimony of (name of witness) in (insert title of official proceeding).^{4, 5, 6}

[To "intimidate" someone means intentionally to say or do something that would cause a person of ordinary sensibilities to be fearful of harm to himself or another. It is not necessary for the Government to prove that (name of witness) was actually frightened.]

[To corruptly persuade someone means to persuade with consciousness of wrongdoing.]

[To act with "intent to influence" the testimony of a person means to act for the purpose of getting the person to change or color or shade his or her testimony in some way. It is not necessary for the Government to prove that the person's testimony was, in fact, changed in any way.]

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

Notes on Use

Committee Comments

See 18 USC 1512(f)(g) and (i) and 18 USC 1515 for provisions which define or modify this statute.

(For 2006 version see below)

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

2006 Version

The crime of tampering with a witness,1 as charged in [Count of] the indictment, has two elements, which are:

One, the defendant knowingly used [intimidation]2 [threats] [corrupt persuasion]3 against (name of witness); and

Two, the defendant did so with intent to [influence] [delay] [prevent] the testimony of (name of witness) in (insert title of official proceeding).4, 5, 6

[To "intimidate" someone means intentionally to say or do something that would cause a person of ordinary sensibilities to be fearful of harm to himself or another. It is not necessary for the Government to prove that (name of witness) was actually frightened.]

[To corruptly persuade someone means to persuade with consciousness of wrongdoing.]

[To act with "intent to influence" the testimony of a person means to act for the purpose of getting the person to change or color or shade his or her testimony in some way. It is not necessary for the Government to prove that the person's testimony was, in fact, changed in any way.]

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

Notes on Use

Committee Comments

See 18 USC 1512(f)(g) and (i) and 18 USC 1515 for provisions which define or modify this statute.

For 2000 version see below

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

2000 Version

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

One, the defendant knowingly used [intimidation] [physical force]1 against (name of witness); and

Two, the defendant did so with intent to [influence] [delay] [prevent] the testimony of (name of witness) in (insert title of official proceeding).2

[To "intimidate" someone means intentionally to say or do something that would cause a person of ordinary sensibilities to be fearful of harm to himself or another. It is not necessary for the Government to prove that (name of witness) was actually frightened.]

[To use "physical force" against someone means to take physical action against another and includes confinement.]3

[To act with "intent to influence" the testimony of a person means to act for the purpose of getting the person to change or color or shade his or her testimony in some way. It is not necessary for the Government to prove that the person's testimony was, in fact, changed in any way.]

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

Committee Comments

See Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 47.2 (1997).

See sections 1512(d)(e)(f) and (g) and 1515 for provisions which define or modify this statute.

Before 1982, tampering with and retaliation against federal witnesses was covered exclusively by section 1503. See Instructions 6.18.1503A and 6.18.1503B, supra. Now, these offenses are specifically proscribed by 18 USC§ 1512 and 1513. Section 1512 was intended to provide greater protection for witnesses than did section 1503; however, section 1503 still applies to certain types of conduct involving witnesses. See United States v. Risken, 788 F.2d 1361, 1365-69 (8th Cir.), cert. denied, 479 U.S. 923 (1986) for an extensive analysis and comparison of the respective scopes of sections 1503 and 1512.

Success is not a prerequisite to conviction under section 1512. Nor must the government show that the defendant intended to carry out the threat. All that must be proved is that the defendant intended to impermissibly influence the witness. United States v. Maggit, 784 F.2d 590, 593-94 (5th Cir. 1986); United States v. Wilson, 796 F.2d 55, 57 (4th Cir. 1986), cert. denied, 479 U.S. 1039 (1987); United States v. Murray, 751 F.2d 1528, 1534 (9th Cir.), cert. denied, 474 U.S. 979 (1985).

It is not necessary that the victim be under subpoena or a scheduled witness in a case. The statute purposely uses the term "person" instead of "witness." United States v. Risken, 788 F.2d at 1368-69 [dismissed witness]; United States v. Wilson, 796 F.2d at 57 n.4 [excused witness]; United States v. DiSalvo, 631 F. Supp. 1398, 1402 (E.D. Pa. 1986) [potential witness].

Notes on Use

1. Title 18 USC 1512 is quite broad, and covers a variety of things: knowingly threatening or attempting to threaten another person, by intimidation or physical force, or engaging in misleading conduct toward another person, with intent to influence that person's testimony in an official proceeding, or with intent to cause that person to withhold testimony or do a variety of other things related to an official proceeding; hindering, delaying or preventing communication with federal law enforcement officials or judges regarding federal offenses, probation violations, etc.; or harassing another person with the effect of hindering, delaying, preventing, etc., that person from testifying in an official proceeding or from reporting federal crimes, making federal arrests, etc.

The form chosen for this model instruction deals only with one particular form of violation under the statute. Where other types of violations are involved, it will obviously be necessary to change the form of the elements, and it may be necessary to add other elements as well. Additional definitions are contained in 18 USC 1515.

2. "Official proceeding" is defined in 18 USC 1515(a)(1). The defendant need not know that the proceeding was a federal proceeding. Further, it is not necessary that a proceeding actually be pending or about to be instituted. See 18 USC 1512(c)(1) and (f)(1).

3. "Physical force" is defined in 18 USC 1515(a)(2).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1513
RETALIATING AGAINST A WITNESS
(18 USC 1513)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Retaliating Against A Witness (18 USC 1513)

The crime of retaliating against a witness, as charged in [Count of] the indictment, has two elements, which are:

One, the defendant knowingly [caused] [threatened to cause] [bodily injury to] [damaged] [threatened to damage] [the tangible property of] (name of witness); and

Two, the defendant did so with intent to retaliate against (name of witness) because [he] [she] had been a [witness] [party] at (insert title of official proceeding).¹

[(Describe tangible property) is tangible property].²

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

Notes on Use

1. "Official proceeding" is defined in 18 USC 1515(a)(1).

2. "Tangible property" is not defined in the Act.

Committee Comments

See Committee Comments, Instruction 6.18.1512, supra. See generally United States v. Maggitt, 784 F.2d 590, 593-94 (5th Cir. 1986); United States v. Velasquez, 772 F.2d 1348, 1356-58 (7th Cir. 1985). Definitions are contained in 18 USC 1515.

(For 2008 version see below).

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

2008 Version

The crime of retaliating against a witness, as charged in [Count of] the indictment, has two elements, which are:

One, the defendant knowingly [caused] [threatened to cause] [bodily injury to] [damaged] [threatened to damage] [the tangible property of] (name of witness); and

Two, the defendant did so with intent to retaliate against (name of witness) because [he] [she] had been a [witness] [party] at (insert title of official proceeding).¹

[(Describe tangible property) is tangible property].²

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

Notes on Use

1. "Official proceeding" is defined in 18 USC 1515(a)(1).

2. "Tangible property" is not defined in the Act.

Committee Comments

(For 2006 version see below)

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

2006 Version

The crime of retaliating against a witness, as charged in [Count of] the indictment, has two elements, which are:

One, the defendant knowingly [caused] [threatened to cause] [bodily injury to] [damaged] [threatened to damage] [the tangible property of] (name of witness); and

Two, the defendant did so with intent to retaliate against (name of witness) because [he] [she] had been a [witness] [party] at (insert title of official proceeding).1

[(Describe tangible property) is tangible property].2

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

Notes on Use

1. "Official proceeding" is defined in 18 USC 1515(a)(1).

2. "Tangible property" is not defined in the Act.

Committee Comments

For 2000 version see below

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

2000 Version

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

One, the defendant knowingly [caused] [threatened to cause] [bodily injury to] [damaged] [threatened to damage] [the tangible property of] (name of witness); and

Two, the defendant did so with intent to retaliate against (name of witness) because [he] [she] had been a [witness] [party] at (insert title of official proceeding).1

[(Describe tangible property) is tangible property].2

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

Committee Comments

See Committee Comments, Instruction 6.18.1512, supra. See generally United States v. Maggitt, 784 F.2d 590, 593-94 (5th Cir. 1986); United States v. Velasquez, 772 F.2d 1348, 1356-58 (7th Cir. 1985), cert. denied, 475 U.S. 1021 (1986). Definitions are contained in 18 USC 1515.

Notes on Use

1. "Official proceeding" is defined in 18 USC 1515(a)(1).

2. "Tangible property" is not defined in the Act. Under common law "tangible property" is that which may be felt or touched, and is necessarily corporeal, although it may be either real or personal. H.D. & J.K. Crosswell, Inc., v. Jones, 52 F.2d 880, 883 (E.D.S.C. 1931).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1621 PERJURY
(18 USC 1621)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Perjury (18 USC 1621)

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

One, the defendant testified under [oath] [affirmation] (describe proceeding, e.g., at the trial of Smith v. Jones) that (insert alleged false testimony);

Two, the testimony so given was false;¹

Three, at the time he testified, the defendant knew such testimony was false;

Four, the defendant voluntarily and intentionally² gave such testimony; and

Five, the false testimony was material.³

False testimony is "material" if the testimony is capable of influencing (insert name of tribunal, etc.) on the issue before it.

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

Notes on Use

1. In many cases, more than one specification of perjury or more than one false declaration is charged in a single count of an indictment. Typically these charges are in the disjunctive. In those cases, the jury should be instructed as follows:

You need not find that all of the alleged false statements in each count of the indictment are false; instead, you must find unanimously and beyond a reasonable doubt that at least one of the statements set out in a particular count of the indictment is false.

Vitello v. United States, 425 F.2d 416 (9th Cir. 1970); United States v. Dilworth, 524 F.2d 470 (5th Cir. 1975); Arena v. United States, 226 F.2d 227, 236 (9th Cir. 1955); 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 50.03 (5th ed. 2000).

2. The Committee doubts that intent to deceive the court or jury is an element. Neither 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 50.03 (5th ed. 2000), nor S. Saltzburg & H. Perlman, FEDERAL CRIMINAL JURY INSTRUCTIONS § 50.01 (1985) includes this element, but in their notes, Saltzburg and Perlman quote United States v. Rose, 215 F.2d 617, 622-23 (3d Cir. 1954), in describing the requisite mental state as "[k]nowingly making a false statement with the intent to deceive." Neither of the cases cited by Rose supports that assertion.

Despite its unexplained assertion unsupported by the cases it cites (dealing with willfulness, not intent to deceive), Rose has spawned a series of cases that apply its intent-to-deceive language and merely cite back to Rose. See, e.g., United States v. Goguen, 723 F.2d 1012, 1020 (1st Cir. 1983) (citing Beckanstin to effect that section 1621 requires intent to deceive); Beckanstin v. United States, 232 F.2d l, 4 (5th Cir. 1956) (citing Rose for proposition that intent to deceive is an element).

Although the Committee has found no cases saying that Rose is wrong, there is some support in the language of Bronston v. United States, 409 U.S. 352 (1973), for the position that there is no intent-to-deceive element in section 1621. The issue in Bronston was "whether a witness may be convicted for perjury for an answer that is literally true but not responsive to the question asked and arguably misleading by negative implication." Answering in the negative, the Court supplied the following analysis:

It is no answer to say that here the jury found that petitioner intended to mislead his examiner. A jury should not be permitted to engage in conjecture whether an unresponsive answer, true and complete on its face, was intended to mislead or divert the examiner; the state of mind of the witness is relevant only to the extent that it bears on whether "he does not believe [his answer] to be true." To hold otherwise would be to inject a new and confusing element into the adversary testimonial system we know.

Id. at 359. See also United States v. Debrow, 346 U.S. 374, 376 (1953) (elements include "(3) a false statement wilfully made as to acts material to the hearing" but no mention of intent to deceive; issue was sufficiency of the indictment).

3. The Committee has added materiality as an element for the jury to decide in light of United States v. Gaudin, 515 U.S. 506 (1995). See also United States v. Swink, 21 F.3d 852, 857 (8th Cir. 1994).

Committee Comments

See 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 50.01-.12 (5th ed. 2000); Ninth Cir. Crim. Jury Instr. 8.29.1 (1997).

A witness testifying under oath or affirmation violates this statute [18 USC 1621] if she gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake or faulty memory.

United States v. Dunnigan, 507 U.S. 87, 94 (1993). See also United States v. Swink, 21 F.3d 852, 857 (8th Cir. 1994) (listing elements of a violation of section 1621).

The Committee believes that for section 1621 purposes, the issue of what is "a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered" presents a question of law and need not be submitted to the jury.

The materiality of the perjurious testimony is an element of this offense. E.g., United States v. Qaisi, 779 F.2d 346 (6th Cir. 1985). Most courts of appeals have held that materiality is a question of law for the trial court. See, e.g., United States v. Ashby, 748 F.2d 467, 470 (8th Cir. 1984); United States v. Larranaga, 787 F.2d 489, 494 (10th Cir. 1986); United States v. Lighte, 782 F.2d 367, 372 (2d Cir. 1986). Presumably, materiality is now a question of fact for the jury to decide under United States v. Gaudin, 515 U.S. 506 (1995).

A statement which is literally true cannot support a conviction even if it was intended to be misleading. Bronston v. United States, 409 U.S. 352 (1973); United States v. Lighte, 782 F.2d at 374.

However, each question and answer must be considered in its own context and in relation to the questions and answers given before and after the alleged perjurious testimony. In United States v. Williams, 552 F.2d 226, 229 (8th Cir. 1977), the court stated:

In Bronston, however, the Court dealt only with a literally true declarative statement and not with the situation presented by Williams' "No" answers, the truth or falsity of which can only be ascertained in the context of the question asked. See United States v. Williams, 536 F.2d 1202, 1205 (7th Cir. 1976); United States v. Chapin, 515 F.2d 1274, 1280 (8^th Cir. 1975). If the response given was false as the defendant understood the question, his conviction is not invalidated by the fact that his answer to the question might generate a number of different interpretations. United States v. Chapin; United States v. Parr, 516 F.2d 458, 470 (5th Cir. 1975).

In a case where a defendant sufficiently raises the defense of literal truthfulness, the jury should be instructed on this issue. Likewise, if the context of the alleged false testimony is important in determining the truth or falsity of the testimony, e.g., where the ambiguity of the question or answer is raised, this principle should also be instructed upon. See United States v. Bonacorsa, 528 F.2d 1218 (2d Cir. 1976). See Eleventh Circuit Pattern Jury Instruction: Criminal (Offense) § 50 (1997); Fifth Circuit Patten Jury Instructions: Criminal § 2.69 (1997); Seventh Circuit Federal Jury Instructions: Criminal, at 276-80 (1999) for possible instructions.

In a section 1621 prosecution, the defendant must have acted knowingly and willfully. United States v. Edwards, 443 F.2d 1286, 1294 (8th Cir. 1971); Spaeth v. United States, 218 F.2d 361, 363 (6th Cir. 1955). These mental states are expressed in the third and fourth elements of this instruction.

In order to fall within section 1621, the false testimony must have been given under oath or affirmed. United States v. Plascencia-Orozco, 768 F.2d 1074, 1076 (9th Cir. 1985). When requested, the defendant is entitled to an instruction on the two-witness rule, which requires in perjury prosecutions that the falsity of the defendant's statement must be proved by the testimony of two witnesses or the testimony of one witness plus corroborating evidence. See Weiler v. United States, 323 U.S. 606, 607 (1945); LaRocca v. United States, 337 F.2d 39, 44 (8th Cir. 1964). The following language may be used to express the two-witness rule:

You are instructed that the testimony of one witness is not enough to support a finding that the defendant's testimony was false. There must be additional evidence -- either the testimony of another person, or documentary evidence, or other evidence -- which tends to support the testimony's falsity. The other evidence, standing alone, need not convince you beyond a reasonable doubt that the testimony was false. But, after considering all of the evidence on the subject, you must be convinced beyond a reasonable doubt that the testimony was false.

2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 50.05 (5th ed. 2000); Ninth Cir. Crim. Jury Instr. 8.29.1 (1997).

Where the defendant's allegedly false statement is "I don't know" or "I don't remember," the two-witness rule rarely can be applied. In such cases, circumstantial evidence standing alone can be used to prove the defendant knowingly lied. Gebhard v. United States, 422 F.2d 281, 288 (9th Cir. 1970); United States v. Nicoletti, 310 F.2d 359, 361-63 (7th Cir. 1962).

(For 2008 version see below).

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

2008 Version

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

One, the defendant testified under [oath] [affirmation] (describe proceeding, e.g., at the trial of Smith v. Jones) that (insert alleged false testimony);

Two, the testimony so given was false;¹

Three, at the time he testified, the defendant knew such testimony was false;

Four, the defendant voluntarily and intentionally² gave such testimony; and

Five, the false testimony was material.³

False testimony is "material" if the testimony is capable of influencing (insert name of tribunal, etc.) on the issue before it.

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

Notes on Use

You need not find that all of the alleged false statements in each count of the indictment are false; instead, you must find unanimously and beyond a reasonable doubt that at least one of the statements set out in a particular count of the indictment is false.

It is no answer to say that here the jury found that petitioner intended to mislead his examiner. A jury should not be permitted to engage in conjecture whether an unresponsive answer, true and complete on its face, was intended to mislead or divert the examiner; the state of mind of the witness is relevant only to the extent that it bears on whether "he does not believe [his answer] to be true." To hold otherwise would be to inject a new and confusing element into the adversary testimonial system we know.

Id. at 359. See also United States v. Debrow, 346 U.S. 374, 376 (1953) [elements include "(3) a false statement wilfully made as to acts material to the hearing" but no mention of intent to deceive; issue was sufficiency of the indictment].

Committee Comments

See 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 50.01-.12 (5th ed. 2000); Ninth Cir. Crim. Jury Instr. 8.29.1 (1997).

A witness testifying under oath or affirmation violates this statute [18 USC 1621] if she gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake or faulty memory.

United States v. Dunnigan, 507 U.S. 87, 94 (1993). See also United States v. Swink, 21 F.3d 852, 857 (8th Cir. 1994) (listing elements of a violation of section 1621).

A statement which is literally true cannot support a conviction even if it was intended to be misleading. Bronston v. United States, 409 U.S. 352 (1973); United States v. Lighte, 782 F.2d at 374.

In Bronston, however, the Court dealt only with a literally true declarative statement and not with the situation presented by Williams' "No" answers, the truth or falsity of which can only be ascertained in the context of the question asked. See United States v. Williams, 536 F.2d 1202, 1205 (7th Cir. 1976); United States v. Chapin, 515 F.2d 1274, 1280 (8^th Cir. 1975). If the response given was false as the defendant understood the question, his conviction is not invalidated by the fact that his answer to the question might generate a number of different interpretations. United States v. Chapin; United States v. Parr, 516 F.2d 458, 470 (5th Cir. 1975).

You are instructed that the testimony of one witness is not enough to support a finding that the defendant's testimony was false. There must be additional evidence -- either the testimony of another person, or documentary evidence, or other evidence -- which tends to support the testimony's falsity. The other evidence, standing alone, need not convince you beyond a reasonable doubt that the testimony was false. But, after considering all of the evidence on the subject, you must be convinced beyond a reasonable doubt that the testimony was false.

2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 50.05 (5th ed. 2000); Ninth Cir. Crim. Jury Instr. 8.29.1 (1997).

(For 2006 version see below)

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

2006 Version

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

One, the defendant testified under [oath] [affirmation] (describe proceeding, e.g., at the trial of Smith v. Jones) that (insert alleged false testimony);

Two, the testimony so given was false; 1

Three, at the time he testified, the defendant knew such testimony was false;

Four, the defendant voluntarily and intentionally 2 gave such testimony; and

Five, the false testimony was material.3

False testimony is "material" if the testimony is capable of influencing (insert name of tribunal, etc.) on the issue before it.

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

Notes on Use

You need not find that all of the alleged false statements in each count of the indictment are false; instead, you must find unanimously and beyond a reasonable doubt that at least one of the statements set out in a particular count of the indictment is false.

It is no answer to say that here the jury found that petitioner intended to mislead his examiner. A jury should not be permitted to engage in conjecture whether an unresponsive answer, true and complete on its face, was intended to mislead or divert the examiner; the state of mind of the witness is relevant only to the extent that it bears on whether "he does not believe [his answer] to be true." To hold otherwise would be to inject a new and confusing element into the adversary testimonial system we know.

Committee Comments

See 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 50.01-.12 (5th ed. 2000); Ninth Cir. Crim. Jury Instr. 8.29.1 (1997).

A witness testifying under oath or affirmation violates this statute [18 USC 1621] if she gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake or faulty memory.

United States v. Dunnigan, 507 U.S. 87, 94 (1993). See also United States v. Swink, 21 F.3d 852, 857 (8th Cir. 1994) (listing elements of a violation of section 1621).

A statement which is literally true cannot support a conviction even if it was intended to be misleading. Bronston v. United States, 409 U.S. 352 (1973); United States v. Lighte, 782 F.2d at 374.

In Bronston, however, the Court dealt only with a literally true declarative statement and not with the situation presented by Williams' "No" answers, the truth or falsity of which can only be ascertained in the context of the question asked. See United States v. Williams, 536 F.2d 1202, 1205 (7th Cir. 1976); United States v. Chapin, 515 F.2d 1274, 1280 (8th Cir. 1975). If the response given was false as the defendant understood the question, his conviction is not invalidated by the fact that his answer to the question might generate a number of different interpretations. United States v. Chapin; United States v. Parr, 516 F.2d 458, 470 (5th Cir. 1975).

You are instructed that the testimony of one witness is not enough to support a finding that the defendant's testimony was false. There must be additional evidence -- either the testimony of another person, or documentary evidence, or other evidence -- which tends to support the testimony's falsity. The other evidence, standing alone, need not convince you beyond a reasonable doubt that the testimony was false. But, after considering all of the evidence on the subject, you must be convinced beyond a reasonable doubt that the testimony was false.

2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 50.05 (5th ed. 2000); Ninth Cir. Crim. Jury Instr. 8.29.1 (1997).

For 2000 version see below

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

2000 Version

The crime of perjury, as charged in [Count of] the indictment, has five essential elements, which are:

One, the defendant testified under [oath] [affirmation] (describe proceeding, e.g., at the trial of Smith v. Jones) that (insert alleged false testimony);

Two, the testimony so given was false; 1

Three, at the time he testified, the defendant knew such testimony was false;

Four, the defendant voluntarily and intentionally 2 gave such testimony; and Five, the false testimony was material.3

False testimony is "material" if the testimony is capable of influencing (insert name of tribunal, etc.) on the issue before it.

(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 §§ 43.01-43.12 (4th ed. 1990); Ninth Cir. Crim. Jury Instr. 8.29.1 (1997).

A witness testifying under oath or affirmation violates this statute [18 USC 1621] if she gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake or faulty memory.

United States v. Dunnigan, 507 U.S. 87, 94 (1993). See also United States v. Swink, 21 F.3d 852, 857 (8th Cir. 1994) (listing elements of a violation of section 1621).

The materiality of the perjurious testimony is an essential element of this offense. E.g., United States v. Qaisi, 779 F.2d 346 (6th Cir. 1985). Most courts of appeals have held that materiality is a question of law for the trial court. See, e.g., United States v. Ashby, 748 F.2d 467, 470 (8th Cir. 1984); United States v. Larranaga, 787 F.2d 489, 494 (10th Cir. 1986); United States v. Lighte, 782 F.2d 367, 372 (2d Cir. 1986). Presumably, materiality is now a question of fact for the jury to decide under United States v. Gaudin, 515 U.S. 506, 115 S. Ct. 2310 (1995).

A statement which is literally true cannot support a conviction even if it was intended to be misleading. Bronston v. United States, 409 U.S. 352 (1973); United States v. Lighte, 782 F.2d at 374.

In Bronston, however, the Court dealt only with a literally true declarative statement and not with the situation presented by Williams' "No" answers, the truth or falsity of which can only be ascertained in the context of the question asked. See United States v. Williams, 536 F.2d 1202, 1205 (7th Cir. 1976); United States v. Chapin, 515 F.2d 1274, 1280, cert. denied, 423 U.S. 1015 (1975). If the response given was false as the defendant understood the question, his conviction is not invalidated by the fact that his answer to the question might generate a number of different interpretations. United States v. Chapin, supra; United States v. Parr, 516 F.2d 458, 470 (5th Cir. 1975).

In a case where a defendant sufficiently raises the defense of literal truthfulness, the jury should be instructed on this issue. Likewise, if the context of the alleged false testimony is important in determining the truth or falsity of the testimony, e.g., where the ambiguity of the question or answer is raised, this principle should also be instructed upon. See United States v. Bonacorsa, 528 F.2d 1218 (2d Cir.), cert. denied, 426 U.S. 935 (1976). See Eleventh Circuit Pattern Jury Instruction: Criminal (Offense) § 50 (1997); Fifth Circuit Patten Jury Instructions: Criminal § 2.69 (1997); Seventh Circuit Federal Jury Instructions: Criminal, at 276-80 (1999) for possible instructions.

In a section 1621 prosecution, the defendant must have acted knowingly and willfully. United States v. Edwards, 443 F.2d 1286, 1294 (8th Cir.), cert. denied, 404 U.S. 944 (1971); Spaeth v. United States, 218 F.2d 361, 363 (6th Cir. 1955). These mental states are expressed in the third and fourth elements of this instruction.

In order to fall within section 1621, the false testimony must have been given under oath or affirmed. United States v. Plascencia-Orozco, 768 F.2d 1074, 1076 (9th Cir. 1985). When requested, the defendant is entitled to an instruction on the two-witness rule, which requires in perjury prosecutions that the falsity of the defendant's statement must be proved by the testimony of two witnesses or the testimony of one witness plus corroborating evidence. See Weiler v. United States, 323 U.S. 606, 607 (1945); LaRocca v. United States, 337 F.2d 39, 44 (8th Cir. 1964). The following language may be used to express the two-witness rule:

You are instructed that the testimony of one witness is not enough to support a finding that the defendant's testimony was false. There must be additional evidence -- either the testimony of another person, or documentary evidence, or other evidence -- which tends to support the testimony's falsity. The other evidence, standing alone, need not convince you beyond a reasonable doubt that the testimony was false. But, after considering all of the evidence on the subject, you must be convinced beyond a reasonable doubt that the testimony was false.

2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 43.05 (4th ed. 1990); Ninth Cir. Crim. Jury Instr. 8.29.1 (1997).

Notes on Use

You need not find that all of the alleged false statements in each count of the indictment are false; instead, you must find unanimously and beyond a reasonable doubt that at least one of the statements set out in a particular count of the indictment is false.

Vitello v. United States, 425 F.2d 416 (9th Cir.), cert. denied, 400 U.S. 822 (1970); United States v. Dilworth, 524 F.2d 470 (5th Cir. 1975); Arena v. United States, 226 F.2d 227, 236 (9th Cir. 1955), cert. denied, 350 U.S. 954 (1956); 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 43.03 (4th ed. 1990).

2. The Committee doubts that intent to deceive the court or jury is an element. Neither 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 43.03 (4th ed. 1990) nor S. Saltzburg & H. Perlman, FEDERAL CRIMINAL JURY INSTRUCTIONS § 50.01 (1985) includes this element, but in their notes, Saltzburg and Perlman quote United States v. Rose, 215 F.2d 617, 622-23 (3d Cir. 1954), in describing the requisite mental state as "[k]nowingly making a false statement with the intent to deceive." Neither of the cases cited by Rose supports that assertion.

Despite its unexplained assertion unsupported by the cases it cites (dealing with willfulness, not intent to deceive), Rose has spawned a series of cases that apply its intent-to-deceive language and merely cite back to Rose. See, e.g., United States v. Goguen, 723 F.2d 1012, 1020 (1st Cir. 1983) (citing Beckanstin, infra, to effect that section 1621 requires intent to deceive); Beckanstin v. United States, 232 F.2d l, 4 (5th Cir. 1956) (citing Rose for proposition that intent to deceive is an element).

It is no answer to say that here the jury found that petitioner intended to mislead his examiner. A jury should not be permitted to engage in conjecture whether an unresponsive answer, true and complete on its face, was intended to mislead or divert the examiner; the state of mind of the witness is relevant only to the extent that it bears on whether "he does not believe [his answer] to be true." To hold otherwise would be to inject a new and confusing element into the adversary testimonial system we know.

Id. at 359. See also United States v. Debrow, 346 U.S. 374, 376 (1953) [elements include "(3) a false statement wilfully made as to acts material to the hearing" but no mention of intent to deceive; issue was sufficiency of the indictment].

3. The Committee has added materiality as an element for the jury to decide in light of United States v. Gaudin, 515 U.S. 506, 115 S. Ct. 2310 (1995). See also United States v. Swink, 21 F.3d 852, 857 (8th Cir. 1994).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1622 SUBORNATION OF PERJURY
(18 USC 1622)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Subornation Of Perjury (18 USC 1622)

The crime of suborning perjury, as charged in [Count _____ of] the indictment, has three elements, which are:

One, the defendant voluntarily and intentionally persuaded (name of witness) to commit perjury;

Two, the defendant did so with the intent that (name of witness) would deceive the [court] [jury]; and

Three, (name of witness) committed a perjury in that:

(a) He testified under oath or affirmation at (describe proceeding, e.g., the trial of United States v. Doe) that [insert alleged false testimony];

(b) the testimony given was false;

(c) at the time he testified, the witness knew his testimony was false;

[(d) the witness gave such testimony voluntarily and intentionally;]¹

[(d)] [(e)] the false testimony was material.²

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

Notes on Use

1. Sub-element (d) of Element Three must be included where the underlying perjury is in violation of section 1621, but may be omitted where the predicate perjury is based on section 1623. See United States v. Watson, 623 F.2d 1198, 1207 (7th Cir. 1980).

2. As in Instructions 6.18.1621 and 6.18.1623, materiality is an element for the jury to decide in light of United States v. Gaudin, 515 U.S. 506 (1995). A definition of "material" from either Instruction 6.18.1621 or Instruction 6.18.1623 should be inserted after this sub-element.

Committee Comments

See Committee Comments, Instruction6.18.1621, supra.

A perjury is an element of this offense. Segal v. United States, 246 F.2d 814, 816 (8th Cir. 1957). The use of "any perjury" in section 1622 evidences a congressional intent that subornation of perjury is committed not only by one who procures another to commit perjury in violation of 18 USC 1621, but also by one who procures another to make a false statement in violation of 18 USC 1623. United States v. Gross, 511 F.2d 910 (3d Cir. 1975).

If the suborned testimony is in violation of section 1621, the "two-witness" or "corroboration" rule applies. Segal v. United States, 246 F.2d at 216. However, the "two-witness" rule does not apply if the suborned testimony is in violation of section 1623. United States v. Gross, 511 F.2d at 915-16.

The "two-witness" rule never applies to the crime of subornation. Segal v. United States, 246 F.2d at 817. Nevertheless, the suborner must have acted knowingly and willfully in persuading the witness to commit perjury.

(For 2008 version see below).

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

2008 Version

The crime of suborning perjury, as charged in [Count _____ of] the indictment, has three elements, which are:

One, the defendant voluntarily and intentionally persuaded (name of witness) to commit perjury;

Two, the defendant did so with the intent that (name of witness) would deceive the [court] [jury]; and

Three, (name of witness) committed a perjury in that:

(a) He testified under oath or affirmation at (describe proceeding, e.g., the trial of United States v. Doe) that [insert alleged false testimony];

(b) the testimony given was false;

(c) at the time he testified, the witness knew his testimony was false;

[(d) the witness gave such testimony voluntarily and intentionally;]¹

[(d)] [(e)] the false testimony was material.²

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

Notes on Use

Committee Comments

See Committee Comments, Instruction 6.18.1621, supra.

(For 2006 version see below)

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

2006 Version

The crime of suborning perjury, as charged in [Count _____ of] the indictment, has three elements, which are:

One, the defendant voluntarily and intentionally persuaded (name of witness) to commit perjury;

Two, the defendant did so with the intent that (name of witness) would deceive the [court] [jury]; and

Three, (name of witness) committed a perjury in that:

(a) He testified under oath or affirmation at (describe proceeding, e.g., the trial of United States v. Doe) that [insert alleged false testimony];

(b) the testimony given was false;

(c) at the time he testified, the witness knew his testimony was false;

[(d) the witness gave such testimony voluntarily and intentionally;]1

[(d)] [(e)] the false testimony was material.2

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

Notes on Use

Committee Comments

See Committee Comments, Instruction 6.18.1621, supra.

For 2000 version see below

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

2000 Version

The crime of suborning perjury, as charged in [Count _____ of] the indictment, has three essential elements, which are:

One, the defendant voluntarily and intentionally persuaded (name of witness) to commit perjury;

Two, the defendant did so with the intent that (name of witness) would deceive the [court] [jury]; and

Three, (name of witness) committed a perjury in that:

(a) He testified under oath or affirmation at (describe proceeding, e.g., the trial of United States v. Doe) that [insert alleged false testimony];

(b) the testimony given was false;

(c) at the time he testified, the witness knew his testimony was false;

[(d) the witness gave such testimony voluntarily and intentionally;]1

[(d)] [(e)] the false testimony was material.2

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

Committee Comments

See Committee Comments, Instruction 6.18.1621, supra.

A perjury is an essential element of this offense. Segal v. United States, 246 F.2d 814, 816 (8th Cir.), cert. denied, 355 U.S. 894 (1957). The use of "any perjury" in section 1622 evidences a congressional intent that subornation of perjury is committed not only by one who procures another to commit perjury in violation of 18 USC 1621, but also by one who procures another to make a false statement in violation of 18 USC 1623. United States v. Gross, 511 F.2d 910 (3d Cir.), cert. denied, 423 U.S. 924 (1975).

Notes on Use

1. Sub-element (d) of Element Three must be included where the underlying perjury is in violation of section 1621, but may be omitted where the predicate perjury is based on section 1623. See United States v. Watson, 623 F.2d 1198, 1207 (7th Cir. 1980).

2. As in Instructions 6.18.1621 and 6.18.1623, materiality is an element for the jury to decide in light of United States v. Gaudin, 515 U.S. 506, 115 S. Ct. 2310 (1995). A definition of "material" from either Instruction 6.18.1621 or Instruction 6.18.1623 should be inserted after this sub-element.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1623
FALSE DECLARATION BEFORE COURT OR GRAND JURY
(18 USC 1623)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: False Declaration Before Grand Jury Or Court (18 USC 1623)

The crime of making a false declaration, as charged in [Count _____ of] the indictment, has four elements, which are:

One, the defendant testified under oath or affirmation [before a grand jury] [before a court] that (insert alleged false testimony);

Two, such testimony was false in whole or in part¹;

Three, at the time he so testified, the defendant knew his testimony was false; and

Four, the false testimony was material.²

False testimony is "material" if the testimony was capable of influencing [the grand jury] [the court]. It is not necessary to find that the false testimony actually affected [the grand jury] [the court].

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

Notes on Use

1. In many cases, more than one specification of perjury or more than one false declaration is charged in a single count of an indictment. In those cases, the jury should be instructed as follows:

You need not find that all of the alleged false statements in each count of the indictment are false; instead, you must find unanimously and beyond a reasonable doubt that at least one of the statements set out in a particular count of the indictment is false.

United States v. Holley, 942 F.2d 916, 925-29 (5th Cir. 1991), distinguished in United States v. Bellrichard, 62 F.3d 1046 (8th Cir. 1995). Vitello v. United States, 425 F.2d 416 (9th Cir. 1970); United States v. Dilworth, 524 F.2d 470 (5th Cir. 1975); Arena v. United States, 226 F.2d 227, 236 (9th Cir. 1955); 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 50.08 (5th ed. 2000).

2. The Committee has added materiality as an element for the jury to decide in light of United States v. Gaudin, 515 U.S. 506 (1995).

The test for materiality of false testimony in a trial is whether the false testimony was capable of influencing the tribunal on the issue before it. United States v. Sablosky, 810 F.2d 167, 169 (8th Cir. 1987) (citing United States v. Jackson, 640 F.2d 614, 616 (8th Cir. 1981)).

Materiality of false testimony before a grand jury is determined under a similar test. However, the broader range of a grand jury investigation, as compared to a trial focused on specific issues, is taken into account in assessing the materiality of false testimony before a grand jury. United States v. Phillips, 540 F.2d 319, 328 (8th Cir. 1976).

The test of materiality is "whether or not the statements alleged to be perjurious tend to impede or hamper the course of the investigation of the grand jury." [Citations omitted.] The statements need not be material to any particular issue, but may be material to any proper matter of inquiry.

United States v. Ostertag, 671 F.2d at 264. The "capability" and "potential" of the false testimony to influence the grand jury are alternative descriptions of the test of materiality. "Materiality only calls for the lie to be a potential impediment, not an actual impediment, of the grand jury's inquiry." United States v. Waldemer, 50 F.3d 1379, 1382 (7th Cir. 1995). "The inquiry into materiality assesses potential. It considers whether the false statement was 'capable of influencing the grand jury on the issue before it.'" United States v. Friedhaber, 856 F.2d 640, 642 (4th Cir. 1988). The false testimony need not actually have influenced, misled or hampered the grand jury; it is sufficient if it was capable of influencing the grand jury on the issue before it. United States v. Brown, 666 F.2d 1196, 1200 (8th Cir. 1981). A false declaration can also satisfy the materiality requirement if a truthful statement might have assisted or influenced the grand jury in its investigation. United States v. Richardson, 596 F.2d 157, 165 (6th Cir. 1979). United States v. Swift, 809 F.2d 320, 324 (6th Cir. 1987). Cf. United States v. Lasater, 535 F.2d 1041 (8th Cir. 1976) (alleged false statement held not to have impeded grand jury investigation when other parts of grand jury testimony addressed the same issue); accord United States v. Ball, 738 F. Supp. 1073 (E.D. Mich. 1990).

Materiality is thus demonstrated if the question posed is such that a truthful answer could help the inquiry, or a false response hinder it, and these effects are weighed in terms of potentiality rather than probability. Thus, in applying this gauge to specific situations, it is only the question, at the time of its asking, which is considered. It is of no consequence that the information sought would be merely cumulative, United States v. Richardson, 596 F.2d 157 (6th Cir. 1979), that the response was believed by the grand jury to be perjurious at the time it was uttered, United States v. Lee, 509 F.2d 645 (2d Cir. 1975), or that the matters inquired into were collateral to the principal objective of the grand jury. United States v. Stone, 429 F.2d 138, 140-41 (2d Cir. 1970).

United States v. Berardi, 629 F.2d 723 (2d Cir. 1980).

Committee Comments

See Committee Comments, Instructions 6.18.1621 and 6.18.1622, supra.

Section 1623 applies only to "any proceeding before or ancillary to any court or grand jury of the United States." An "ancillary proceeding" is "an action conducted pursuant to explicit statutory or judicial procedures." United States v. Tibbs, 600 F.2d 19, 21 (6th Cir. 1979); see, e.g., United States v. Krogh, 366 F. Supp. 1255, 1256 (D.D.C. 1973) (sworn deposition an ancillary proceeding); cf. Dunn v. United States, 442 U.S. 100 (1979) (sworn statement given during interview with private attorney was not a formal deposition and thus was not an ancillary proceeding). Section 1621 is broader; it proscribes false testimony in proceedings which are not strictly judicial in nature. See, e.g., Woolley v. United States, 97 F.2d 258 (9th Cir. 1938) (Securities and Exchange Commission investigation); United States v. Seymour, 50 F.2d 930 (D. Neb. 1931) (senatorial hearing).

Determination of the nature of the proceeding is a matter of law for the court. See Tasby v. United States, 504 F.2d 332, 337 (8th Cir. 1974).

In the Eighth Circuit the criterion for determining materiality in a section 1623 case is whether or not the statements alleged to be perjurious tend to impede or hamper the course of the investigation by the grand jury. United States v. Drape, 753 F.2d 660, 663 (8th Cir. 1985); United States v. Williams, 552 F.2d 226, 230 (8th Cir. 1977); United States v. Phillips, 540 F.2d 319, 328 (8th Cir. 1976). The latitude of materiality with respect to questions asked of a witness during a grand jury investigation is broader than the same questions asked at trial since the purpose of the investigation is to obtain facts and leads rather than prove matters directly at issue. Phillips, 540 F.2d at 328-29. The statements need not be material to any particular issue, but may be material to any proper area of inquiry. United States v. Ostertag, 671 F.2d 262, 264 (8th Cir. 1982).

There are three other important differences between sections 1623 and 1621:

a. Section 1623(c) authorizes a person to be accused of having made "two or more declarations, which are inconsistent to the degree that one of them is necessarily false." The government is not required to specify which declaration is false.

b. The requisite mental states are different. Section 1621 requires that the defendant act willfully. Section 1623 requires only that the defendant know that his testimony was false. See United States v. Watson, 623 F.2d 1198, 1207 (7th Cir. 1980); United States v. Lardieri, 497 F.2d 317 (3d Cir. 1974).

c. The "two-witness" or "corroboration" rule, which requires that oral testimony of the falsity of a statement be corroborated in a section 1621 prosecution, is inapplicable to section 1623. Dunn v. United States, 442 U.S. at 108. Thus, a corroboration instruction is not required where the defendant is charged under section 1623.

Because of the willfulness element and the two-witness rule of 18 USC 1621, most "perjury" prosecutions are brought under 18 USC 1623.

(For 2008 version see below).

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

2008 Version

The crime of making a false declaration, as charged in [Count _____ of] the indictment, has four elements, which are:

One, the defendant testified under oath or affirmation [before a grand jury] [before a court] that (insert alleged false testimony);

Two, such testimony was false in whole or in part¹;

Three, at the time he so testified, the defendant knew his testimony was false; and

Four, the false testimony was material.²

False testimony is "material" if the testimony was capable of influencing [the grand jury] [the court]. It is not necessary to find that the false testimony actually affected [the grand jury] [the court].

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

Notes on Use

1. In many cases, more than one specification of perjury or more than one false declaration is charged in a single count of an indictment. In those cases, the jury should be instructed as follows:

You need not find that all of the alleged false statements in each count of the indictment are false; instead, you must find unanimously and beyond a reasonable doubt that at least one of the statements set out in a particular count of the indictment is false.

2. The Committee has added materiality as an element for the jury to decide in light of United States v. Gaudin, 515 U.S. 506 (1995).

The test of materiality is "whether or not the statements alleged to be perjurious tend to impede or hamper the course of the investigation of the grand jury." [Citations omitted.] The statements need not be material to any particular issue, but may be material to any proper matter of inquiry.

United States v. Ostertag, 671 F.2d at 264. The "capability" and "potential" of the false testimony to influence the grand jury are alternative descriptions of the test of materiality. "Materiality only calls for the lie to be a potential impediment, not an actual impediment, of the grand jury's inquiry." United States v. Waldemer, 50 F.3d 1379, 1382 (7th Cir. 1995). "The inquiry into materiality assesses potential. It considers whether the false statement was 'capable of influencing the grand jury on the issue before it.'" United States v. Friedhaber, 856 F.2d 640, 642 (4th Cir. 1988). The false testimony need not actually have influenced, misled or hampered the grand jury; it is sufficient if it was capable of influencing the grand jury on the issue before it. United States v. Brown, 666 F.2d 1196, 1200 (8th Cir. 1981). A false declaration can also satisfy the materiality requirement if a truthful statement might have assisted or influenced the grand jury in its investigation. United States v. Richardson, 596 F.2d 157, 165 (6th Cir. 1979). United States v. Swift, 809 F.2d 320, 324 (6th Cir. 1987). Cf. United States v. Lasater, 535 F.2d 1041 (8th Cir. 1976) (alleged false statement held not to have impeded grand jury investigation when other parts of grand jury testimony addressed the same issue); accord, United States v. Ball, 738 F. Supp. 1073 (E.D. Mich. 1990).

Materiality is thus demonstrated if the question posed is such that a truthful answer could help the inquiry, or a false response hinder it, and these effects are weighed in terms of potentiality rather than probability. Thus, in applying this gauge to specific situations, it is only the question, at the time of its asking, which is considered. It is of no consequence that the information sought would be merely cumulative, United States v. Richardson, 596 F.2d 157 (6th Cir. 1979), that the response was believed by the grand jury to be perjurious at the time it was uttered, United States v. Lee, 509 F.2d 645 (2d Cir. 1975), or that the matters inquired into were collateral to the principal objective of the grand jury. United States v. Stone, 429 F.2d 138, 140-41 (2d Cir. 1970).

United States v. Berardi, 629 F.2d 723 (2d Cir. 1980).

Committee Comments

See Committee Comments, Instructions 6.18.1621 and 6.18.1622, supra.

Section 1623 applies only to "any proceeding before or ancillary to any court or grand jury of the United States." An "ancillary proceeding" is "an action conducted pursuant to explicit statutory or judicial procedures." United States v. Tibbs, 600 F.2d 19, 21 (6th Cir. 1979); see, e.g., United States v. Krogh, 366 F. Supp. 1255, 1256 (D.D.C. 1973) [sworn deposition an ancillary proceeding]; cf. Dunn v. United States, 442 U.S. 100 (1979) [sworn statement given during interview with private attorney was not a formal deposition and thus was not an ancillary proceeding]. Section 1621 is broader; it proscribes false testimony in proceedings which are not strictly judicial in nature. See, e.g., Woolley v. United States, 97 F.2d 258 (9th Cir. 1938) [Securities and Exchange Commission investigation]; United States v. Seymour, 50 F.2d 930 (D. Neb. 1931) [senatorial hearing].

Determination of the nature of the proceeding is a matter of law for the court. See Tasby v. United States, 504 F.2d 332, 337 (8th Cir. 1974).

There are three other important differences between sections 1623 and 1621:

Because of the willfulness element and the two-witness rule of 18 USC 1621, most "perjury" prosecutions are brought under 18 USC 1623.

(For 2006 version see below)

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

2006 Version

The crime of making a false declaration, as charged in [Count _____ of] the indictment, has four elements, which are:

One, the defendant testified under oath or affirmation [before a grand jury] [before a court] that (insert alleged false testimony);

Two, such testimony was false in whole or in part1;

Three, at the time he so testified, the defendant knew his testimony was false; and

Four, the false testimony was material.2

False testimony is "material" if the testimony was capable of influencing [the grand jury] [the court]. It is not necessary to find that the false testimony actually affected [the grand jury] [the court].

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

Notes on Use

1. In many cases, more than one specification of perjury or more than one false declaration is charged in a single count of an indictment. In those cases, the jury should be instructed as follows:

You need not find that all of the alleged false statements in each count of the indictment are false; instead, you must find unanimously and beyond a reasonable doubt that at least one of the statements set out in a particular count of the indictment is false.

2. The Committee has added materiality as an element for the jury to decide in light of United States v. Gaudin, 515 U.S. 506 (1995).

The test of materiality is "whether or not the statements alleged to be perjurious tend to impede or hamper the course of the investigation of the grand jury." [Citations omitted.] The statements need not be material to any particular issue, but may be material to any proper matter of inquiry.

United States v. Ostertag, 671 F.2d at 264. The "capability" and "potential" of the false testimony to influence the grand jury are alternative descriptions of the test of materiality. "Materiality only calls for the lie to be a potential impediment, not an actual impediment, of the grand jury's inquiry." United States v. Waldemer, 50 F.3d 1379, 1382 (7th Cir. 1995). "The inquiry into materiality assesses potential. It considers whether the false statement was 'capable of influencing the grand jury on the issue before it.'" United States v. Friedhaber, 856 F.2d 640, 642 (4th Cir. 1988). The false testimony need not actually have influenced, misled or hampered the grand jury; it is sufficient if it was capable of influencing the grand jury on the issue before it. United States v. Brown, 666 F.2d 1196, 1200 (8th Cir. 1981). A false declaration can also satisfy the materiality requirement if a truthful statement might have assisted or influenced the grand jury in its investigation." United States v. Richardson, 596 F.2d 157, 165 (6th Cir. 1979). United States v. Swift, 809 F.2d 320, 324 (6th Cir. 1987). Cf. United States v. Lasater, 535 F.2d 1041 (8th Cir. 1976) (alleged false statement held not to have impeded grand jury investigation when other parts of grand jury testimony addressed the same issue); accord, United States v. Ball, 738 F. Supp. 1073 (E.D. Mich. 1990).

Materiality is thus demonstrated if the question posed is such that a truthful answer could help the inquiry, or a false response hinder it, and these effects are weighed in terms of potentiality rather than probability. Thus, in applying this gauge to specific situations, it is only the question, at the time of its asking, which is considered. It is of no consequence that the information sought would be merely cumulative, United States v. Richardson, 596 F.2d 157 (6th Cir. 1979), that the response was believed by the grand jury to be perjurious at the time it was uttered, United States v. Lee, 509 F.2d 645 (2d Cir. 1975), or that the matters inquired into were collateral to the principal objective of the grand jury. United States v. Stone, 429 F.2d 138, 140-41 (2d Cir. 1970).

United States v. Berardi, 629 F.2d 723 (2d Cir. 1980).

Committee Comments

See Committee Comments, Instructions 6.18.1621 and 6.18.1622, supra.

Section 1623 applies only to "any proceeding before or ancillary to any court or grand jury of the United States." An "ancillary proceeding" is "an action conducted pursuant to explicit statutory or judicial procedures." United States v. Tibbs, 600 F.2d 19, 21 (6th Cir. 1979); see, e.g., United States v. Krogh, 366 F. Supp. 1255, 1256 (D.D.C. 1973) [sworn deposition an ancillary proceeding]; cf. Dunn v. United States, 442 U.S. 100 (1979) [sworn statement given during interview with private attorney was not a formal deposition and thus was not an ancillary proceeding]. Section 1621 is broader; it proscribes false testimony in proceedings which are not strictly judicial in nature. See, e.g., Woolley v. United States, 97 F.2d 258 (9th Cir. 1938) [Securities and Exchange Commission investigation]; United States v. Seymour, 50 F.2d 930 (D. Neb. 1931) [senatorial hearing].

Determination of the nature of the proceeding is a matter of law for the court. See Tasby v. United States, 504 F.2d 332, 337 (8th Cir. 1974).

There are three other important differences between sections 1623 and 1621:

Because of the willfulness element and the two-witness rule of 18 USC 1621, most "perjury" prosecutions are brought under 18 USC 1623.

For 2000 version see below

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

2000 Version

The crime of making a false declaration, as charged in [Count _____ of] the indictment, has four essential elements, which are:

One, the defendant testified under oath or affirmation [before a grand jury] [before a court] that (insert alleged false testimony);

Two, such testimony was false in whole or in part1;

Three, at the time he so testified, the defendant knew his testimony was false; and

Four, the false testimony was material.2

False testimony is "material" if the testimony was capable of influencing [the grand jury] [the court]. It is not necessary to find that the false testimony actually affected [the grand jury] [the court].

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

Committee Comments

See Committee Comments, Instructions 6.18.1621 and 6.18.1622, supra.

Section 1623 applies only to "any proceeding before or ancillary to any court or grand jury of the United States." An "ancillary proceeding" is "an action conducted pursuant to explicit statutory or judicial procedures." United States v. Tibbs, 600 F.2d 19, 21 (6th Cir. 1979); see, e.g., United States v. Krogh, 366 F. Supp. 1255, 1256 (D.D.C. 1973) [sworn deposition an ancillary proceeding]; cf. Dunn v. United States, 442 U.S. 100 (1979) [sworn statement given during interview with private attorney was not a formal deposition and thus was not an ancillary proceeding]. Section 1621 is broader; it proscribes false testimony in proceedings which are not strictly judicial in nature. See, e.g., Woolley v. United States, 97 F.2d 258 (9th Cir.), cert. denied, 305 U.S. 614 (1938) [Securities and Exchange Commission investigation]; United States v. Seymour, 50 F.2d 930 (D. Neb. 1931) [senatorial hearing].

Determination of the nature of the proceeding is a matter of law for the court. See Tasby v. United States, 504 F.2d 332, 337 (8th Cir. 1974), cert. denied, 419 U.S. 1125 (1975).

In the Eighth Circuit the criterion for determining materiality in a section 1623 case is whether or not the statements alleged to be perjurious tend to impede or hamper the course of the investigation by the grand jury. United States v. Drape, 753 F.2d 660, 663 (8th Cir.), cert. denied, 474 U.S. 821 (1985); United States v. Williams, 552 F.2d 226, 230 (8th Cir. 1977); United States v. Phillips, 540 F.2d 319, 328 (8th Cir.), cert. denied, 429 U.S. 1000 (1976). The latitude of materiality with respect to questions asked of a witness during a grand jury investigation is broader than the same questions asked at trial since the purpose of the investigation is to obtain facts and leads rather than prove matters directly at issue. Phillips, 540 F.2d at 328-29. The statements need not be material to any particular issue, but may be material to any proper area of inquiry. United States v. Ostertag, 671 F.2d 262, 264 (8th Cir. 1982).

There are three other important differences between sections 1623 and 1621:

b. The requisite mental states are different. Section 1621 requires that the defendant act willfully. Section 1623 requires only that the defendant know that his testimony was false. See United States v. Watson, 623 F.2d 1198, 1207 (7th Cir. 1980); United States v. Lardieri, 497 F.2d 317 (3d Cir. 1974).

Because of the willfulness element and the two-witness rule of 18 USC 1621, most "perjury" prosecutions are brought under 18 USC 1623.

Notes on Use

1. In many cases, more than one specification of perjury or more than one false declaration is charged in a single count of an indictment. In those cases, the jury should be instructed as follows:

You need not find that all of the alleged false statements in each count of the indictment are false; instead, you must find unanimously and beyond a reasonable doubt that at least one of the statements set out in a particular count of the indictment is false.

United States v. Holley, 942 F.2d 916, 925-29 (5th Cir. 1991), distinguished in United States v. Bellrichard, 62 F.3d 1046 (8th Cir. 1995). Vitello v. United States, 425 F.2d 416 (9th Cir.), cert. denied, 400 U.S. 822 (1970); United States v. Dilworth, 524 F.2d 470 (5th Cir. 1975); Arena v. United States, 226 F.2d 227, 236 (9th Cir. 1955), cert. denied, 350 U.S. 954 (1956); 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 43.08 (4th ed. 1990).

2. The Committee has added materiality as an element for the jury to decide in light of United States v. Gaudin, 515 U.S. 506, 115 S. Ct. 2310 (1995).

The test of materiality is "whether or not the statements alleged to be perjurious tend to impede or hamper the course of the investigation of the grand jury." [Citations omitted.] The statements need not be material to any particular issue, but may be material to any proper matter of inquiry.

United States v. Ostertag, 671 F.2d at 264. The "capability" and "potential" of the false testimony to influence the grand jury are alternative descriptions of the test of materiality. "Materiality only calls for the lie to be a potential impediment, not an actual impediment, of the grand jury's inquiry." United States v. Waldemer, 50 F.3d 1379, 1382 (7th Cir. 1995). "The inquiry into materiality assesses potential. It considers whether the false statement was 'capable of influencing the grand jury on the issue before it.'" United States v. Friedhaber, 856 F.2d 640, 642 (4th Cir. 1988). The false testimony need not actually have influenced, misled or hampered the grand jury; it is sufficient if it was capable of influencing the grand jury on the issue before it. United States v. Brown, 666 F.2d 1196, 1200 (8th Cir. 1981). A false declaration can also satisfy the materiality requirement if a truthful statement might have assisted or influenced the grand jury in its investigation." United States v. Richardson, 596 F.2d 157, 165 (6th Cir. 1979). United States v. Swift, 809 F.2d 320, 324 (6th Cir. 1987). Cf. United States v. Lasater, 535 F.2d 1041 (8th Cir. 1976) (alleged false statement held not to have impeded grand jury investigation when other parts of grand jury testimony addressed the same issue); accord, United States v. Ball, 738 F. Supp. 1073 (E.D. Mich. 1990).

Materiality is thus demonstrated if the question posed is such that a truthful answer could help the inquiry, or a false response hinder it, and these effects are weighed in terms of potentiality rather than probability. Thus, in applying this gauge to specific situations, it is only the question, at the time of its asking, which is considered. It is of no consequence that the information sought would be merely cumulative, United States v. Richardson, 596 F.2d 157 (6th Cir. 1979), that the response was believed by the grand jury to be perjurious at the time it was uttered, United States v. Lee, 509 F.2d 645 (2d Cir.), cert. denied, 422 U.S. 1044 (1975), or that the matters inquired into were collateral to the principal objective of the grand jury. United States v. Stone, 429 F.2d 138, 140-41 (2d Cir. 1970).

United States v. Berardi, 629 F.2d 723 (2d Cir.), cert. denied, 449 U.S. 995 (1980).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1708A MAIL THEFT
(18 USC 1708, First Paragraph)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Theft Of Mail Matter (18 USC 1708) (First Paragraph)

See FORECITE National™ Federal Models By Offense: Possession Of Stolen Mail (18 USC 1708) (Third Paragraph)

The crime of mail theft, as charged in [Count of] the indictment, has three elements, which are:

One, the defendant voluntarily [stole] [took]¹ a [letter][postal card] [package] [bag];

Two, the [letter] [postal card] [package] [bag] [mail] was in [the United States mail] [(describe authorized depository for U.S. mail matter)];² and

Three, in so doing the defendant intended to deprive the addressee temporarily or permanently of the [letter, etc.]

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

Notes on Use

1. The statute also includes obtaining or attempting to obtain mail by fraud. In such a case, that language should be used.

2. The statute lists specific depositories for mail. Other authorized depositories are established by regulations of the Postmaster General. See 39 CFR 111.1, incorporating the Domestic Mail Manual D041.1.1. If one of these is involved, it should be named in the elements.

Committee Comments

Cf. 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 52.01-.05 (5^th ed. 2000). See generally United States v. Hopping, 668 F.2d 398, 399-400 (8th Cir. 1982).

Theft of mail includes the element of intent to steal at the time the mail is taken. United States v. Hopping, 668 F.2d at 399-400. Element Three, which requires a finding of intent, is also a definition of "steal." See United States v. Turley, 352 U.S. 407, 417 (1957). Accordingly, the Committee believes no further definition of "steal" is necessary.

The protection of 18 USC 1708 is limited to mail matter which is still in the possession or control of the Postal Service or which has been placed in an authorized receptacle for mail matter, such as a private letter box, and has not been lawfully removed therefrom. Rosen v. United States, 245 U.S. 467 (1918); United States v. Matzker, 473 F.2d 408 (8th Cir. 1973). On the other hand, the protection extended by § 1702 is applicable until the mailed material is physically delivered to the addressee or his agent. United States v. Ashford, 530 F.2d 792 (8th Cir. 1976).

(For 2008 version see below).

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2008 Version

The crime of mail theft, as charged in [Count of] the indictment, has three elements, which are:

One, the defendant voluntarily [stole] [took]¹ a [letter][postal card] [package] [bag];

Two, the [letter] [postal card] [package] [bag] [mail] was in [the United States mail] [(describe authorized depository for U.S. mail matter)];² and

Three, in so doing the defendant intended to deprive the addressee temporarily or permanently of the [letter, etc.]

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

Notes on Use

1. The statute also includes obtaining or attempting to obtain mail by fraud. In such a case, that language should be used.

2. The statute lists specific depositories for mail. Other authorized depositories are established by regulations of the Postmaster General. See 39 C.F.R. § 111.1, incorporating the Domestic Mail Manual D041.1.1. If one of these is involved, it should be named in the elements.

Committee Comments

(For 2006 version see below)

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2006 Version

The crime of mail theft, as charged in [Count of] the indictment, has three elements, which are:

One, the defendant voluntarily [stole] [took]1 a [letter][postal card] [package] [bag];

Two, the [letter] [postal card] [package] [bag] [mail] was in [the United States mail] [(describe authorized depository for U.S. mail matter)];2 and

Three, in so doing the defendant intended to deprive the addressee temporarily or permanently of the [letter, etc.]

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

Notes on Use

1. The statute also includes obtaining or attempting to obtain mail by fraud. In such a case, that language should be used.

Committee Comments

Cf. 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 52.01-.05 (5th ed. 2000). See generally United States v. Hopping, 668 F.2d 398, 399-400 (8th Cir. 1982).

For 2000 version see below

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2000 Version

The crime of mail theft, as charged in [Count of] the indictment, has three essential elements, which are:

One, the [letter] [postal card] [package] [bag] [mail] was in [the United States mail] [(describe authorized depository for U.S. mail matter)];1 and

Two, the defendant voluntarily [stole] [took]2 it from the [mail] [(describe authorized depository)]; and

Three, in so doing the defendant intended to deprive the addressee temporarily or permanently of the [letter, etc.]

(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 §§ 44.01- 44.05 (4th ed. 1990); Seventh Circuit Federal Jury Instructions: Criminal at 284-85 (1999); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 52.1 (1997). See generally United States v. Hopping, 668 F.2d 398, 399-40 (8th Cir. 1982); United States v. Lampson, 627 F.2d 62, 66 (7th Cir. 1980).

Theft of mail includes the element of intent to steal at the time the mail is taken. United States v. Lampson, 627 F.2d at 66; United States v. Hopping, 688 F.2d at 399-40; Walker v. United States, 342 F.2d 22, 25 (5th Cir.), cert. denied, 382 U.S. 859 (1965). Element Three, which requires a finding of intent, is also a definition of "steal." See United States v. Turley, 352 U.S. 407, 417 (1957). Accordingly, the Committee believes no further definition of "steal" is necessary.

The protection of 18 USC 1708 is limited to mail matter which is still in the possession or control of the Postal Service or which has been placed in an authorized receptacle for mail matter, such as a private letter box, and has not been lawfully removed therefrom. United States v. Matzker, 473 F.2d 408 (8th Cir. 1973). On the other hand the protection extended by section 1702 is applicable until the mailed material is physically delivered to the addressee or his agent. United States v. Ashford, 530 F.2d 792 (8th Cir. 1976).

Notes on Use

1. The statute lists specific depositories for mail. Other authorized depositories are established by regulations of the Postmaster General. If one of these is involved, it should be named in the elements.

2. The statute also includes obtaining or attempting to obtain mail by fraud. In such a case, this language should be used.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1708B POSSESSION OF STOLEN MAIL
(18 USC 1708, Third Paragraph)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Theft Of Mail Matter (18 USC 1708) (First Paragraph)

See FORECITE National™ Federal Models By Offense: Possession Of Stolen Mail (18 USC 1708) (Third Paragraph)

The crime of unlawful [purchase] [receipt] [concealment] [possession] of stolen mail, as charged in [Count of] the indictment, has two elements, which are:

One, the defendant [bought] [received] [concealed] [unlawfully had in [his] [her] possession] (describe letter, mail, etc. or article or thing contained therein);

Two, this (describe letter, mail, etc. or article or thing contained therein) had been stolen¹ from (describe authorized depository for mail matter); and

Three, the defendant knew (describe letter, mail, etc. or article or thing contained therein) had been stolen.

Mail matter is "stolen" when it has been voluntarily taken from an authorized depository for mail matter with intent to deprive the addressee temporarily or permanently of its use and benefit.

The Government does not have to prove who stole the mail matter. Also, the Government does not have to prove that the defendant knew that the matter had been stolen from the mail, only that [he] [she] knew it had been stolen.

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

Notes on Use

1. The statute also makes illegal the receipt of mail which has been taken, embezzled or obstructed. If one of these alternatives is charged, the instruction should be so modified.

Committee Comments

See 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 52.01-.05 (5^th ed. 2000). See Committee Comments, Instruction 6.18.1708A, supra; Blue v. United States, 528 F.2d 892, 894 (8th Cir. 1976).

The defendant must know that the letter or package was stolen, but he need not know that it was stolen from the mails. United States v. Owens, 472 F.2d 780-87 (8th Cir. 1973).

The Government may prove by circumstantial evidence that the mail was stolen. United States v. Reece, 547 F.2d 432, 435 (8th Cir. 1977); United States v. Bloom, 482 F.2d 1162, 1164 (8th Cir. 1973).

An instruction defining actual and constructive possession in a section 1708 case was approved in United States v. Haynes, 653 F.2d 332, 333 (8th Cir. 1981). See Instruction 8.02, infra, for an instruction defining possession.

Where warranted by the evidence, an instruction allowing the jury to draw inferences of theft and knowledge of the theft from evidence of recent possession of stolen mail may be given. United States v. Hayes, 631 F.2d 593, 594-95 (8th Cir. 1980). See also Barnes v. United States, 412 U.S. 837, 839-40 (1973); United States v. Bloom, 482 F.2d at 1165-66. See further Instruction 4.13, supra, concerning instructions on inferences.

The defendant cannot be convicted for both theft and possession of a single piece of mail. United States v. Lindsay, 552 F.2d 263, 266 (8th Cir. 1977).

The Committee believes "unlawfully" is required by the statute which proscribes the "unlawful" possession of stolen mail. The definition of "unlawfully" as "contrary to law" has been called "circular" and "no definition at all." United States v. Hoog, 504 F.2d 45, 51 (8th Cir. 1974). The Committee recommends that "unlawfully" be defined in terms of the particular conduct which made the possession unlawful.

(For 2008 version see below).

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2008 Version

The crime of unlawful [purchase] [receipt] [concealment] [possession] of stolen mail, as charged in [Count of] the indictment, has two elements, which are:

One, the defendant [bought] [received] [concealed] [unlawfully had in [his] [her] possession] (describe letter, mail, etc. or article or thing contained therein);

Two, this (describe letter, mail, etc. or article or thing contained therein) had been stolen¹ from (describe authorized depository for mail matter); and

Three, the defendant knew (describe letter, mail, etc. or article or thing contained therein) had been stolen.

Mail matter is "stolen" when it has been voluntarily taken from an authorized depository for mail matter with intent to deprive the addressee temporarily or permanently of its use and benefit.

The Government does not have to prove who stole the mail matter. Also, the Government does not have to prove that the defendant knew that the matter had been stolen from the mail, only that [he] [she] knew it had been stolen.

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

Notes on Use

1. The statute also makes illegal the receipt of mail which has been taken, embezzled or obstructed. If one of these alternatives is charged, the instruction should be so modified.

Committee Comments

The defendant must know that the letter or package was stolen, but he need not know that it was stolen from the mails. United States v. Owens, 472 F.2d 780-87 (8th Cir. 1973).

The government may prove by circumstantial evidence that the mail was stolen. United States v. Reece, 547 F.2d 432, 435 (8th Cir. 1977); United States v. Bloom, 482 F.2d 1162, 1164 (8th Cir. 1973).

The defendant cannot be convicted for both theft and possession of a single piece of mail. United States v. Lindsay, 552 F.2d 263, 266 (8th Cir. 1977).

(For 2006 version see below)

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2006 Version

The crime of unlawful [purchase] [receipt] [concealment] [possession] of stolen mail, as charged in [Count of] the indictment, has two elements, which are:

One, the defendant [bought] [received] [concealed] [unlawfully had in [his] [her] possession] (describe letter, mail, etc. or article or thing contained therein);

Two, this (describe letter, mail, etc. or article or thing contained therein) had been stolen1 from (describe authorized depository for mail matter); and

Three, the defendant knew (describe letter, mail, etc. or article or thing contained therein) had been stolen.

Mail matter is "stolen" when it has been voluntarily taken from an authorized depository for mail matter with intent to deprive the addressee temporarily or permanently of its use and benefit.

The Government does not have to prove who stole the mail matter. Also, the Government does not have to prove that the defendant knew that the matter had been stolen from the mail, only that [he] [she] knew it had been stolen.

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

Notes on Use

1. The statute also makes illegal the receipt of mail which has been taken, embezzled or obstructed. If one of these alternatives is charged, the instruction should be so modified.

Committee Comments

See 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 52.01-.05 (5th ed. 2000). See Committee Comments, Instruction 6.18.1708A, supra; Blue v. United States, 528 F.2d 892, 894 (8th Cir. 1976).

The defendant must know that the letter or package was stolen, but he need not know that it was stolen from the mails. United States v. Owens, 472 F.2d 780-87 (8th Cir. 1973).

The defendant cannot be convicted for both theft and possession of a single piece of mail. United States v. Lindsay, 552 F.2d 263, 266 (8th Cir. 1977).

For 2000 version see below

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2000 Version

The crime of unlawful [purchase] [receipt] [concealment] [possession] of stolen mail, as charged in [Count of] the indictment, has two essential elements, which are:

One, (describe letter, mail, etc. or article or thing contained therein) was stolen1 from (describe authorized depository for mail matter);

Two, the defendant thereafter [bought] [received] [concealed] [unlawfully had in his possession] such mail matter with knowledge that it had been stolen.

Mail matter is "stolen" when it has been voluntarily taken from an authorized depository for mail matter with intent to deprive the addressee temporarily or permanently of its use and benefit.

The Government does not have to prove who stole the mail matter. Also, the Government does not have to prove that the defendant knew that the matter had been stolen from the mail, only that he knew it had been stolen.

(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 §§ 44.01- 44.05 (4th ed. 1990); Fifth Circuit Pattern Jury Instructions: Criminal § 2.71 (1997); Ninth Cir. Crim. Jury Instr. 8.38.1 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 52.2 (1997).

See Committee Comments, Instruction 6.18.1708A, supra; Blue v. United States, 528 F.2d 892, 894 (8th Cir. 1976).

The defendant must know that the letter or package was stolen, but he need not know that it was stolen from the mails. United States v. Owens, 472 F.2d 780-87 (8th Cir.), cert. denied, 412 U.S. 951 (1973).

Where warranted by the evidence, an instruction allowing the jury to draw inferences of theft and knowledge of the theft from evidence of recent possession of stolen mail may be given. United States v. Hayes, 631 F.2d 593, 594-95 (8th Cir. 1980). See also United States v. Bloom, 482 F.2d at 1165-66 and Barnes v. United States, 412 U.S. 837 (1973). See further Instruction 4.13, supra, concerning instructions on inferences.

The defendant cannot be convicted for both theft and possession of a single piece of mail. United States v. Lindsay, 552 F.2d 263, 266 (8th Cir. 1977).

None of the published instructions cited in the first paragraph above uses the word "unlawfully" to modify possession. The Committee believes "unlawfully" is required by the statute which proscribes the "unlawful" possession of stolen mail. The Committee did not find a useful definition of "unlawfully." The definition of "unlawfully" as "contrary to law" has been called "circular" and "no definition at all." United States v. Hoog, 504 F.2d 45, 51 (8th Cir. 1974), cert. denied, 420 U.S. 961 (1975). The Committee recommends that "unlawfully" be defined in terms of the particular conduct which made the possession unlawful.

If the defendant claims innocent or authorized 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. Tompkins, 487 F.2d 146, 152 (8th Cir. 1973), cert. denied, 416 U.S. 944 (1974), cf., United States v. Mavrick, 601 F.2d 921, 926-27 (7th Cir. 1979) [construing 18 USC 659].

Notes on Use

1. The statute also makes illegal the receipt of mail which has been taken, embezzled or obstructed. If one of these alternatives is charged, the instruction should be so modified.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1709A EMBEZZLEMENT OF MAIL
(18 USC 1709, First Clause)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Embezzlement/theft Of Mail Matter By Postal Service Employee (18 USC 1709)

The crime of embezzling mail, as charged in [Count _____ of] the indictment, has three elements, which are:

One, the defendant was an [officer] [employee] of the United States Postal Service at the time stated in the indictment; and

Two, in [his] [her] position with the Postal Service, the defendant had possession of (describe the mail matter, e.g., a letter) that was intended to be conveyed by mail; and

Three, the defendant [took] [removed]¹ the (describe the mail matter, e.g., contents of letter) with the intent to convert it to [his] [her] own use.

(Describe the mail matter, e.g., A letter) is "intended to be conveyed by mail" if a reasonable person who saw (describe the mail matter, e.g., the letter) would think it was intended to be delivered through the mail. [The intent of the person who prepared the item for mailing or who mailed it is irrelevant.]

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

Notes on Use

1. There are two separate methods for a postal employee to violate section 1709: by embezzling mail matter (clause 1), which includes a letter and its contents, or by stealing the contents of mail matter (clause 2). The difference between the two clauses is that one can embezzle mail matter (i.e., letter or package) and its contents, but the "stealing clause" applies only to theft of the contents of mail matter (letter or package). United States v. Selwyn, 998 F.2d 556, 557 (8th Cir. 1993); 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 52.06-.10 (5^th ed. 2000). See United States v. Selwyn, 998 F.2d at 557-59, which applied a strict common-law view of embezzlement to this statute. See an instruction on clause 2.

Committee Comments

See 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 52.06-.10 (5^th ed. 2000).

Intent to convert property to one's own use is required. United States v. Rush, 551 F. Supp. 148, 151 (S.D. Iowa 1982).

Embezzlement presupposes lawful possession, but theft does not. See United States v. Selwyn, 998 F.2d 556 (8th Cir. 1993) and Note on Use 1. A postal employee, who does not, by nature of his duties, originally have lawful possession of certain mail matter, can be charged and convicted under the stealing provisions in the second clause of section 1709. United States v. Selwyn, 998 F.2d at 558.

The first clause of section 1709 requires that the mail matter was "intended to be delivered by mail." In "test letter" cases, the Eighth Circuit has required "evidence from which the jury could conclude that, judged by objective standards, the test letter appeared to be a letter that was intended to be delivered." United States v. Costello, 604 F.2d 589, 591 (8th Cir. 1979). See also United States v. Hergenrader, 529 F.2d 83, 84-86 (8th Cir. 1976), and Scott v. United States, 172 U.S. 343 (1899) (indicating the subjective intent of the person "mailing" the letter was not at issue; rather, the issue is whether a reasonable person would believe that the particular mail matter was intended to be conveyed by mail).

(For 2008 version see below).

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2008 Version

The crime of embezzling mail, as charged in [Count _____ of] the indictment, has three elements, which are:

One, the defendant was an [officer] [employee] of the United States Postal Service at the time stated in the indictment; and

Two, in [his] [her] position with the Postal Service, the defendant had possession of (describe the mail matter, e.g., a letter) that was intended to be conveyed by mail; and

Three, the defendant [took] [removed]¹ the (describe the mail matter, e.g., contents of letter) with the intent to convert it to [his] [her] own use.

(Describe the mail matter, e.g., A letter) is "intended to be conveyed by mail" if a reasonable person who saw (describe the mail matter, e.g., the letter) would think it was intended to be delivered through the mail. [The intent of the person who prepared the item for mailing or who mailed it is irrelevant.]

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

Notes on Use

Committee Comments

See 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 52.06-.10 (5^th ed. 2000).

Intent to convert property to one's own use is required. United States v. Rush, 551 F. Supp. 148, 151 (S.D. Iowa 1982).

(For 2006 version see below)

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2006 Version

The crime of embezzling mail, as charged in [Count _____ of] the indictment, has three elements, which are:

One, the defendant was an [officer] [employee] of the United States Postal Service at the time stated in the indictment; and

Two, in [his] [her] position with the Postal Service, the defendant had possession of (describe the mail matter, e.g., a letter) that was intended to be conveyed by mail; and

Three, the defendant [took] [removed]1 the (describe the mail matter, e.g., contents of letter) with the intent to convert it to [his] [her] own use.

(Describe the mail matter, e.g., A letter) is "intended to be conveyed by mail" if a reasonable person who saw (describe the mail matter, e.g., the letter) would think it was intended to be delivered through the mail. [The intent of the person who prepared the item for mailing or who mailed it is irrelevant.]

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

Notes on Use

1. There are two separate methods for a postal employee to violate section 1709: by embezzling mail matter (clause 1), which includes a letter and its contents, or by stealing the contents of mail matter (clause 2). The difference between the two clauses is that one can embezzle mail matter (i.e., letter or package) and its contents, but the "stealing clause" applies only to theft of the contents of mail matter (letter or package). United States v. Selwyn, 998 F.2d 556, 557 (8th Cir. 1993); 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 52.06-.10 (5th ed. 2000). See United States v. Selwyn, 998 F.2d at 557-59, which applied a strict common-law view of embezzlement to this statute. See an instruction on clause 2.

Committee Comments

See 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 52.06-.10 (5th ed. 2000).

Intent to convert property to one's own use is required. United States v. Rush, 551 F. Supp. 148, 151 (S.D. Iowa 1982).

For 2000 version see below

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2000 Version

The crime of embezzling mail, as charged in [Count _____ of] the indictment, has three essential elements, which are:

One, the defendant was a United States Postal Service [officer] [employee] at the time stated in the indictment;

Two, in his position with the Postal Service,1 the defendant had possession of (describe the mail matter) that was intended to be conveyed by mail; and

Three, the defendant [took] [removed] the (describe the mail matter) with the intent to convert it to his own use.

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

Committee Comments

See Seventh Circuit Federal Jury Instructions: Criminal at 290-91 (1999); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 53 (1997); 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal §§ 44.06-44.10 (4th ed. 1990).

Intent to convert property to one's own use is required. United States v. Rush, 551 F. Supp. 148, 151 (S.D. Iowa 1982).

Embezzlement presupposes lawful possession, but theft does not. See United States v. Selwyn, 998 F.2d 556 (8th Cir. 1993) and Note on Use 1; United States v. Trevino, 491 F.2d 74, 75 (5th Cir. 1974). A postal employee, who does not, by nature of his duties, originally have lawful possession of certain mail matter, can be charged and convicted under the stealing provisions in the second clause of section 1709. United States v. Dollard, 780 F.2d 1118, 1122 (4th Cir. 1985). In a case arising under the second clause, the instruction would have to be modified.

Notes on Use

1. In United States v. Selwyn, 998 F.2d 556 (8th Cir. 1993), the Eighth Circuit has taken a very strict common-law view of embezzlement as used in this statute. In any case arising under Clause 1 of section 1709, embezzlement should be defined in the instructions. See, e.g., 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 44.09 (4th ed. 1990). As with other criminal statutes setting out violations in the disjunctive, this case offers an instructive example of the importance of choosing a theory of prosecution that closely tracks the language of the particular section of the statute the defendant's behavior violates.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1709B
THEFT OF MAIL BY POSTAL SERVICE EMPLOYEE
(18 USC 1709, (Second Clause)

The crime of theft of mail by a Postal Service employee, as charged in [Count _____ of] the indictment, has three elements, which are:

One, the defendant was an [officer] [employee] of the United States Postal Service at the time stated in the indictment;

Two, the [letter] [package] [bag] [mail] was [in the United States mail] [intended to be conveyed by mail]; and

Three, the defendant [took] [removed]¹ the (describe the contents of the mail matter, e.g., check from the letter) with the intent to convert it to [his] [her] own use.

[(Describe the mail matter, e.g., a letter) is "intended to be conveyed by mail" if a reasonable person who saw (describe the mail matter, e.g., the letter) would think it was intended to be delivered through the mail.] [The intent of the person who prepared the item for mailing or who mailed it is irrelevant.]

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

Notes on Use

1. There are two separate methods for a postal employee to violate section 1709: by embezzling mail matter (clause 1), which includes a letter and its contents, or by stealing the contents of mail matter (clause 2). The difference between the two clauses is that one can embezzle mail matter (i.e., letter or package) and its contents, but the "stealing clause" applies only to theft of the contents of mail matter (letter or package). United States v. Selwyn, 998 F.2d 556, 557 (8th Cir. 1993); 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 52.06-.10 (5^th ed. 2000). Also see United States v. Selwyn, 998 F.2d at 557-59, which applied a strict common-law view of embezzlement to this statute.

Committee Comments

See Instruction 6.18.1709A; 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 52.06-.10 (5^th ed. 2000).

Intent to convert property to one's own use is required. United States v. First, 600 F.2d 170, 171 (8^th Cir. 1979); United States v. Rush, 551 F. Supp. 148, 151 (S.D. Iowa 1982).

Embezzlement presupposes lawful possession, but theft does not. See United States v. Selwyn, 998 F.2d 556 (8th Cir. 1993), and Note on Use 1. A postal employee, who does not, by nature of his duties, originally have lawful possession of certain mail matter, can be charged and convicted under the stealing provisions in the second clause of section 1709. United States v. Selwyn, 998 F.2d at 558.

One of jurisdictional bases for a violation of section 1709 is that the mail matter was "intended to be delivered by mail." In "test letter" cases, the Eighth Circuit has required "evidence from which the jury could conclude that, judged by objective standards, the test letter appeared to be a letter that was intended to be delivered." United States v. Costello, 604 F.2d 589, 591 (8th Cir. 1979). See also United States v. Hergenrader, 529 F.2d 83, 84-86 (8th Cir. 1976), and Scott v. United States, 172 U.S. 343 (1899) (indicating the subjective intent of the person "mailing" the letter was not at issue; rather, the issue is whether a reasonable person would believe that the particular mail matter was intended to be conveyed by mail).

(For 2008 version see below).

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2008 Version

The crime of theft of mail by a Postal Service employee, as charged in [Count _____ of] the indictment, has three elements, which are:

One, the defendant was an [officer] [employee] of the United States Postal Service at the time stated in the indictment;

Two, the [letter] [package] [bag] [mail] was [in the United States mail] [intended to be conveyed by mail]; and

Three, the defendant [took] [removed]¹ the (describe the contents of the mail matter, e.g., check from the letter) with the intent to convert it to [his] [her] own use.

[(Describe the mail matter, e.g., a letter) is "intended to be conveyed by mail" if a reasonable person who saw (describe the mail matter, e.g., the letter) would think it was intended to be delivered through the mail.] [The intent of the person who prepared the item for mailing or who mailed it is irrelevant.]

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

Notes on Use

1. There are two separate methods for a postal employee to violate section 1709: by embezzling mail matter (clause 1), which includes a letter and its contents, or by stealing the contents of mail matter (clause 2). The difference between the two clauses is that one can embezzle mail matter (i.e., letter or package) and its contents, but the "stealing clause" applies only to theft of the contents of mail matter (letter or package). United States v. Selwyn, 998 F.2d 556, 557 (8th Cir. 1993); 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 52.06-.10 (5^th ed. 2000). Also see United States v. Selwyn, 998 F.2d at 557-59, which applied a strict common-law view of embezzlement to this statute.

Committee Comments

See Instruction 6.18.1709A; 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 52.06-.10 (5^th ed. 2000).

Intent to convert property to one's own use is required. United States v. First, 600 F.2d 170, 171 (8^th Cir. 1979); United States v. Rush, 551 F. Supp. 148, 151 (S.D. Iowa 1982).

(For 2006 version see below)

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

2006 Version

The crime of theft of mail by a Postal Service employee, as charged in [Count _____ of] the indictment, has three elements, which are:

One, the defendant was an [officer] [employee] of the United States Postal Service at the time stated in the indictment;

Two, the [letter] [package] [bag] [mail] was [in the United States mail] [intended to be conveyed by mail]; and

Three, the defendant [took] [removed]1 the (describe the contents of the mail matter, e.g., check from the letter) with the intent to convert it to [his] [her] own use.

[(Describe the mail matter, e.g., a letter) is "intended to be conveyed by mail" if a reasonable person who saw (describe the mail matter, e.g., the letter) would think it was intended to be delivered through the mail.] [The intent of the person who prepared the item for mailing or who mailed it is irrelevant.]

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

Notes on Use

1. There are two separate methods for a postal employee to violate section 1709: by embezzling mail matter (clause 1), which includes a letter and its contents, or by stealing the contents of mail matter (clause 2). The difference between the two clauses is that one can embezzle mail matter (i.e., letter or package) and its contents, but the "stealing clause" applies only to theft of the contents of mail matter (letter or package). United States v. Selwyn, 998 F.2d 556, 557 (8th Cir. 1993); 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 52.06-.10 (5th ed. 2000). Also see United States v. Selwyn, 998 F.2d at 557-59, which applied a strict common-law view of embezzlement to this statute.

Committee Comments

See Instruction 6.18.1709A; 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 52.06-.10 (5th ed. 2000).

Intent to convert property to one's own use is required. United States v. First, 600 F.2d 170, 171 (8th Cir. 1979); United States v. Rush, 551 F. Supp. 148, 151 (S.D. Iowa 1982).

No 2000 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1951 INTERFERENCE WITH COMMERCE BY MEANS OF EXTORTION
(18 USC 1951) (Hobbs Act)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Interference With Commerce By Robbery Or Extortion (Hobbs Act) (18 USC 1951)

The crime of interference with commerce by means of extortion, as charged in [Count _____ of] the indictment, has three elements, which are:

One, the defendant induced (describe victim[s], e.g., John Jones, President of ABC Corp.) to part with [property] (describe property, e.g., $10,000.00 cash);

Two, the defendant voluntarily and intentionally did so by extortion -- that is, [through the wrongful use of actual or threatened force or violence] [through the wrongful use of fear] [under color of official right];¹

Three, the defendant's action [obstructed] [delayed] [affected] [interstate] [foreign] commerce in some way or degree.²

["Fear" means a state of anxious concern, alarm or apprehension of harm. Fear includes fear of economic loss or injury, as well as fear of physical violence. Extortion by wrongful use of fear requires that the fear be reasonable under the circumstances.]³

[Extortion "under color of official right" is the wrongful taking by a public officer of money or property not due him or his office, whether or not the taking was accompanied by force, threats or use of fear. So if a public official voluntarily and intentionally misuses his public office and power for the wrongful purpose of inducing a victim to part with property, such activity constitutes extortion.]⁴

[Extortion is committed when property is obtained with the consent of the victim by the wrongful use of actual or threatened force, violence or fear or under color of official right.]⁵

[You may find an [obstruction] [delay] [effect] on [interstate] [foreign] commerce has been proven if you find and believe from the evidence beyond a reasonable doubt: (describe effects on [interstate] [foreign] commerce alleged in the indictment on which proof was offered at trial, which demonstrate an actual effect on interstate commerce, e.g., that the John Doe Produce Distributing Co. shipped lettuce, tomatoes, string beans, and other produce from St. Louis, in the State of Missouri, to various points outside of the State of Missouri, including the states of Oregon, Wyoming and Kansas.)⁶]

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

Notes on Use

1. The proper theory of extortion charged in the indictment should be selected in the second element of the instruction.

2. If an attempt crime is charged, the instruction should be modified accordingly.

3. "Extortion" and "fear" must be defined. The statutory definition of "extortion" may be found at 18 USC 1951(b)(2). The wrongful use of fear and a reasonable fear on the part of the victim is essential to a conviction of extortion by use of fear. See United States v. Brown, 540 F.2d 364, 373 n.6 (8th Cir. 1976); Nick v. United States, 122 F.2d 660 (8th Cir. 1941); United States v. Margiotta, 688 F.2d 108, 133-35 (2d Cir. 1982). See the discussion of extortion in United States v. Foster, 443 F.3d 978, 984 (8^th Cir. 2006).

4. If possible, the instruction should be made to relate specifically to the charges and evidence in the case. In a case involving extortion by a police officer, an instruction similar to the following instruction was used:

Extortion under color of official right by a law enforcement officer need not involve force or threats. If a victim reasonably feels compelled or induced to pay money to a law enforcement officer, because of that officer's wrongful use of his official position for the purpose of obtaining money, the requirement of the crime of extortion under color of official right is satisfied.

See United States v. Crowley, 504 F.2d 992, 995 (7th Cir. 1974). See also United States v. Hathaway, 534 F.2d 386 (1st Cir. 1976); United States v. Brown, 540 F.2d 364 (8th Cir. 1976).

In "campaign contribution" cases, an instruction similar to the following language approved by the Eleventh Circuit, affirmed in Evans v. United States, 504 U.S. 255 (1992), may be appropriate:

[T]he acceptance by an elected official of a campaign contribution does not, in itself, constitute a violation of the Hobbs Act even though the donor has business pending before the official.

However, if a public official demands or accepts money in exchange for a specific requested exercise of his or her official power, such a demand or acceptance does constitute a violation of the Hobbs Act regardless of whether the payment is made in the form of a campaign contribution.

504 U.S. at 258.

5. In a case where different theories of extortion are charged, it is appropriate to charge the jury in the disjunctive on extortion, i.e., a finding of guilt is supported by extortion under fear of economic loss or under color of official right. United States v. Kenny, 462 F.2d 1205, 1229 (3d Cir. 1972); United States v. Rabbitt, 583 F.2d 1014, 1027 (8th Cir. 1978); United States v. Brown, 540 F.2d 364, 377 (8th Cir. 1976). If both theories are submitted to the jury, they should be instructed that they may convict the defendant if they find unanimously and beyond a reasonable doubt that at least one of the theories was proven by the Government.

6. Although some courts have held that the jury may be instructed as a matter of law that interstate commerce has been shown if various facts were proven, this appears to be the safer instruction. See generally the definition of interstate and foreign commerce found in 6.18.1956J(2); Hulahan v. United States, 214 F.2d 441, 445, 446 (8th Cir. 1954); United States v. Rabbitt, 583 F.2d 1014, 1023 (8th Cir. 1978); United States v. French, 628 F.2d 1069, 1078 (8th Cir. 1980).

Committee Comments

The Hobbs Act is a constitutional exercise of Congress’ power under the Commerce Clause. United States v. Foster, 443 F.3d at 982, rejecting a challenge under United States v. Lopez, 514 U.S. 549 (1995); United States v. Farmer, 73 F.3d 836, 843-44 (8^th Cir. 1996).

If a public official is alleged to have extorted a campaign contribution "under color of official right," the jury must be instructed that receipt of such contribution violates section 1951 "only if the payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act." McCormick v. United States, 500 U.S. 257 (1991). A subsequent case, Evans v. United States, 504 U.S. 255 (1992), resolved the issue as to whether an affirmative act of inducement by a public official is required to support a conviction of extortion under color of official right by affirming a conviction based on an official's passive acceptance of a payment known to have been offered in exchange for a specific requested exercise of official power. Evans also held that the quid pro quo requirement of McCormick is met when "the public official receives payment [a campaign contribution] in return for his agreement to perform specific official acts; fulfillment of the quid pro quo is not an element of the offense." 504 U.S. at 256, 268-69.

Extortion under "color of official right" does not require compulsion or duress. Wrongful use of office to induce payments to or at the direction of a public official will make out an extortion. Because threats or coercion are not required, the facts of some cases will be fairly similar to the facts of a bribery case, in that the "victim" will be buying the influence of a public official, often with very subtle inducements on the part of the public official to make payoffs to him. See United States v. Brown, 540 F.2d 364 (8th Cir. 1976); United States v. French, 628 F.2d 1069 (8th Cir. 1980).

The term "property" has been broadly defined under the Hobbs Act, and includes not only tangible property, but includes "any valuable right considered as a source of wealth." See United States v. Provenzano, 334 F.2d 678 (3d Cir. 1964).

Fear of economic injury has also been held to include the fear of lost business opportunities, and the fear of loss of one's ability to compete in the marketplace. United States v. Hathaway, 534 F.2d 386, 393-94 (1st Cir. 1976); Seventh Circuit Federal Jury Instructions: Criminal at 297 (1999).

It is not necessary that the Government prove that a defendant himself benefitted from any extortion. Extortion is proven if the payments are made to a third party, or entity, at the direction of the defendant. United States v. Provenzano; United States v. Green, 350 U.S. 415, 420 (1956).

Further, only a minimal effect on interstate commerce is required to establish jurisdiction under the Hobbs Act because Congress intended to exercise the full scope of its power under the Interstate Commerce Clause of the United States Constitution. United States v. Dobbs, 449 F.3d 904, 912 (8^th Cir. 2006) (robbery of stand-alone, "mom and pop" convenience store was a Hobbs Act violation, even though the store had only a de minimus connection to interstate commerce); United States v. Farmer, 73 F.3d at 843 (robbery of a single HyVee grocery store sufficient to support conviction where store was part of a national chain which received goods shipped in interstate commerce); United States v. Quigley, 53 F.3d 909 (8^th Cir. 1995) (robbery of two individuals of a pouch of chewing tobacco and eighty cents while on way to purchase beer from store which received goods in interstate commerce not sufficient to support conviction). However, the effect on interstate commerce must be actual and not merely probable or potential, United States v. Williams, 308 F.3d. 833 (8^th Cir. 2002), unless the case involves prosecution of an attempt crime. In such a case, a probable or potential impact is sufficient. United States v. Foster, 443 F.3d at 984.

If attempted extortion is charged, the instruction should be modified accordingly. Furthermore, in attempted extortion, the focus is on the defendant's intent, rather than on the state of mind of the victim. United States v. Smith, 631 F.2d at 104. An attempt to arouse fear is sufficient. United States v. Frazier, 560 F.2d 884, 887 (8th Cir. 1977). The actual generation of fear is unnecessary. United States v. Mitchell, 463 F.2d 187 (8th Cir. 1972). "‘The offense of attempted extortion is complete when the defendant has attempted to induce his victim to part with property.’" United States v. Foster, 443 F.3d at 985 (quoting United States v. Frazier, 560 F.2d at 887).

There is no requirement that the public official have the actual power to perform an act which is the basis of an extortionate scheme. As long as the victim holds a reasonable belief that the defendant's office included the apparent authority to do the acts which a defendant claims he can carry out, an extortion is proven. In cases involving apparent authority, the jury should be instructed on this issue in terms of the specific case involved. An example is as follows:

You must find that Leo Victim reasonably believed that Senator Doe's official powers included the securing of leases for the State of Missouri. You need not find, however, that Senator Doe actually held this power.

See United States v. Mazzei, 521 F.2d 639, 643 n.2 (3d Cir. 1975); United States v. Brown, 540 F.2d 364, 372 (8th Cir. 1976). In United States v. Loftus, 992 F.2d 793, 796 (8th Cir. 1993), the court of appeals stated, "[a]ctual authority over the end result - rezoning - is not controlling if Loftus, through his official position, had influence and authority over a means to that end."

(For 2008 version see below).

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

2008 Version

The crime of interference with commerce by means of extortion, as charged in [Count _____ of] the indictment, has three elements, which are:

One, the defendant induced (describe victim[s], e.g., John Jones, President of ABC Corp.) to part with [property] (describe property, e.g., $10,000.00 cash);

Two, the defendant voluntarily and intentionally did so by extortion -- that is, [through the wrongful use of actual or threatened force or violence] [through the wrongful use of fear] [under color of official right];¹

Three, the defendant's action [obstructed] [delayed] [affected] [interstate] [foreign] commerce in some way or degree.²

["Fear" means a state of anxious concern, alarm or apprehension of harm. Fear includes fear of economic loss or injury, as well as fear of physical violence. Extortion by wrongful use of fear requires that the fear be reasonable under the circumstances.]³

[Extortion "under color of official right" is the wrongful taking by a public officer of money or property not due him or his office, whether or not the taking was accompanied by force, threats or use of fear. So if a public official voluntarily and intentionally misuses his public office and power for the wrongful purpose of inducing a victim to part with property, such activity constitutes extortion.]⁴

[Extortion is committed when property is obtained with the consent of the victim by the wrongful use of actual or threatened force, violence or fear or under color of official right.]⁵

[You may find an [obstruction] [delay] [effect] on [interstate] [foreign] commerce has been proven if you find and believe from the evidence beyond a reasonable doubt: (describe effects on [interstate] [foreign] commerce alleged in the indictment on which proof was offered at trial, which demonstrate an actual effect on interstate commerce, e.g., that the John Doe Produce Distributing Co. shipped lettuce, tomatoes, string beans, and other produce from St. Louis, in the State of Missouri, to various points outside of the State of Missouri, including the states of Oregon, Wyoming and Kansas.)⁶]

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

Notes on Use

1. The proper theory of extortion charged in the indictment should be selected in the second element of the instruction.

2. If an attempt crime is charged, the instruction should be modified accordingly.

Extortion under color of official right by a law enforcement officer need not involve force or threats. If a victim reasonably feels compelled or induced to pay money to a law enforcement officer, because of that officer's wrongful use of his official position for the purpose of obtaining money, the requirement of the crime of extortion under color of official right is satisfied.

See United States v. Crowley, 504 F.2d 992, 995 (7th Cir. 1974). See also United States v. Hathaway, 534 F.2d 386 (1st Cir. 1976); United States v. Brown, 540 F.2d 364 (8th Cir. 1976).

In "campaign contribution" cases, an instruction similar to the following language approved by the Eleventh Circuit, affirmed in Evans v. United States, 504 U.S. 255 (1992), may be appropriate:

[T]he acceptance by an elected official of a campaign contribution does not, in itself, constitute a violation of the Hobbs Act even though the donor has business pending before the official.

However, if a public official demands or accepts money in exchange for a specific requested exercise of his or her official power, such a demand or acceptance does constitute a violation of the Hobbs Act regardless of whether the payment is made in the form of a campaign contribution.

504 U.S. at 258.

Committee Comments

You must find that Leo Victim reasonably believed that Senator Doe's official powers included the securing of leases for the State of Missouri. You need not find, however, that Senator Doe actually held this power.

(For 2006 version see below)

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

2006 Version

The crime of interference with commerce by means of extortion, as charged in [Count _____ of] the indictment, has three elements, which are:

One, the defendant induced (describe victim[s], e.g., John Jones, President of ABC Corp.) to part with [property] [(describe property e.g., $10,000.00 cash)];

Two, the defendant voluntarily and intentionally did so by extortion -- that is, [through the wrongful use of actual or threatened force or violence] [through the wrongful use of fear] [under color of official right];1

Three, the defendant's action [obstructed] [delayed] [affected] commerce in some way or degree.

["Fear" means a state of anxious concern, alarm or apprehension of harm. Fear includes fear of economic loss or injury, as well as fear of physical violence. Extortion by wrongful use of fear requires that the fear be reasonable under the circumstances.]2

[Extortion "under color of official right" is the wrongful taking by a public officer of money or property not due him or his office, whether or not the taking was accompanied by force, threats or use of fear. So if a public official voluntarily and intentionally misuses his public office and power for the wrongful purpose of inducing a victim to part with property, such activity constitutes extortion.]3

[Extortion is committed when property is obtained with the consent of the victim by the wrongful use of actual or threatened force, violence or fear or under color of official right.]4

[You may find an [obstruction] [delay] [effect] on commerce has been proven if you find and believe from the evidence beyond a reasonable doubt: (describe effects on commerce alleged in the indictment on which proof was offered at trial, which demonstrate an actual effect on interstate commerce, e.g., that the John Doe Produce Distributing Co. shipped lettuce, tomatoes, string beans, and other produce from St. Louis, in the State of Missouri, to various points outside of the State of Missouri, including the states of Oregon, Wyoming and Kansas.)5]

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

Notes on Use

1. The proper theory of extortion charged in the indictment should be selected in the second element of the instruction. This type of element instruction is also used in 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 53.03 (5th ed. 2000), Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 56 (1997) and Fifth Circuit Pattern Jury Instructions: Criminal § 2.74 (1997). In all of the remaining instructions, only those instructions pertinent to the facts of a particular case should be used.

2. "Extortion" and "fear" must be defined. The statutory definition of "extortion" may be found at 18 USC 1951(b)(2). The wrongful use of fear and a reasonable fear on the part of the victim is essential to a conviction of extortion by use of fear. See Seventh Circuit Federal Jury Instructions: Criminal at 297 (1999); United States v. Brown, 540 F.2d 364, 373 n.6 (8th Cir. 1976); Nick v. United States, 122 F.2d 660 (8th Cir. 1941); United States v. Margiotta, 688 F.2d 108, 133-35 (2d Cir. 1982).

3. If possible, the instruction should be made to specifically relate to the charges and evidence in the case. In a case involving extortion by a police officer, an instruction similar to the following instruction was used:

Extortion under color of official right by a law enforcement officer need not involve force or threats. If a victim reasonably feels compelled or induced to pay money to a law enforcement officer, because of that officer's wrongful use of his official position for the purpose of obtaining money, the requirement of the crime of extortion under color of official right is satisfied.

See United States v. Crowley, 504 F.2d 992, 995 (7th Cir. 1974). See also United States v. Hathaway, 534 F.2d 386 (1st Cir. 1976); United States v. Brown, 540 F.2d 364 (8th Cir. 1976).

In "campaign contribution" cases, an instruction similar to the following language approved by the Eleventh Circuit, affirmed in Evans v. United States, 504 U.S. 255 (1992), may be appropriate:

[T]he acceptance by an elected official of a campaign contribution does not, in itself, constitute a violation of the Hobbs Act even though the donor has business pending before the official.

However, if a public official demands or accepts money in exchange for a specific requested exercise of his or her official power, such a demand or acceptance does constitute a violation of the Hobbs Act regardless of whether the payment is made in the form of a campaign contribution.

504 U.S. at 258.

4. In a case where different theories of extortion are charged, it is appropriate to charge the jury in the disjunctive on extortion, i.e., a finding of guilt is supported by extortion under fear of economic loss or under color of official right. United States v. Kenny, 462 F.2d 1205, 1229 (3d Cir. 1972); United States v. Rabbitt, 583 F.2d 1014, 1027 (8th Cir. 1978); United States v. Brown, 540 F.2d 364, 377 (8th Cir. 1976). If both theories are submitted to the jury, they should be instructed that they may convict the defendant if they find unanimously and beyond a reasonable doubt that at least one of the theories was proven by the Government.

5. This instruction is one which was used in United States v. Addonizio, 451 F.2d 49, 75-76 (3d Cir. 1971). Although some courts have held that the jury may be instructed as a matter of law that interstate commerce has been shown if various facts were proven, this appears to be the safer instruction. See United States v. Hyde, 448 F.2d 815 (5th Cir. 1971). See generally Hulahan v. United States, 214 F.2d 441, 445, 446 (8th Cir. 1954); United States v. Rabbitt, 583 F.2d 1014, 1023 (8th Cir. 1978); United States v. French, 628 F.2d 1069, 1078 (8th Cir. 1980).

Committee Comments

See United States v. Brown, 540 F.2d 364 (8th Cir. 1976).

Further, only a minimal effect on interstate commerce is required to establish jurisdiction under the Hobbs Act because Congress intended to exercise the full scope of its power under the Interstate Commerce Clause of the United States Constitution. United States v. Farmer, 73 F.3d 836, 843 (8th Cir. 1996) (Robbery of a single HyVee grocery store sufficient to support conviction where store was part of a national chain which received goods shipped in interstate commerce); United States v. Quigley, 53 F.3d 909 (8th Cir. 1995) (Robbery of two individuals of a pouch of chewing tobacco and eighty cents while on way to purchase beer from store which received goods in interstate commerce not sufficient to support conviction. However, the effect on interstate commerce must be actual and not merely probable or potential. United States v. Williams, 308 F.3d. 833 (8th Cir. 2002).

You must find that Leo Victim reasonably believed that Senator Doe's official powers included the securing of leases for the State of Missouri. You need not find, however, that Senator Doe actually held this power.

For 2000 version see below

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

2000 Version

The crime of interference with commerce by means of extortion, as charged in [Count _____ of] the indictment, has three essential elements, which are:

One, the defendant induced (describe victim[s], e.g., John Jones, President of ABC Corp.) to part with [property] [(describe property e.g., $10,000.00 cash)];

Two, the defendant voluntarily and intentionally did so by extortion -- that is, [through the wrongful use of actual or threatened force or violence] [through the wrongful use of fear] [under color of official right];1

Three, the defendant's action [obstructed] [delayed] [affected] commerce in some way or degree.

["Fear" means a state of anxious concern, alarm or apprehension of harm. Fear includes fear of economic loss or injury, as well as fear of physical violence. Extortion by wrongful use of fear requires that the fear be reasonable under the circumstances.]2

[Extortion "under color of official right" is the wrongful taking by a public officer of money or property not due him or his office, whether or not the taking was accompanied by force, threats or use of fear. So if a public official voluntarily and intentionally misuses his public office and power for the wrongful purpose of inducing a victim to part with property, such activity constitutes extortion.]3

[Extortion is committed when property is obtained with the consent of the victim by the wrongful use of actual or threatened force, violence or fear or under color of official right.]4

[You may find an [obstruction] [delay] [effect] on commerce has been proven if you find and believe from the evidence beyond a reasonable doubt: (describe effects on commerce alleged in the indictment on which proof was offered at trial, e.g., that the John Doe Produce Distributing Co. shipped lettuce, tomatoes, string beans, and other produce from St. Louis, in the State of Missouri, to various points outside of the State of Missouri, including the states of Oregon, Wyoming and Kansas.)5]

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

Committee Comments

See United States v. Brown, 540 F.2d 364 (8th Cir. 1976); Fifth Circuit Pattern Jury Instructions: Criminal § 2.73 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 56 (1997).

Fear of economic injury has also been held to include the fear of lost business opportunities, and the fear of loss of one's ability to compete in the marketplace. United States v. Hathaway, 534 F.2d 386, 393-94 (1st Cir.), cert. denied, 429 U.S. 819 (1976); Seventh Circuit Federal Jury Instructions: Criminal at 297 (1999).

Further, only a minimal effect on interstate commerce is required to establish jurisdiction under the Hobbs Act, and the effect can be merely probable or potential, not actual. United States v. Brown; United States v. Smith, 631 F.2d 103, 105 (8th Cir. 1980); United States v. Whitt, 718 F.2d 1494 (10th Cir. 1983).

If attempted extortion is charged, the instruction should be modified accordingly. Furthermore, in attempted extortion, the focus is on the defendant's intent, rather than on the state of mind of the victim. United States v. Smith, 631 F.2d at 104. An attempt to arouse fear is sufficient. United States v. Frazier, 560 F.2d 884, 887 (8th Cir. 1977), cert. denied, 435 U.S. 968 (1978). The actual generation of fear is unnecessary. United States v. Mitchell, 463 F.2d 187 (8th Cir. 1972), cert. denied, 410 U.S. 969 (1973).

You must find that Leo Victim reasonably believed that Senator Doe's official powers included the securing of leases for the State of Missouri. You need not find, however, that Senator Doe actually held this power.

See United States v. Mazzei, 521 F.2d 639, 643 n.2 (3d Cir.), cert. denied, 423 U.S. 1014 (1975); United States v. Brown, 540 F.2d 364, 372 (8th Cir. 1976). In United States v. Loftus, 992 F.2d 793, 796 (8th Cir. 1993), the court of appeals stated, "[a]ctual authority over the end result - rezoning - is not controlling if Loftus, through his official position, had influence and authority over a means to that end."

Notes on Use

1. The proper theory of extortion charged in the indictment should be selected in the second element of the instruction. This type of element instruction is also used in 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 56.04 (4th ed. 1990), Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 56 (1997) and Fifth Circuit Pattern Jury Instructions: Criminal § 2.74 (1997). In all of the remaining instructions, only those instructions pertinent to the facts of a particular case should be used.

2. "Extortion" and "fear" must be defined. The statutory definition of "extortion" may be found at 18 USC 1951(b)(2). The wrongful use of fear and a reasonable fear on the part of the victim is essential to a conviction of extortion by use of fear. See Seventh Circuit Federal Jury Instructions: Criminal at 297 (1999); United States v. Brown, 540 F.2d 364, 373 n.6 (8th Cir. 1976); Nick v. United States, 122 F.2d 660 (8th Cir.), cert. denied, 314 U.S. 687 (1941); United States v. Margiotta, 688 F.2d 108, 133-35 (2d Cir. 1982), cert. denied, 461 U.S. 913 (1983).

Extortion under color of official right by a law enforcement officer need not involve force or threats. If a victim reasonably feels compelled or induced to pay money to a law enforcement officer, because of that officer's wrongful use of his official position for the purpose of obtaining money, the requirement of the crime of extortion under color of official right is satisfied.

See United States v. Crowley, 504 F.2d 992, 995 (7th Cir. 1974). See also United States v. Hathaway, 534 F.2d 386 (1st Cir.), cert. denied, 429 U.S. 819 (1976); United States v. Brown, 540 F.2d 364 (8th Cir. 1976).

In "campaign contribution" cases, an instruction similar to the following language approved by the Eleventh Circuit, affirmed in Evans v. United States, 504 U.S. 255 (1992), may be appropriate:

[T]he acceptance by an elected official of a campaign contribution does not, in itself, constitute a violation of the Hobbs Act even though the donor has business pending before the official.

However, if a public official demands or accepts money in exchange for a specific requested exercise of his or her official power, such a demand or acceptance does constitute a violation of the Hobbs Act regardless of whether the payment is made in the form of a campaign contribution.

504 U.S. at 258.

4. In a case where different theories of extortion are charged, it is appropriate to charge the jury in the disjunctive on extortion, i.e., a finding of guilt is supported by extortion under fear of economic loss or under color of official right. United States v. Kenny, 462 F.2d 1205, 1229 (3d Cir.), cert. denied, 409 U.S. 914 (1972); United States v. Rabbitt, 583 F.2d 1014, 1027 (8th Cir. 1978), cert. denied, 439 U.S. 1116 (1979); United States v. Brown, 540 F.2d 364, 377 (8th Cir. 1976). If both theories are submitted to the jury, they should be instructed that they may convict the defendant if they find unanimously and beyond a reasonable doubt that at least one of the theories was proven by the Government.

5. This instruction is one which was used in United States v. Addonizio, 451 F.2d 49, 75-76 (3d Cir. 1971), cert. denied, 405 U.S. 936 (1972). This instruction represents an approach to interstate commerce adopted by Devitt & Blackmar, the Fifth Circuit and the Eleventh Circuit in their published instructions. Although some courts have held that the jury may be instructed as a matter of law that interstate commerce has been shown if various facts were proven, this appears to be the safer instruction. See United States v. Hyde, 448 F.2d 815 (5th Cir. 1971), cert. denied, 404 U.S. 1058 (1972). See generally Hulahan v. United States, 214 F.2d 441, 445, 446 (8th Cir. 1954), cert. denied, 348 U.S. 856 (1954); United States v. Rabbitt, 583 F.2d 1014, 1023 (8th Cir. 1978); United States v. French, 628 F.2d 1069, 1078 (8th Cir.), cert. denied, 449 U.S. 956 (1980).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1955 ILLEGAL GAMBLING BUSINESS
(18 USC 1955)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Illegal Gambling Business (18 USC 1955)

The crime of conducting an illegal gambling business, as charged in [Count _____ of] the indictment, has three elements, which are:

One, that the defendant knowingly [conducted] [financed] [managed] [supervised] [directed] [owned]¹ [all of] [part of] a gambling business in which five or more persons were involved in the operation of the business;

Two, that such gambling business was a violation of the law[s] of the state[s] of (name of state(s)).²

Three, that such gambling business was in substantially continuous operation for a period more than thirty days or had a gross revenue of $2,000 or more in any one day.

["Bookmaking" is a form of gambling and involves the business of establishing certain terms and conditions applicable to given bets or wagers, usually called a line or odds, and then accepting bets from members of the public on either side of the wagering proposition with a view toward making a profit from a percentage or commission collected from the bettors or customers for the privilege of placing the bets. You are instructed that "bookmaking" is a crime in the State[s] of (name of state(s)].³

[The word, "conduct," as it is used in connection with the gambling business, means to perform any act, function or duty which is necessary to or helpful in the ordinary operation of the business. A person may be found to conduct a gambling business even though [he] [she] is only an agent or employee having no part in the management or control of the business and no share in the profits.]⁴

[A mere bettor or customer of a gambling business cannot properly be said to conduct the business.] [If, however, you find beyond a reasonable doubt that a defendant is a bookmaker and that [he] [she] regularly exchanges line information, or regularly places or accepts layoff bets with another bookmaker, you may consider that the defendant and the other bookmaker as being members of the same gambling business.]⁵

[It is not necessary to prove [that anyone other than the defendant has been charged with an offense] [that the same five people, including the defendant, owned, financed or conducted such gambling business throughout more than a thirty-day period] [that the defendant knew the names or identities of any given number of people who might have been so involved].]⁶ [Neither must it be proved that bets were accepted every day over a greater than thirty-day period, nor that such activity constituted the primary business or employment of the defendant.]⁷

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

Notes on Use

1. The word[s], "(conducted) (financed) (managed) (supervised) (directed) (owned)," are all used in their ordinary sense.

2. Fill in the name of the state(s) whose gambling laws were allegedly violated. Multiple state law violations may be subsumed under a single section 1955 violation. See Sanabria, 437 U.S. at 72-73.

3. In many cases, instructing the jury whether a particular form of gambling, e.g., bookmaking, violates state law will suffice. However, if the defense contends that the form of gambling shown by the evidence did not violate state law, a more detailed explanation of the elements of the state violation may be appropriate. For example:

Bookmaking [is] a felony crime in the State of Missouri when conducted as a business rather than in a casual or personal fashion, and when a bookmaker or bookie accepts more than one bet in any day and accepts more than $100 in bets.

United States v. Sutera, 933 F.2d 641, 646 (8th Cir. 1991).

Where the defense contends a narrow or specific exemption from the state law applied to the gambling business which prevented it from being illegal, a more detailed focus may be appropriate. The state instruction should be consulted for information as to how to instruct, and what are the elements of the state offense.

It is the defendant's obligation to raise the issue that the gambling business fell within an exemption from state law. See United States v. Cartano, 534 F.2d 788, 791 (8th Cir. 1976). The Government has the ultimate burden of showing there is no exemption.

Section 1955 is not a specific intent offense. See United States v. Kohne, 358 F. Supp. 1053, 1061 (W.D. Pa. 1973), aff’d, 487 F.2d 1395 (3d Cir. 1973); accord United States v. Mendelsohn, 896 F.2d 1183, 1188 (9th Cir. 1990). In fact, the Government need not prove that the defendant himself performed any act prohibited by state law. The focus is on the illegal nature of the gambling business which the Government must prove the defendant "conducted," "financed," etc., under section 1955(a). Sanabria, 437 U.S. at 70; United States v. Murray, 928 F.2d 1242, 1245 (1st Cir. 1991). See also United States v. Hill, 935 F.2d 196, 199 (11th Cir. 1991) (regulatory exception to 21 USC 952(a) is an affirmative defense with the defendant bearing the burden of going forward).

4. The Eighth Circuit follows the majority view in holding that "all levels of personnel involved in the gambling business, not just those on the management level, are to be considered in determining whether five or more persons conduct such business within the meaning of section 1955. United States v. Hammond, 821 F.2d 473, 476 (8th Cir. 1987). Thus, it is enough if the person is "helpful" as opposed to "necessary." Id., n.5; Merrell v. United States, 463 U.S. 1230, 1231 (1983) (dissent in denial of petition where the defendant's conduct was serving drinks and cleaning up); United States v. Bennett, 563 F.2d 879, 883-84 (8th Cir. 1977) (waitress serving drinks). But see United States v. Boss, 671 F.2d 396 (10th Cir. 1982). The statute is intended to apply to all who participate in the gambling operation except the bettor. Sanabria v. United States, 437 U.S. 54, 70-71 n.26 (1978); United States v. Hammond, 821 F.2d 473, 476 (8th Cir. 1987); United States v. Smaldone, 583 F.2d 1129, 1132 (10th Cir. 1978).

5. The bracketed sentence may be needed where a jury must decide whether a particular bookmaker was part of the single gambling business alleged in the indictment, or an independent operator who had contact with the alleged business only in placing personal bets.

6. United States v. Segal, 867 F.2d 1173 (8th Cir. 1989).

7. These should be included only if they are in issue in the case.

Committee Comments

See 2B Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 55.01-.10 (5th ed. 2000); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 59 (1997); Fifth Circuit Pattern Jury Instructions: Criminal § 2.75 (1997).

Whether the evidence established that five or more persons were involved in conducting the gambling business is a frequent issue. The Government need not prove that a particular defendant knew or reasonably anticipated that five or more persons were involved. United States v. Segal, 867 F.2d 1173, 1178 n.6 (8th Cir. 1989). Evidence of layoff betting and other relationships between bookmakers may establish that apparently separate bookmaking operations are part of a single business. United States v. Parrino, 816 F.2d 414, 416 (8th Cir. 1987); United States v. Reeder, 614 F.2d 1179, 1183 (8th Cir. 1980); United States v. Guzek, 527 F.2d 552 (8th Cir. 1975); United States v. Thomas, 508 F.2d 1200 (8th Cir. 1975).

The trial court determines as a matter of law which state gambling statute may be applicable. See, e.g., United States v. Clements, 588 F.2d 1030, 1037 (5th Cir. 1979) and 441 U.S. 936 (1979). Minimal or even no explanation to the jury of the state statute allegedly violated has been upheld. United States v. Balistrieri, 779 F.2d 1191, 1223 (7th Cir. 1985); United States v. Quarry, 614 F.2d 245 (10th Cir. 1980) (citing United States v. Crockett, 506 F.2d 759, 761 (5th Cir. 1975)). The Fifth and Eleventh Circuits' pattern instructions recommend advising the jury that the particular type of gambling alleged, e.g., bookmaking, is a violation of state law. It is the gambling business that must violate state law--not the individual acts of a particular defendant. Sanabria v. United States, 437 U.S. 54, 70 (1978).

"Gambling" is defined in section 1955(b)(2). Gambling terminology is explained in United States v. Thomas, 508 F.2d 1200, 1202 n.2 (8th Cir. 1975).

"Gross revenue" is measured by the total amount of wagers placed during a single day. United States v. Rotchford, 575 F.2d 166 (8th Cir. 1978).

(For 2008 version see below).

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

2008 Version

The crime of conducting an illegal gambling business, as charged in [Count _____ of] the indictment, has three elements, which are:

One, that the defendant knowingly [conducted] [financed] [managed] [supervised] [directed] [owned]¹ [all of] [part of] a gambling business in which five or more persons were involved in the operation of the business;

Two, that such gambling business was a violation of the law[s] of the state[s] of (name of state(s)).²

Three, that such gambling business was in substantially continuous operation for a period more than thirty days or had a gross revenue of $2,000 or more in any one day.

["Bookmaking" is a form of gambling and involves the business of establishing certain terms and conditions applicable to given bets or wagers, usually called a line or odds, and then accepting bets from members of the public on either side of the wagering proposition with a view toward making a profit from a percentage or commission collected from the bettors or customers for the privilege of placing the bets. You are instructed that "bookmaking" is a crime in the State[s] of (name of state(s)].³

[The word, "conduct," as it is used in connection with the gambling business, means to perform any act, function or duty which is necessary to or helpful in the ordinary operation of the business. A person may be found to conduct a gambling business even though [he] [she] is only an agent or employee having no part in the management or control of the business and no share in the profits.]⁴

[A mere bettor or customer of a gambling business cannot properly be said to conduct the business.] [If, however, you find beyond a reasonable doubt that a defendant is a bookmaker and that [he] [she] regularly exchanges line information, or regularly places or accepts layoff bets with another bookmaker, you may consider that the defendant and the other bookmaker as being members of the same gambling business.]⁵

[It is not necessary to prove [that anyone other than the defendant has been charged with an offense] [that the same five people, including the defendant, owned, financed or conducted such gambling business throughout more than a thirty-day period] [that the defendant knew the names or identities of any given number of people who might have been so involved].]⁶ [Neither must it be proved that bets were accepted every day over a greater than thirty-day period, nor that such activity constituted the primary business or employment of the defendant.]⁷

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

Notes on Use

1. The word[s], "(conducted) (financed) (managed) (supervised) (directed) (owned)," are all used in their ordinary sense.

Bookmaking [is] a felony crime in the State of Missouri when conducted as a business rather than in a casual or personal fashion, and when a bookmaker or bookie accepts more than one bet in any day and accepts more than $100 in bets.

United States v. Sutera, 933 F.2d 641, 646 (8th Cir. 1991).

6. United States v. Segal, 867 F.2d 1173 (8th Cir. 1989).

7. These should be included only if they are in issue in the case.

Committee Comments

"Gambling" is defined in section 1955(b)(2). Gambling terminology is explained in United States v. Thomas, 508 F.2d 1200, 1202 n.2 (8th Cir. 1975).

"Gross revenue" is measured by the total amount of wagers placed during a single day. United States v. Rotchford, 575 F.2d 166 (8th Cir. 1978).

(For 2006 version see below)

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

2006 Version

The crime of conducting an illegal gambling business, as charged in [Count _____ of] the indictment, has three elements, which are:

One, that the defendant knowingly [conducted] [financed] [managed] [supervised] [directed] [owned]1 [all of] [part of] a gambling business in which five or more persons were involved in the operation of the business;

Two, that such gambling business was a violation of the law[s] of the state[s] of (name of state(s)).2

Three, that such gambling business was in substantially continuous operation for a period more than thirty days or had a gross revenue of $2,000 or more in any one day.

["Bookmaking" is a form of gambling and involves the business of establishing certain terms and conditions applicable to given bets or wagers, usually called a line or odds, and then accepting bets from members of the public on either side of the wagering proposition with a view toward making a profit from a percentage or commission collected from the bettors or customers for the privilege of placing the bets. You are instructed that "bookmaking" is a crime in the State[s] of (name of state(s)].3

[The word, "conduct," as it is used in connection with the gambling business, means to perform any act, function or duty which is necessary to or helpful in the ordinary operation of the business. A person may be found to conduct a gambling business even though [he] [she] is only an agent or employee having no part in the management or control of the business and no share in the profits.]4

[A mere bettor or customer of a gambling business cannot properly be said to conduct the business.] [If, however, you find beyond a reasonable doubt that a defendant is a bookmaker and that [he] [she] regularly exchanges line information, or regularly places or accepts layoff bets with another bookmaker, you may consider that the defendant and the other bookmaker as being members of the same gambling business.]5

[It is not necessary to prove [that anyone other than the defendant has been charged with an offense] [that the same five people, including the defendant, owned, financed or conducted such gambling business throughout more than a thirty-day period] [that the defendant knew the names or identities of any given number of people who might have been so involved].]6 [Neither must it be proved that bets were accepted every day over a greater than thirty-day period, nor that such activity constituted the primary business or employment of the defendant.]7

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

Notes on Use

1. The word[s], "(conducted) (financed) (managed) (supervised) (directed) (owned)," are all used in their ordinary sense.

Bookmaking [is] a felony crime in the State of Missouri when conducted as a business rather than in a casual or personal fashion, and when a bookmaker or bookie accepts more than one bet in any day and accepts more than $100 in bets.

United States v. Sutera, 933 F.2d 641, 646 (8th Cir. 1991).

Section 1955 is not a specific intent offense. See United States v. Kohne, 358 F. Supp. 1053, 1061 (W.D. Pa. 1973); accord United States v. Mendelsohn, 896 F.2d 1183, 1188 (9th Cir. 1990). In fact, the Government need not prove that the defendant himself performed any act prohibited by state law. The focus is on the illegal nature of the gambling business which the Government must prove the defendant "conducted," "financed," etc., under section 1955(a). Sanabria, 437 U.S. at 70; United States v. Murray, 928 F.2d 1242, 1245 (1st Cir. 1991). See also United States v. Hill, 935 F.2d 196, 199 (11th Cir. 1991) (regulatory exception to 21 USC 952(a) is an affirmative defense with the defendant bearing the burden of going forward).

6. United States v. Segal, 867 F.2d 1173 (8th Cir. 1989).

7. These should be included only if they are in issue in the case.

Committee Comments

"Gambling" is defined in section 1955(b)(2). Gambling terminology is explained in United States v. Thomas, 508 F.2d 1200, 1202 n.2 (8th Cir. 1975).

"Gross revenue" is measured by the total amount of wagers placed during a single day. United States v. Rotchford, 575 F.2d 166 (8th Cir. 1978).

For 2000 version see below

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

2000 Version

The crime of conducting an illegal gambling business, as charged in [Count _____ of] the indictment, has three essential elements, which are:

One, that the defendant knowingly [conducted] [financed] [managed] [supervised] [directed] [owned]1 [all of] [part of] a gambling business in which five or more persons were involved in the operation of the business;

Two, that such gambling business was a violation of the law[s] of the state[s] of (name of state(s)).2

Three, that such gambling business was in substantially continuous operation for a period more than thirty days or had a gross revenue of $2,000 or more in any one day.

["Bookmaking" is a form of gambling and involves the business of establishing certain terms and conditions applicable to given bets or wagers, usually called a line or odds, and then accepting bets from members of the public on either side of the wagering proposition with a view toward making a profit from a percentage or commission collected from the bettors or customers for the privilege of placing the bets. You are instructed that "bookmaking" is a crime in the State[s] of (name of state(s)].3

[The word, "conduct," as it is used in connection with the gambling business, means to perform any act, function or duty which is necessary to or helpful in the ordinary operation of the business. A person may be found to conduct a gambling business even though [he] [she] is only an agent or employee having no part in the management or control of the business and no share in the profits.]4

[A mere bettor or customer of a gambling business cannot properly be said to conduct the business.] [If, however, you find beyond a reasonable doubt that a defendant is a bookmaker and that [he] [she] regularly exchanges line information, or regularly places or accepts layoff bets with another bookmaker, you may consider that defendant and the other bookmaker as being members of the same gambling business.]5

[It is not necessary to prove [that anyone other than defendant has been charged with an offense] [that the same five people, including the defendant, owned, financed or conducted such gambling business throughout more than a thirty-day period] [that the defendant knew the names or identities of any given number of people who might have been so involved].]6 [Neither must it be proved that bets were accepted every day over a greater than thirty-day period, nor that such activity constituted the primary business or employment of the defendant.]7

(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 §§ 47.01- 47.10 (4th ed. 1990); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 59 (1997); Fifth Circuit Pattern Jury Instructions: Criminal § 2.75 (1997).

The trial court determines as a matter of law which state gambling statute may be applicable. See, e.g., United States v. Clements, 588 F.2d 1030, 1037 (5th Cir.), cert. denied, 440 U.S. 982 (1979) and 441 U.S. 936 (1979). Minimal or even no explanation to the jury of the state statute allegedly violated has been upheld. United States v. Balistrieri, 779 F.2d 1191, 1223 (7th Cir. 1985), cert. denied, 475 U.S. 1095 (1986); United States v. Quarry, 614 F.2d 245 (10th Cir. 1980) (citing United States v. Crockett, 506 F.2d 759, 761 (5th Cir.), cert. denied, 423 U.S. 824 (1975)). The Fifth and Eleventh Circuits' pattern instructions recommend advising the jury that the particular type of gambling alleged, e.g., bookmaking, is a violation of state law. It is the gambling business that must violate state law--not the individual acts of a particular defendant. Sanabria v. United States, 437 U.S. 54, 70 (1978).

"Gambling" is defined in section 1955(b)(2). Gambling terminology is explained in United States v. Thomas, 508 F.2d 1200, 1202 n.2 (8th Cir.), cert. denied, 421 U.S. 947 (1975).

"Gross revenue" is measured by the total amount of wagers placed during a single day. United States v. Rotchford, 575 F.2d 166 (8th Cir. 1978).

Notes on Use

1. The word[s], "(conducted) (financed) (managed) (supervised) (directed) (owned)," are all used in their ordinary sense.

2. Fill in the name of the state(s) whose gambling laws were allegedly violated. Multiple state law violations may be subsumed under a single section 1955 violation. See Sanabria, 437 U.S. at 72-73.

Bookmaking [is] a felony crime in the State of Missouri when conducted as a business rather than in a casual or personal fashion, and when a bookmaker or bookie accepts more than one bet in any day and accepts more than $100 in bets.

United States v. Sutera, 933 F.2d 641, 646 (8th Cir. 1991).

It is the defendant's obligation to raise the issue that the gambling business fell within an exemption from state law. See United States v. Cartano, 534 F.2d 788, 791 (8th Cir.), cert. denied, 429 U.S. 843 (1976). The Government has the ultimate burden of showing there is no exemption.

Section 1955 is not a specific intent offense. See United States v. Kohne, 358 F. Supp. 1053, 1061 (W.D. Pa. 1973); accord United States v. Mendelsohn, 896 F.2d 1183, 1188 (9th Cir. 1990). In fact, the Government need not prove that the defendant himself performed any act prohibited by state law. The focus is on the illegal nature of the gambling business which the Government must prove the defendant "conducted," "financed," etc., under section 1955(a). Sanabria, 437 U.S. at 70; United States v. Murray, 928 F.2d 1242, 1245 (1st Cir. 1991). See also United States v. Hill, 935 F.2d 196, 199 (11th Cir. 1991) (regulatory exception to 21 USC 952(a) is an affirmative defense with defendant bearing the burden of going forward).

4. The Eighth Circuit follows the majority view in holding that "all levels of personnel involved in the gambling business, not just those on the management level, are to be considered in determining whether five or more persons conduct such business within the meaning of section 1955. United States v. Hammond, 821 F.2d 473, 476 (8th Cir.), cert. denied, 484 U.S. 986 (1987). Thus, it is enough if the person is "helpful" as opposed to "necessary." Id., n.5; Merrell v. United States, 463 U.S. 1230, 1231 (1983) (dissent in denial of petition where defendant's conduct was serving drinks and cleaning up); United States v. Bennett, 563 F.2d 879, 883-84 (8th Cir. 1977) (waitress serving drinks). But see United States v. Boss, 671 F.2d 396 (10th Cir. 1982). The statute is intended to apply to all who participate in the gambling operation except the bettor. Sanabria v. United States, 437 U.S. 54, 70-71 n.26 (1978); United States v. Hammond, 821 F.2d 473, 476 (8th Cir. 1987); United States v. Smaldone, 583 F.2d 1129, 1132 (10th Cir. 1978).

6. United States v. Segal, 867 F.2d 1173 (8th Cir. 1989).

7. These should be included only if they are in issue in the case.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1956A MONEY LAUNDERING -- FINANCIAL TRANSACTION TO PROMOTE
SPECIFIED UNLAWFUL ACTIVITY
(18 USC 1956(a)(1)(A)(i))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Laundering Of Monetary Instruments (18 USC 1956(a)(1)(A)(i) and 1956(a)(1)(B)(i))

The crime of [conducting] [attempting to conduct] an illegal financial transaction, as charged in [Count[s] _____ of] the indictment has four elements, which are:

One, on or about (date),¹ [the defendant] [defendant[s] (name[s])] [conducted] [attempted to conduct]² a financial transaction,³ that is, (describe in simple terms, e.g., the purchase of an automobile), which in any way or degree affected interstate or foreign commerce;⁴

Two, the defendant[s] [conducted] [attempted to conduct] the financial transaction with (describe the property, e.g., money, certificates of deposit) that involved the proceeds⁵ of (describe the specified unlawful activity,⁶ e.g., unlawful distribution of cocaine);

Three, at the time the defendant[s] [conducted] [attempted to conduct] the financial transaction, the defendant[s] knew the (describe property) represented the proceeds of some form of unlawful activity;⁷ and

Four, the defendant[s] [conducted] [attempted to conduct] the financial transaction with the intent to promote the carrying on of (describe the specified unlawful activity).⁸

[A defendant may be found to have attempted to conduct a financial transaction if [he] [she] intended to conduct a financial transaction and voluntarily and intentionally carried out some act which was a substantial step toward conducting that financial transaction, even if the transaction was never completed.]⁹

[The term "conducted," as used in [this] [Instruction[s] _____] includes initiating, concluding or participating in initiating or concluding a transaction.]¹⁰

[You are further instructed regarding the crime[s] charged in [Count[s] ___ of] the indictment that the following definitions apply: (Insert applicable portions of Instruction 6.18.1956J, unless the indictment charges multiple money laundering violations and there will be no confusion in adding the definitions common to all counts after all of the substantive money laundering instructions).]¹¹

[It is not necessary to show that [a] [the] defendant intended to commit (specify additional crime) [himself] [herself]; it is sufficient that in [conducting] [attempting to conduct] the financial transaction, [a] [the] defendant [himself] [herself] intended to make the unlawful activity easier or less difficult.]¹²

[The crime charged in [Count[s] ____ of] the indictment alleges multiple purposes for the crime, that is, that [the defendant] [defendant[s] (name[s])] knew that the transaction was [conducted] [attempted] for the purposes of (list all objectives). To find [the defendant] [defendant[s] (name[s])] guilty of the offense[s], you must agree unanimously that one or more of the objectives charged were proved beyond a reasonable doubt.]¹³

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

Notes on Use

1. The statutes and implementing regulations have been amended frequently. The date of the offense is critical in verifying that the criminal conduct charged was covered by the statute and regulation in effect on that date. Additionally, changes in reporting requirements under Treasury regulations (31 CFR) may affect offenses charged under sections 1956(a)(1)(B)(ii) and 1956(a)(2)(B)(ii).

a. The Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, Title I, Subtitle H (Money Laundering Control Act of 1986), § 1352(a), 100 Stat. 3207-18 to 22, added sections 1956 and 1957 to Title 18 of the United States Code. The Anti-Drug Abuse Act of 1986, including the newly added sections 1956 and 1957 of Title 18, became effective on October 27, 1986.

b. The Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Title VI, §§ 6183, 6465, 6469(a)(1) and 6471(a)-(b), and Title VII, § 7031, 102 Stat. 4354, 4375, 4377, 4378 and 4398 became effective on November 18, 1988. Inter alia it added a new offense, section 1956(a)(1)(A)(ii), conducting a financial transaction with intent to engage in violations of the tax code (26 USC 7201 or 7206), expanded the scope of section 1956(a)(2), added a "sting" section, 1956(a)(3), and added a number of "specified unlawful activity" predicate offenses as defined in section 1956(c)(7).

c. The Crime Control Act of 1990, Pub. L. No. 101-647, Title I, §§ 105-108, Title XII, § 1205(j), Title XIV, §§ 1402 and 1404, Title XXV, § 2506 and Title XXXV, § 3557, 104 Stat. 4791-92, 4831, 4835, 4862 and 4927 became effective November 29, 1990. Inter alia it amended the provisions of section 1956(a)(2)(B) to permit the government to establish the defendant's knowledge of the illegality of his actions through the law enforcement officer's representations and the defendant's subsequent statements or actions indicating the defendant believed the representation, added violations of foreign law to the definition of "unlawful activity" (18 USC 1956(c)(1)), amended the definition of "financial transaction" (section 1956(c)(4)) and "monetary instruments" (section 1956(c)(5)) to emphasize the alternative means of meeting the definitions, revised and expanded the scope of the term "specified unlawful activity" (SUA) (sections 1956(c)(7)(A) and (D), added as predicate SUA several "environmental" offenses (section 1956(c)(7)(E)), added a new section, 1956(c)(8), defining "state," and added agencies authorized to investigate section 1956 violations. See Instruction 6.18.1956J(7) (Specified Unlawful Activity), infra.

d. Effective October 28, 1992, Pub. L. 102-550, Title XV, §§ 1504(c), 1524, 1526(a), 1527(a), 1530, 1531, 1534 and 1536, 106 Stat. 4055 and 4064-67 added, inter alia, use of a safe deposit box to the definition of "transaction" (section 1956(c)(3)), added transfer of title to real property, vehicles, vessels or aircraft to the definitions of "financial transaction" (section 1956(c)(4)), expanded the scope of the term "specified unlawful activity" regarding offenses against foreign nations (section 1956(c)(7)(B)), deleted and added several predicate SUA offenses (section 1956(c)(7)(D)), and created the offense of conspiracy to violate sections 1956 or 1957, carrying the same penalties as the object offenses. Instead of a statutory five-year maximum under 18 USC 371, a conspiracy to violate 18 USC 1956 now carries a 20-year statutory maximum. See 18 USC 1956(g). Prior to the amendment, the five-year statutory maximum for conspiracy would have precluded imposition of a sentence corresponding to the sentencing guideline range for the defendants who conspired to launder large sums or who had significant prior criminal histories. See United States Sentencing Guideline § 2S1.1 and Chapter 5, Part A (Sentencing Table).

2. Both types of activity have been proscribed since original enactment of section 1956. See 18 USC 1956(a)(1), (a)(2) and (a)(3).

4. See Instruction 6.18.1956J(2) (Interstate and Foreign Commerce), infra. All section 1956 offenses require proof that the financial transaction itself or the financial institution, if one was involved, in some way affected interstate or foreign commerce. See 18 USC 1956(c)(4); United States v. Baker, 985 F.2d 1248, 1252 (4th Cir. 1993) (element under section 1956(a)(1)(B)(i)); United States v. Posters 'N' Things Ltd., 969 F.2d 652, 661 n.6 (8th Cir. 1992) (expert witness testified as to issue), aff'd on other grounds, 511 U.S. 513 (1994); United States v. Gonzalez-Rodriguez, 966 F.2d 918, 924 (5th Cir. 1992) (discussing United States v. Gallo, 927 F.2d 815, 823 (5th Cir. 1991) and United States v. Hamilton, 931 F.2d 1046, 1051-52 (5th Cir. 1991)). The Eighth Circuit has not ruled whether the indictment must explicitly allege the interstate/foreign commerce nexus. United States v. Lucas, 932 F.2d 1210, 1219 (8th Cir. 1991) (court was not required to reach the issue because the indictment which alleged construction of a shopping center and purchase of merchandise could be reasonably construed to allege the element). See also United States v. Green, 964 F.2d 365, 374 (5th Cir. 1992) (citing Lucas); United States v. Lovett, 964 F.2d 1029, 1038 (10th Cir. 1992) (under section 1957, the interstate commerce nexus is jurisdictional but not an element of the crime charged) (citing United States v. Kelley, 929 F.2d 582, 586 (10th Cir. 1991)). Given the lack of controlling law on this issue, the Committee recommends that the nexus be alleged in the indictment. In any case, a finding of an effect on interstate or foreign commerce of either the transaction itself or the activities of the financial institution, if one was involved, is essential. See United States v. Ben M. Hogan Co., Inc., 769 F.2d 1293, 1297 (8th Cir. 1985) (reversible error for a district court to give an instruction which could have been understood to include a conclusive presumption of effect on interstate commerce, where such a finding by the jury was essential in a prosecution under the Sherman Anti-Trust Act).

5. See Instruction 6.18.1956J(6) (Proceeds), infra. The term is not defined in 18 USC 1956(c).

6. See Instruction 6.18.1956J(7) (Specified Unlawful Activity). infra. The term should not be confused with "unlawful activity" in general and has a specific, statutory meaning, as set forth in section 1956(c)(7). Because that section has had numerous amendments, and itself incorporates activities defined in several other statutes, the Committee recommends careful review of both the provisions of section 1956(c)(7) and of the incorporated statutes which were in effect at the time of the alleged financial transaction (section 1956(a)(1)) or transportation, transmission or transfer (section 1956)(a)(2)). See also Note 8, infra.

Throughout these instructions, the plain description of the offense has been substituted for the phrase "specified unlawful activity" (SUA), which is a term of art specifically defined in 18 USC 1956(c)(7), and which incorporates inter alia most of 18 USC 1961(1). If the indictment is read to the jury and contains the phrase, any inquiry by the jury as to whether a particular offense is "specified unlawful activity" can be answered as a matter of law. Section 1956(c)(7) as originally enacted effective October 27, 1986, was amended on November 18, 1988, on November 29, 1990, and on October 28, 1992. See Note 1, supra. The provisions of section 1956(c)(7) used should correspond to the alleged date of the offense. Further, many of the most common SUAs, such as drug trafficking, are derived from the definition of "racketeering activity," contained in 18 USC 1961(1). That statute has also been amended since October 27, 1986, on November 10, 1986, November 18, 1988, and on November 29, 1990. Therefore, when determining whether an offense qualifies as an SUA, the applicable provisions of section 1961(1) should also be reviewed.

7. See Instruction 6.18.1956J, infra. The requirement that the defendant knew the property involved in the financial transaction represented the proceeds of some form of unlawful activity is common to all section 1956(a)(1) offenses. "Unlawful activity" encompasses many more violations than "specified unlawful activity." Compare section 1956(c)(1) with section 1956(c)(7). However, between October 27, 1986, and November 29, 1990, it did not include felony violations of foreign law. See Note 1, supra.

8. The mens rea required under sections 1956(a)(1)(A), (a)(2)(A), and (a)(3) offenses is more restrictive than under sections 1956(a)(1)(B) and (a)(2)(B). The former requires proof of the defendant's intent; the latter merely requires that the defendant have knowledge of the object of the financial transaction. See G. Richard Strafer, Money Laundering: The Crime of the '90's, 27 Amer. Crim. L. Rev. 149, 162, 172 (1989).

Under sections 1956(a)(1)(A)(i), 1956(a)(2)(a) and 1956(a)(3), the defendant must have acted with the intent to promote a "specified" unlawful activity, as defined in 18 USC 1956(c)(7), rather than the more broadly described unlawful activity defined in 18 USC 1956(c)(1). See Note 12, infra. Although the specified unlawful activity inserted in the second element, see Note 6, supra, will frequently be the same set forth regarding the defendant's intent, the two forms of specified unlawful activity need not be the same, e.g., drug proceeds with which the defendant conducts a transaction with the intent of making a fraudulent credit application.

On November 18, 1988, section 1956(a)(1)(A)(ii) was added, creating a fourth objective constituting an offense under section 1956(a)(1): "[w]ith intent to engage in conduct constituting a violation of section 7201 or 7206 of the Internal Revenue Code of 1986" (i.e., attempt to evade or defeat tax or making false statements, 26 USC7201 and 7206). The Committee believes that section 1956(a)(1)(A)(ii) prosecutions will be rare; therefore, no instruction is included. If used, such an instruction should define what constitutes violations of 26 USC 7201 or 7206, as appropriate. The jury should also be instructed that they must consider a defendant's asserted, subjective beliefs that any unreported income was not income under the law and/or that the defendant was not a taxpayer within the meaning of the Internal Revenue Code. See Cheek v. United States, 498 U.S. 192, 202-03 (1991) (error for trial court to instruct jury that the defendant's subjective beliefs should not be considered in determining whether he acted willfully); United States v. Grunewald, 987 F.2d 531, 535-36 (8th Cir. 1993). The Court would not be required to give a Cheek instruction if the facts demonstrated that the defendant challenged the constitutionality or validity of the tax laws, rather than held a good faith but mistaken belief or misunderstanding that the law did not apply to him. See United States v. Dack, 987 F.2d 1282, 1285 (7th Cir. 1993) (citing United States v. Cheek, 931 F.2d 1206, 1208 (7th Cir. 1991) (on remand from the Supreme Court)). See also United States v. Dykstra, 991 F.2d 450 (8th Cir. 1993) (construing Cheek and discussing when a personal belief is not relevant to the issue of willfulness).

9. See Instruction 8.01, infra.

10. See 18 USC 1956(c)(2). This definition was included in the October 27, 1986, version of the statute and has not changed since.

11. The supplemental definitions and instructions contained in Instruction 6.18.1956J, infra, should be given in most cases. Whether they are inserted in each 6.18.1956 instruction or given after a series of 6.18.1956A through 6.18.1956I instructions is an option for the court to consider based on the number and types of money laundering counts and the ability of the jury to relate the definitions to the applicable counts.

12. See United States v. Jackson, 935 F.2d 832, 841 (7th Cir. 1991); see also United States v. Corona, 885 F.2d 766, 773 (11th Cir. 1989) (the defendant himself does not have to be involved in the offense being facilitated). The specified unlawful activity which a defendant intends to promote may be a continuing offense, may be still underway or may be an offense that will be committed in the future. The financial transaction need not be linked to a specific future offense; it is sufficient if a defendant intended to promote a specified unlawful activity generally. For example, issuing checks to vendors providing beeper and mobile telephone services used in a continuing criminal enterprise would qualify, but purchases of cellular phones not previously used or clearly intended for use in the enterprise would not.

13. If the indictment alleges the defendant did not personally conduct the transaction but knew the transaction was conducted for more than one purpose, use the first set of bracketed language. If the indictment alleges the defendant personally engaged in the financial transaction, use the second set of bracketed language. The multiple objective situation may apply both to multiple intent (i.e., sections 1956(a)(1)(A)(i) and (ii)) and to multiple knowledge (i.e., sections 1956(a)(1)(B)(i) and (ii)) allegations, as well as to allegations of violation of both sections 1956(a)(1)(A)(i) and 1956(a)(1)(B)(i). See United States v. Jackson, 935 F.2d 832, 842 (7th Cir. 1991) (government should give clear notice of the provision(s) under which it is proceeding). Although there is no case law requiring unanimity on objectives, if an instruction to that effect is desired, see Instruction 5.06(F), supra.

Committee Comments

See Ninth Cir. Crim. Jury Instr. 8.120 (formerly 8.33.1 (1997)). See generally United States v. Cruz, 993 F.2d 164 (8th Cir. 1993); United States v. Peery, 977 F.2d 1230, 1234 (8th Cir. 1992); United States v. Turner, 975 F.2d 490, 497 (8th Cir. 1992); United States v. Posters 'N' Things Ltd., 969 F.2d 652, 661 (8th Cir. 1992), aff'd on other grounds, 511 U.S. 513 (1994); United States v. Davila, 964 F.2d 778, 782 (8th Cir. 1992); United States v. Sutera, 933 F.2d 641, 644-46 (8th Cir. 1991); United States v. Martin, 933 F.2d 609, 610 (8th Cir. 1991); United States v. Lucas, 932 F.2d 1210, 1214 n.3, 1219 (8th Cir. 1991); United States v. Blackman, 904 F.2d 1250, 1257 (8th Cir. 1990); United States v. Lee, 886 F.2d 998, 1002-03 (8th Cir. 1989). See also U.S. Dept. of Justice, Money Laundering Federal Prosecution Manual (Feb. 1992).

See Instruction 6.18.1956J, infra, for additional instructions which should be given in most cases.

(For 2008 version see below).

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2008 Version

The crime of [conducting] [attempting to conduct] an illegal financial transaction, as charged in [Count[s] _____ of] the indictment has four elements, which are:

One, on or about (date),¹ [the defendant] [defendant[s] (name[s])] [conducted] [attempted to conduct]² a financial transaction,³ that is, (describe in simple terms, e.g., the purchase of an automobile), which in any way or degree affected interstate or foreign commerce;⁴

Two, the defendant[s] [conducted] [attempted to conduct] the financial transaction with (describe the property, e.g., money, certificates of deposit) that involved the proceeds⁵ of (describe the specified unlawful activity,⁶ e.g., unlawful distribution of cocaine);

Three, at the time the defendant[s] [conducted] [attempted to conduct] the financial transaction, the defendant[s] knew the (describe property) represented the proceeds of some form of unlawful activity;⁷ and

Four, the defendant[s] [conducted] [attempted to conduct] the financial transaction with the intent to promote the carrying on of (describe the specified unlawful activity).⁸

[A defendant may be found to have attempted to conduct a financial transaction if [he] [she] intended to conduct a financial transaction and voluntarily and intentionally carried out some act which was a substantial step toward conducting that financial transaction, even if the transaction was never completed.]⁹

[The term "conducted," as used in [this] [Instruction[s] _____] includes initiating, concluding or participating in initiating or concluding a transaction.]¹⁰

[You are further instructed regarding the crime[s] charged in [Count[s] ___ of] the indictment that the following definitions apply: (Insert applicable portions of Instruction 6.18.1956J, unless the indictment charges multiple money laundering violations and there will be no confusion in adding the definitions common to all counts after all of the substantive money laundering instructions).]¹¹

[It is not necessary to show that [a] [the] defendant intended to commit (specify additional crime) [himself] [herself]; it is sufficient that in [conducting] [attempting to conduct] the financial transaction, [a] [the] defendant [himself] [herself] intended to make the unlawful activity easier or less difficult.]¹²

[The crime charged in [Count[s] ____ of] the indictment alleges multiple purposes for the crime, that is, that [the defendant] [defendant[s] (name[s])] knew that the transaction was [conducted] [attempted] for the purposes of (list all objectives). To find [the defendant] [defendant[s] (name[s])] guilty of the offense[s], you must agree unanimously that one or more of the objectives charged were proved beyond a reasonable doubt.]¹³

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

Notes on Use

1. The statutes and implementing regulations have been amended frequently. The date of the offense is critical in verifying that the criminal conduct charged was covered by the statute and regulation in effect on that date. Additionally, changes in reporting requirements under Treasury regulations (31 C.F.R.) may affect offenses charged under sections 1956(a)(1)(B)(ii) and 1956(a)(2)(B)(ii).

a. The Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, Title I, Subtitle H (Money Laundering Control Act of 1986), § 1352(a), 100 Stat. 3207-18 to 22, added sections 1956 and 1957 to Title 18 of the United States Code. The Anti-Drug Abuse Act of 1986, including the newly added sections 1956 and 1957 of Title 18, became effective on October 27, 1986.

b. The Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Title VI, §§ 6183, 6465, 6469(a)(1) and 6471(a)-(b), and Title VII, § 7031, 102 Stat. 4354, 4375, 4377, 4378 and 4398 became effective on November 18, 1988. Inter alia it added a new offense, section 1956(a)(1)(A)(ii), conducting a financial transaction with intent to engage in violations of the tax code (26 USC 7201 or 7206), expanded the scope of section 1956(a)(2), added a "sting" section, 1956(a)(3), and added a number of "specified unlawful activity" predicate offenses as defined in section 1956(c)(7).

c. The Crime Control Act of 1990, Pub. L. No. 101-647, Title I, §§ 105-108, Title XII, § 1205(j), Title XIV, §§ 1402 and 1404, Title XXV, § 2506 and Title XXXV, § 3557, 104 Stat. 4791-92, 4831, 4835, 4862 and 4927 became effective November 29, 1990. Inter alia it amended the provisions of section 1956(a)(2)(B) to permit the government to establish the defendant's knowledge of the illegality of his actions through the law enforcement officer's representations and the defendant's subsequent statements or actions indicating the defendant believed the representation, added violations of foreign law to the definition of "unlawful activity" (18 USC 1956(c)(1)), amended the definition of "financial transaction" (section 1956(c)(4)) and "monetary instruments" (section 1956(c)(5)) to emphasize the alternative means of meeting the definitions, revised and expanded the scope of the term "specified unlawful activity" (SUA) (sections 1956(c)(7)(A) and (D), added as predicate SUA several "environmental" offenses (section 1956(c)(7)(E)), added a new section, 1956(c)(8), defining "state," and added agencies authorized to investigate section 1956 violations. See Instruction 6.18.1956J(7) (Specified Unlawful Activity), infra.

d. Effective October 28, 1992, Pub. L. 102-550, Title XV, §§ 1504(c), 1524, 1526(a), 1527(a), 1530, 1531, 1534 and 1536, 106 Stat. 4055 and 4064-67 added, inter alia, use of a safe deposit box to the definition of "transaction" (section 1956(c)(3)), added transfer of title to real property, vehicles, vessels or aircraft to the definitions of "financial transaction" (section 1956(c)(4)), expanded the scope of the term "specified unlawful activity" regarding offenses against foreign nations (section 1956(c)(7)(B)), deleted and added several predicate SUA offenses (section 1956(c)(7)(D)), and created the offense of conspiracy to violate sections 1956 or 1957, carrying the same penalties as the object offenses. Instead of a statutory five-year maximum under 18 USC 371, a conspiracy to violate 18 USC 1956 now carries a 20-year statutory maximum. See 18 USC 1956(g). Prior to the amendment, the five-year statutory maximum for conspiracy would have precluded imposition of a sentence corresponding to the sentencing guideline range for the defendants who conspired to launder large sums or who had significant prior criminal histories. See United States Sentencing Guideline § 2S1.1 and Chapter 5, Part A (Sentencing Table).

2. Both types of activity have been proscribed since original enactment of section 1956. See 18 USC§ 1956(a)(1), (a)(2) and (a)(3).

5. See Instruction 6.18.1956J(6) (Proceeds), infra. The term is not defined in 18 USC 1956(c).

7. See Instruction 6.18.1956J infra. The requirement that the defendant knew the property involved in the financial transaction represented the proceeds of some form of unlawful activity is common to all section 1956(a)(1) offenses. "Unlawful activity" encompasses many more violations than "specified unlawful activity." Compare section 1956(c)(1) with section 1956(c)(7). However, between October 27, 1986, and November 29, 1990, it did not include felony violations of foreign law. See Note 1, supra.

On November 18, 1988, section 1956(a)(1)(A)(ii) was added, creating a fourth objective constituting an offense under section 1956(a)(1): "[w]ith intent to engage in conduct constituting a violation of section 7201 or 7206 of the Internal Revenue Code of 1986" (i.e., attempt to evade or defeat tax or making false statements, 26 USC§ 7201 and 7206). The Committee believes that section 1956(a)(1)(A)(ii) prosecutions will be rare; therefore, no instruction is included. If used, such an instruction should define what constitutes violations of 26 USC 7201 or 7206, as appropriate. The jury should also be instructed that they must consider a defendant's asserted, subjective beliefs that any unreported income was not income under the law and/or that the defendant was not a taxpayer within the meaning of the Internal Revenue Code. See Cheek v. United States, 498 U.S. 192, 202-03 (1991) (error for trial court to instruct jury that the defendant's subjective beliefs should not be considered in determining whether he acted willfully); United States v. Grunewald, 987 F.2d 531, 535-36 (8th Cir. 1993). The Court would not be required to give a Cheek instruction if the facts demonstrated that the defendant challenged the constitutionality or validity of the tax laws, rather than held a good faith but mistaken belief or misunderstanding that the law did not apply to him. See United States v. Dack, 987 F.2d 1282, 1285 (7th Cir. 1993) (citing United States v. Cheek, 931 F.2d 1206, 1208 (7th Cir. 1991) (on remand from the Supreme Court)). See also United States v. Dykstra, 991 F.2d 450 (8th Cir. 1993) (construing Cheek and discussing when a personal belief is not relevant to the issue of willfulness).

9. See Instruction 8.01, infra.

10. See 18 USC 1956(c)(2). This definition was included in the October 27, 1986, version of the statute and has not changed since.

Committee Comments

See Instruction 6.18.1956J, infra, for additional instructions which should be given in most cases.

(For 2006 version see below)

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2006 Version

The crime of [conducting] [attempting to conduct] an illegal financial transaction, as charged in [Count[s] _____ of] the indictment has four elements, which are:

One, on or about (date),1 [the defendant] [defendant[s] (name[s])] [conducted] [attempted to conduct]2 a financial transaction,3 that is, (describe in simple terms, e.g., the purchase of an automobile), which in any way or degree affected interstate or foreign commerce;4

Two, the defendant[s] [conducted] [attempted to conduct] the financial transaction with (describe the property, e.g., money, certificates of deposit) that involved the proceeds5 of (describe the specified unlawful activity,6 e.g., unlawful distribution of cocaine);

Three, at the time the defendant[s] [conducted] [attempted to conduct] the financial transaction, the defendant[s] knew the (describe property) represented the proceeds of some form of unlawful activity;7 and

Four, the defendant[s] [conducted] [attempted to conduct] the financial transaction with the intent to promote the carrying on of (describe the specified unlawful activity).8

[A defendant may be found to have attempted to conduct a financial transaction if [he] [she] intended to conduct a financial transaction and voluntarily and intentionally carried out some act which was a substantial step toward conducting that financial transaction, even if the transaction was never completed.]9

[The term "conducted," as used in [this] [Instruction[s] _____] includes initiating, concluding or participating in initiating or concluding a transaction.]10

[You are further instructed regarding the crime[s] charged in [Count[s] ___ of] the indictment that the following definitions apply: (Insert applicable portions of Instruction 6.18.1956J, unless the indictment charges multiple money laundering violations and there will be no confusion in adding the definitions common to all counts after all of the substantive money laundering instructions).]11

[It is not necessary to show that [a] [the] defendant intended to commit (specify additional crime) [himself] [herself]; it is sufficient that in [conducting] [attempting to conduct] the financial transaction, [a] [the] defendant [himself] [herself] intended to make the unlawful activity easier or less difficult.]12

[The crime charged in [Count[s] ____ of] the indictment alleges multiple purposes for the crime, that is, that [the defendant] [defendant[s] (name[s])] knew that the transaction was [conducted] [attempted] for the purposes of (list all objectives). To find [the defendant] [defendant[s] (name[s])] guilty of the offense[s], you must agree unanimously that one or more of the objectives charged were proved beyond a reasonable doubt.]13

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

Notes on Use

a. The Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, Title I, Subtitle H (Money Laundering Control Act of 1986), § 1352(a), 100 Stat. 3207-18 to 22, added sections 1956 and 1957 to Title 18 of the United States Code. The Anti-Drug Abuse Act of 1986, including the newly added sections 1956 and 1957 of Title 18, became effective on October 27, 1986.

b. The Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Title VI, §§ 6183, 6465, 6469(a)(1) and 6471(a)-(b), and Title VII, § 7031, 102 Stat. 4354, 4375, 4377, 4378 and 4398 became effective on November 18, 1988. Inter alia it added a new offense, section 1956(a)(1)(A)(ii), conducting a financial transaction with intent to engage in violations of the tax code (26 USC 7201 or 7206), expanded the scope of section 1956(a)(2), added a "sting" section, 1956(a)(3), and added a number of "specified unlawful activity" predicate offenses as defined in section 1956(c)(7).

c. The Crime Control Act of 1990, Pub. L. No. 101-647, Title I, §§ 105-108, Title XII, § 1205(j), Title XIV, §§ 1402 and 1404, Title XXV, § 2506 and Title XXXV, § 3557, 104 Stat. 4791-92, 4831, 4835, 4862 and 4927 became effective November 29, 1990. Inter alia it amended the provisions of section 1956(a)(2)(B) to permit the government to establish the defendant's knowledge of the illegality of his actions through the law enforcement officer's representations and the defendant's subsequent statements or actions indicating the defendant believed the representation, added violations of foreign law to the definition of "unlawful activity" (18 USC 1956(c)(1)), amended the definition of "financial transaction" (section 1956(c)(4)) and "monetary instruments" (section 1956(c)(5)) to emphasize the alternative means of meeting the definitions, revised and expanded the scope of the term "specified unlawful activity" (SUA) (sections 1956(c)(7)(A) and (D), added as predicate SUA several "environmental" offenses (section 1956(c)(7)(E)), added a new section, 1956(c)(8), defining "state," and added agencies authorized to investigate section 1956 violations. See Instruction 6.18.1956J(7) (Specified Unlawful Activity), infra.

d. Effective October 28, 1992, Pub. L. 102-550, Title XV, §§ 1504(c), 1524, 1526(a), 1527(a), 1530, 1531, 1534 and 1536, 106 Stat. 4055 and 4064-67 added, inter alia, use of a safe deposit box to the definition of "transaction" (section 1956(c)(3)), added transfer of title to real property, vehicles, vessels or aircraft to the definitions of "financial transaction" (section 1956(c)(4)), expanded the scope of the term "specified unlawful activity" regarding offenses against foreign nations (section 1956(c)(7)(B)), deleted and added several predicate SUA offenses (section 1956(c)(7)(D)), and created the offense of conspiracy to violate sections 1956 or 1957, carrying the same penalties as the object offenses. Instead of a statutory five-year maximum under 18 USC 371, a conspiracy to violate 18 USC 1956 now carries a 20-year statutory maximum. See 18 USC 1956(g). Prior to the amendment, the five-year statutory maximum for conspiracy would have precluded imposition of a sentence corresponding to the sentencing guideline range for the defendants who conspired to launder large sums or who had significant prior criminal histories. See United States Sentencing Guideline § 2S1.1 and Chapter 5, Part A (Sentencing Table).

2. Both types of activity have been proscribed since original enactment of section 1956. See 18 USC 1956(a)(1), (a)(2) and (a)(3).

5. See Instruction 6.18.1956J(6) (Proceeds), infra. The term is not defined in 18 USC 1956(c).

On November 18, 1988, section 1956(a)(1)(A)(ii) was added, creating a fourth objective constituting an offense under section 1956(a)(1): "[w]ith intent to engage in conduct constituting a violation of section 7201 or 7206 of the Internal Revenue Code of 1986" (i.e., attempt to evade or defeat tax or making false statements, 26 USC 7201 and 7206). The Committee believes that section 1956(a)(1)(A)(ii) prosecutions will be rare; therefore, no instruction is included. If used, such an instruction should define what constitutes violations of 26 USC 7201 or 7206, as appropriate. The jury should also be instructed that they must consider a defendant's asserted, subjective beliefs that any unreported income was not income under the law and/or that the defendant was not a taxpayer within the meaning of the Internal Revenue Code. See Cheek v. United States, 498 U.S. 192, 202-03 (1991) (error for trial court to instruct jury that the defendant's subjective beliefs should not be considered in determining whether he acted willfully); United States v. Grunewald, 987 F.2d 531, 535-36 (8th Cir. 1993). The Court would not be required to give a Cheek instruction if the facts demonstrated that the defendant challenged the constitutionality or validity of the tax laws, rather than held a good faith but mistaken belief or misunderstanding that the law did not apply to him. See United States v. Dack, 987 F.2d 1282, 1285 (7th Cir. 1993) (citing United States v. Cheek, 931 F.2d 1206, 1208 (7th Cir. 1991) (on remand from the Supreme Court)). See also United States v. Dykstra, 991 F.2d 450 (8th Cir. 1993) (construing Cheek and discussing when a personal belief is not relevant to the issue of willfulness).

9. See Instruction 8.01, infra.

10. See 18 USC 1956(c)(2). This definition was included in the October 27, 1986, version of the statute and has not changed since.

12. See United States v. Jackson, 935 F.2d 832, 841 (7th Cir. 1991); United States v. Rogers, 788 F.2d 1472, 1476 (11th Cir. 1986) (facilitating the promotion of unlawful activity in the context of 18 USC 1952(a)(3) ("Travel Act") cases is satisfied by proof the defendant's action made the unlawful activity easy or less difficult); see also United States v. Corona, 885 F.2d 766, 773 (11th Cir. 1989) (the defendant himself does not have to be involved in the offense being facilitated). The specified unlawful activity which a defendant intends to promote may be a continuing offense, may be still underway or may be an offense that will be committed in the future. The financial transaction need not be linked to a specific future offense; it is sufficient if a defendant intended to promote a specified unlawful activity generally. For example, issuing checks to vendors providing beeper and mobile telephone services used in a continuing criminal enterprise would qualify, but purchases of cellular phones not previously used or clearly intended for use in the enterprise would not.

Committee Comments

See Ninth Cir. Crim. Jury Instr. 8.120 (2000). See generally United States v. Cruz, 993 F.2d 164 (8th Cir. 1993); United States v. Peery, 977 F.2d 1230, 1234 (8th Cir. 1992); United States v. Turner, 975 F.2d 490, 497 (8th Cir. 1992); United States v. Posters 'N' Things Ltd., 969 F.2d 652, 661 (8th Cir. 1992), aff'd on other grounds, 511 U.S. 513 (1994); United States v. Davila, 964 F.2d 778, 782 (8th Cir. 1992); United States v. Sutera, 933 F.2d 641, 644-46 (8th Cir. 1991); United States v. Martin, 933 F.2d 609, 610 (8th Cir. 1991); United States v. Lucas, 932 F.2d 1210, 1214 n.3, 1219 (8th Cir. 1991); United States v. Blackman, 904 F.2d 1250, 1257 (8th Cir. 1990); United States v. Lee, 886 F.2d 998, 1002-03 (8th Cir. 1989). See also U.S. Dept. of Justice, Money Laundering Federal Prosecution Manual (Feb. 1992).

See Instruction 6.18.1956J, infra, for additional instructions which should be given in most cases.

For 2000 version see below

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2000 Version

The crime of [conducting] [attempting to conduct] an illegal financial transaction, as charged in [Count[s] _____ of] the indictment has four essential elements, which are:

One, on or about (date),1 the defendant[s] [(name/s)] [conducted] [attempted to conduct]2 a financial transaction,3 that is, (describe in simple terms, e.g., the purchase of an automobile), which in any way or degree affected interstate or foreign commerce;4

Two, the defendant[s] [conducted] [attempted to conduct] the financial transaction with (describe the property, e.g., money, certificates of deposit) that involved the proceeds5 of (describe the specified unlawful activity,6 e.g., unlawful distribution of cocaine);

Three, at the time the defendant[s] [conducted] [attempted to conduct] the financial transaction, the defendant[s] knew the (describe property) represented the proceeds of some form of unlawful activity;7 and

Four, the defendant[s] [conducted] [attempted to conduct] the financial transaction with the intent to promote the carrying on of (describe the specified unlawful activity).8

[A defendant may be found to have attempted to conduct a financial transaction if [he] [she] intended to conduct a financial transaction and voluntarily and intentionally carried out some act which was a substantial step toward conducting that financial transaction, even if the transaction was never completed.]9

[The term "conducted," as used in [this] [Instruction[s] _____] includes initiating, concluding or participating in initiating or concluding a transaction.]10

[You are further instructed regarding the crime[s] charged in [Count[s] ___ of] the indictment that the following definitions apply: (Insert applicable portions of Instruction 6.18.1956J, unless the indictment charges multiple money laundering violations and there will be no confusion in adding the definitions common to all counts after all of the substantive money laundering instructions).]11

[It is not necessary to show that [a] [the] defendant intended to commit (specify additional crime) [himself] [herself]; it is sufficient that in [conducting] [attempting to conduct] the financial transaction, [a] [the] defendant [himself] [herself] intended to make the unlawful activity easier or less difficult.]12

[The crime charged in [Count[s] ____ of] the indictment alleges multiple purposes for the crime, that is, that [the defendant] [defendant[s] [(name/s)]] knew that the transaction was [conducted] [attempted] for the purposes of (list all objectives). To find [the defendant] [defendant[s] [(name/s)]] guilty of the offense[s], you must agree unanimously that one or more of the objectives charged were proved beyond a reasonable doubt.]13

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

Committee Comments

See Ninth Cir. Crim. Jury Instr. 8.33.1 (1997). See generally United States v. Cruz, 993 F.2d 164 (8th Cir. 1993); United States v. Peery, 977 F.2d 1230, 1234 (8th Cir. 1992); United States v. Turner, 975 F.2d 490, 497 (8th Cir. 1992), cert. denied, 506 U.S. 1082 (1993); United States v. Posters 'N' Things Ltd., 969 F.2d 652, 661 (8th Cir. 1992), aff'd on other grounds, 511 U.S. 513, 114 S. Ct. 1747 (1994); United States v. Davila, 964 F.2d 778, 782 (8th Cir. 1992); United States v. Sutera, 933 F.2d 641, 644-46 (8th Cir. 1991); United States v. Martin, 933 F.2d 609, 610 (8th Cir. 1991); United States v. Lucas, 932 F.2d 1210, 1214 n.3, 1219 (8th Cir.), cert. denied, 502 U.S. 929 (1991); United States v. Blackman, 904 F.2d 1250, 1257 (8th Cir. 1990); United States v. Lee, 886 F.2d 998, 1002-03 (8th Cir. 1989), cert. denied, 493 U.S. 1032 (1990). See also U.S. Dept. of Justice, Money Laundering Federal Prosecution Manual (Feb. 1992).

See Instruction 6.18.1956J, infra, for additional instructions which should be given in most cases.

Notes on Use

1. The statutes and implementing regulations have been amended frequently. The date of the offense is critical in verifying that the criminal conduct charged was covered by the statute and regulation in effect on that date. Additionally, changes in reporting requirements under Treasury regulations (31 C.F.R.) may affect offenses charged under sections 1956(a)(1)(B)(ii) and 1956(a)(2)(B)(ii).

a. The Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, Title I, Subtitle H (Money Laundering Control Act of 1986), § 1352(a), 100 Stat. 3207-18 to 22, added sections 1956 and 1957 to Title 18 of the United States Code. The Anti-Drug Abuse Act of 1986, including the newly added sections 1956 and 1957 of Title 18, became effective on October 27, 1986.

b. The Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Title VI, §§ 6183, 6465, 6469(a)(1) and 6471(a)-(b), and Title VII, § 7031, 102 Stat. 4354, 4375, 4377, 4378 and 4398 became effective on November 18, 1988. Inter alia it added a new offense, section 1956(a)(1)(A)(ii), conducting a financial transaction with intent to engage in violations of the tax code (26 USC§ 7201 or 7206), expanded the scope of section 1956(a)(2), added a "sting" section, 1956(a)(3), and added a number of "specified unlawful activity" predicate offenses as defined in section 1956(c)(7).

c. The Crime Control Act of 1990, Pub. L. No. 101-647, Title I, §§ 105-108, Title XII, § 1205(j), Title XIV, §§ 1402 and 1404, Title XXV, § 2506 and Title XXXV, § 3557, 104 Stat. 4791-92, 4831, 4835, 4862 and 4927 became effective November 29, 1990. Inter alia it amended the provisions of section 1956(a)(2)(B) to permit the government to establish the defendant's knowledge of the illegality of his actions through the law enforcement officer's representations and the defendant's subsequent statements or actions indicating the defendant believed the representation, added violations of foreign law to the definition of "unlawful activity" (18 USC 1956(c)(1)), amended the definition of "financial transaction" (section 1956(c)(4)) and "monetary instruments" (section 1956(c)(5)) to emphasize the alternative means of meeting the definitions, revised and expanded the scope of the term "specified unlawful activity" (SUA) (sections 1956(c)(7)(A) and (D), added as predicate SUA several "environmental" offenses (section 1956(c)(7)(E)), added a new section, 1956(c)(8), defining "state," and added agencies authorized to investigate section 1956 violations. See Instruction 6.18.1956J(7) (Specified Unlawful Activity), infra.

d. Effective October 28, 1992, Pub. L. 102-550, Title XV, §§ 1504(c), 1524, 1526(a), 1527(a), 1530, 1531, 1534 and 1536, 106 Stat. 4055 and 4064-67 added, inter alia, use of a safe deposit box to the definition of "transaction" (section 1956(c)(3)), added transfer of title to real property, vehicles, vessels or aircraft to the definitions of "financial transaction" (section 1956(c)(4)), expanded the scope of the term "specified unlawful activity" regarding offenses against foreign nations (section 1956(c)(7)(B)), deleted and added several predicate SUA offenses (section 1956(c)(7)(D)), and created the offense of conspiracy to violate sections 1956 or 1957, carrying the same penalties as the object offenses. Instead of a statutory five-year maximum under 18 USC 371, a conspiracy to violate 18 USC 1956 now carries a 20-year statutory maximum. See 18 USC 1956(g). Prior to the amendment, the five-year statutory maximum for conspiracy would have precluded imposition of a sentence corresponding to the sentencing guideline range for defendants who conspired to launder large sums or who had significant prior criminal histories. See United States Sentencing Guideline § 2S1.1 and Chapter 5, Part A (Sentencing Table).

2. Both types of activity have been proscribed since original enactment of section 1956. See 18 USC§ 1956(a)(1), (a)(2) and (a)(3).

4. See Instruction 6.18.1956J(2) (Interstate and Foreign Commerce), infra. All section 1956 offenses require proof that the financial transaction itself or the financial institution, if one was involved, in some way affected interstate or foreign commerce. See 18 USC 1956(c)(4); United States v. Baker, 985 F.2d 1248, 1252 (4th Cir. 1993) (essential element under section 1956(a)(1)(B)(i)); United States v. Posters 'N' Things Ltd., 969 F.2d 652, 661 n.6 (8th Cir. 1992) (expert witness testified as to issue), aff'd on other grounds, 511 U.S. 513, 114 S. Ct. 1747 (1994); United States v. Gonzalez-Rodriguez, 966 F.2d 918, 924 (5th Cir. 1992) (discussing United States v. Gallo, 927 F.2d 815, 823 (5th Cir. 1991) and United States v. Hamilton, 931 F.2d 1046, 1051-52 (5th Cir. 1991)). The Eighth Circuit has not ruled whether the indictment must explicitly allege the interstate/foreign commerce nexus. United States v. Lucas, 932 F.2d 1210, 1219 (8th Cir.) (court was not required to reach the issue because the indictment which alleged construction of a shopping center and purchase of merchandise could be reasonably construed to allege the element), cert. denied, 502 U.S. 929 (1991). See also United States v. Green, 964 F.2d 365, 374 (5th Cir. 1992) (citing Lucas); United States v. Lovett, 964 F.2d 1029, 1038 (10th Cir. 1992) (under section 1957, the interstate commerce nexus is jurisdictional but not an essential element of the crime charged) (citing United States v. Kelley, 929 F.2d 582, 586 (10th Cir. 1991)). Given the lack of controlling law on this issue, the Committee recommends that the nexus be alleged in the indictment. In any case, a finding of an effect on interstate or foreign commerce of either the transaction itself or the activities of the financial institution, if one was involved, is essential. See United States v. Ben M. Hogan Co., Inc., 769 F.2d 1293, 1297 (8th Cir. 1985) (reversible error for a district court to give an instruction which could have been understood to include a conclusive presumption of effect on interstate commerce, where such a finding by the jury was essential in a prosecution under the Sherman Anti-Trust Act).

5. See Instruction 6.18.1956J(6) (Proceeds), infra. The term is not defined in 18 USC 1956(c).

On November 18, 1988, section 1956(a)(1)(A)(ii) was added, creating a fourth objective constituting an offense under section 1956(a)(1): "[w]ith intent to engage in conduct constituting a violation of section 7201 or 7206 of the Internal Revenue Code of 1986" (i.e., attempt to evade or defeat tax or making false statements, 26 USC§ 7201 and 7206). The Committee believes that section 1956(a)(1)(A)(ii) prosecutions will be rare; therefore, no instruction is included. If used, such an instruction should define what constitutes violations of 26 USC 7201 or 7206, as appropriate. The jury should also be instructed that they must consider a defendant's asserted, subjective beliefs that any unreported income was not income under the law and/or that the defendant was not a taxpayer within the meaning of the Internal Revenue Code. See Cheek v. United States, 498 U.S. 192, 202-03 (1991) (error for trial court to instruct jury that defendant's subjective beliefs should not be considered in determining whether he acted willfully); United States v. Grunewald, 987 F.2d 531, 535-36 (8th Cir. 1993). The Court would not be required to give a Cheek instruction if the facts demonstrated that the defendant challenged the constitutionality or validity of the tax laws, rather than held a good faith but mistaken belief or misunderstanding that the law did not apply to him. See United States v. Dack, 987 F.2d 1282, 1285 (7th Cir. 1993) (citing United States v. Cheek, 931 F.2d 1206, 1208 (7th Cir. 1991) (on remand from the Supreme Court)). See also United States v. Dykstra, 991 F.2d 450 (8th Cir. 1993) (construing Cheek and discussing when a personal belief is not relevant to the issue of willfulness).

9. See Instruction 8.01, infra.

10. See 18 USC 1956(c)(2). This definition was included in the October 27, 1986, version of the statute and has not changed since.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1956B MONEY LAUNDERING -- FINANCIAL TRANSACTION
TO CONCEAL PROCEEDS
(18 USC 1956(a)(1)(B)(i))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Money Laundering -- Financial Transaction To Conceal Proceeds (18 USC 1956(a)(1)(B)(i))

The crime of [conducting] [attempting to conduct] an illegal financial transaction, as charged in [Count[s] _____ of] the indictment has four elements, which are:

One, on or about (date),¹ [the defendant] [defendant[s] (name[s])] [conducted] [attempted to conduct]² a financial transaction,³ that is, (describe in simple terms, e.g., the purchase of an automobile), which in any way or degree affected interstate or foreign commerce;⁴

Two, the defendant[s] [conducted] [attempted to conduct] the financial transaction with (describe the property, e.g., money, certificates of deposit) that involved the proceeds⁵ of (describe the specified unlawful activity,⁶ e.g., unlawful distribution of cocaine);

Three, at the time the defendant[s] [conducted] [attempted to conduct] the financial transaction, the defendant[s] knew the (describe property) represented the proceeds of some form of unlawful activity;⁷ and

Four, the defendant[s] [conducted] [attempted to conduct] the financial transaction knowing that the transaction was designed in whole or in part to conceal or disguise the nature, location, source, ownership or control of the proceeds of (describe the specified unlawful activity).⁸

[A defendant may be found to have attempted to conduct a financial transaction if [he] [she] intended to conduct a financial transaction and voluntarily and intentionally carried out some act which was a substantial step toward conducting that financial transaction, even if the transaction was never completed.]⁹

[The term "conducted," as used in [this] [Instruction[s] _____] includes initiating, concluding or participating in initiating or concluding a transaction.]¹⁰

[You are further instructed regarding the crime[s] charged in [Count[s] ___ of] the indictment that the following definitions apply: (Insert applicable portions of Instruction 6.18.1956J, unless the indictment charges multiple money laundering violations and there will be no confusion in adding the definitions common to all counts after all of the substantive money laundering instructions).]¹¹

[You may find that [the defendant] [defendant[s] (name[s])] knew the purpose of the financial transaction was to conceal or disguise the nature, location, source, ownership or control of the proceeds of (describe the specified unlawful activity) if you find beyond a reasonable doubt that (insert appropriate language from Instruction 7.04).]¹²

[The crime charged in [Count[s] ____ of] the indictment alleges multiple purposes for the crime, that is, that [the defendant] [defendant[s] (name[s])] knew that the transaction was [conducted] [attempted] for the purposes of (list all objectives). To find [the defendant] [defendant[s] (name[s])] guilty of the offense[s], you must agree unanimously that one or more of the objectives charged were proved beyond a reasonable doubt.]¹³

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

Notes on Use

1. The statutes and implementing regulations have been amended frequently. The date of the offense is critical in verifying that the criminal conduct charged was covered by the statute and regulation in effect on that date. Additionally, changes in reporting requirements under Treasury regulations (31 C.F.R.) may affect offenses charged under sections 1956(a)(1)(B)(ii) and 1956(a)(2)(B)(ii).

a. The Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, Title I, Subtitle H (Money Laundering Control Act of 1986), § 1352(a), 100 Stat. 3207-18 to 22, added sections 1956 and 1957 to Title 18 of the United States Code. The Anti-Drug Abuse Act of 1986, including the newly added sections 1956 and 1957 of Title 18, became effective on October 27, 1986.

b. The Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Title VI, §§ 6183, 6465, 6469(a)(1) and 6471(a)-(b), and Title VII, § 7031, 102 Stat. 4354, 4375, 4377, 4378 and 4398 became effective November 18, 1988. Inter alia it added a new offense, section 1956(a)(1)(A)(ii), conducting a financial transaction with intent to engage in violations of the tax code (26 USC 7201 or 7206), expanded the scope of section 1956(a)(2), added a "sting" section, 1956(a)(3), and added a number of "specified unlawful activity" predicate offenses as defined in section 1956(c)(7).

c. The Crime Control Act of 1990, Pub. L. No. 101-647, Title I, §§ 105-108, Title XII, § 1205(j), Title XIV, §§ 1402 and 1404, Title XXV, § 2506 and Title XXXV, § 3557, 104 Stat. 4791-92, 4831, 4835, 4862 and 4927 became effective November 29, 1990. Inter alia it amended the provisions of section 1956(a)(2)(B) to permit the government to establish the defendant's knowledge of the illegality of his actions through the law enforcement officer's representations and the defendant's subsequent statements or actions indicating the defendant believed the representation, added violations of foreign law to the definition of "unlawful activity" (18 USC 1956(c)(1)), amended the definition of "financial transaction" (section 1956(c)(4)) and "monetary instruments" (section 1956(c)(5)) to emphasize the alternative means of meeting the definitions, revised and expanded the scope of the term "specified unlawful activity" (SUA) (sections 1956(c)(7)(A) and (D), added as predicate SUA several "environmental" offenses (section 1956(c)(7)(E)), added a new section, 1956(c)(8), defining "state," and added agencies authorized to investigate section 1956 violations. See Instruction 6.18.1956J(7) (Specified Unlawful Activity), infra.

d. Effective October 28, 1992, Pub. L. 102-550, Title XV, §§ 1504(c), 1524, 1526(a), 1527(a), 1530, 1531, 1534 and 1536, 106 Stat. 4055 and 4064-67 added, inter alia, use of a safe deposit box to the definition of "transaction" (section 1956(c)(3)), added transfer of title to real property, vehicles, vessels or aircraft to the definitions of "financial transaction" (section 1956(c)(4)), expanded the scope of the term "specified unlawful activity" regarding offenses against foreign nations (section 1956(c)(7)(B)), deleted and added several predicate SUA offenses (section 1956(c)(7)(D)) and created the offense of conspiracy to violate sections 1956 or 1957, carrying the same penalties as the object offenses. Instead of a statutory five-year maximum under 18 USC 371, a conspiracy to violate 18 USC 1956 now carries a 20-year statutory maximum. See 18 USC 1956(g). Prior to the amendment, the five-year statutory maximum for conspiracy would have precluded imposition of a sentence corresponding to the sentencing guideline range for the defendants who conspired to launder large sums or who had significant prior criminal histories. See United States Sentencing Guideline § 2S1.1 and Chapter 5, Part A (Sentencing Table).

2. Both types of activity have been proscribed since original enactment of section 1956. See 18 USC 1956(a)(1), (a)(2) and (a)(3).

4. See Instruction 6.18.1956J(2) (Interstate and Foreign Commerce), infra. All section 1956 offenses require proof that the financial transaction itself or the financial institution, if one was involved, in some way affected interstate or foreign commerce. See 18 USC 1956(c)(4); United States v. Baker, 985 F.2d 1248, 1252 (4th Cir. 1993) (element under 1956(a)(1)(B)(i)); United States v. Posters 'N' Things Ltd., 969 F.2d 652, 661 n.6 (8th Cir. 1992) (expert witness testified as to issue), aff'd on other grounds, 511 U.S. 513 (1994); United States v. Gonzalez-Rodriguez, 966 F.2d 918, 924 (5th Cir. 1992) (discussing United States v. Gallo, 927 F.2d 815, 823 (5th Cir. 1991) and United States v. Hamilton, 931 F.2d 1046, 1051-52 (5th Cir. 1991)). The Eighth Circuit has not ruled whether the indictment must explicitly allege the interstate/foreign commerce nexus. United States v. Lucas, 932 F.2d 1210, 1219 (8th Cir. 1991) (court was not required to reach the issue because the indictment which alleged construction of a shopping center and purchase of merchandise could be reasonably construed to allege the element). See also United States v. Green, 964 F.2d 365, 374 (5th Cir. 1992) (citing Lucas); United States v. Lovett, 964 F.2d 1029, 1038 (10th Cir. 1992) (under section 1957, the interstate commerce nexus is jurisdictional but not an element of the crime charged) (citing United States v. Kelley, 929 F.2d 582, 586 (10th Cir. 1991)). Given the lack of controlling law on this issue, the Committee recommends that the nexus be alleged in the indictment. In any case, a finding of an effect on interstate or foreign commerce of either the transaction itself or the activities of the financial institution, if one was involved, is essential. See United States v. Ben M. Hogan Co., Inc., 769 F.2d 1293, 1297 (8th Cir. 1985) (reversible error for a district court to give an instruction which could have been understood to include a conclusive presumption of effect on interstate commerce, where such a finding by the jury was essential in a prosecution under the Sherman Anti-Trust Act).

5. See Instruction 6.18.1956J(6) (Proceeds), infra. The term is not defined in 18 USC 1956(c).

6. See Instruction 6.18.1956J(7) (Specified Unlawful Activity), infra. The term should not be confused with "unlawful activity" in general and has a specific, statutory meaning, as set forth in section 1956(c)(7). Because that section has had numerous amendments, and itself incorporates activities defined in several other statutes, the Committee recommends careful review of both the provisions of section 1956(c)(7) and of the incorporated statutes which were in effect at the time of the alleged financial transaction (section 1956(a)(1)) or transportation, transmission or transfer (section 1956)(a)(2)).

8. A conviction under section 1956(a)(1)(B)(i) (concealment) requires a design to conceal or disguise the nature, location, source, ownership or control of the proceeds. A "typical" money laundering transaction involving purchases in third-party names frequently satisfies this element. Purchases in the names of close family members, however, are problematic, especially where the defendant's subsequent use of the asset is open and conspicuous. Compare United States v. Sanders, 929 F.2d 1466, 1472 (10th Cir. 1991) (contrasting United States v. Lee, 886 F.2d 998, 1002-03 (8th Cir. 1989)) with United States v. Sutera, 933 F.2d 641, 648 (8th Cir. 1991) (money laundering statute did not require that the defendant did a good job of laundering the proceeds; the jury simply had to find that the defendant intended to hide them) and United States v. Posters 'N' Things Ltd., 969 F.2d 652, 661 n.7 (8th Cir. 1992) (the defendant commingled legitimate and illegitimate business receipts over a three year period; despite no attempt to disguise control of the account, one could infer from her record keeping and bank activity a design to conceal or disguise her illegal proceeds), aff'd on other grounds, 511 U.S. 513 (1994).

In a "mixed motive" situation, a defendant may be found guilty under both sections 1956(a)(1)(B)(i) and 1956(a)(1)(B)(ii), e.g., where a transaction is designed in whole or in part to conceal and the same transaction also is designed to evade taxes. See United States v. Isabel, 945 F.2d 1193, 1203 (1st Cir. 1991). Similarly, the same transaction may support separate offenses under section 1956(a)(1)(A)(i) (promoting) and 1956(a)(1)(B)(i) (concealing). The indictment and instructions should clearly place the defendant, the court and the jury on notice whether the government is proceeding under the former, the latter or both. United States v. Jackson, 935 F.2d at 842.

9. See Instruction 8.01, infra.

10. See 18 USC 1956(c)(2). This definition was included in the October 27, 1986, version of the statute and has not changed since.

11. The supplemental definitions and instructions contained in Instruction 6.18.1956J, infra, should be given in most cases. Whether they are inserted in each 6.18.1956 instruction or given after a series of 6.18.1956A through 6.18.1956I instructions is an option for the Court to consider based on the number and types of money laundering counts and the ability of the jury to relate the definitions to the applicable counts.

12. See Instruction 7.04, infra. The 1956(a)(1)(B) "knowing" requirement encompasses instances of "willful blindness." S. Rep. No. 433, 99th Cong., 2d Sess. 6, 10 (1986), construed in 27 Amer. Crim. L. Rev. 167. See also United States v. Kaufmann, 985 F.2d 884, 897 n.6 (7th Cir. 1993) ("ostrich" instruction appropriate for counts requiring knowledge); United States v. Campbell, 977 F.2d 854, 857-58 (4th Cir. 1992) (discussing a willful blindness instruction given in a section 1956(a)(1)(B)(i) trial); United States v. Montoya, 945 F.2d 1068, 1076 (9th Cir. 1991) (distinguishing sections 1956(a)(1)(A) and 1956(a)(1)(B)); United States v. Fuller, 974 F.2d 1474, 1482 (5th Cir. 1992) (deliberate ignorance instruction regarding conspiracy to launder money). In United States v. Barnhart, 979 F.2d 647, 651-52 (8th Cir. 1992), the Eighth Circuit addressed a willful blindness instruction patterned on 7.04 and held that such an instruction "should not be given unless there is evidence to support the inference that the defendant was aware of a high probability of the existence of the fact in question and purposely contrived to avoid learning all of the facts in order to have a defense in the event of a subsequent prosecution." Id. (quoting United States v. Alvarado, 838 F.2d 311, 314 (9th Cir. 1987)). If there is evidence a defendant actually believed that the transaction was for an innocent purpose, see Instruction 7.04, infra, nn 3,4. The deliberate ignorance instruction should not be given where the evidence points solely to either actual knowledge, or lack thereof, and where there is no evidence that the defendant had a conscious purpose to avoid learning the truth. Note 5, Instruction 7.04, infra; Barnhart, 979 F.2d at 651. The permissive rather than mandatory phrasing "you may find" comports with the usage suggested in Karras v. Leapley, 974 F.2d 71, 74 n.6 (8th Cir. 1992).

13. If the indictment alleges the defendant did not personally conduct the transaction but knew the transaction was conducted for more than one purpose, use the first set of bracketed language. If the indictment alleges the defendant personally engaged in the financial transaction, use the second set of bracketed language. The multiple objective situation may apply both to multiple intent (i.e., 1956(a)(1)(A)(i) and (ii)) and to multiple knowledge (i.e., 1956(a)(1)(B)(i) and (ii)) allegations, as well as to allegations of violation of both 1956(a)(1)(A)(i) and 1956(a)(1)(B)(i). See Note 8, supra. See also United States v. Jackson, 935 F.2d 832, 842 (7th Cir. 1991) (government should give clear notice of the provision(s) under which it is proceeding). Although there is no case law requiring unanimity on objectives, if an instruction to that effect is desired, see Instruction 5.06(F), supra.

Committee Comments

See Ninth Cir. Crim. Jury Instr. 8.121 (formerly 8.33.2 (1997)).. See generally United States v. Cruz, 993 F.2d 164 (8th Cir. 1993); United States v. Peery, 977 F.2d 1230, 1234 (8th Cir. 1992); United States v. Turner, 975 F.2d 490, 497 (8th Cir. 1992); United States v. Posters 'N' Things Ltd., 969 F.2d 652, 661 (8th Cir. 1992), aff'd on other grounds, 511 U.S. 513 (1994); United States v. Davila, 964 F.2d 778, 782 (8th Cir. 1992); United States v. Sutera, 933 F.2d 641, 644-46 (8th Cir. 1991); United States v. Martin, 933 F.2d 609, 610 (8th Cir. 1991); United States v. Lucas, 932 F.2d 1210, 1214 n.3, 1219 (8th Cir. 1991); United States v. Blackman, 904 F.2d 1250, 1257 (8th Cir. 1990); United States v. Lee, 886 F.2d 998, 1002-03 (8th Cir. 1989). See also U.S. Dept. of Justice, Money Laundering Federal Prosecution Manual (Feb. 1992).

See Instruction 6.18.1956J, infra, for additional instructions which should be given in most cases.

(For 2008 version see below).

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

2008 Version

The crime of [conducting] [attempting to conduct] an illegal financial transaction, as charged in [Count[s] _____ of] the indictment has four elements, which are:

One, on or about (date),¹ [the defendant] [defendant[s] (name[s])] [conducted] [attempted to conduct]² a financial transaction,³ that is, (describe in simple terms, e.g., the purchase of an automobile), which in any way or degree affected interstate or foreign commerce;⁴

Two, the defendant[s] [conducted] [attempted to conduct] the financial transaction with (describe the property, e.g., money, certificates of deposit) that involved the proceeds⁵ of (describe the specified unlawful activity,⁶ e.g., unlawful distribution of cocaine);

Three, at the time the defendant[s] [conducted] [attempted to conduct] the financial transaction, the defendant[s] knew the (describe property) represented the proceeds of some form of unlawful activity;⁷ and

Four, the defendant[s] [conducted] [attempted to conduct] the financial transaction knowing that the transaction was designed in whole or in part to conceal or disguise the nature, location, source, ownership or control of the proceeds of (describe the specified unlawful activity).⁸

[A defendant may be found to have attempted to conduct a financial transaction if [he] [she] intended to conduct a financial transaction and voluntarily and intentionally carried out some act which was a substantial step toward conducting that financial transaction, even if the transaction was never completed.]⁹

[The term "conducted," as used in [this] [Instruction[s] _____] includes initiating, concluding or participating in initiating or concluding a transaction.]¹⁰

[You are further instructed regarding the crime[s] charged in [Count[s] ___ of] the indictment that the following definitions apply: (Insert applicable portions of Instruction 6.18.1956J, unless the indictment charges multiple money laundering violations and there will be no confusion in adding the definitions common to all counts after all of the substantive money laundering instructions).]¹¹

[You may find that [the defendant] [defendant[s] (name[s])] knew the purpose of the financial transaction was to conceal or disguise the nature, location, source, ownership or control of the proceeds of (describe the specified unlawful activity) if you find beyond a reasonable doubt that (insert appropriate language from Instruction 7.04).]¹²

[The crime charged in [Count[s] ____ of] the indictment alleges multiple purposes for the crime, that is, that [the defendant] [defendant[s] (name[s])] knew that the transaction was [conducted] [attempted] for the purposes of (list all objectives). To find [the defendant] [defendant[s] (name[s])] guilty of the offense[s], you must agree unanimously that one or more of the objectives charged were proved beyond a reasonable doubt.]¹³

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

Notes on Use

1. The statutes and implementing regulations have been amended frequently. The date of the offense is critical in verifying that the criminal conduct charged was covered by the statute and regulation in effect on that date. Additionally, changes in reporting requirements under Treasury regulations (31 C.F.R.) may affect offenses charged under sections 1956(a)(1)(B)(ii) and 1956(a)(2)(B)(ii).

a. The Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, Title I, Subtitle H (Money Laundering Control Act of 1986), § 1352(a), 100 Stat. 3207-18 to 22, added sections 1956 and 1957 to Title 18 of the United States Code. The Anti-Drug Abuse Act of 1986, including the newly added sections 1956 and 1957 of Title 18, became effective on October 27, 1986.

b. The Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Title VI, §§ 6183, 6465, 6469(a)(1) and 6471(a)-(b), and Title VII, § 7031, 102 Stat. 4354, 4375, 4377, 4378 and 4398 became effective November 18, 1988. Inter alia it added a new offense, section 1956(a)(1)(A)(ii), conducting a financial transaction with intent to engage in violations of the tax code (26 USC§ 7201 or 7206), expanded the scope of section 1956(a)(2), added a "sting" section, 1956(a)(3), and added a number of "specified unlawful activity" predicate offenses as defined in section 1956(c)(7).

c. The Crime Control Act of 1990, Pub. L. No. 101-647, Title I, §§ 105-108, Title XII, § 1205(j), Title XIV, §§ 1402 and 1404, Title XXV, § 2506 and Title XXXV, § 3557, 104 Stat. 4791-92, 4831, 4835, 4862 and 4927 became effective November 29, 1990. Inter alia it amended the provisions of section 1956(a)(2)(B) to permit the government to establish the defendant's knowledge of the illegality of his actions through the law enforcement officer's representations and the defendant's subsequent statements or actions indicating the defendant believed the representation, added violations of foreign law to the definition of "unlawful activity" (18 USC 1956(c)(1)), amended the definition of "financial transaction" (section 1956(c)(4)) and "monetary instruments" (section 1956(c)(5)) to emphasize the alternative means of meeting the definitions, revised and expanded the scope of the term "specified unlawful activity" (SUA) (sections 1956(c)(7)(A) and (D), added as predicate SUA several "environmental" offenses (section 1956(c)(7)(E)), added a new section, 1956(c)(8), defining "state," and added agencies authorized to investigate section 1956 violations. See Instruction 6.18.1956J(7) (Specified Unlawful Activity), infra.

d. Effective October 28, 1992, Pub. L. 102-550, Title XV, §§ 1504(c), 1524, 1526(a), 1527(a), 1530, 1531, 1534 and 1536, 106 Stat. 4055 and 4064-67 added, inter alia, use of a safe deposit box to the definition of "transaction" (section 1956(c)(3)), added transfer of title to real property, vehicles, vessels or aircraft to the definitions of "financial transaction" (section 1956(c)(4)), expanded the scope of the term "specified unlawful activity" regarding offenses against foreign nations (section 1956(c)(7)(B)), deleted and added several predicate SUA offenses (section 1956(c)(7)(D)) and created the offense of conspiracy to violate sections 1956 or 1957, carrying the same penalties as the object offenses. Instead of a statutory five-year maximum under 18 USC 371, a conspiracy to violate 18 USC 1956 now carries a 20-year statutory maximum. See 18 USC 1956(g). Prior to the amendment, the five-year statutory maximum for conspiracy would have precluded imposition of a sentence corresponding to the sentencing guideline range for the defendants who conspired to launder large sums or who had significant prior criminal histories. See United States Sentencing Guideline § 2S1.1 and Chapter 5, Part A (Sentencing Table).

2. Both types of activity have been proscribed since original enactment of section 1956. See 18 USC§ 1956(a)(1), (a)(2) and (a)(3).

4. See Instruction 6.18.1956J(2) (Interstate and Foreign Commerce), infra. All section 1956 offenses require proof that the financial transaction itself or the financial institution, if one was involved, in some way affected interstate or foreign commerce. See 18 USC 1956(c)(4); United States v. Baker, 985 F.2d 1248, 1252 (4th Cir. 1993) (element under 1956(a)(1)(B)(i)); United States v. Posters 'N' Things Ltd., 969 F.2d 652, 661 n.6 (8th Cir. 1992) (expert witness testified as to issue), aff'd on other grounds, 511 U.S. 513 (1994); United States v. Gonzalez-Rodriguez, 966 F.2d 918, 924 (5th Cir. 1992) (discussing United States v. Gallo, 927 F.2d 815, 823 (5th Cir. 1991) and United States v. Hamilton, 931 F.2d 1046, 1051-52 (5th Cir. 1991)). The Eighth Circuit has not ruled whether the indictment must explicitly allege the interstate/foreign commerce nexus. United States v. Lucas, 932 F.2d 1210, 1219 (8th Cir. 1991) (court was not required to reach the issue because the indictment which alleged construction of a shopping center and purchase of merchandise could be reasonably construed to allege the element). See also United States v. Green, 964 F.2d 365, 374 (5th Cir. 1992) (citing Lucas); United States v. Lovett, 964 F.2d 1029, 1038 (10th Cir. 1992) (under section 1957, the interstate commerce nexus is jurisdictional but not an element of the crime charged) (citing United States v. Kelley, 929 F.2d 582, 586 (10th Cir. 1991)). Given the lack of controlling law on this issue, the Committee recommends that the nexus be alleged in the indictment. In any case, a finding of an effect on interstate or foreign commerce of either the transaction itself or the activities of the financial institution, if one was involved, is essential. See United States v. Ben M. Hogan Co., Inc., 769 F.2d 1293, 1297 (8th Cir. 1985) (reversible error for a district court to give an instruction which could have been understood to include a conclusive presumption of effect on interstate commerce, where such a finding by the jury was essential in a prosecution under the Sherman Anti-Trust Act).

5. See Instruction 6.18.1956J(6) (Proceeds), infra. The term is not defined in 18 USC 1956(c).

9. See Instruction 8.01, infra.

10. See 18 USC 1956(c)(2). This definition was included in the October 27, 1986, version of the statute and has not changed since.

11. The supplemental definitions and instructions contained in Instruction 6.18.1956J, infra, should be given in most cases. Whether they are inserted in each 6.18.1956 instruction or given after a series of 6.18.1956A through 6.18.1956I instructions is an option for the Court to consider based on the number and types of money laundering counts and the ability of the jury to relate the definitions to the applicable counts.

13. If the indictment alleges the defendant did not personally conduct the transaction but knew the transaction was conducted for more than one purpose, use the first set of bracketed language. If the indictment alleges the defendant personally engaged in the financial transaction, use the second set of bracketed language. The multiple objective situation may apply both to multiple intent (i.e., 1956(a)(1)(A)(i) and (ii)) and to multiple knowledge (i.e., 1956(a)(1)(B)(i) and (ii)) allegations, as well as to allegations of violation of both 1956(a)(1)(A)(i) and 1956(a)(1)(B)(i). See Note 8, supra. See also United States v. Jackson, 935 F.2d 832, 842 (7th Cir. 1991) (government should give clear notice of the provision(s) under which it is proceeding). Although there is no case law requiring unanimity on objectives, if an instruction to that effect is desired, see Instruction 5.06(F), supra.

Committee Comments

See Ninth Cir. Crim. Jury Instr. 8.121 (formerly 8.33.2 (1997)). See generally United States v. Cruz, 993 F.2d 164 (8th Cir. 1993); United States v. Peery, 977 F.2d 1230, 1234 (8th Cir. 1992); United States v. Turner, 975 F.2d 490, 497 (8th Cir. 1992); United States v. Posters 'N' Things Ltd., 969 F.2d 652, 661 (8th Cir. 1992), aff'd on other grounds, 511 U.S. 513 (1994); United States v. Davila, 964 F.2d 778, 782 (8th Cir. 1992); United States v. Sutera, 933 F.2d 641, 644-46 (8th Cir. 1991); United States v. Martin, 933 F.2d 609, 610 (8th Cir. 1991); United States v. Lucas, 932 F.2d 1210, 1214 n.3, 1219 (8th Cir. 1991); United States v. Blackman, 904 F.2d 1250, 1257 (8th Cir. 1990); United States v. Lee, 886 F.2d 998, 1002-03 (8th Cir. 1989). See also U.S. Dept. of Justice, Money Laundering Federal Prosecution Manual (Feb. 1992).

See Instruction 6.18.1956J, infra, for additional instructions which should be given in most cases.

(For 2006 version see below)

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

2006 Version

The crime of [conducting] [attempting to conduct] an illegal financial transaction, as charged in [Count[s] _____ of] the indictment has four elements, which are:

One, on or about (date),1 [the defendant] [defendant[s] (name[s])] [conducted] [attempted to conduct]2 a financial transaction,3 that is, (describe in simple terms, e.g., the purchase of an automobile), which in any way or degree affected interstate or foreign commerce;4

Two, the defendant[s] [conducted] [attempted to conduct] the financial transaction with (describe the property, e.g., money, certificates of deposit) that involved the proceeds5 of (describe the specified unlawful activity,6 e.g., unlawful distribution of cocaine);

Three, at the time the defendant[s] [conducted] [attempted to conduct] the financial transaction, the defendant[s] knew the (describe property) represented the proceeds of some form of unlawful activity;7 and

Four, the defendant[s] [conducted] [attempted to conduct] the financial transaction knowing that the transaction was designed in whole or in part to conceal or disguise the nature, location, source, ownership or control of the proceeds of (describe the specified unlawful activity).8

[A defendant may be found to have attempted to conduct a financial transaction if [he] [she] intended to conduct a financial transaction and voluntarily and intentionally carried out some act which was a substantial step toward conducting that financial transaction, even if the transaction was never completed.]9

[The term "conducted," as used in [this] [Instruction[s] _____] includes initiating, concluding or participating in initiating or concluding a transaction.]10

[You are further instructed regarding the crime[s] charged in [Count[s] ___ of] the indictment that the following definitions apply: (Insert applicable portions of Instruction 6.18.1956J, unless the indictment charges multiple money laundering violations and there will be no confusion in adding the definitions common to all counts after all of the substantive money laundering instructions).]11

[You may find that [the defendant] [defendant[s] (name[s])] knew the purpose of the financial transaction was to conceal or disguise the nature, location, source, ownership or control of the proceeds of (describe the specified unlawful activity) if you find beyond a reasonable doubt that (insert appropriate language from Instruction 7.04).]12

[The crime charged in [Count[s] ____ of] the indictment alleges multiple purposes for the crime, that is, that [the defendant] [defendant[s] (name[s])] knew that the transaction was [conducted] [attempted] for the purposes of (list all objectives). To find [the defendant] [defendant[s] (name[s])] guilty of the offense[s], you must agree unanimously that one or more of the objectives charged were proved beyond a reasonable doubt.]13

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

Notes on Use

a. The Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, Title I, Subtitle H (Money Laundering Control Act of 1986), § 1352(a), 100 Stat. 3207-18 to 22, added sections 1956 and 1957 to Title 18 of the United States Code. The Anti-Drug Abuse Act of 1986, including the newly added sections 1956 and 1957 of Title 18, became effective on October 27, 1986.

b. The Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Title VI, §§ 6183, 6465, 6469(a)(1) and 6471(a)-(b), and Title VII, § 7031, 102 Stat. 4354, 4375, 4377, 4378 and 4398 became effective November 18, 1988. Inter alia it added a new offense, section 1956(a)(1)(A)(ii), conducting a financial transaction with intent to engage in violations of the tax code (26 USC 7201 or 7206), expanded the scope of section 1956(a)(2), added a "sting" section, 1956(a)(3), and added a number of "specified unlawful activity" predicate offenses as defined in section 1956(c)(7).

c. The Crime Control Act of 1990, Pub. L. No. 101-647, Title I, §§ 105-108, Title XII, § 1205(j), Title XIV, §§ 1402 and 1404, Title XXV, § 2506 and Title XXXV, § 3557, 104 Stat. 4791-92, 4831, 4835, 4862 and 4927 became effective November 29, 1990. Inter alia it amended the provisions of section 1956(a)(2)(B) to permit the government to establish the defendant's knowledge of the illegality of his actions through the law enforcement officer's representations and the defendant's subsequent statements or actions indicating the defendant believed the representation, added violations of foreign law to the definition of "unlawful activity" (18 USC 1956(c)(1)), amended the definition of "financial transaction" (section 1956(c)(4)) and "monetary instruments" (section 1956(c)(5)) to emphasize the alternative means of meeting the definitions, revised and expanded the scope of the term "specified unlawful activity" (SUA) (sections 1956(c)(7)(A) and (D), added as predicate SUA several "environmental" offenses (section 1956(c)(7)(E)), added a new section, 1956(c)(8), defining "state," and added agencies authorized to investigate section 1956 violations. See Instruction 6.18.1956J(7) (Specified Unlawful Activity), infra.

d. Effective October 28, 1992, Pub. L. 102-550, Title XV, §§ 1504(c), 1524, 1526(a), 1527(a), 1530, 1531, 1534 and 1536, 106 Stat. 4055 and 4064-67 added, inter alia, use of a safe deposit box to the definition of "transaction" (section 1956(c)(3)), added transfer of title to real property, vehicles, vessels or aircraft to the definitions of "financial transaction" (section 1956(c)(4)), expanded the scope of the term "specified unlawful activity" regarding offenses against foreign nations (section 1956(c)(7)(B)), deleted and added several predicate SUA offenses (section 1956(c)(7)(D)) and created the offense of conspiracy to violate sections 1956 or 1957, carrying the same penalties as the object offenses. Instead of a statutory five-year maximum under 18 USC 371, a conspiracy to violate 18 USC 1956 now carries a 20-year statutory maximum. See 18 USC 1956(g). Prior to the amendment, the five-year statutory maximum for conspiracy would have precluded imposition of a sentence corresponding to the sentencing guideline range for the defendants who conspired to launder large sums or who had significant prior criminal histories. See United States Sentencing Guideline § 2S1.1 and Chapter 5, Part A (Sentencing Table).

2. Both types of activity have been proscribed since original enactment of section 1956. See 18 USC 1956(a)(1), (a)(2) and (a)(3).

4. See Instruction 6.18.1956J(2) (Interstate and Foreign Commerce), infra. All section 1956 offenses require proof that the financial transaction itself or the financial institution, if one was involved, in some way affected interstate or foreign commerce. See 18 USC 1956(c)(4); United States v. Baker, 985 F.2d 1248, 1252 (4th Cir. 1993) (element under 1956(a)(1)(B)(i)); United States v. Posters 'N' Things Ltd., 969 F.2d 652, 661 n.6 (8th Cir. 1992) (expert witness testified as to issue), aff'd on other grounds, 511 U.S. 513 (1994); United States v. Gonzalez-Rodriguez, 966 F.2d 918, 924 (5th Cir. 1992) (discussing United States v. Gallo, 927 F.2d 815, 823 (5th Cir. 1991) and United States v. Hamilton, 931 F.2d 1046, 1051-52 (5th Cir. 1991)). The Eighth Circuit has not ruled whether the indictment must explicitly allege the interstate/foreign commerce nexus. United States v. Lucas, 932 F.2d 1210, 1219 (8th Cir. 1991) (court was not required to reach the issue because the indictment which alleged construction of a shopping center and purchase of merchandise could be reasonably construed to allege the element). See also United States v. Green, 964 F.2d 365, 374 (5th Cir. 1992) (citing Lucas); United States v. Lovett, 964 F.2d 1029, 1038 (10th Cir. 1992) (under section 1957, the interstate commerce nexus is jurisdictional but not an element of the crime charged) (citing United States v. Kelley, 929 F.2d 582, 586 (10th Cir. 1991)). Given the lack of controlling law on this issue, the Committee recommends that the nexus be alleged in the indictment. In any case, a finding of an effect on interstate or foreign commerce of either the transaction itself or the activities of the financial institution, if one was involved, is essential. See United States v. Ben M. Hogan Co., Inc., 769 F.2d 1293, 1297 (8th Cir. 1985) (reversible error for a district court to give an instruction which could have been understood to include a conclusive presumption of effect on interstate commerce, where such a finding by the jury was essential in a prosecution under the Sherman Anti-Trust Act).

5. See Instruction 6.18.1956J(6) (Proceeds), infra. The term is not defined in 18 USC 1956(c).

9. See Instruction 8.01, infra.

10. See 18 USC 1956(c)(2). This definition was included in the October 27, 1986, version of the statute and has not changed since.

11. The supplemental definitions and instructions contained in Instruction 6.18.1956J, infra, should be given in most cases. Whether they are inserted in each 6.18.1956 instruction or given after a series of 6.18.1956A through 6.18.1956I instructions is an option for the Court to consider based on the number and types of money laundering counts and the ability of the jury to relate the definitions to the applicable counts.

13. If the indictment alleges the defendant did not personally conduct the transaction but knew the transaction was conducted for more than one purpose, use the first set of bracketed language. If the indictment alleges the defendant personally engaged in the financial transaction, use the second set of bracketed language. The multiple objective situation may apply both to multiple intent (i.e., 1956(a)(1)(A)(i) and (ii)) and to multiple knowledge (i.e., 1956(a)(1)(B)(i) and (ii)) allegations, as well as to allegations of violation of both 1956(a)(1)(A)(i) and 1956(a)(1)(B)(i). See Note 8, supra. See also United States v. Jackson, 935 F.2d 832, 842 (7th Cir. 1991) (government should give clear notice of the provision(s) under which it is proceeding). Although there is no case law requiring unanimity on objectives, if an instruction to that effect is desired, see Instruction 5.06(F), supra.

Committee Comments

See Ninth Cir. Crim. Jury Instr. 8.121 (2000). See generally United States v. Cruz, 993 F.2d 164 (8th Cir. 1993); United States v. Peery, 977 F.2d 1230, 1234 (8th Cir. 1992); United States v. Turner, 975 F.2d 490, 497 (8th Cir. 1992); United States v. Posters 'N' Things Ltd., 969 F.2d 652, 661 (8th Cir. 1992), aff'd on other grounds, 511 U.S. 513 (1994); United States v. Davila, 964 F.2d 778, 782 (8th Cir. 1992); United States v. Sutera, 933 F.2d 641, 644-46 (8th Cir. 1991); United States v. Martin, 933 F.2d 609, 610 (8th Cir. 1991); United States v. Lucas, 932 F.2d 1210, 1214 n.3, 1219 (8th Cir. 1991); United States v. Blackman, 904 F.2d 1250, 1257 (8th Cir. 1990); United States v. Lee, 886 F.2d 998, 1002-03 (8th Cir. 1989). See also U.S. Dept. of Justice, Money Laundering Federal Prosecution Manual (Feb. 1992).

See Instruction 6.18.1956J, infra, for additional instructions which should be given in most cases.

For 2000 version see below

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

2000 Version

The crime of [conducting] [attempting to conduct] an illegal financial transaction, as charged in [Count[s] _____ of] the indictment has four essential elements, which are:

One, on or about (date),1 the defendant[s] [(name/s)] [conducted] [attempted to conduct]2 a financial transaction,3 that is, (describe in simple terms, e.g., the purchase of an automobile), which in any way or degree affected interstate or foreign commerce;4

Two, the defendant[s] [conducted] [attempted to conduct] the financial transaction with (describe the property, e.g., money, certificates of deposit) that involved the proceeds5 of (describe the specified unlawful activity,6 e.g., unlawful distribution of cocaine);

Three, at the time the defendant[s] [conducted] [attempted to conduct] the financial transaction, the defendant[s] knew the (describe property) represented the proceeds of some form of unlawful activity;7 and

Four, the defendant[s] [conducted] [attempted to conduct] the financial transaction knowing that the transaction was designed in whole or in part to conceal or disguise the nature, location, source, ownership or control of the proceeds of (describe the specified unlawful activity).8

[A defendant may be found to have attempted to conduct a financial transaction if [he] [she] intended to conduct a financial transaction and voluntarily and intentionally carried out some act which was a substantial step toward conducting that financial transaction, even if the transaction was never completed.]9

[The term "conducted," as used in [this] [Instruction[s] _____] includes initiating, concluding or participating in initiating or concluding a transaction.]10

[You are further instructed regarding the crime[s] charged in [Count[s] ___ of] the indictment that the following definitions apply: (Insert applicable portions of Instruction 6.18.1956J, unless the indictment charges multiple money laundering violations and there will be no confusion in adding the definitions common to all counts after all of the substantive money laundering instructions).]11

[You may find that defendant[s] [(name/s)] knew the purpose of the financial transaction was to conceal or disguise the nature, location, source, ownership or control of the proceeds of (describe the specified unlawful activity) if you find beyond a reasonable doubt that (insert appropriate language from Instruction 7.04).]12

[The crime charged in [Count[s] ____ of] the indictment alleges multiple purposes for the crime, that is, that [the defendant] [defendant[s] [(name/s)]] knew that the transaction was [conducted] [attempted] for the purposes of (list all objectives). To find [the defendant] [defendant[s] [(name/s)]] guilty of the offense[s], you must agree unanimously that one or more of the objectives charged were proved beyond a reasonable doubt.]13

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

Committee Comments

See Ninth Cir. Crim. Jury Instr. 8.33.2 (1997). See generally United States v. Cruz, 993 F.2d 164 (8th Cir. 1993); United States v. Peery, 977 F.2d 1230, 1234 (8th Cir. 1992); United States v. Turner, 975 F.2d 490, 497 (8th Cir. 1992), cert. denied, 506 U.S. 1082 (1993); United States v. Posters 'N' Things Ltd., 969 F.2d 652, 661 (8th Cir. 1992), aff'd on other grounds, 511 U.S. 513, 114 S. Ct. 1747 (1994); United States v. Davila, 964 F.2d 778, 782 (8th Cir. 1992); United States v. Sutera, 933 F.2d 641, 644-46 (8th Cir. 1991); United States v. Martin, 933 F.2d 609, 610 (8th Cir. 1991); United States v. Lucas, 932 F.2d 1210, 1214 n.3, 1219 (8th Cir.), cert. denied, 502 U.S. 929 (1991); United States v. Blackman, 904 F.2d 1250, 1257 (8th Cir. 1990); United States v. Lee, 886 F.2d 998, 1002-03 (8th Cir. 1989), cert. denied, 493 U.S. 1032 (1990). See also U.S. Dept. of Justice, Money Laundering Federal Prosecution Manual (Feb. 1992).

See Instruction 6.18.1956J, infra, for additional instructions which should be given in most cases.

Notes on Use

1. The statutes and implementing regulations have been amended frequently. The date of the offense is critical in verifying that the criminal conduct charged was covered by the statute and regulation in effect on that date. Additionally, changes in reporting requirements under Treasury regulations (31 C.F.R.) may affect offenses charged under sections 1956(a)(1)(B)(ii) and 1956(a)(2)(B)(ii).

b. The Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Title VI, §§ 6183, 6465, 6469(a)(1) and 6471(a)-(b), and Title VII, § 7031, 102 Stat. 4354, 4375, 4377, 4378 and 4398 became effective November 18, 1988. Inter alia it added a new offense, section 1956(a)(1)(A)(ii), conducting a financial transaction with intent to engage in violations of the tax code (26 USC§ 7201 or 7206), expanded the scope of section 1956(a)(2), added a "sting" section, 1956(a)(3), and added a number of "specified unlawful activity" predicate offenses as defined in section 1956(c)(7).

d. Effective October 28, 1992, Pub. L. 102-550, Title XV, §§ 1504(c), 1524, 1526(a), 1527(a), 1530, 1531, 1534 and 1536, 106 Stat. 4055 and 4064-67 added, inter alia, use of a safe deposit box to the definition of "transaction" (section 1956(c)(3)), added transfer of title to real property, vehicles, vessels or aircraft to the definitions of "financial transaction" (section 1956(c)(4)), expanded the scope of the term "specified unlawful activity" regarding offenses against foreign nations (section 1956(c)(7)(B)), deleted and added several predicate SUA offenses (section 1956(c)(7)(D)) and created the offense of conspiracy to violate sections 1956 or 1957, carrying the same penalties as the object offenses. Instead of a statutory five-year maximum under 18 USC 371, a conspiracy to violate 18 USC 1956 now carries a 20-year statutory maximum. See 18 USC 1956(g). Prior to the amendment, the five-year statutory maximum for conspiracy would have precluded imposition of a sentence corresponding to the sentencing guideline range for defendants who conspired to launder large sums or who had significant prior criminal histories. See United States Sentencing Guideline § 2S1.1 and Chapter 5, Part A (Sentencing Table).

2. Both types of activity have been proscribed since original enactment of section 1956. See 18 USC§ 1956(a)(1), (a)(2) and (a)(3).

3. See Instruction 6.18.1956J(1) (Financial Transaction), infra. "Financial transaction" is a term of art originally defined in 18 USC 1956(c)(4) and subsequently expanded and clarified through amendments. It encompasses another statutorily defined term of art, "transaction," which has also been expanded since the enactment of section 1956(c)(3). The Committee recommends careful review to determine which of the provisions of sections 1956(c)(3) and 1956(c)(4) were in effect at the time of the alleged financial transaction. See Note 1, supra. 4. See Instruction 6.18.1956J(2) (Interstate and Foreign Commerce), infra. All section 1956 offenses require proof that the financial transaction itself or the financial institution, if one was involved, in some way affected interstate or foreign commerce. See 18 USC 1956(c)(4); United States v. Baker, 985 F.2d 1248, 1252 (4th Cir. 1993) (essential element under 1956(a)(1)(B)(i)); United States v. Posters 'N' Things Ltd., 969 F.2d 652, 661 n.6 (8th Cir. 1992) (expert witness testified as to issue), aff'd on other grounds, 511 U.S. 513, 114 S. Ct. 1747 (1994); United States v. Gonzalez-Rodriguez, 966 F.2d 918, 924 (5th Cir. 1992) (discussing United States v. Gallo, 927 F.2d 815, 823 (5th Cir. 1991) and United States v. Hamilton, 931 F.2d 1046, 1051-52 (5th Cir. 1991)). The Eighth Circuit has not ruled whether the indictment must explicitly allege the interstate/foreign commerce nexus. United States v. Lucas, 932 F.2d 1210, 1219 (8th Cir.) (court was not required to reach the issue because the indictment which alleged construction of a shopping center and purchase of merchandise could be reasonably construed to allege the element), cert. denied, 502 U.S. 929 (1991). See also United States v. Green, 964 F.2d 365, 374 (5th Cir. 1992) (citing Lucas); United States v. Lovett, 964 F.2d 1029, 1038 (10th Cir. 1992) (under section 1957, the interstate commerce nexus is jurisdictional but not an essential element of the crime charged) (citing United States v. Kelley, 929 F.2d 582, 586 (10th Cir. 1991)). Given the lack of controlling law on this issue, the Committee recommends that the nexus be alleged in the indictment. In any case, a finding of an effect on interstate or foreign commerce of either the transaction itself or the activities of the financial institution, if one was involved, is essential. See United States v. Ben M. Hogan Co., Inc., 769 F.2d 1293, 1297 (8th Cir. 1985) (reversible error for a district court to give an instruction which could have been understood to include a conclusive presumption of effect on interstate commerce, where such a finding by the jury was essential in a prosecution under the Sherman Anti-Trust Act).

5. See Instruction 6.18.1956J(6) (Proceeds), infra. The term is not defined in 18 USC 1956(c).

8. A conviction under section 1956(a)(1)(B)(i) (concealment) requires a design to conceal or disguise the nature, location, source, ownership or control of the proceeds. A "typical" money laundering transaction involving purchases in third-party names frequently satisfies this element. Purchases in the names of close family members, however, are problematic, especially where the defendant's subsequent use of the asset is open and conspicuous. Compare United States v. Sanders, 929 F.2d 1466, 1472 (10th Cir. 1991) (contrasting United States v. Lee, 886 F.2d 998, 1002-03 (8th Cir. 1989), cert. denied, 493 U.S. 1032 (1990)), cert. denied, 502 U.S. 846 (1991) with United States v. Sutera, 933 F.2d 641, 648 (8th Cir. 1991) (money laundering statute did not require that defendant did a good job of laundering the proceeds; the jury simply had to find that the defendant intended to hide them) and United States v. Posters 'N' Things Ltd., 969 F.2d 652, 661 n.7 (8th Cir. 1992) (defendant commingled legitimate and illegitimate business receipts over a three year period; despite no attempt to disguise control of the account, one could infer from her record keeping and bank activity a design to conceal or disguise her illegal proceeds), aff'd on other grounds, 511 U.S. 513, 114 S. Ct. 1747 (1994).

9. See Instruction 8.01, infra.

10. See 18 USC 1956(c)(2). This definition was included in the October 27, 1986, version of the statute and has not changed since.

11. The supplemental definitions and instructions contained in Instruction 6.18.1956J, infra, should be given in most cases. Whether they are inserted in each 6.18.1956 instruction or given after a series of 6.18.1956A through 6.18.1956I instructions is an option for the Court to consider based on the number and types of money laundering counts and the ability of the jury to relate the definitions to the applicable counts.

12. See Instruction 7.04, infra. The 1956(a)(1)(B) "knowing" requirement encompasses instances of "willful blindness." S. Rep. No. 433, 99th Cong., 2d Sess. 6, 10 (1986), construed in 27 Amer. Crim. L. Rev. 167. See also United States v. Kaufmann, 985 F.2d 884, 897 n.6 (7th Cir. 1993) ("ostrich" instruction appropriate for counts requiring knowledge); United States v. Campbell, 977 F.2d 854, 857- 58 (4th Cir. 1992) (discussing a willful blindness instruction given in a section 1956(a)(1)(B)(i) trial); United States v. Montoya, 945 F.2d 1068, 1076 (9th Cir. 1991) (distinguishing sections 1956(a)(1)(A) and 1956(a)(1)(B)); United States v. Fuller, 974 F.2d 1474, 1482 (5th Cir. 1992) (deliberate ignorance instruction regarding conspiracy to launder money). In United States v. Barnhart, 979 F.2d 647, 651-52 (8th Cir. 1992), the Eighth Circuit addressed a willful blindness instruction patterned on 7.04 and held that such an instruction "should not be given unless there is evidence to support the inference that the defendant was aware of a high probability of the existence of the fact in question and purposely contrived to avoid learning all of the facts in order to have a defense in the event of a subsequent prosecution." Id. (quoting United States v. Alvarado, 838 F.2d 311, 314 (9th Cir. 1987), cert. denied, 487 U.S. 1222 (1988)). If there is evidence a defendant actually believed that the transaction was for an innocent purpose, see Instruction 7.04, notes 3 and 4, infra. The deliberate ignorance instruction should not be given where the evidence points solely to either actual knowledge, or lack thereof, and where there is no evidence that the defendant had a conscious purpose to avoid learning the truth. Instruction 7.04 note 5, infra; Barnhart, 979 F.2d at 651. The permissive rather than mandatory phrasing "you may find" comports with the usage suggested in Karras v. Leapley, 974 F.2d 71, 74 n.6 (8th Cir. 1992).

13. If the indictment alleges the defendant did not personally conduct the transaction but knew the transaction was conducted for more than one purpose, use the first set of bracketed language. If the indictment alleges the defendant personally engaged in the financial transaction, use the second set of bracketed language. The multiple objective situation may apply both to multiple intent (i.e., 1956(a)(1)(A)(i) and (ii)) and to multiple knowledge (i.e., 1956(a)(1)(B)(i) and (ii)) allegations, as well as to allegations of violation of both 1956(a)(1)(A)(i) and 1956(a)(1)(B)(i). See Note 8, supra. See also United States v. Jackson, 935 F.2d 832, 842 (7th Cir. 1991) (government should give clear notice of the provision(s) under which it is proceeding). Although there is no case law requiring unanimity on objectives, if an instruction to that effect is desired, see Instruction 5.06(F), supra.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1956C
MONEY LAUNDERING -- FINANCIAL TRANSACTION TO AVOID REPORTING REQUIREMENTS
(18 USC 1956(a)(1)(B)(ii))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Money Laundering--Avoiding Reporting (18 USC 1956 (a)(1)(B)(ii))

The crime of [conducting] [attempting to conduct] an illegal financial transaction, as charged in [Count[s] _____ of] the indictment has four elements, which are:

One, on or about (date),¹ [the defendant] [defendant[s] (name[s])] [conducted] [attempted to conduct]² a financial transaction,³ that is, (describe in simple terms, e.g., the purchase of an automobile), which in any way or degree affected interstate or foreign commerce;⁴

Two, the defendant[s] [conducted] [attempted to conduct] the financial transaction with (describe the property, e.g., money, certificates of deposit) that involved the proceeds⁵ of (describe the specified unlawful activity,⁶ e.g., unlawful distribution of cocaine);

Three, at the time the defendant[s] [conducted] [attempted to conduct] the financial transaction, the defendant[s] knew the (describe property) represented the proceeds of some form of unlawful activity;⁷ and

Four, the defendant[s] [conducted] [attempted to conduct] the financial transaction knowing that the transaction was designed in whole or in part to avoid a transaction reporting requirement under State or Federal law.⁸

[A defendant may be found to have attempted to conduct a financial transaction if [he] [she] intended to conduct a financial transaction and voluntarily and intentionally carried out some act which was a substantial step toward conducting that financial transaction, even if the transaction was never completed.]⁹

[The term "conducted," as used in [this] [Instruction[s] _____] includes initiating, concluding or participating in initiating or concluding a transaction.]¹⁰

[You are further instructed regarding the crime[s] charged in [Count[s] ___ of] the indictment that the following definitions apply: (Insert applicable portions of Instruction 6.18.1956J, unless the indictment charges multiple money laundering violations and there will be no confusion in adding the definitions common to all counts after all of the substantive money laundering instructions).]¹¹

[The Currency Transaction Reporting (CTR) requirement of federal law¹² requires financial institutions to file a report for each deposit, withdrawal, exchange of currency, or other payment or transfer, by, through, or to such financial institution which involves a transaction in currency of more than $10,000. Multiple currency transactions are treated as a single transaction if the financial institution has knowledge that they are by or on behalf of any person and result in either cash in or cash out totaling more than $10,000 during any one business day. A financial institution includes all of its domestic branch offices for purposes of this requirement. The phrase "financial institution" includes (insert appropriate institution from 31 C.F.R. § 103.11(i), such as "bank" or "savings & loan").]¹³

[You may find that [the defendant] [defendant[s] (name[s])] knew that the purpose of the transaction was to avoid the CTR reporting requirement if you find beyond a reasonable doubt that (insert appropriate language from Instruction 7.04).]¹⁴

[The crime charged in [Count[s] ____ of] the indictment alleges multiple purposes for the crime, that is, that [the defendant] [defendant[s] (name[s])] knew that the transaction was [conducted] [attempted] for the purposes of (list all objectives). To find [the defendant] [defendant[s] (name[s])] guilty of the offense[s], you must agree unanimously that one or more of the objectives charged were proved beyond a reasonable doubt.]¹⁵

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

Notes on Use

1. The statutes and implementing regulations have been amended frequently. The date of the offense is critical in verifying that the criminal conduct charged was covered by the statute and regulation in effect on that date. Additionally, changes in reporting requirements under Treasury regulations (31 C.F.R.) may affect offenses charged under sections 1956(a)(1)(B)(ii) and 1956(a)(2)(B)(ii).

a. The Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, Title I, Subtitle H (Money Laundering Control Act of 1986), § 1352(a), 100 Stat. 3207-18 to 22, added sections 1956 and 1957 to Title 18 of the United States Code. The Anti-Drug Abuse Act of 1986, including the newly added sections 1956 and 1957 of Title 18, became effective on October 27, 1986.

b. The Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Title VI, §§ 6183, 6465, 6469(a)(1) and 6471(a)-(b), and Title VII, § 7031, 102 Stat. 4354, 4375, 4377, 4378 and 4398 became effective on November 18, 1988. Inter alia it added a new offense, section 1956(a)(1)(A)(ii), conducting a financial transaction with intent to engage in violations of the tax code (26 USC 7201 or 7206), expanded the scope of section 1956(a)(2), added a "sting" section, 1956(a)(3), and added a number of "specified unlawful activity" predicate offenses as defined in section 1956(c)(7).

c. The Crime Control Act of 1990, Pub. L. No. 101-647, Title I, §§ 105-108, Title XII, § 1205(j), Title XIV, §§ 1402 and 1404, Title XXV, § 2506 and Title XXXV, § 3557, 104 Stat. 4791-92, 4831, 4835, 4862 and 4927 became effective on November 29, 1990. Inter alia it amended the provisions of section 1956(a)(2)(B) to permit the government to establish the defendant's knowledge of the illegality of his actions through the law enforcement officer's representations and the defendant's subsequent statements or actions indicating the defendant believed the representation, added violations of foreign law to the definition of "unlawful activity" (18 USC 1956(c)(1)), amended the definition of "financial transaction" (section 1956(c)(4)) and "monetary instruments" (section 1956(c)(5)) to emphasize the alternative means of meeting the definitions, revised and expanded the scope of the term "specified unlawful activity" (SUA) (sections 1956(c)(7)(A) and (D), added as predicate SUA several "environmental" offenses (section 1956(c)(7)(E)), added a new section, 1956(c)(8), defining "state," and added agencies authorized to investigate section 1956 violations. See Instruction 6.18.1956J(7) (Specified Unlawful Activity), infra.

d. Effective October 28, 1992, Pub. L. 102-550, Title XV, §§ 1504(c), 1524, 1526(a), 1527(a), 1530, 1531, 1534 and 1536, 106 Stat. 4055 and 4064-67 added, inter alia, use of a safe deposit box to the definition of "transaction" (section 1956(c)(3)), added transfer of title to real property, vehicles, vessels or aircraft to the definitions of "financial transaction" (section 1956(c)(4)), expanded the scope of the term "specified unlawful activity" regarding offenses against foreign nations (section 1956(c)(7)(B)), deleted and added several predicate SUA offenses (section 1956(c)(7)(D)) and created the offense of conspiracy to violate sections 1956 or 1957, carrying the same penalties as the object offenses. Instead of a statutory five-year maximum under 18 USC 371, a conspiracy to violate 18 USC 1956 now carries a 20-year statutory maximum. See 18 USC 1956(g). Prior to the amendment, the five-year statutory maximum for conspiracy would have precluded imposition of a sentence corresponding to the sentencing guideline range for the defendants who conspired to launder large sums or who had significant prior criminal histories. See United States Sentencing Guideline § 2S1.1 and Chapter 5, Part A (Sentencing Table).

2. Both types of activity have been proscribed since original enactment of section 1956. See 18 USC 1956(a)(1), (a)(2) and (a)(3).

4. See Instruction 6.18.1956J, infra. All section 1956 offenses require proof that the financial transaction itself or the financial institution, if one was involved, in some way affected interstate or foreign commerce. See 18 USC 1956(c)(4); United States v. Baker, 985 F.2d 1248, 1252 (4th Cir. 1993) (element under 1956(a)(1)(B)(i)); United States v. Posters 'N' Things Ltd., 969 F.2d 652, 661 n.6 (8th Cir. 1992) (expert witness testified as to issue), aff'd on other grounds, 511 U.S. 513 (1994); United States v. Gonzalez-Rodriguez, 966 F.2d 918, 924 (5th Cir. 1992) (discussing United States v. Gallo, 927 F.2d 815, 823 (5th Cir. 1991) and United States v. Hamilton, 931 F.2d 1046, 1051-52 (5th Cir. 1991)). The Eighth Circuit has not ruled whether the indictment must explicitly allege the interstate/foreign commerce nexus. United States v. Lucas, 932 F.2d 1210, 1219 (8th Cir. 1991) (court was not required to reach the issue because the indictment which alleged construction of a shopping center and purchase of merchandise could be reasonably construed to allege the element). See also United States v. Green, 964 F.2d 365, 374 (5th Cir. 1992) (citing Lucas); United States v. Lovett, 964 F.2d 1029, 1038 (10th Cir. 1992) (under section 1957, the interstate commerce nexus is jurisdictional but not an element of the crime charged) (citing United States v. Kelley, 929 F.2d 582, 586 (10th Cir. 1991)). Given the lack of controlling law on this issue, the Committee recommends that the nexus be alleged in the indictment. In any case, a finding of an effect on interstate or foreign commerce of either the transaction itself or the activities of the financial institution, if one was involved, is essential. See United States v. Ben M. Hogan Co., Inc., 809 F.2d 480 (8^th Cir. 1987) (failure to instruct jury that it must find an interstate commerce connection can be harmless error).

5. See Instruction 6.18.1956J(6) (Proceeds), infra. The term is not defined in 18 USC 1956(c).

6. See Instruction 6.18.1956J(7) (Specified Unlawful Activity), infra. The term should not be confused with "unlawful activity" in general and has a specific, statutory meaning, as set forth in section 1956(c)(7). Because that section has had numerous amendments, and itself incorporates activities defined in several other statutes, the Committee recommends careful review of both the provisions of section 1956(c)(7) and of the incorporated statutes which were in effect at the time of the alleged financial transaction (1956(a)(1)) or transportation, transmission or transfer (1956)(a)(2)).

8. See Instruction 6.18.1956J(1) (Financial Transaction). Determination of the transaction reporting requirements in effect on the date of the alleged transaction requires reviewing the provisions of both 31 USC 5311-5327 and 31 C.F.R. Chapter 103, in effect on that date. Further, if the alleged financial transaction involves the use of a "financial institution," both 31 USC 5312(a)(2) and the regulations promulgated thereunder, should be reviewed to ensure that the entity was a financial institution. See 18 USC 1956(c)(6) (incorporating by reference 31 USC 5312(a)(2) and its regulations).

The decision in Ratzlaf v. United States, 510 U.S. 135 (1994) is not likely applicable to violations of 18 USC 1956. Ratzlaf involved an interpretation of 31 USC 5324 and the mental state required under that statute. Because the mental state requirements of 18 USC 1956 are clearly different, the applicability of Ratzlaf is doubtful.

9. See Instruction 8.01, infra.

10. See 18 USC 1956(c)(2). This definition was included in the October 27, 1986, version of the statute and has not changed since.

11. The supplemental definitions and instructions contained in Instruction 6.18.1956J should be given in most cases. Whether they are inserted in each 6.18.1956 instruction or given after a series of 6.18.1956A through 6.18.1956I instructions is an option for the court to consider based on the number and types of money laundering counts and the ability of the jury to relate the definitions to the applicable counts.

12. Use with 18 USC 1956(a)(1)(B)(ii). In addition to Currency Transaction Report (CTR) requirements under 31 USC 5313, two other common reporting requirements are Currency and Monetary Instrument Reports (CMIR) under 31 USC 5316 and Forms 8300, under 26 USC 6050I. Analogous instructions about those reporting requirements and their applicable provisions can be tailored for such cases.

13. See 31 USC 5313; 31 C.F.R. § 103.22. Care should be taken to use the versions of the statutes and regulations in effect on the date of the transaction. For CMIRs the applicable references are 31 USC 5316 and 31 C.F.R. § 103.23. For Forms 8300, see 26 USC 6050I.

14. See Instruction 7.04, infra. The 1956(a)(1)(B) "knowing" requirement encompasses instances of "willful blindness." S. Rep. No. 433, 99th Cong., 2d Sess. 6, 10 (1986) construed in 27 Amer. Crim. L. Rev. 167. See also United States v. Kaufmann, 985 F.2d 884, 897 n.6 (7th Cir. 1993) ("ostrich" instruction appropriate for counts requiring knowledge); United States v. Campbell, 977 F.2d 854, 857-58 (4th Cir. 1992) (discussing a willful blindness instruction given in a section 1956(a)(1)(B)(i) trial); United States v. Montoya, 945 F.2d 1068, 1076 (9th Cir. 1991) (distinguishing sections 1956(a)(1)(A) and 1956(a)(1)(B)); United States v. Fuller, 974 F.2d 1474, 1482 (5th Cir. 1992) (deliberate ignorance instruction regarding conspiracy to launder money). In United States v. Barnhart, 979 F.2d 647, 651-52 (8th Cir. 1992), the Eighth Circuit addressed a willful blindness instruction patterned on Instruction 7.04, infra, and held that such an instruction "should not be given unless there is evidence to support the inference that the defendant was aware of a high probability of the existence of the fact in question and purposely contrived to avoid learning all of the facts in order to have a defense in the event of a subsequent prosecution." Id. (quoting United States v. Alvarado, 838 F.2d 311, 314 (9th Cir. 1987). If there is evidence a defendant actually believed that the transaction was for an innocent purpose, see Instruction 7.04, infra, nn 3,4. The deliberate ignorance instruction should not be given where the evidence points solely to either actual knowledge, or lack thereof, and where there is no evidence that the defendant had a conscious purpose to avoid learning the truth. Note 5, Instruction 7.04, infra; Barnhart, 979 F.2d at 651. The permissive rather than mandatory phrasing "you may find" comports with the usage suggested in Karras v. Leapley, 974 F.2d 71, 74 n.6 (8th Cir. 1992).

15. If the indictment alleges the defendant did not personally conduct the transaction but knew the transaction was conducted for more than one purpose, use the first set of bracketed language. If the indictment alleges the defendant personally engaged in the financial transaction, use the second set of bracketed language. The multiple objective situation may apply both to multiple intent (i.e., 1956(a)(1)(A)(i) and (ii)) and to multiple knowledge (i.e., 1956(a)(1)(B)(i) and (ii)) allegations, as well as to allegations of violation of both 1956(a)(1)(A)(i) and 1956(a)(1)(B)(i). See United States v. Jackson, 935 F.2d 832, 842 (7th Cir. 1991) (government should give clear notice of the provision(s) under which it is proceeding). Although there is no case law requiring unanimity on objectives, if an instruction to that effect is desired, see Instruction 5.06(F), supra.

Committee Comments

See Instruction 6.18.1956J, infra, for additional instructions which should be given in most cases.

(For 2008 version see below).

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

2008 Version

The crime of [conducting] [attempting to conduct] an illegal financial transaction, as charged in [Count[s] _____ of] the indictment has four elements, which are:

One, on or about (date),¹ [the defendant] [defendant[s] (name[s])] [conducted] [attempted to conduct]² a financial transaction,³ that is, (describe in simple terms, e.g., the purchase of an automobile), which in any way or degree affected interstate or foreign commerce;⁴

Two, the defendant[s] [conducted] [attempted to conduct] the financial transaction with (describe the property, e.g., money, certificates of deposit) that involved the proceeds⁵ of (describe the specified unlawful activity,⁶ e.g., unlawful distribution of cocaine);

Three, at the time the defendant[s] [conducted] [attempted to conduct] the financial transaction, the defendant[s] knew the (describe property) represented the proceeds of some form of unlawful activity;⁷ and

Four, the defendant[s] [conducted] [attempted to conduct] the financial transaction knowing that the transaction was designed in whole or in part to avoid a transaction reporting requirement under State or Federal law.⁸

[A defendant may be found to have attempted to conduct a financial transaction if [he] [she] intended to conduct a financial transaction and voluntarily and intentionally carried out some act which was a substantial step toward conducting that financial transaction, even if the transaction was never completed.]⁹

[The term "conducted," as used in [this] [Instruction[s] _____] includes initiating, concluding or participating in initiating or concluding a transaction.]¹⁰

[You are further instructed regarding the crime[s] charged in [Count[s] ___ of] the indictment that the following definitions apply: (Insert applicable portions of Instruction 6.18.1956J, unless the indictment charges multiple money laundering violations and there will be no confusion in adding the definitions common to all counts after all of the substantive money laundering instructions).]¹¹

[The Currency Transaction Reporting (CTR) requirement of federal law¹² requires financial institutions to file a report for each deposit, withdrawal, exchange of currency, or other payment or transfer, by, through, or to such financial institution which involves a transaction in currency of more than $10,000. Multiple currency transactions are treated as a single transaction if the financial institution has knowledge that they are by or on behalf of any person and result in either cash in or cash out totaling more than $10,000 during any one business day. A financial institution includes all of its domestic branch offices for purposes of this requirement. The phrase "financial institution" includes (insert appropriate institution from 31 C.F.R. § 103.11(i), such as "bank" or "savings & loan").]¹³

[You may find that [the defendant] [defendant[s] (name[s])] knew that the purpose of the transaction was to avoid the CTR reporting requirement if you find beyond a reasonable doubt that (insert appropriate language from Instruction 7.04).]¹⁴

[The crime charged in [Count[s] ____ of] the indictment alleges multiple purposes for the crime, that is, that [the defendant] [defendant[s] (name[s])] knew that the transaction was [conducted] [attempted] for the purposes of (list all objectives). To find [the defendant] [defendant[s] (name[s])] guilty of the offense[s], you must agree unanimously that one or more of the objectives charged were proved beyond a reasonable doubt.]¹⁵

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

Notes on Use

1. The statutes and implementing regulations have been amended frequently. The date of the offense is critical in verifying that the criminal conduct charged was covered by the statute and regulation in effect on that date. Additionally, changes in reporting requirements under Treasury regulations (31 C.F.R.) may affect offenses charged under sections 1956(a)(1)(B)(ii) and 1956(a)(2)(B)(ii).

a. The Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, Title I, Subtitle H (Money Laundering Control Act of 1986), § 1352(a), 100 Stat. 3207-18 to 22, added sections 1956 and 1957 to Title 18 of the United States Code. The Anti-Drug Abuse Act of 1986, including the newly added sections 1956 and 1957 of Title 18, became effective on October 27, 1986.

b. The Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Title VI, §§ 6183, 6465, 6469(a)(1) and 6471(a)-(b), and Title VII, § 7031, 102 Stat. 4354, 4375, 4377, 4378 and 4398 became effective on November 18, 1988. Inter alia it added a new offense, section 1956(a)(1)(A)(ii), conducting a financial transaction with intent to engage in violations of the tax code (26 USC§ 7201 or 7206), expanded the scope of section 1956(a)(2), added a "sting" section, 1956(a)(3), and added a number of "specified unlawful activity" predicate offenses as defined in section 1956(c)(7).

c. The Crime Control Act of 1990, Pub. L. No. 101-647, Title I, §§ 105-108, Title XII, § 1205(j), Title XIV, §§ 1402 and 1404, Title XXV, § 2506 and Title XXXV, § 3557, 104 Stat. 4791-92, 4831, 4835, 4862 and 4927 became effective on November 29, 1990. Inter alia it amended the provisions of section 1956(a)(2)(B) to permit the government to establish the defendant's knowledge of the illegality of his actions through the law enforcement officer's representations and the defendant's subsequent statements or actions indicating the defendant believed the representation, added violations of foreign law to the definition of "unlawful activity" (18 USC 1956(c)(1)), amended the definition of "financial transaction" (section 1956(c)(4)) and "monetary instruments" (section 1956(c)(5)) to emphasize the alternative means of meeting the definitions, revised and expanded the scope of the term "specified unlawful activity" (SUA) (sections 1956(c)(7)(A) and (D), added as predicate SUA several "environmental" offenses (section 1956(c)(7)(E)), added a new section, 1956(c)(8), defining "state," and added agencies authorized to investigate section 1956 violations. See Instruction 6.18.1956J(7) (Specified Unlawful Activity), infra.

d. Effective October 28, 1992, Pub. L. 102-550, Title XV, §§ 1504(c), 1524, 1526(a), 1527(a), 1530, 1531, 1534 and 1536, 106 Stat. 4055 and 4064-67 added, inter alia, use of a safe deposit box to the definition of "transaction" (section 1956(c)(3)), added transfer of title to real property, vehicles, vessels or aircraft to the definitions of "financial transaction" (section 1956(c)(4)), expanded the scope of the term "specified unlawful activity" regarding offenses against foreign nations (section 1956(c)(7)(B)), deleted and added several predicate SUA offenses (section 1956(c)(7)(D)) and created the offense of conspiracy to violate sections 1956 or 1957, carrying the same penalties as the object offenses. Instead of a statutory five-year maximum under 18 USC 371, a conspiracy to violate 18 USC 1956 now carries a 20-year statutory maximum. See 18 USC 1956(g). Prior to the amendment, the five-year statutory maximum for conspiracy would have precluded imposition of a sentence corresponding to the sentencing guideline range for the defendants who conspired to launder large sums or who had significant prior criminal histories. See United States Sentencing Guideline § 2S1.1 and Chapter 5, Part A (Sentencing Table).

2. Both types of activity have been proscribed since original enactment of section 1956. See 18 USC§ 1956(a)(1), (a)(2) and (a)(3).

5. See Instruction 6.18.1956J(6) (Proceeds), infra. The term is not defined in 18 USC 1956(c).

6. See Instruction 6.18.1956J(7) (Specified Unlawful Activity), infra. The term should not be confused with "unlawful activity" in general and has a specific, statutory meaning, as set forth in section 1956(c)(7). Because that section has had numerous amendments, and itself incorporates activities defined in several other statutes, the Committee recommends careful review of both the provisions of section 1956(c)(7) and of the incorporated statutes which were in effect at the time of the alleged financial transaction (1956(a)(1)) or transportation, transmission or transfer (1956)(a)(2)).

8. See Instruction 6.18.1956J(1) (Financial Transaction). Determination of the transaction reporting requirements in effect on the date of the alleged transaction requires reviewing the provisions of both 31 USC§ 5311-5327 and 31 C.F.R. Chapter 103, in effect on that date. Further, if the alleged financial transaction involves the use of a "financial institution," both 31 USC 5312(a)(2) and the regulations promulgated thereunder, should be reviewed to ensure that the entity was a financial institution. See 18 USC 1956(c)(6) (incorporating by reference 31 USC 5312(a)(2) and its regulations).

9. See Instruction 8.01, infra.

10. See 18 USC 1956(c)(2). This definition was included in the October 27, 1986, version of the statute and has not changed since.

Committee Comments

See Instruction 6.18.1956J, infra, for additional instructions which should be given in most cases.

(For 2006 version see below)

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

2006 Version

The crime of [conducting] [attempting to conduct] an illegal financial transaction, as charged in [Count[s] _____ of] the indictment has four elements, which are:

One, on or about (date),1 [the defendant] [defendant[s] (name[s])] [conducted] [attempted to conduct]2 a financial transaction,3 that is, (describe in simple terms, e.g., the purchase of an automobile), which in any way or degree affected interstate or foreign commerce;4

Two, the defendant[s] [conducted] [attempted to conduct] the financial transaction with (describe the property, e.g., money, certificates of deposit) that involved the proceeds5 of (describe the specified unlawful activity,6 e.g., unlawful distribution of cocaine);

Three, at the time the defendant[s] [conducted] [attempted to conduct] the financial transaction, the defendant[s] knew the (describe property) represented the proceeds of some form of unlawful activity;7 and

Four, the defendant[s] [conducted] [attempted to conduct] the financial transaction knowing that the transaction was designed in whole or in part to avoid a transaction reporting requirement under State or Federal law.8

[A defendant may be found to have attempted to conduct a financial transaction if [he] [she] intended to conduct a financial transaction and voluntarily and intentionally carried out some act which was a substantial step toward conducting that financial transaction, even if the transaction was never completed.]9

[The term "conducted," as used in [this] [Instruction[s] _____] includes initiating, concluding or participating in initiating or concluding a transaction.]10

[You are further instructed regarding the crime[s] charged in [Count[s] ___ of] the indictment that the following definitions apply: (Insert applicable portions of Instruction 6.18.1956J, unless the indictment charges multiple money laundering violations and there will be no confusion in adding the definitions common to all counts after all of the substantive money laundering instructions).]11

[The Currency Transaction Reporting (CTR) requirement of federal law12 requires financial institutions to file a report for each deposit, withdrawal, exchange of currency, or other payment or transfer, by, through, or to such financial institution which involves a transaction in currency of more than $10,000. Multiple currency transactions are treated as a single transaction if the financial institution has knowledge that they are by or on behalf of any person and result in either cash in or cash out totaling more than $10,000 during any one business day. A financial institution includes all of its domestic branch offices for purposes of this requirement. The phrase "financial institution" includes (insert appropriate institution from 31 C.F.R. § 103.11(i), such as "bank" or "savings & loan").]13

[You may find that [the defendant] [defendant[s] (name[s])] knew that the purpose of the transaction was to avoid the CTR reporting requirement if you find beyond a reasonable doubt that (insert appropriate language from Instruction 7.04).]14

[The crime charged in [Count[s] ____ of] the indictment alleges multiple purposes for the crime, that is, that [the defendant] [defendant[s] (name[s])] knew that the transaction was [conducted] [attempted] for the purposes of (list all objectives). To find [the defendant] [defendant[s] (name[s])] guilty of the offense[s], you must agree unanimously that one or more of the objectives charged were proved beyond a reasonable doubt.]15

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

Notes on Use

a. The Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, Title I, Subtitle H (Money Laundering Control Act of 1986), § 1352(a), 100 Stat. 3207-18 to 22, added sections 1956 and 1957 to Title 18 of the United States Code. The Anti-Drug Abuse Act of 1986, including the newly added sections 1956 and 1957 of Title 18, became effective on October 27, 1986.

b. The Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Title VI, §§ 6183, 6465, 6469(a)(1) and 6471(a)-(b), and Title VII, § 7031, 102 Stat. 4354, 4375, 4377, 4378 and 4398 became effective on November 18, 1988. Inter alia it added a new offense, section 1956(a)(1)(A)(ii), conducting a financial transaction with intent to engage in violations of the tax code (26 USC 7201 or 7206), expanded the scope of section 1956(a)(2), added a "sting" section, 1956(a)(3), and added a number of "specified unlawful activity" predicate offenses as defined in section 1956(c)(7).

c. The Crime Control Act of 1990, Pub. L. No. 101-647, Title I, §§ 105-108, Title XII, § 1205(j), Title XIV, §§ 1402 and 1404, Title XXV, § 2506 and Title XXXV, § 3557, 104 Stat. 4791-92, 4831, 4835, 4862 and 4927 became effective on November 29, 1990. Inter alia it amended the provisions of section 1956(a)(2)(B) to permit the government to establish the defendant's knowledge of the illegality of his actions through the law enforcement officer's representations and the defendant's subsequent statements or actions indicating the defendant believed the representation, added violations of foreign law to the definition of "unlawful activity" (18 USC 1956(c)(1)), amended the definition of "financial transaction" (section 1956(c)(4)) and "monetary instruments" (section 1956(c)(5)) to emphasize the alternative means of meeting the definitions, revised and expanded the scope of the term "specified unlawful activity" (SUA) (sections 1956(c)(7)(A) and (D), added as predicate SUA several "environmental" offenses (section 1956(c)(7)(E)), added a new section, 1956(c)(8), defining "state," and added agencies authorized to investigate section 1956 violations. See Instruction 6.18.1956J(7) (Specified Unlawful Activity), infra.

d. Effective October 28, 1992, Pub. L. 102-550, Title XV, §§ 1504(c), 1524, 1526(a), 1527(a), 1530, 1531, 1534 and 1536, 106 Stat. 4055 and 4064-67 added, inter alia, use of a safe deposit box to the definition of "transaction" (section 1956(c)(3)), added transfer of title to real property, vehicles, vessels or aircraft to the definitions of "financial transaction" (section 1956(c)(4)), expanded the scope of the term "specified unlawful activity" regarding offenses against foreign nations (section 1956(c)(7)(B)), deleted and added several predicate SUA offenses (section 1956(c)(7)(D)) and created the offense of conspiracy to violate sections 1956 or 1957, carrying the same penalties as the object offenses. Instead of a statutory five-year maximum under 18 USC 371, a conspiracy to violate 18 USC 1956 now carries a 20-year statutory maximum. See 18 USC 1956(g). Prior to the amendment, the five-year statutory maximum for conspiracy would have precluded imposition of a sentence corresponding to the sentencing guideline range for the defendants who conspired to launder large sums or who had significant prior criminal histories. See United States Sentencing Guideline § 2S1.1 and Chapter 5, Part A (Sentencing Table).

2. Both types of activity have been proscribed since original enactment of section 1956. See 18 USC 1956(a)(1), (a)(2) and (a)(3).

4. See Instruction 6.18.1956J, infra. All section 1956 offenses require proof that the financial transaction itself or the financial institution, if one was involved, in some way affected interstate or foreign commerce. See 18 USC 1956(c)(4); United States v. Baker, 985 F.2d 1248, 1252 (4th Cir. 1993) (element under 1956(a)(1)(B)(i)); United States v. Posters 'N' Things Ltd., 969 F.2d 652, 661 n.6 (8th Cir. 1992) (expert witness testified as to issue), aff'd on other grounds, 511 U.S. 513 (1994); United States v. Gonzalez-Rodriguez, 966 F.2d 918, 924 (5th Cir. 1992) (discussing United States v. Gallo, 927 F.2d 815, 823 (5th Cir. 1991) and United States v. Hamilton, 931 F.2d 1046, 1051-52 (5th Cir. 1991)). The Eighth Circuit has not ruled whether the indictment must explicitly allege the interstate/foreign commerce nexus. United States v. Lucas, 932 F.2d 1210, 1219 (8th Cir. 1991) (court was not required to reach the issue because the indictment which alleged construction of a shopping center and purchase of merchandise could be reasonably construed to allege the element). See also United States v. Green, 964 F.2d 365, 374 (5th Cir. 1992) (citing Lucas); United States v. Lovett, 964 F.2d 1029, 1038 (10th Cir. 1992) (under section 1957, the interstate commerce nexus is jurisdictional but not an element of the crime charged) (citing United States v. Kelley, 929 F.2d 582, 586 (10th Cir. 1991)). Given the lack of controlling law on this issue, the Committee recommends that the nexus be alleged in the indictment. In any case, a finding of an effect on interstate or foreign commerce of either the transaction itself or the activities of the financial institution, if one was involved, is essential. See United States v. Ben M. Hogan Co., Inc., 809 F.2d 480 (8th Cir. 1987) (failure to instruct jury that it must find an interstate commerce connection can be harmless error).

5. See Instruction 6.18.1956J(6) (Proceeds), infra. The term is not defined in 18 USC 1956(c).

6. See Instruction 6.18.1956J(7) (Specified Unlawful Activity), infra. The term should not be confused with "unlawful activity" in general and has a specific, statutory meaning, as set forth in section 1956(c)(7). Because that section has had numerous amendments, and itself incorporates activities defined in several other statutes, the Committee recommends careful review of both the provisions of section 1956(c)(7) and of the incorporated statutes which were in effect at the time of the alleged financial transaction (1956(a)(1)) or transportation, transmission or transfer (1956)(a)(2)).

9. See Instruction 8.01, infra.

10. See 18 USC 1956(c)(2). This definition was included in the October 27, 1986, version of the statute and has not changed since.

13. See 31 USC 5313; 31 CFR 103.22. Care should be taken to use the versions of the statutes and regulations in effect on the date of the transaction. For CMIRs the applicable references are 31 USC 5316 and 31 CFR 103.23. For Forms 8300, see 26 USC 6050I.

Committee Comments

See Instruction 6.18.1956J, infra, for additional instructions which should be given in most cases.

For 2000 version see below

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2000 Version

The crime of [conducting] [attempting to conduct] an illegal financial transaction, as charged in [Count[s] _____ of] the indictment has four essential elements, which are:

One, on or about (date),1 the defendant[s] [(name/s)] [conducted] [attempted to conduct]2 a financial transaction,3 that is, (describe in simple terms, e.g., the purchase of an automobile), which in any way or degree affected interstate or foreign commerce;4

Two, the defendant[s] [conducted] [attempted to conduct] the financial transaction with (describe the property, e.g., money, certificates of deposit) that involved the proceeds5 of (describe the specified unlawful activity,6 e.g., unlawful distribution of cocaine);

Three, at the time the defendant[s] [conducted] [attempted to conduct] the financial transaction, the defendant[s] knew the (describe property) represented the proceeds of some form of unlawful activity;7 and

Four, the defendant[s] [conducted] [attempted to conduct] the financial transaction knowing that the transaction was designed in whole or in part to avoid a transaction reporting requirement under State or Federal law.8

[A defendant may be found to have attempted to conduct a financial transaction if [he] [she] intended to conduct a financial transaction and voluntarily and intentionally carried out some act which was a substantial step toward conducting that financial transaction, even if the transaction was never completed.]9

[The term "conducted," as used in [this] [Instruction[s] _____] includes initiating, concluding or participating in initiating or concluding a transaction.]10 [You are further instructed regarding the crime[s] charged in [Count[s] ___ of] the indictment that the following definitions apply: (Insert applicable portions of Instruction 6.18.1956J, unless the indictment charges multiple money laundering violations and there will be no confusion in adding the definitions common to all counts after all of the substantive money laundering instructions).]11

[The Currency Transaction Reporting (CTR) requirement of federal law12 requires financial institutions to file a report for each deposit, withdrawal, exchange of currency, or other payment or transfer, by, through, or to such financial institution which involves a transaction in currency of more than $10,000. Multiple currency transactions are treated as a single transaction if the financial institution has knowledge that they are by or on behalf of any person and result in either cash in or cash out totaling more than $10,000 during any one business day. A financial institution includes all of its domestic branch offices for purposes of this requirement. The phrase "financial institution" includes (insert appropriate institution from 31 C.F.R. § 103.11(i), such as "bank" or "savings & loan").]13

[You may find that defendant[s] [(name)] knew that the purpose of the transaction was to avoid the CTR reporting requirement if you find beyond a reasonable doubt that (insert appropriate language from Instruction 7.04).]14

[The crime charged in [Count[s] ____ of] the indictment alleges multiple purposes for the crime, that is, that [the defendant] [defendant[s] [(name/s)]] knew that the transaction was [conducted] [attempted] for the purposes of (list all objectives). To find [the defendant] [defendant[s] [(name/s)]] guilty of the offense[s], you must agree unanimously that one or more of the objectives charged were proved beyond a reasonable doubt.]15

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

Committee Comments

See Instruction 6.18.1956J, infra, for additional instructions which should be given in most cases.

Notes on Use

1. The statutes and implementing regulations have been amended frequently. The date of the offense is critical in verifying that the criminal conduct charged was covered by the statute and regulation in effect on that date. Additionally, changes in reporting requirements under Treasury regulations (31 C.F.R.) may affect offenses charged under sections 1956(a)(1)(B)(ii) and 1956(a)(2)(B)(ii).

c. The Crime Control Act of 1990, Pub. L. No. 101-647, Title I, §§ 105-108, Title XII, § 1205(j), Title XIV, §§ 1402 and 1404, Title XXV, § 2506 and Title XXXV, § 3557, 104 Stat. 4791-92, 4831, 4835, 4862 and 4927 became effective on November 29, 1990. Inter alia it amended the provisions of section 1956(a)(2)(B) to permit the government to establish the defendant's knowledge of the illegality of his actions through the law enforcement officer's representations and the defendant's subsequent statements or actions indicating the defendant believed the representation, added violations of foreign law to the definition of "unlawful activity" (18 USC 1956(c)(1)), amended the definition of "financial transaction" (section 1956(c)(4)) and "monetary instruments" (section 1956(c)(5)) to emphasize the alternative means of meeting the definitions, revised and expanded the scope of the term "specified unlawful activity" (SUA) (sections 1956(c)(7)(A) and (D), added as predicate SUA several "environmental" offenses (section 1956(c)(7)(E)), added a new section, 1956(c)(8), defining "state," and added agencies authorized to investigate section 1956 violations. See Instruction 6.18.1956J(7) (Specified Unlawful Activity), infra.

d. Effective October 28, 1992, Pub. L. 102-550, Title XV, §§ 1504(c), 1524, 1526(a), 1527(a), 1530, 1531, 1534 and 1536, 106 Stat. 4055 and 4064-67 added, inter alia, use of a safe deposit box to the definition of "transaction" (section 1956(c)(3)), added transfer of title to real property, vehicles, vessels or aircraft to the definitions of "financial transaction" (section 1956(c)(4)), expanded the scope of the term "specified unlawful activity" regarding offenses against foreign nations (section 1956(c)(7)(B)), deleted and added several predicate SUA offenses (section 1956(c)(7)(D)) and created the offense of conspiracy to violate sections 1956 or 1957, carrying the same penalties as the object offenses. Instead of a statutory five-year maximum under 18 USC 371, a conspiracy to violate 18 USC 1956 now carries a 20-year statutory maximum. See 18 USC 1956(g). Prior to the amendment, the five-year statutory maximum for conspiracy would have precluded imposition of a sentence corresponding to the sentencing guideline range for defendants who conspired to launder large sums or who had significant prior criminal histories. See United States Sentencing Guideline § 2S1.1 and Chapter 5, Part A (Sentencing Table).

2. Both types of activity have been proscribed since original enactment of section 1956. See 18 USC§ 1956(a)(1), (a)(2) and (a)(3).

4. See Instruction 6.18.1956J, infra. All section 1956 offenses require proof that the financial transaction itself or the financial institution, if one was involved, in some way affected interstate or foreign commerce. See 18 USC 1956(c)(4); United States v. Baker, 985 F.2d 1248, 1252 (4th Cir. 1993) (essential element under 1956(a)(1)(B)(i)); United States v. Posters 'N' Things Ltd., 969 F.2d 652, 661 n.6 (8th Cir. 1992) (expert witness testified as to issue), aff'd on other grounds, 511 U.S. 513, 114 S. Ct. 1747 (1994); United States v. Gonzalez-Rodriguez, 966 F.2d 918, 924 (5th Cir. 1992) (discussing United States v. Gallo, 927 F.2d 815, 823 (5th Cir. 1991) and United States v. Hamilton, 931 F.2d 1046, 1051-52 (5th Cir. 1991)). The Eighth Circuit has not ruled whether the indictment must explicitly allege the interstate/foreign commerce nexus. United States v. Lucas, 932 F.2d 1210, 1219 (8th Cir.) (court was not required to reach the issue because the indictment which alleged construction of a shopping center and purchase of merchandise could be reasonably construed to allege the element), cert. denied, 502 U.S. 929 (1991). See also United States v. Green, 964 F.2d 365, 374 (5th Cir. 1992) (citing Lucas); United States v. Lovett, 964 F.2d 1029, 1038 (10th Cir. 1992) (under section 1957, the interstate commerce nexus is jurisdictional but not an essential element of the crime charged) (citing United States v. Kelley, 929 F.2d 582, 586 (10th Cir. 1991)). Given the lack of controlling law on this issue, the Committee recommends that the nexus be alleged in the indictment. In any case, a finding of an effect on interstate or foreign commerce of either the transaction itself or the activities of the financial institution, if one was involved, is essential. See United States v. Ben M. Hogan Co., Inc., 769 F.2d 1293, 1297 (8th Cir. 1985) (reversible error for a district court to give an instruction which could have been understood to include a conclusive presumption of effect on interstate commerce, where such a finding by the jury was essential in a prosecution under the Sherman Anti-Trust Act).

5. See Instruction 6.18.1956J(6) (Proceeds), infra. The term is not defined in 18 USC 1956(c).

6. See Instruction 6.18.1956J(7) (Specified Unlawful Activity), infra. The term should not be confused with "unlawful activity" in general and has a specific, statutory meaning, as set forth in section 1956(c)(7). Because that section has had numerous amendments, and itself incorporates activities defined in several other statutes, the Committee recommends careful review of both the provisions of section 1956(c)(7) and of the incorporated statutes which were in effect at the time of the alleged financial transaction (1956(a)(1)) or transportation, transmission or transfer (1956)(a)(2)).

8. See Instruction 6.18.1956J(1) (Financial Transaction). Determination of the transaction reporting requirements in effect on the date of the alleged transaction requires reviewing the provisions of both 31 USC§ 5311-5327 and 31 C.F.R. Chapter 103, in effect on that date. Further, if the alleged financial transaction involves the use of a "financial institution," both 31 USC 5312(a)(2) and the regulations promulgated thereunder, should be reviewed to ensure that the entity was a financial institution. See 18 USC 1956(c)(6) (incorporating by reference 31 USC 5312(a)(2) and its regulations).

The decision in Ratzlaf v. United States, 510 U.S. 135, 114 S. Ct. 655 (1994) is not likely applicable to violations of 18 USC 1956. Ratzlaf involved an interpretation of 31 USC 5324 and the mental state required under that statute. Because the mental state requirements of 18 USC 1956 are clearly different, the applicability of Ratzlaf is doubtful.

9. See Instruction 8.01, infra.

10. See 18 USC 1956(c)(2). This definition was included in the October 27, 1986, version of the statute and has not changed since.

contrived to avoid learning all of the facts in order to have a defense in the event of a subsequent

prosecution." Id. (quoting United States v. Alvarado, 838 F.2d 311, 314 (9th Cir. 1987), cert. denied, 487 U.S. 1222 (1988)). If there is evidence a defendant actually believed that the transaction was for an innocent purpose, see Instruction 7.04, notes 3 and 4, infra. The deliberate ignorance instruction should not be given where the evidence points solely to either actual knowledge, or lack thereof, and where there is no evidence that the defendant had a conscious purpose to avoid learning the truth. Instruction 7.04 note 5, infra; Barnhart, 979 F.2d at 651. The permissive rather than mandatory phrasing "you may find" comports with the usage suggested in Karras v. Leapley, 974 F.2d 71, 74 n.6 (8th Cir. 1992).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1956D MONEY LAUNDERING -- MOVEMENT OF MONETARY
INSTRUMENTS AND FUNDS TO PROMOTE SPECIFIED UNLAWFUL ACTIVITY
(18 USC 1956(a)(2)(A))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Money Laundering -- Movement Of Monetary Instruments And Funds To Promote Specified Unlawful Activity (18 USC 1956(a)(2)(A))

The crime of illegally [attempting to] [transport[ing]] [transmit[ting]] [transfer[ring]] a monetary instrument, as charged in [Count[s] ____ of] the indictment has three elements which are:

One, on or about (date),¹ [the defendant] [defendant[s] (name[s])] knowingly [attempted to]² [transport[ed]] [transmit[ted]] [transfer[red]]³ [a] [monetary instrument[s]]⁴ [funds];⁵

Two, the defendant[s] did so with intent to promote the carrying on of (describe the specified unlawful activity)⁶; and

Three, the [attempted] act was [from a place in the United States to or through a place outside the United States] [to a place in the United States from or through a place outside the United States].

[A defendant may be found to have attempted to [transport] [transmit] [transfer] [a] [monetary instrument[s]] [funds] if [he] [she] intended to commit the offense and voluntarily and intentionally carried out some act which was a substantial step toward conducting that offense, even if the [transportation] [transmission] [transfer] was never completed.]⁷

[You are further instructed regarding the crime[s] charged in [Count[s] ____ of] the indictment that the following definitions apply: (Insert applicable portions of Instruction 6.18.1956J, unless the indictment charges multiple money laundering violations and there will be no confusion in adding the definitions common to all counts after all of the substantive money laundering instructions).]⁸

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

Notes on Use

1. The statutes and implementing regulations have been amended frequently. The date of the offense is critical in verifying that the criminal conduct charged was covered by the statute and regulation in effect on that date. Additionally, changes in reporting requirements under Treasury regulations (31 C.F.R.) may affect offenses charged under sections 1956(a)(1)(B)(ii) and 1956(a)(2)(B)(ii).

a. The Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, Title I, Subtitle H (Money Laundering Control Act of 1986), § 1352(a), 100 Stat. 3207-18 to 22, added sections 1956 and 1957 to Title 18 of the United States Code. The Anti-Drug Abuse Act of 1986, including the newly added sections 1956 and 1957 of Title 18, became effective on October 27, 1986.

b. The Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Title VI, §§ 6183, 6465, 6469(a)(1) and 6471(a)-(b), and Title VII, § 7031, 102 Stat. 4354, 4375, 4377, 4378 and 4398 became effective on November 18, 1988. Inter alia it added a new offense, section 1956(a)(1)(A)(ii), conducting a financial transaction with intent to engage in violations of the tax code (26 USC 7201 or 7206), expanded the scope of section 1956(a)(2), added a "sting" section, 1956(a)(3), and added a number of "specified unlawful activity" predicate offenses as defined in section 1956(c)(7).

c. The Crime Control Act of 1990, Pub. L. No. 101-647, Title I, §§ 105-108, Title XII, § 1205(j), Title XIV, §§ 1402 and 1404, Title XXV, § 2506 and Title XXXV, § 3557, 104 Stat. 4791-92, 4831, 4835, 4862 and 4927 became effective November 29, 1990. Inter alia it amended the provisions of section 1956(a)(2)(B) to permit the government to establish the defendant's knowledge of the illegality of his actions through the law enforcement officer's representations and the defendant's subsequent statements or actions indicating the defendant believed the representation, added violations of foreign law to the definition of "unlawful activity" (18 USC 1956(c)(1)), amended the definition of "financial transaction" (section 1956(c)(4)) and "monetary instruments" (section 1956(c)(5)) to emphasize the alternative means of meeting the definitions, revised and expanded the scope of the term "specified unlawful activity" (SUA) (sections 1956(c)(7)(A) and (D), added as predicate SUA several "environmental" offenses (section 1956(c)(7)(E)), added a new section, 1956(c)(8), defining "state," and added agencies authorized to investigate section 1956 violations. See Instruction 6.18.1956J(7) (Specified Unlawful Activity), infra.

d. Effective October 28, 1992, Pub. L. 102-550, Title XV, §§ 1504(c), 1524, 1526(a), 1527(a), 1530, 1531, 1534 and 1536, 106 Stat. 4055 and 4064-67 added, inter alia, use of a safe deposit box to the definition of "transaction" (section 1956(c)(3)), added transfer of title to real property, vehicles, vessels or aircraft to the definitions of "financial transaction" (section 1956(c)(4)), expanded the scope of the term "specified unlawful activity" regarding offenses against foreign nations (section 1956(c)(7)(B)), deleted and added several predicate SUA offenses (section 1956(c)(7)(D)) and created the offense of conspiracy to violate sections 1956 or 1957, carrying the same penalties as the object offenses. Instead of a statutory five-year maximum under 18 USC 371, a conspiracy to violate 18 USC 1956 now carries a 20-year statutory maximum. See 18 USC 1956(g). Prior to the amendment, the five-year statutory maximum for conspiracy would have precluded imposition of a sentence corresponding to the sentencing guideline range for the defendants who conspired to launder large sums or who had significant prior criminal histories. See United States Sentencing Guideline § 2S1.1 and Chapter 5, Part A (Sentencing Table).

2. See Note 2, Instruction 6.18.1956A, supra.

3. The terms "transmit" and "transfer" were added, effective November 18, 1988. See Note 2, supra. Prior to that time at least one circuit had held that an international wire transfer constituted "transportation" of funds within the meaning of 1956(a)(2). United States v. Monroe, 943 F.2d 1007, 1015-16 (9th Cir. 1991).

4. See 18 USC 1956(c)(5). See also Instruction 6.18.1956J(4) (Monetary Instrument), infra.. The present definition became effective November 29, 1990. Although not listed in section 1956(c)(5), cashier's checks are negotiable instruments in "such form that title thereto passes upon delivery." S. Rep. No. 433, 99th Cong., 2d Sess. 13 (1986). This definition was explicitly clarified, effective May 8, 1987, when "cashier's checks" was added to the definition of "monetary instruments" in 31 C.F.R. § 103.11(j)(iii). See 52 Fed. Reg. 11436 (1987) (Final Rule).

5. See Instruction 6.18.1956J(3) (Funds), infra.

6. See Note 6 and 12, Instruction 6.18.1956A, supra, and 6.18.1956J(7) (Specified Unlawful Activity), infra.

7. See Instruction 8.01, infra.

8. See Note 11, Instruction 6.18.1956A, supra.

Committee Comments

See Ninth Cir. Crim. Jury Instr. 8.122 (formerly 8.33.3 (1997)). See generally United States v. Cruz, 993 F.2d 164 (8th Cir 1993); United States v. Peery, 977 F.2d 1230, 1234 (8th Cir. 1992); United States v. Turner, 975 F.2d 490, 497 (8th Cir. 1992); United States v. Posters 'N' Things Ltd., 969 F.2d 652, 661 (8th Cir. 1992), aff'd on other grounds, 511 U.S. 513 (1994); United States v. Davila, 964 F.2d 778, 782 (8th Cir. 1992); United States v. Sutera, 933 F.2d 641, 644-46 (8th Cir. 1991); United States v. Martin, 933 F.2d 609, 610 (8th Cir. 1991); United States v. Lucas, 932 F.2d 1210, 1214 n.3, 1219 (8th Cir. 1991); United States v. Blackman, 904 F.2d 1250, 1257 (8th Cir. 1990); United States v. Lee, 886 F.2d 998, 1002-03 (8th Cir. 1989). See also U.S. Dept. of Justice, Money Laundering Federal Prosecution Manual (Feb. 1992).

See Instruction 6.18.1956J, infra, for additional instructions which should be given in most cases.

(For 2008 version see below).

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2008 Version

The crime of illegally [attempting to] [transport[ing]] [transmit[ting]] [transfer[ring]] a monetary instrument, as charged in [Count[s] ____ of] the indictment has three elements which are:

One, on or about (date),¹ [the defendant] [defendant[s] (name[s])] knowingly [attempted to]² [transport[ed]] [transmit[ted]] [transfer[red]]³ [a] [monetary instrument[s]]⁴ [funds];⁵

Two, the defendant[s] did so with intent to promote the carrying on of (describe the specified unlawful activity)⁶; and

Three, the [attempted] act was [from a place in the United States to or through a place outside the United States] [to a place in the United States from or through a place outside the United States].

[A defendant may be found to have attempted to [transport] [transmit] [transfer] [a] [monetary instrument[s]] [funds] if [he] [she] intended to commit the offense and voluntarily and intentionally carried out some act which was a substantial step toward conducting that offense, even if the [transportation] [transmission] [transfer] was never completed.]⁷

[You are further instructed regarding the crime[s] charged in [Count[s] ____ of] the indictment that the following definitions apply: (Insert applicable portions of Instruction 6.18.1956J, unless the indictment charges multiple money laundering violations and there will be no confusion in adding the definitions common to all counts after all of the substantive money laundering instructions).]⁸

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

Notes on Use

1. The statutes and implementing regulations have been amended frequently. The date of the offense is critical in verifying that the criminal conduct charged was covered by the statute and regulation in effect on that date. Additionally, changes in reporting requirements under Treasury regulations (31 C.F.R.) may affect offenses charged under sections 1956(a)(1)(B)(ii) and 1956(a)(2)(B)(ii).

a. The Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, Title I, Subtitle H (Money Laundering Control Act of 1986), § 1352(a), 100 Stat. 3207-18 to 22, added sections 1956 and 1957 to Title 18 of the United States Code. The Anti-Drug Abuse Act of 1986, including the newly added sections 1956 and 1957 of Title 18, became effective on October 27, 1986.

b. The Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Title VI, §§ 6183, 6465, 6469(a)(1) and 6471(a)-(b), and Title VII, § 7031, 102 Stat. 4354, 4375, 4377, 4378 and 4398 became effective on November 18, 1988. Inter alia it added a new offense, section 1956(a)(1)(A)(ii), conducting a financial transaction with intent to engage in violations of the tax code (26 USC§ 7201 or 7206), expanded the scope of section 1956(a)(2), added a "sting" section, 1956(a)(3), and added a number of "specified unlawful activity" predicate offenses as defined in section 1956(c)(7).

c. The Crime Control Act of 1990, Pub. L. No. 101-647, Title I, §§ 105-108, Title XII, § 1205(j), Title XIV, §§ 1402 and 1404, Title XXV, § 2506 and Title XXXV, § 3557, 104 Stat. 4791-92, 4831, 4835, 4862 and 4927 became effective November 29, 1990. Inter alia it amended the provisions of section 1956(a)(2)(B) to permit the government to establish the defendant's knowledge of the illegality of his actions through the law enforcement officer's representations and the defendant's subsequent statements or actions indicating the defendant believed the representation, added violations of foreign law to the definition of "unlawful activity" (18 USC 1956(c)(1)), amended the definition of "financial transaction" (section 1956(c)(4)) and "monetary instruments" (section 1956(c)(5)) to emphasize the alternative means of meeting the definitions, revised and expanded the scope of the term "specified unlawful activity" (SUA) (sections 1956(c)(7)(A) and (D), added as predicate SUA several "environmental" offenses (section 1956(c)(7)(E)), added a new section, 1956(c)(8), defining "state," and added agencies authorized to investigate section 1956 violations. See Instruction 6.18.1956J(7) (Specified Unlawful Activity), infra.

d. Effective October 28, 1992, Pub. L. 102-550, Title XV, §§ 1504(c), 1524, 1526(a), 1527(a), 1530, 1531, 1534 and 1536, 106 Stat. 4055 and 4064-67 added, inter alia, use of a safe deposit box to the definition of "transaction" (section 1956(c)(3)), added transfer of title to real property, vehicles, vessels or aircraft to the definitions of "financial transaction" (section 1956(c)(4)), expanded the scope of the term "specified unlawful activity" regarding offenses against foreign nations (section 1956(c)(7)(B)), deleted and added several predicate SUA offenses (section 1956(c)(7)(D)) and created the offense of conspiracy to violate sections 1956 or 1957, carrying the same penalties as the object offenses. Instead of a statutory five-year maximum under 18 USC 371, a conspiracy to violate 18 USC 1956 now carries a 20-year statutory maximum. See 18 USC 1956(g). Prior to the amendment, the five-year statutory maximum for conspiracy would have precluded imposition of a sentence corresponding to the sentencing guideline range for the defendants who conspired to launder large sums or who had significant prior criminal histories. See United States Sentencing Guideline § 2S1.1 and Chapter 5, Part A (Sentencing Table).

2. See Note 2, Instruction 6.18.1956A, supra.

5. See Instruction 6.18.1956J(3) (Funds), infra.

6. See Note 6 and 12, Instruction 6.18.1956A, supra, and 6.18.1956J(7) (Specified Unlawful Activity), infra.

7. See Instruction 8.01, infra.

8. See Note 11, Instruction 6.18.1956A, supra.

Committee Comments

See Instruction 6.18.1956J, infra, for additional instructions which should be given in most cases.

(For 2006 version see below)

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

2006 Version

The crime of illegally [attempting to] [transport[ing]] [transmit[ting]] [transfer[ring]] a monetary instrument, as charged in [Count[s] ____ of] the indictment has three elements which are:

One, on or about (date),1 [the defendant] [defendant[s] (name[s])] knowingly [attempted to]2 [transport[ed]] [transmit[ted]] [transfer[red]]3 [a] [monetary instrument[s]]4 [funds];5

Two, the defendant[s] did so with intent to promote the carrying on of (describe the specified unlawful activity)6; and

Three, the [attempted] act was [from a place in the United States to or through a place outside the United States] [to a place in the United States from or through a place outside the United States].

[A defendant may be found to have attempted to [transport] [transmit] [transfer] [a] [monetary instrument[s]] [funds] if [he] [she] intended to commit the offense and voluntarily and intentionally carried out some act which was a substantial step toward conducting that offense, even if the [transportation] [transmission] [transfer] was never completed.]7

[You are further instructed regarding the crime[s] charged in [Count[s] ____ of] the indictment that the following definitions apply: (Insert applicable portions of Instruction 6.18.1956J, unless the indictment charges multiple money laundering violations and there will be no confusion in adding the definitions common to all counts after all of the substantive money laundering instructions).]8

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

Notes on Use

a. The Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, Title I, Subtitle H (Money Laundering Control Act of 1986), § 1352(a), 100 Stat. 3207-18 to 22, added sections 1956 and 1957 to Title 18 of the United States Code. The Anti-Drug Abuse Act of 1986, including the newly added sections 1956 and 1957 of Title 18, became effective on October 27, 1986.

b. The Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Title VI, §§ 6183, 6465, 6469(a)(1) and 6471(a)-(b), and Title VII, § 7031, 102 Stat. 4354, 4375, 4377, 4378 and 4398 became effective on November 18, 1988. Inter alia it added a new offense, section 1956(a)(1)(A)(ii), conducting a financial transaction with intent to engage in violations of the tax code (26 USC 7201 or 7206), expanded the scope of section 1956(a)(2), added a "sting" section, 1956(a)(3), and added a number of "specified unlawful activity" predicate offenses as defined in section 1956(c)(7).

c. The Crime Control Act of 1990, Pub. L. No. 101-647, Title I, §§ 105-108, Title XII, § 1205(j), Title XIV, §§ 1402 and 1404, Title XXV, § 2506 and Title XXXV, § 3557, 104 Stat. 4791-92, 4831, 4835, 4862 and 4927 became effective November 29, 1990. Inter alia it amended the provisions of section 1956(a)(2)(B) to permit the government to establish the defendant's knowledge of the illegality of his actions through the law enforcement officer's representations and the defendant's subsequent statements or actions indicating the defendant believed the representation, added violations of foreign law to the definition of "unlawful activity" (18 USC 1956(c)(1)), amended the definition of "financial transaction" (section 1956(c)(4)) and "monetary instruments" (section 1956(c)(5)) to emphasize the alternative means of meeting the definitions, revised and expanded the scope of the term "specified unlawful activity" (SUA) (sections 1956(c)(7)(A) and (D), added as predicate SUA several "environmental" offenses (section 1956(c)(7)(E)), added a new section, 1956(c)(8), defining "state," and added agencies authorized to investigate section 1956 violations. See Instruction 6.18.1956J(7) (Specified Unlawful Activity), infra.

d. Effective October 28, 1992, Pub. L. 102-550, Title XV, §§ 1504(c), 1524, 1526(a), 1527(a), 1530, 1531, 1534 and 1536, 106 Stat. 4055 and 4064-67 added, inter alia, use of a safe deposit box to the definition of "transaction" (section 1956(c)(3)), added transfer of title to real property, vehicles, vessels or aircraft to the definitions of "financial transaction" (section 1956(c)(4)), expanded the scope of the term "specified unlawful activity" regarding offenses against foreign nations (section 1956(c)(7)(B)), deleted and added several predicate SUA offenses (section 1956(c)(7)(D)) and created the offense of conspiracy to violate sections 1956 or 1957, carrying the same penalties as the object offenses. Instead of a statutory five-year maximum under 18 USC 371, a conspiracy to violate 18 USC 1956 now carries a 20-year statutory maximum. See 18 USC 1956(g). Prior to the amendment, the five-year statutory maximum for conspiracy would have precluded imposition of a sentence corresponding to the sentencing guideline range for the defendants who conspired to launder large sums or who had significant prior criminal histories. See United States Sentencing Guideline § 2S1.1 and Chapter 5, Part A (Sentencing Table).

2. See Note 2, Instruction 6.18.1956A, supra.

4. See 18 USC 1956(c)(5). See also Instruction 6.18.1956J(4) (Monetary Instrument), infra.. The present definition became effective November 29, 1990. Although not listed in section 1956(c)(5), cashier's checks are negotiable instruments in "such form that title thereto passes upon delivery." S. Rep. No. 433, 99th Cong., 2d Sess. 13 (1986). This definition was explicitly clarified, effective May 8, 1987, when "cashier's checks" was added to the definition of "monetary instruments" in 31 CFR 103.11(j)(iii). See 52 Fed. Reg. 11436 (1987) (Final Rule).

5. See Instruction 6.18.1956J(3) (Funds), infra.

6. See Note 6 and 12, Instruction 6.18.1956A, supra, and 6.18.1956J(7) (Specified Unlawful Activity), infra.

7. See Instruction 8.01, infra.

8. See Note 11, Instruction 6.18.1956A, supra.

Committee Comments

See Ninth Cir. Crim. Jury Instr. 8.122 (2000). See generally United States v. Cruz, 993 F.2d 164 (8th Cir 1993); United States v. Peery, 977 F.2d 1230, 1234 (8th Cir. 1992); United States v. Turner, 975 F.2d 490, 497 (8th Cir. 1992); United States v. Posters 'N' Things Ltd., 969 F.2d 652, 661 (8th Cir. 1992), aff'd on other grounds, 511 U.S. 513 (1994); United States v. Davila, 964 F.2d 778, 782 (8th Cir. 1992); United States v. Sutera, 933 F.2d 641, 644-46 (8th Cir. 1991); United States v. Martin, 933 F.2d 609, 610 (8th Cir. 1991); United States v. Lucas, 932 F.2d 1210, 1214 n.3, 1219 (8th Cir. 1991); United States v. Blackman, 904 F.2d 1250, 1257 (8th Cir. 1990); United States v. Lee, 886 F.2d 998, 1002-03 (8th Cir. 1989). See also U.S. Dept. of Justice, Money Laundering Federal Prosecution Manual (Feb. 1992).

See Instruction 6.18.1956J, infra, for additional instructions which should be given in most cases.

For 2000 version see below

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2000 Version

The crime of illegally [attempting to] [transport[ing]] [transmit[ting]] [transfer[ring]] a monetary instrument, as charged in [Count[s] ____ of] the indictment has three essential elements which are:

One, on or about (date),1 the defendant[s] [(name)] knowingly [attempted to]2 [transport[ed]] [transmit[ted]] [transfer[red]]3 [a] [monetary instrument[s]]4 [funds];5

Two, the defendant[s] did so with intent to promote the carrying on of (describe the specified unlawful activity)6; and

Three, the [attempted] act was [from a place in the United States to or through a place outside the United States] [to a place in the United States from or through a place outside the United States].

[A defendant may be found to have attempted to [transport] [transmit] [transfer] [a] [monetary instrument[s]] [funds] if [he] [she] intended to commit the offense and voluntarily and intentionally carried out some act which was a substantial step toward conducting that offense, even if the [transportation] [transmission] [transfer] was never completed.]7

[You are further instructed regarding the crime[s] charged in [Count[s] ____ of] the indictment that the following definitions apply: (Insert applicable portions of Instruction 6.18.1956J, unless the indictment charges multiple money laundering violations and there will be no confusion in adding the definitions common to all counts after all of the substantive money laundering instructions).]8

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

Committee Comments

See Ninth Cir. Crim. Jury Instr. 8.33.3 (1997). See generally United States v. Cruz, 993 F.2d 164 (8th Cir 1993); United States v. Peery, 977 F.2d 1230, 1234 (8th Cir. 1992); United States v. Turner, 975 F.2d 490, 497 (8th Cir. 1992), cert. denied, 506 U.S. 1082 (1993); United States v. Posters 'N' Things Ltd., 969 F.2d 652, 661 (8th Cir. 1992), aff'd on other grounds, 511 U.S. 513, 114 S. Ct. 1747 (1994); United States v. Davila, 964 F.2d 778, 782 (8th Cir. 1992); United States v. Sutera, 933 F.2d 641, 644-46 (8th Cir. 1991); United States v. Martin, 933 F.2d 609, 610 (8th Cir. 1991); United States v. Lucas, 932 F.2d 1210, 1214 n.3, 1219 (8th Cir.), cert. denied, 502 U.S. 929 (1991); United States v. Blackman, 904 F.2d 1250, 1257 (8th Cir. 1990); United States v. Lee, 886 F.2d 998, 1002-03 (8th Cir. 1989), cert. denied, 493 U.S. 1032 (1990). See also U.S. Dept. of Justice, Money Laundering Federal Prosecution Manual (Feb. 1992).

See Instruction 6.18.1956J, infra, for additional instructions which should be given in most cases.

Notes on Use

1. The statutes and implementing regulations have been amended frequently. The date of the offense is critical in verifying that the criminal conduct charged was covered by the statute and regulation in effect on that date. Additionally, changes in reporting requirements under Treasury regulations (31 C.F.R.) may affect offenses charged under sections 1956(a)(1)(B)(ii) and 1956(a)(2)(B)(ii).

d. Effective October 28, 1992, Pub. L. 102-550, Title XV, §§ 1504(c), 1524, 1526(a), 1527(a), 1530, 1531, 1534 and 1536, 106 Stat. 4055 and 4064-67 added, inter alia, use of a safe deposit box to the definition of "transaction" (section 1956(c)(3)), added transfer of title to real property, vehicles, vessels or aircraft to the definitions of "financial transaction" (section 1956(c)(4)), expanded the scope of the term "specified unlawful activity" regarding offenses against foreign nations (section 1956(c)(7)(B)), deleted and added several predicate SUA offenses (section 1956(c)(7)(D)) and created the offense of conspiracy to violate sections 1956 or 1957, carrying the same penalties as the object offenses. Instead of a statutory five-year maximum under 18 USC 371, a conspiracy to violate 18 USC 1956 now carries a 20-year statutory maximum. See 18 USC 1956(g). Prior to the amendment, the five-year statutory maximum for conspiracy would have precluded imposition of a sentence corresponding to the sentencing guideline range for defendants who conspired to launder large sums or who had significant prior criminal histories. See United States Sentencing Guideline § 2S1.1 and Chapter 5, Part A (Sentencing Table).

2. See Instruction 6.18.1956A, Note 2, supra.

5. See Instruction 6.18.1956J(3) (Funds), infra.

6. See Instruction 6.18.1956A, Notes 6 and 12, supra, and 6.18.1956J(7) (Specified Unlawful Activity), infra.

7. See Instruction 8.01, infra.

8. See Instruction 6.18.1956A, Note 11, supra.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1956E MONEY LAUNDERING -- MOVEMENT OF MONETARY
INSTRUMENTS AND FUNDS TO CONCEAL PROCEEDS
(18 USC 1956(a)(2)(B)(i))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Money Laundering -- Movement Of Monetary Instruments And Funds To Conceal Proceeds (18 USC 1956(a)(2)(B)(i))

The crime of illegally [attempting to] [transport[ing]] [transmit[ting]] [transfer[ring]] a monetary instrument as charged in [Count[s] ____ of] the indictment has four elements which are:

One, on or about (date),¹ [the defendant] [defendant[s] (name[s])] knowingly [attempted to]² [transport[ed]] [transmit[ted]] [transfer[red]]³ [a] [monetary instrument[s]]⁴ [funds];⁵

Two, at the time of the [attempted] act described in element one, above, the defendant[s] knew⁶ the [monetary instrument[s]] [funds] represented the proceeds⁷ of some form of unlawful activity⁸];

Three, at the same time, the defendant[s] knew⁶ that the [attempted] act was designed in whole or in part to conceal or disguise the nature, location, source, ownership or control of the proceeds of (describe the specified unlawful activity);⁹ and

Four, the [attempted] act was [from a place in the United States to or through a place outside the United States] [to a place in the United States from or through a place outside the United States].

[A defendant may be found to have attempted to [transport] [transmit] [transfer] [[a] [monetary instrument[s]] [funds] if [he] [she] intended to commit the offense and voluntarily and intentionally carried out some act which was a substantial step toward conducting that offense, even if the [transportation] [transmission] [transfer] was never completed.]¹⁰

[You are further instructed regarding the crime[s] charged in [Count[s] ____ of] the indictment that the following definitions apply: (Insert applicable portions of Instruction 6.18.1956J, unless the indictment charges multiple money laundering violations and there will be no confusion in adding the definitions common to all counts after all of the substantive money laundering instructions).]¹¹

[You may find that [the defendant] [defendant[s] (name[s])] knew the purpose of the [attempted] act was to conceal or disguise the nature, location, source, ownership or control of the proceeds of (describe the specified unlawful activity)⁹ if you find beyond a reasonable doubt that (insert appropriate language from Instruction 7.04).]¹²

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

Notes on Use

1. The statutes and implementing regulations have been amended frequently. The date of the offense is critical in verifying that the criminal conduct charged was covered by the statute and regulation in effect on that date. Additionally, changes in reporting requirements under Treasury regulations (31 C.F.R.) may affect offenses charged under sections 1956(a)(1)(B)(ii) and 1956(a)(2)(B)(ii).

a. The Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, Title I, Subtitle H (Money Laundering Control Act of 1986), § 1352(a), 100 Stat. 3207-18 to 22, added sections 1956 and 1957 to Title 18 of the United States Code. The Anti-Drug Abuse Act of 1986, including the newly added sections 1956 and 1957 of Title 18, became effective on October 27, 1986.

b. The Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Title VI, §§ 6183, 6465, 6469(a)(1) and 6471(a)-(b), and Title VII, § 7031, 102 Stat. 4354, 4375, 4377, 4378 and 4398 became effective on November 18, 1988. Inter alia it added a new offense, section 1956(a)(1)(A)(ii), conducting a financial transaction with intent to engage in violations of the tax code (26 USC 7201 or 7206), expanded the scope of section 1956(a)(2), added a "sting" section, 1956(a)(3), and added a number of "specified unlawful activity" predicate offenses as defined in section 1956(c)(7).

c. The Crime Control Act of 1990, Pub. L. No. 101-647, Title I, §§ 105-108, Title XII, § 1205(j), Title XIV, §§ 1402 and 1404, Title XXV, § 2506 and Title XXXV, § 3557, 104 Stat. 4791-92, 4831, 4835, 4862 and 4927 became effective November 29, 1990. Inter alia it amended the provisions of section 1956(a)(2)(B) to permit the government to establish the defendant's knowledge of the illegality of his actions through the law enforcement officer's representations and the defendant's subsequent statements or actions indicating the defendant believed the representation, added violations of foreign law to the definition of "unlawful activity" (18 USC 1956(c)(1)), amended the definition of "financial transaction" (section 1956(c)(4)) and "monetary instruments" (section 1956(c)(5)) to emphasize the alternative means of meeting the definitions, revised and expanded the scope of the term "specified unlawful activity" (SUA) (sections 1956(c)(7)(A) and (D), added as predicate SUA several "environmental" offenses (section 1956(c)(7)(E)), added a new section, 1956(c)(8), defining "state," and added agencies authorized to investigate section 1956 violations. See Instruction 6.18.1956J(7) (Specified Unlawful Activity), infra.

d. Effective October 28, 1992, Pub. L. 102-550, Title XV, §§ 1504(c), 1524, 1526(a), 1527(a), 1530, 1531, 1534 and 1536, 106 Stat. 4055 and 4064-67 added, inter alia, use of a safe deposit box to the definition of "transaction" (section 1956(c)(3)), added transfer of title to real property, vehicles, vessels or aircraft to the definitions of "financial transaction" (section 1956(c)(4)), expanded the scope of the term "specified unlawful activity" regarding offenses against foreign nations (section 1956(c)(7)(B)), deleted and added several predicate SUA offenses (section 1956(c)(7)(D)) and created the offense of conspiracy to violate sections 1956 or 1957, carrying the same penalties as the object offenses. Instead of a statutory five-year maximum under 18 USC 371, a conspiracy to violate 18 USC 1956 now carries a 20-year statutory maximum. See 18 USC 1956(g). Prior to the amendment, the five-year statutory maximum for conspiracy would have precluded imposition of a sentence corresponding to the sentencing guideline range for the defendants who conspired to launder large sums or who had significant prior criminal histories. See United States Sentencing Guideline § 2S1.1 and Chapter 5, Part A (Sentencing Table).

2. See Note 2, Instruction 6.18.1956A, supra.

4. See 18 USC 1956(c)(5). See also Instruction 6.18.1956J(4) (Monetary Instrument), infra. The present definition became effective November 29, 1990. Although not listed in section 1956(c)(5), cashier's checks are negotiable instruments in "such form that title thereto passes upon delivery." S. Rep. No. 433, 99th Cong., 2d Sess. 13 (1986). This definition was explicitly clarified, effective May 8, 1987, when "cashier's checks" was added to the definition of "monetary instruments" in 31 C.F.R. § 103.11(j)(iii). See 52 Fed. Reg. 11436 (1987) (Final Rule).

5. See Instruction 6.18.1956J(3) (Funds), infra.

6. See Note 8, Instruction 6.18.1956A, supra; Instruction 6.18.1956J(8) (Knowledge), infra. See generally, Cuellar v. United States, 553 U.S. __, 128 S. Ct. 1994 (2008), where the Court held that a conviction under this statute requires proof that the transportation’s purpose -- not merely its effect -- was to conceal or disguise, in whole or in part, one of the listed attributes (the funds’ nature, location, source, ownership, or control). The Court held that the prosecution did not have to prove that a defendant intended to create the appearance of legitimate wealth.

The defendant need not have known the actual source of the monetary instruments or funds, as long as the defendant knew that they represented "some form of unlawful activity." 18 USC 1956(a)(1). Section 1956(c)(1) defines the term broadly to require only that "the person knew the property involved in the transaction represented proceeds from some form, though not necessarily which form, of activity that constitutes a felony under State, Federal, or foreign law, regardless of whether or not such activity is specified in paragraph [1956(c)](7)." Although the most common situation will be that the defendant's knowledge and the actual source of the proceeds coincide, where the evidence shows that the defendant thought that the property was proceeds from a different unlawful activity, the instruction should be tailored to reflect the defendant's knowledge, e.g., "at the time the defendant transmitted the funds, he believed that the money he used represented the proceeds of unlawful [prostitution] [dogfighting] [gambling]." See, e.g., United States v. Long, 977 F.2d 1264, 1277 (8th Cir. 1992) (discussing the laundering of "any proceeds from a myriad of specified unlawful activities," and how that results in different offense levels under section 2S1.1 of the Sentencing Guidelines).

If the monetary instrument or funds were not actually proceeds of some form of unlawful activity but were represented as such in a "sting" by law enforcement officers, this Instruction 6.18.1956E should be modified appropriately to address the meaning and method of proof that the defendant "knew" the source of the monetary instrument or funds and the purpose of their actual or attempted transportation, transmission or transfer. See Instructions 6.18.1956G, H & I, infra; see also Note 12, Instruction 6.18.1956B, supra (situations where Instruction 7.04, infra, on willful blindness is appropriate).

7. See Instruction 6.18.1956J(3) (Funds), infra.

8. See Note 7, Instruction 6.18.1956A, supra, and 6.18.1956J(7) (Specified Unlawful Activity), infra.

9. See Note 8, Instruction 6.18.1956B, supra.

10. See Instruction 8.01, infra.

11. See Note 11, Instruction 6.18.1956A, supra.

12. See Note 12, Instruction 6.18.1956B, supra.

Committee Comments

See Ninth Cir. Crim. Jury Instr. 8.123 (formerly 8.33.4 (1997)). See generally United States v. Cruz, 993 F.2d 164 (8th Cir. 1993); United States v. Peery, 977 F.2d 1230, 1234 (8th Cir. 1992); United States v. Turner, 975 F.2d 490, 497 (8th Cir. 1992); United States v. Posters 'N' Things Ltd., 969 F.2d 652, 661 (8th Cir. 1992), aff'd on other grounds, 511 U.S. 513 (1994); United States v. Davila, 964 F.2d 778, 782 (8th Cir. 1992); United States v. Sutera, 933 F.2d 641, 644-46 (8th Cir. 1991); United States v. Martin, 933 F.2d 609, 610 (8th Cir. 1991); United States v. Lucas, 932 F.2d 1210, 1214 n.3, 1219 (8th Cir. 1991); United States v. Blackman, 904 F.2d 1250, 1257 (8th Cir. 1990); United States v. Lee, 886 F.2d 998, 1002-03 (8th Cir. 1989). See also U.S. Dept. of Justice, Money Laundering Federal Prosecution Manual (Feb. 1992).

See Instruction 6.18.1956J, infra, for additional instructions which should be given in most cases.

(For 2008 version see below).

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

2008 Version

The crime of illegally [attempting to] [transport[ing]] [transmit[ting]] [transfer[ring]] a monetary instrument as charged in [Count[s] ____ of] the indictment has four elements which are:

One, on or about (date),¹ [the defendant] [defendant[s] (name[s])] knowingly [attempted to]² [transport[ed]] [transmit[ted]] [transfer[red]]³ [a] [monetary instrument[s]]⁴ [funds];⁵

Two, at the time of the [attempted] act described in element one, above, the defendant[s] knew⁶ the [monetary instrument[s]] [funds] represented the proceeds⁷ of some form of unlawful activity⁸];

Three, at the same time, the defendant[s] knew⁶ that the [attempted] act was designed in whole or in part to conceal or disguise the nature, location, source, ownership or control of the proceeds of (describe the specified unlawful activity);⁹ and

Four, the [attempted] act was [from a place in the United States to or through a place outside the United States] [to a place in the United States from or through a place outside the United States].

[A defendant may be found to have attempted to [transport] [transmit] [transfer] [[a] [monetary instrument[s]] [funds] if [he] [she] intended to commit the offense and voluntarily and intentionally carried out some act which was a substantial step toward conducting that offense, even if the [transportation] [transmission] [transfer] was never completed.]¹⁰

[You are further instructed regarding the crime[s] charged in [Count[s] ____ of] the indictment that the following definitions apply: (Insert applicable portions of Instruction 6.18.1956J, unless the indictment charges multiple money laundering violations and there will be no confusion in adding the definitions common to all counts after all of the substantive money laundering instructions).]¹¹

[You may find that [the defendant] [defendant[s] (name[s])] knew the purpose of the [attempted] act was to conceal or disguise the nature, location, source, ownership or control of the proceeds of (describe the specified unlawful activity)⁹ if you find beyond a reasonable doubt that (insert appropriate language from Instruction 7.04).]¹²

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

Notes on Use

1. The statutes and implementing regulations have been amended frequently. The date of the offense is critical in verifying that the criminal conduct charged was covered by the statute and regulation in effect on that date. Additionally, changes in reporting requirements under Treasury regulations (31 C.F.R.) may affect offenses charged under sections 1956(a)(1)(B)(ii) and 1956(a)(2)(B)(ii).

a. The Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, Title I, Subtitle H (Money Laundering Control Act of 1986), § 1352(a), 100 Stat. 3207-18 to 22, added sections 1956 and 1957 to Title 18 of the United States Code. The Anti-Drug Abuse Act of 1986, including the newly added sections 1956 and 1957 of Title 18, became effective on October 27, 1986.

b. The Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Title VI, §§ 6183, 6465, 6469(a)(1) and 6471(a)-(b), and Title VII, § 7031, 102 Stat. 4354, 4375, 4377, 4378 and 4398 became effective on November 18, 1988. Inter alia it added a new offense, section 1956(a)(1)(A)(ii), conducting a financial transaction with intent to engage in violations of the tax code (26 USC§ 7201 or 7206), expanded the scope of section 1956(a)(2), added a "sting" section, 1956(a)(3), and added a number of "specified unlawful activity" predicate offenses as defined in section 1956(c)(7).

c. The Crime Control Act of 1990, Pub. L. No. 101-647, Title I, §§ 105-108, Title XII, § 1205(j), Title XIV, §§ 1402 and 1404, Title XXV, § 2506 and Title XXXV, § 3557, 104 Stat. 4791-92, 4831, 4835, 4862 and 4927 became effective November 29, 1990. Inter alia it amended the provisions of section 1956(a)(2)(B) to permit the government to establish the defendant's knowledge of the illegality of his actions through the law enforcement officer's representations and the defendant's subsequent statements or actions indicating the defendant believed the representation, added violations of foreign law to the definition of "unlawful activity" (18 USC 1956(c)(1)), amended the definition of "financial transaction" (section 1956(c)(4)) and "monetary instruments" (section 1956(c)(5)) to emphasize the alternative means of meeting the definitions, revised and expanded the scope of the term "specified unlawful activity" (SUA) (sections 1956(c)(7)(A) and (D), added as predicate SUA several "environmental" offenses (section 1956(c)(7)(E)), added a new section, 1956(c)(8), defining "state," and added agencies authorized to investigate section 1956 violations. See Instruction 6.18.1956J(7) (Specified Unlawful Activity), infra.

d. Effective October 28, 1992, Pub. L. 102-550, Title XV, §§ 1504(c), 1524, 1526(a), 1527(a), 1530, 1531, 1534 and 1536, 106 Stat. 4055 and 4064-67 added, inter alia, use of a safe deposit box to the definition of "transaction" (section 1956(c)(3)), added transfer of title to real property, vehicles, vessels or aircraft to the definitions of "financial transaction" (section 1956(c)(4)), expanded the scope of the term "specified unlawful activity" regarding offenses against foreign nations (section 1956(c)(7)(B)), deleted and added several predicate SUA offenses (section 1956(c)(7)(D)) and created the offense of conspiracy to violate sections 1956 or 1957, carrying the same penalties as the object offenses. Instead of a statutory five-year maximum under 18 USC 371, a conspiracy to violate 18 USC 1956 now carries a 20-year statutory maximum. See 18 USC 1956(g). Prior to the amendment, the five-year statutory maximum for conspiracy would have precluded imposition of a sentence corresponding to the sentencing guideline range for the defendants who conspired to launder large sums or who had significant prior criminal histories. See United States Sentencing Guideline § 2S1.1 and Chapter 5, Part A (Sentencing Table).

2. See Note 2, Instruction 6.18.1956A, supra.

4. See 18 USC 1956(c)(5). See also Instruction 6.18.1956J(4)(Monetary Instrument), infra. The present definition became effective November 29, 1990. Although not listed in section 1956(c)(5), cashier's checks are negotiable instruments in "such form that title thereto passes upon delivery." S. Rep. No. 433, 99th Cong., 2d Sess. 13 (1986). This definition was explicitly clarified, effective May 8, 1987, when "cashier's checks" was added to the definition of "monetary instruments" in 31 C.F.R. § 103.11(j)(iii). See 52 Fed. Reg. 11436 (1987) (Final Rule).

5. See Instruction 6.18.1956J(3) (Funds), infra.

6. See Note 8, Instruction 6.18.1956A, supra; Instruction 6.18.1956J(8) (Knowledge), infra. Effective November 29, 1990, section 1956(a)(2) was amended to permit the defendant's "knowledge" to be established by "proof that a law enforcement officer represented the matter specified in subparagraph (B) as true, and the defendant's subsequent statements or actions indicate that the defendant believed such representations to be true." This "sting" provision for section 1956(a)(2) was added after Congress enacted section 1956(a)(3) ("sting" provision regarding financial transactions) effective November 18, 1988. The term "represented" is not defined in section 1956(a)(2), but has been in section 1956(a)(3) since November 18, 1988, and was specifically made applicable to section 1956(a)(2) on November 29, 1990. The representation must be made by a law enforcement officer or by another person, e.g., an informant or cooperating witness at the direction of a federal official authorized to investigate or prosecute section 1956 violations.

7. See Instruction 6.18.1956J(3) (Funds), infra.

8. See Note 7, Instruction 6.18.1956A, supra, and 6.18.1956J(7) (Specified Unlawful Activity), infra.

9. See Note 8, Instruction 6.18.1956B, supra.

10. See Instruction 8.01, infra.

11. See Note 11, Instruction 6.18.1956A, supra.

12. See Note 12, Instruction 6.18.1956B, supra.

Committee Comments

See Instruction 6.18.1956J, infra, for additional instructions which should be given in most cases.

(For 2006 version see below)

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

2006 Version

The crime of illegally [attempting to] [transport[ing]] [transmit[ting]] [transfer[ring]] a monetary instrument as charged in [Count[s] ____ of] the indictment has four elements which are:

One, on or about (date),1 [the defendant] [defendant[s] (name[s])] knowingly [attempted to]2 [transport[ed]] [transmit[ted]] [transfer[red]]3 [a] [monetary instrument[s]]4 [funds];5

Two, at the time of the [attempted] act described in element one, above, the defendant[s] knew6 the [monetary instrument[s]] [funds] represented the proceeds7 of some form of unlawful activity8];

Three, at the same time, the defendant[s] knew6 that the [attempted] act was designed in whole or in part to conceal or disguise the nature, location, source, ownership or control of the proceeds of (describe the specified unlawful activity);9 and

Four, the [attempted] act was [from a place in the United States to or through a place outside the United States] [to a place in the United States from or through a place outside the United States].

[A defendant may be found to have attempted to [transport] [transmit] [transfer] [[a] [monetary instrument[s]] [funds] if [he] [she] intended to commit the offense and voluntarily and intentionally carried out some act which was a substantial step toward conducting that offense, even if the [transportation] [transmission] [transfer] was never completed.]10

[You are further instructed regarding the crime[s] charged in [Count[s] ____ of] the indictment that the following definitions apply: (Insert applicable portions of Instruction 6.18.1956J, unless the indictment charges multiple money laundering violations and there will be no confusion in adding the definitions common to all counts after all of the substantive money laundering instructions).]11

[You may find that [the defendant] [defendant[s] (name[s])] knew the purpose of the [attempted] act was to conceal or disguise the nature, location, source, ownership or control of the proceeds of (describe the specified unlawful activity)9 if you find beyond a reasonable doubt that (insert appropriate language from Instruction 7.04).]12

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

Notes on Use

a. The Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, Title I, Subtitle H (Money Laundering Control Act of 1986), § 1352(a), 100 Stat. 3207-18 to 22, added sections 1956 and 1957 to Title 18 of the United States Code. The Anti-Drug Abuse Act of 1986, including the newly added sections 1956 and 1957 of Title 18, became effective on October 27, 1986.

b. The Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Title VI, §§ 6183, 6465, 6469(a)(1) and 6471(a)-(b), and Title VII, § 7031, 102 Stat. 4354, 4375, 4377, 4378 and 4398 became effective on November 18, 1988. Inter alia it added a new offense, section 1956(a)(1)(A)(ii), conducting a financial transaction with intent to engage in violations of the tax code (26 USC 7201 or 7206), expanded the scope of section 1956(a)(2), added a "sting" section, 1956(a)(3), and added a number of "specified unlawful activity" predicate offenses as defined in section 1956(c)(7).

c. The Crime Control Act of 1990, Pub. L. No. 101-647, Title I, §§ 105-108, Title XII, § 1205(j), Title XIV, §§ 1402 and 1404, Title XXV, § 2506 and Title XXXV, § 3557, 104 Stat. 4791-92, 4831, 4835, 4862 and 4927 became effective November 29, 1990. Inter alia it amended the provisions of section 1956(a)(2)(B) to permit the government to establish the defendant's knowledge of the illegality of his actions through the law enforcement officer's representations and the defendant's subsequent statements or actions indicating the defendant believed the representation, added violations of foreign law to the definition of "unlawful activity" (18 USC 1956(c)(1)), amended the definition of "financial transaction" (section 1956(c)(4)) and "monetary instruments" (section 1956(c)(5)) to emphasize the alternative means of meeting the definitions, revised and expanded the scope of the term "specified unlawful activity" (SUA) (sections 1956(c)(7)(A) and (D), added as predicate SUA several "environmental" offenses (section 1956(c)(7)(E)), added a new section, 1956(c)(8), defining "state," and added agencies authorized to investigate section 1956 violations. See Instruction 6.18.1956J(7) (Specified Unlawful Activity), infra.

d. Effective October 28, 1992, Pub. L. 102-550, Title XV, §§ 1504(c), 1524, 1526(a), 1527(a), 1530, 1531, 1534 and 1536, 106 Stat. 4055 and 4064-67 added, inter alia, use of a safe deposit box to the definition of "transaction" (section 1956(c)(3)), added transfer of title to real property, vehicles, vessels or aircraft to the definitions of "financial transaction" (section 1956(c)(4)), expanded the scope of the term "specified unlawful activity" regarding offenses against foreign nations (section 1956(c)(7)(B)), deleted and added several predicate SUA offenses (section 1956(c)(7)(D)) and created the offense of conspiracy to violate sections 1956 or 1957, carrying the same penalties as the object offenses. Instead of a statutory five-year maximum under 18 USC 371, a conspiracy to violate 18 USC 1956 now carries a 20-year statutory maximum. See 18 USC 1956(g). Prior to the amendment, the five-year statutory maximum for conspiracy would have precluded imposition of a sentence corresponding to the sentencing guideline range for the defendants who conspired to launder large sums or who had significant prior criminal histories. See United States Sentencing Guideline § 2S1.1 and Chapter 5, Part A (Sentencing Table).

2. See Note 2, Instruction 6.18.1956A, supra.

4. See 18 USC 1956(c)(5). See also Instruction 6.18.1956J(4) (Monetary Instrument), infra. The present definition became effective November 29, 1990. Although not listed in section 1956(c)(5), cashier's checks are negotiable instruments in "such form that title thereto passes upon delivery." S. Rep. No. 433, 99th Cong., 2d Sess. 13 (1986). This definition was explicitly clarified, effective May 8, 1987, when "cashier's checks" was added to the definition of "monetary instruments" in 31 CFR 103.11(j)(iii). See 52 Fed. Reg. 11436 (1987) (Final Rule).

5. See Instruction 6.18.1956J(3) (Funds), infra.

7. See Instruction 6.18.1956J(3) (Funds), infra.

8. See Note 7, Instruction 6.18.1956A, supra, and 6.18.1956J(7) (Specified Unlawful Activity), infra.

9. See Note 8, Instruction 6.18.1956B, supra.

10. See Instruction 8.01, infra.

11. See Note 11, Instruction 6.18.1956A, supra.

12. See Note 12, Instruction 6.18.1956B, supra.

Committee Comments

See Ninth Cir. Crim. Jury Instr. 8.123 (2000). See generally United States v. Cruz, 993 F.2d 164 (8th Cir. 1993); United States v. Peery, 977 F.2d 1230, 1234 (8th Cir. 1992); United States v. Turner, 975 F.2d 490, 497 (8th Cir. 1992); United States v. Posters 'N' Things Ltd., 969 F.2d 652, 661 (8th Cir. 1992), aff'd on other grounds, 511 U.S. 513 (1994); United States v. Davila, 964 F.2d 778, 782 (8th Cir. 1992); United States v. Sutera, 933 F.2d 641, 644-46 (8th Cir. 1991); United States v. Martin, 933 F.2d 609, 610 (8th Cir. 1991); United States v. Lucas, 932 F.2d 1210, 1214 n.3, 1219 (8th Cir. 1991); United States v. Blackman, 904 F.2d 1250, 1257 (8th Cir. 1990); United States v. Lee, 886 F.2d 998, 1002-03 (8th Cir. 1989). See also U.S. Dept. of Justice, Money Laundering Federal Prosecution Manual (Feb. 1992).

See Instruction 6.18.1956J, infra, for additional instructions which should be given in most cases.

For 2000 version see below

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

2000 Version

The crime of illegally [attempting to] [transport[ing]] [transmit[ting]] [transfer[ring]] a monetary instrument as charged in [Count[s] ____ of] the indictment has four essential elements which are:

One, on or about (date),1 the defendant[s] [(name)] knowingly [attempted to]2 [transport[ed]] [transmit[ted]] [transfer[red]]3 [a] [monetary instrument[s]]4 [funds];5

Two, at the time of the [attempted] act described in element one, above, the defendant[s] knew6 the [monetary instrument[s]] [funds] represented the proceeds7 of some form of unlawful activity8];

Three, at the same time, the defendant[s] knew6 that the [attempted] act was designed in whole or in part to conceal or disguise the nature, location, source, ownership or control of the proceeds of (describe the specified unlawful activity);9 and

Four, the [attempted] act was [from a place in the United States to or through a place outside the United States] [to a place in the United States from or through a place outside the United States].

[A defendant may be found to have attempted to [transport] [transmit] [transfer] [[a] [monetary instrument[s]] [funds] if [he] [she] intended to commit the offense and voluntarily and intentionally carried out some act which was a substantial step toward conducting that offense, even if the [transportation] [transmission] [transfer] was never completed.]10

[You are further instructed regarding the crime[s] charged in [Count[s] ____ of] the indictment that the following definitions apply: (Insert applicable portions of Instruction 6.18.1956J, unless the indictment charges multiple money laundering violations and there will be no confusion in adding the definitions common to all counts after all of the substantive money laundering instructions).]11

[You may find that defendant[s] [(name)] knew the purpose of the [attempted] act was to conceal or disguise the nature, location, source, ownership or control of the proceeds of (describe the specified unlawful activity)9 if you find beyond a reasonable doubt that (insert appropriate language from Instruction 7.04).]12

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

Committee Comments

See Ninth Cir. Crim. Jury Instr. 8.33.4 (1997). See generally United States v. Cruz, 993 F.2d 164 (8th Cir. 1993); United States v. Peery, 977 F.2d 1230, 1234 (8th Cir. 1992); United States v. Turner, 975 F.2d 490, 497 (8th Cir. 1992), cert. denied, 506 U.S. 1082 (1993); United States v. Posters 'N' Things Ltd., 969 F.2d 652, 661 (8th Cir. 1992), aff'd on other grounds, 511 U.S. 513, 114 S. Ct. 1747 (1994); United States v. Davila, 964 F.2d 778, 782 (8th Cir. 1992); United States v. Sutera, 933 F.2d 641, 644-46 (8th Cir. 1991); United States v. Martin, 933 F.2d 609, 610 (8th Cir. 1991); United States v. Lucas, 932 F.2d 1210, 1214 n.3, 1219 (8th Cir.), cert. denied, 502 U.S. 929 (1991); United States v. Blackman, 904 F.2d 1250, 1257 (8th Cir. 1990); United States v. Lee, 886 F.2d 998, 1002-03 (8th Cir. 1989), cert. denied, 493 U.S. 1032 (1990). See also U.S. Dept. of Justice, Money Laundering Federal Prosecution Manual (Feb. 1992).

See Instruction 6.18.1956J, infra, for additional instructions which should be given in most cases.

Notes on Use

1. The statutes and implementing regulations have been amended frequently. The date of the offense is critical in verifying that the criminal conduct charged was covered by the statute and regulation in effect on that date. Additionally, changes in reporting requirements under Treasury regulations (31 C.F.R.) may affect offenses charged under sections 1956(a)(1)(B)(ii) and 1956(a)(2)(B)(ii).

d. Effective October 28, 1992, Pub. L. 102-550, Title XV, §§ 1504(c), 1524, 1526(a), 1527(a), 1530, 1531, 1534 and 1536, 106 Stat. 4055 and 4064-67 added, inter alia, use of a safe deposit box to the definition of "transaction" (section 1956(c)(3)), added transfer of title to real property, vehicles, vessels or aircraft to the definitions of "financial transaction" (section 1956(c)(4)), expanded the scope of the term "specified unlawful activity" regarding offenses against foreign nations (section 1956(c)(7)(B)), deleted and added several predicate SUA offenses (section 1956(c)(7)(D)) and created the offense of conspiracy to violate sections 1956 or 1957, carrying the same penalties as the object offenses. Instead of a statutory five-year maximum under 18 USC 371, a conspiracy to violate 18 USC 1956 now carries a 20-year statutory maximum. See 18 USC 1956(___). Prior to the amendment, the five-year statutory maximum for conspiracy would have precluded imposition of a sentence corresponding to the sentencing guideline range for defendants who conspired to launder large sums or who had significant prior criminal histories. See United States Sentencing Guideline § 2S1.1 and Chapter 5, Part A (Sentencing Table).

2. See Instruction 6.18.1956A, Note 2, supra,

5. See Instruction 6.18.1956J(3) (Funds), infra.

6. See Instruction 6.18.1956A, Note 8, supra; Instruction 6.18.1956J(8) (Knowledge), infra. Effective November 29, 1990, section 1956(a)(2) was amended to permit the defendant's "knowledge" to be established by "proof that a law enforcement officer represented the matter specified in subparagraph (B) as true, and the defendant's subsequent statements or actions indicate that the defendant believed such representations to be true." This "sting" provision for section 1956(a)(2) was added after Congress enacted section 1956(a)(3) ("sting" provision regarding financial transactions) effective November 18, 1988. The term "represented" is not defined in section 1956(a)(2), but has been in section 1956(a)(3) since November 18, 1988, and was specifically made applicable to section 1956(a)(2) on November 29, 1990. The representation must be made by a law enforcement officer or by another person, e.g., an informant or cooperating witness at the direction of a federal official authorized to investigate or prosecute section 1956 violations.

If the monetary instrument or funds were not actually proceeds of some form of unlawful activity but were represented as such in a "sting" by law enforcement officers, this Instruction 6.18.1956E should be modified appropriately to address the meaning and method of proof that the defendant "knew" the source of the monetary instrument or funds and the purpose of their actual or attempted transportation, transmission or transfer. See Instructions 6.18.1956G, H & I, infra; see also Instruction 6.18.1956B, Note 12, supra (situations where instruction 7.04, infra, on willful blindness is appropriate).

7. See Instruction 6.18.1956J(3) (Funds), infra.

8. See Instruction 6.18.1956A, Note 7, supra, and 6.18.1956J(7) (Specified Unlawful Activity), infra.

9. See Instruction 6.18.1956B, Note 8. supra.

10. See Instruction 8.01, infra.

11. See Instruction 6.18.1956A, Note 11, supra.

12. See Instruction 6.18.1956B, Note 12, supra.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1956F MONEY LAUNDERING -- MOVEMENT OF MONETARY INSTRUMENTS
AND FUNDS TO AVOID REPORTING REQUIREMENTS
(18 USC 1956(a)(2)(B)(ii))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Money Laundering -- Movement Of Monetary Instruments And Funds To Avoid Reporting Requirements (18 USC 1956(a)(2)(B)(ii))

The crime of illegally [attempting to] [transport[ing]] [transmit[ting]] [transfer[ring] a monetary instrument as charged in [Count[s] ____ of] the indictment has four elements which are:

One, on or about (date),¹ [the defendant] [defendant[s] (name[s])] knowingly [attempted to]² [transport[ed]] [transmit[ted]] [transfer[red]]³ [a] [monetary instrument[s]]⁴ [funds];⁵

Two, at the time of the [attempted] act described in element one, above, the defendant[s] knew⁶ the [monetary instrument[s]] [funds] represented the proceeds⁷ of some form of unlawful activity⁸];

Three, at the same time, the defendant[s] knew⁶ that the [attempted] act was designed in whole or in part to avoid a transaction reporting requirement under State or Federal law;⁹ and

Four, the [attempted] act was [from a place in the United States to or through a place outside the United States] [to a place in the United States from or through a place outside the United States].

[A defendant may be found to have attempted to [transport] [transmit] [transfer] [a] [monetary instrument[s]] [funds] if [he] [she] intended to commit the offense and voluntarily and intentionally carried out some act which was a substantial step toward conducting that offense, even if the [transportation] [transmission] [transfer] was never completed.]¹⁰

[You are further instructed regarding the crime[s] charged in [Count[s] ____ of] the indictment that the following definitions apply: (Insert applicable portions of Instruction 6.18.1956J, unless the indictment charges multiple money laundering violations and there will be no confusion in adding the definitions common to all counts after all of the substantive money laundering instructions).]¹¹

[The Currency Transaction Reporting (CTR) requirement of federal law¹² requires financial institutions to file a report for each deposit, withdrawal, exchange of currency, or other payment or transfer, by, through, or to such financial institution which involves a transaction in currency of more than $10,000. Multiple currency transactions are treated as a single transaction if the financial institution has knowledge that they are by or on behalf of any person and result in either cash in or cash out totaling more than $10,000 during any one business day. A financial institution includes all of its domestic branch offices for purposes of this requirement. The phrase "financial institution" includes (insert appropriate institution from 31 C.F.R. § 103.11(i), such as "bank" or "savings & loan").]¹³

[You may find that [the defendant] [defendant[s] (name[s])] knew that the purpose of the [attempted] act was to avoid the CTR reporting requirement if you find beyond a reasonable doubt that (insert appropriate language from Instruction 7.04).]¹⁴

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

Notes on Use

1. The statutes and implementing regulations have been amended frequently. The date of the offense is critical in verifying that the criminal conduct charged was covered by the statute and regulation in effect on that date. Additionally, changes in reporting requirements under Treasury regulations (31 C.F.R.) may affect offenses charged under sections 1956(a)(1)(B)(ii) and 1956(a)(2)(B)(ii).

a. The Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, Title I, Subtitle H (Money Laundering Control Act of 1986), § 1352(a), 100 Stat. 3207-18 to 22, added sections 1956 and 1957 to Title 18 of the United States Code. The Anti-Drug Abuse Act of 1986, including the newly added sections 1956 and 1957 of Title 18, became effective on October 27, 1986.

b. The Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Title VI, §§ 6183, 6465, 6469(a)(1) and 6471(a)-(b), and Title VII, § 7031, 102 Stat. 4354, 4375, 4377, 4378 and 4398 became effective on November 18, 1988. Inter alia it added a new offense, section 1956(a)(1)(A)(ii), conducting a financial transaction with intent to engage in violations of the tax code (26 USC 7201 or 7206), expanded the scope of section 1956(a)(2), added a "sting" section, 1956(a)(3), and added a number of "specified unlawful activity" predicate offenses as defined in section 1956(c)(7).

c. The Crime Control Act of 1990, Pub. L. No. 101-647, Title I, §§ 105-108, Title XII, § 1205(j), Title XIV, §§ 1402 and 1404, Title XXV, § 2506 and Title XXXV, § 3557, 104 Stat. 4791-92, 4831, 4835, 4862 and 4927 became effective November 29, 1990. Inter alia it amended the provisions of section 1956(a)(2)(B) to permit the government to establish the defendant's knowledge of the illegality of his actions through the law enforcement officer's representations and the defendant's subsequent statements or actions indicating the defendant believed the representation, added violations of foreign law to the definition of "unlawful activity" (18 USC 1956(c)(1)), amended the definition of "financial transaction" (section 1956(c)(4)) and "monetary instruments" (section 1956(c)(5)) to emphasize the alternative means of meeting the definitions, revised and expanded the scope of the term "specified unlawful activity" (SUA) (sections 1956(c)(7)(A) and (D), added as predicate SUA several "environmental" offenses (section 1956(c)(7)(E)), added a new section, 1956(c)(8), defining "state," and added agencies authorized to investigate section 1956 violations. See Instruction 6.18.1956J(7) (Specified Unlawful Activity), infra.

d. Effective October 28, 1992, Pub. L. 102-550, Title XV, §§ 1504(c), 1524, 1526(a), 1527(a), 1530, 1531, 1534 and 1536, 106 Stat. 4055 and 4064-67 added, inter alia, use of a safe deposit box to the definition of "transaction" (section 1956(c)(3)), added transfer of title to real property, vehicles, vessels or aircraft to the definitions of "financial transaction" (section 1956(c)(4)), expanded the scope of the term "specified unlawful activity" regarding offenses against foreign nations (section 1956(c)(7)(B)), deleted and added several predicate SUA offenses (section 1956(c)(7)(D)) and created the offense of conspiracy to violate sections 1956 or 1957, carrying the same penalties as the object offenses. Instead of a statutory five-year maximum under 18 USC 371, a conspiracy to violate 18 USC 1956 now carries a 20-year statutory maximum. See 18 USC 1956(g). Prior to the amendment, the five-year statutory maximum for conspiracy would have precluded imposition of a sentence corresponding to the sentencing guideline range for the defendants who conspired to launder large sums or who had significant prior criminal histories. See United States Sentencing Guideline § 2S1.1 and Chapter 5, Part A (Sentencing Table).

2. See Note 2, Instruction 6.18.1956A, supra.

4. See 18 USC 1956(c)(5). See also Instruction 6.18.1956J(4) (Monetary Instrument), infra. The present definition became effective November 29, 1990. Although not listed in section 1956(c)(5), cashier's checks are negotiable instruments in "[s]uch form that title thereto passes upon delivery." S. Rep. No. 433, 99th Cong., 2d Sess. 13 (1986). This definition was explicitly clarified, effective May 8, 1987, when "cashier's checks" was added to the definition of "monetary instruments" in 31 C.F.R. § 103.11(j)(iii). See 52 Fed. Reg. 11436 (1987) (Final Rule).

5. See Instruction 6.18.1956J(3) (Funds), infra.

If the monetary instrument or funds were not actually proceeds of some form of unlawful activity but were represented as such in a "sting" by law enforcement officers, Instruction 6.18.1956B, supra, should be modified appropriately to address the meaning and method of proof that the defendant "knew" the source of the monetary instrument or funds and the purpose of their actual or attempted transportation, transmission or transfer. See Instructions 6.18.1956G, H & I, infra; see also Note 12, Instruction 6.18.1956B, supra (situations where Instruction 7.04, infra, on willful blindness is appropriate).

7. See Instruction 6.18.1956J(6) (Proceeds), infra.

8. See Note 7, Instruction 6.18.1956A, supra, and 6.18.1956J(7) (Specified Unlawful Activity), infra. The phrase "unlawful activity" as used in this instruction is broader than the phrase "specified unlawful activity" as used in 18 USC 1956.

9. See Notes 8, 12-15 and text preceding them, Instruction 6.18.1956C, supra.

10. See Instruction 8.01, infra.

11. See Note 11, Instruction 6.18.1956A, supra.

12. See Note 12, Instruction 6.18.1956C, supra.

13. See Note 13, Instruction 6.18.1956C, supra.

14. See Note 14, Instruction 6.18.1956C, supra

Committee Comments

See Ninth Cir. Crim. Jury Instr. 8.123 (formerly 8.33.4 (1997)). See generally United States v. Cruz; 993 F.2d 164 (8th Cir. 1993); United States v. Peery, 977 F.2d 1230, 1234 (8th Cir. 1992); United States v. Turner, 975 F.2d 490, 497 (8th Cir. 1992); United States v. Posters 'N' Things Ltd., 969 F.2d 652, 661 (8th Cir. 1992), aff'd on other grounds, 511 U.S. 513 (1994); United States v. Davila, 964 F.2d 778, 782 (8th Cir. 1992); United States v. Sutera, 933 F.2d 641, 644-46 (8th Cir. 1991); United States v. Martin, 933 F.2d 609, 610 (8th Cir. 1991); United States v. Lucas, 932 F.2d 1210, 1214 n.3, 1219 (8th Cir. 1991); United States v. Blackman, 904 F.2d 1250, 1257 (8th Cir. 1990); United States v. Lee, 886 F.2d 998, 1002-03 (8th Cir. 1989). See also U.S. Dept. of Justice, Money Laundering Federal Prosecution Manual (Feb. 1992).

See Instruction 6.18.1956J, infra, for additional instructions which should be given in most cases.

(For 2008 version see below).

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

2008 Version

The crime of illegally [attempting to] [transport[ing]] [transmit[ting]] [transfer[ring] a monetary instrument as charged in [Count[s] ____ of] the indictment has four elements which are:

One, on or about (date),¹ [the defendant] [defendant[s] (name[s])] knowingly [attempted to]² [transport[ed]] [transmit[ted]] [transfer[red]]³ [a] [monetary instrument[s]]⁴ [funds];⁵

Two, at the time of the [attempted] act described in element one, above, the defendant[s] knew⁶ the [monetary instrument[s]] [funds] represented the proceeds⁷ of some form of unlawful activity⁸];

Three, at the same time, the defendant[s] knew⁶ that the [attempted] act was designed in whole or in part to avoid a transaction reporting requirement under State or Federal law;⁹ and

Four, the [attempted] act was [from a place in the United States to or through a place outside the United States] [to a place in the United States from or through a place outside the United States].

[A defendant may be found to have attempted to [transport] [transmit] [transfer] [a] [monetary instrument[s]] [funds] if [he] [she] intended to commit the offense and voluntarily and intentionally carried out some act which was a substantial step toward conducting that offense, even if the [transportation] [transmission] [transfer] was never completed.]¹⁰

[You are further instructed regarding the crime[s] charged in [Count[s] ____ of] the indictment that the following definitions apply: (Insert applicable portions of Instruction 6.18.1956J, unless the indictment charges multiple money laundering violations and there will be no confusion in adding the definitions common to all counts after all of the substantive money laundering instructions).]¹¹

[The Currency Transaction Reporting (CTR) requirement of federal law¹² requires financial institutions to file a report for each deposit, withdrawal, exchange of currency, or other payment or transfer, by, through, or to such financial institution which involves a transaction in currency of more than $10,000. Multiple currency transactions are treated as a single transaction if the financial institution has knowledge that they are by or on behalf of any person and result in either cash in or cash out totaling more than $10,000 during any one business day. A financial institution includes all of its domestic branch offices for purposes of this requirement. The phrase "financial institution" includes (insert appropriate institution from 31 C.F.R. § 103.11(i), such as "bank" or "savings & loan").]¹³

[You may find that [the defendant] [defendant[s] (name[s])] knew that the purpose of the [attempted] act was to avoid the CTR reporting requirement if you find beyond a reasonable doubt that (insert appropriate language from Instruction 7.04).]¹⁴

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

Notes on Use

1. The statutes and implementing regulations have been amended frequently. The date of the offense is critical in verifying that the criminal conduct charged was covered by the statute and regulation in effect on that date. Additionally, changes in reporting requirements under Treasury regulations (31 C.F.R.) may affect offenses charged under sections 1956(a)(1)(B)(ii) and 1956(a)(2)(B)(ii).

a. The Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, Title I, Subtitle H (Money Laundering Control Act of 1986), § 1352(a), 100 Stat. 3207-18 to 22, added sections 1956 and 1957 to Title 18 of the United States Code. The Anti-Drug Abuse Act of 1986, including the newly added sections 1956 and 1957 of Title 18, became effective on October 27, 1986.

b. The Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Title VI, §§ 6183, 6465, 6469(a)(1) and 6471(a)-(b), and Title VII, § 7031, 102 Stat. 4354, 4375, 4377, 4378 and 4398 became effective on November 18, 1988. Inter alia it added a new offense, section 1956(a)(1)(A)(ii), conducting a financial transaction with intent to engage in violations of the tax code (26 USC§ 7201 or 7206), expanded the scope of section 1956(a)(2), added a "sting" section, 1956(a)(3), and added a number of "specified unlawful activity" predicate offenses as defined in section 1956(c)(7).

c. The Crime Control Act of 1990, Pub. L. No. 101-647, Title I, §§ 105-108, Title XII, § 1205(j), Title XIV, §§ 1402 and 1404, Title XXV, § 2506 and Title XXXV, § 3557, 104 Stat. 4791-92, 4831, 4835, 4862 and 4927 became effective November 29, 1990. Inter alia it amended the provisions of section 1956(a)(2)(B) to permit the government to establish the defendant's knowledge of the illegality of his actions through the law enforcement officer's representations and the defendant's subsequent statements or actions indicating the defendant believed the representation, added violations of foreign law to the definition of "unlawful activity" (18 USC 1956(c)(1)), amended the definition of "financial transaction" (section 1956(c)(4)) and "monetary instruments" (section 1956(c)(5)) to emphasize the alternative means of meeting the definitions, revised and expanded the scope of the term "specified unlawful activity" (SUA) (sections 1956(c)(7)(A) and (D), added as predicate SUA several "environmental" offenses (section 1956(c)(7)(E)), added a new section, 1956(c)(8), defining "state," and added agencies authorized to investigate section 1956 violations. See Instruction 6.18.1956J(7) (Specified Unlawful Activity), infra.

d. Effective October 28, 1992, Pub. L. 102-550, Title XV, §§ 1504(c), 1524, 1526(a), 1527(a), 1530, 1531, 1534 and 1536, 106 Stat. 4055 and 4064-67 added, inter alia, use of a safe deposit box to the definition of "transaction" (section 1956(c)(3)), added transfer of title to real property, vehicles, vessels or aircraft to the definitions of "financial transaction" (section 1956(c)(4)), expanded the scope of the term "specified unlawful activity" regarding offenses against foreign nations (section 1956(c)(7)(B)), deleted and added several predicate SUA offenses (section 1956(c)(7)(D)) and created the offense of conspiracy to violate sections 1956 or 1957, carrying the same penalties as the object offenses. Instead of a statutory five-year maximum under 18 USC 371, a conspiracy to violate 18 USC 1956 now carries a 20-year statutory maximum. See 18 USC 1956(g). Prior to the amendment, the five-year statutory maximum for conspiracy would have precluded imposition of a sentence corresponding to the sentencing guideline range for the defendants who conspired to launder large sums or who had significant prior criminal histories. See United States Sentencing Guideline § 2S1.1 and Chapter 5, Part A (Sentencing Table).

2. See Note 2, Instruction 6.18.1956A, supra.

4. See 18 USC 1956(c)(5). See also Instruction 6.18.1956J(4) (Monetary Instrument), infra. The present definition became effective November 29, 1990. Although not listed in section 1956(c)(5), cashier's checks are negotiable instruments in "[s]uch form that title thereto passes upon delivery." S. Rep. No. 433, 99th Cong., 2d Sess. 13 (1986). This definition was explicitly clarified, effective May 8, 1987, when "cashier's checks" was added to the definition of "monetary instruments" in 31 C.F.R. § 103.11(j)(iii). See 52 Fed. Reg. 11436 (1987) (Final Rule).

5. See Instruction 6.18.1956J(3) (Funds), infra.

7. See Instruction 6.18.1956J(6) (Proceeds), infra.

9. See Notes 8, 12-15 and text preceding them, Instruction 6.18.1956C, supra.

10. See Instruction 8.01, infra.

11. See Note 11, Instruction 6.18.1956A, supra.

12. See Note 12, Instruction 6.18.1956C, supra.

13. See Note 13, Instruction 6.18.1956C, supra.

14. See Note 14, Instruction 6.18.1956C, supra.

Committee Comments

See Instruction 6.18.1956J, infra, for additional instructions which should be given in most cases.

(For 2006 version see below)

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

2006 Version

The crime of illegally [attempting to] [transport[ing]] [transmit[ting]] [transfer[ring] a monetary instrument as charged in [Count[s] ____ of] the indictment has four elements which are:

One, on or about (date),1 [the defendant] [defendant[s] (name[s])] knowingly [attempted to]2 [transport[ed]] [transmit[ted]] [transfer[red]]3 [a] [monetary instrument[s]]4 [funds];5

Two, at the time of the [attempted] act described in element one, above, the defendant[s] knew6 the [monetary instrument[s]] [funds] represented the proceeds7 of some form of unlawful activity8];

Three, at the same time, the defendant[s] knew6 that the [attempted] act was designed in whole or in part to avoid a transaction reporting requirement under State or Federal law;9 and

Four, the [attempted] act was [from a place in the United States to or through a place outside the United States] [to a place in the United States from or through a place outside the United States].

[A defendant may be found to have attempted to [transport] [transmit] [transfer] [a] [monetary instrument[s]] [funds] if [he] [she] intended to commit the offense and voluntarily and intentionally carried out some act which was a substantial step toward conducting that offense, even if the [transportation] [transmission] [transfer] was never completed.]10

[You are further instructed regarding the crime[s] charged in [Count[s] ____ of] the indictment that the following definitions apply: (Insert applicable portions of Instruction 6.18.1956J, unless the indictment charges multiple money laundering violations and there will be no confusion in adding the definitions common to all counts after all of the substantive money laundering instructions).]11

[The Currency Transaction Reporting (CTR) requirement of federal law12 requires financial institutions to file a report for each deposit, withdrawal, exchange of currency, or other payment or transfer, by, through, or to such financial institution which involves a transaction in currency of more than $10,000. Multiple currency transactions are treated as a single transaction if the financial institution has knowledge that they are by or on behalf of any person and result in either cash in or cash out totaling more than $10,000 during any one business day. A financial institution includes all of its domestic branch offices for purposes of this requirement. The phrase "financial institution" includes (insert appropriate institution from 31 C.F.R. § 103.11(i), such as "bank" or "savings & loan").]13

[You may find that [the defendant] [defendant[s] (name[s])] knew that the purpose of the [attempted] act was to avoid the CTR reporting requirement if you find beyond a reasonable doubt that (insert appropriate language from Instruction 7.04).]14

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

Notes on Use

a. The Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, Title I, Subtitle H (Money Laundering Control Act of 1986), § 1352(a), 100 Stat. 3207-18 to 22, added sections 1956 and 1957 to Title 18 of the United States Code. The Anti-Drug Abuse Act of 1986, including the newly added sections 1956 and 1957 of Title 18, became effective on October 27, 1986.

b. The Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Title VI, §§ 6183, 6465, 6469(a)(1) and 6471(a)-(b), and Title VII, § 7031, 102 Stat. 4354, 4375, 4377, 4378 and 4398 became effective on November 18, 1988. Inter alia it added a new offense, section 1956(a)(1)(A)(ii), conducting a financial transaction with intent to engage in violations of the tax code (26 USC 7201 or 7206), expanded the scope of section 1956(a)(2), added a "sting" section, 1956(a)(3), and added a number of "specified unlawful activity" predicate offenses as defined in section 1956(c)(7).

c. The Crime Control Act of 1990, Pub. L. No. 101-647, Title I, §§ 105-108, Title XII, § 1205(j), Title XIV, §§ 1402 and 1404, Title XXV, § 2506 and Title XXXV, § 3557, 104 Stat. 4791-92, 4831, 4835, 4862 and 4927 became effective November 29, 1990. Inter alia it amended the provisions of section 1956(a)(2)(B) to permit the government to establish the defendant's knowledge of the illegality of his actions through the law enforcement officer's representations and the defendant's subsequent statements or actions indicating the defendant believed the representation, added violations of foreign law to the definition of "unlawful activity" (18 USC 1956(c)(1)), amended the definition of "financial transaction" (section 1956(c)(4)) and "monetary instruments" (section 1956(c)(5)) to emphasize the alternative means of meeting the definitions, revised and expanded the scope of the term "specified unlawful activity" (SUA) (sections 1956(c)(7)(A) and (D), added as predicate SUA several "environmental" offenses (section 1956(c)(7)(E)), added a new section, 1956(c)(8), defining "state," and added agencies authorized to investigate section 1956 violations. See Instruction 6.18.1956J(7) (Specified Unlawful Activity), infra.

d. Effective October 28, 1992, Pub. L. 102-550, Title XV, §§ 1504(c), 1524, 1526(a), 1527(a), 1530, 1531, 1534 and 1536, 106 Stat. 4055 and 4064-67 added, inter alia, use of a safe deposit box to the definition of "transaction" (section 1956(c)(3)), added transfer of title to real property, vehicles, vessels or aircraft to the definitions of "financial transaction" (section 1956(c)(4)), expanded the scope of the term "specified unlawful activity" regarding offenses against foreign nations (section 1956(c)(7)(B)), deleted and added several predicate SUA offenses (section 1956(c)(7)(D)) and created the offense of conspiracy to violate sections 1956 or 1957, carrying the same penalties as the object offenses. Instead of a statutory five-year maximum under 18 USC 371, a conspiracy to violate 18 USC 1956 now carries a 20-year statutory maximum. See 18 USC 1956(g). Prior to the amendment, the five-year statutory maximum for conspiracy would have precluded imposition of a sentence corresponding to the sentencing guideline range for the defendants who conspired to launder large sums or who had significant prior criminal histories. See United States Sentencing Guideline § 2S1.1 and Chapter 5, Part A (Sentencing Table).

2. See Note 2, Instruction 6.18.1956A, supra.

4. See 18 USC 1956(c)(5). See also Instruction 6.18.1956J(4) (Monetary Instrument), infra. The present definition became effective November 29, 1990. Although not listed in section 1956(c)(5), cashier's checks are negotiable instruments in "[s]uch form that title thereto passes upon delivery." S. Rep. No. 433, 99th Cong., 2d Sess. 13 (1986). This definition was explicitly clarified, effective May 8, 1987, when "cashier's checks" was added to the definition of "monetary instruments" in 31 CFR 103.11(j)(iii). See 52 Fed. Reg. 11436 (1987) (Final Rule).

5. See Instruction 6.18.1956J(3) (Funds), infra.

If the monetary instrument or funds were not actually proceeds of some form of unlawful activity but were represented as such in a "sting" by law enforcement officers, Instruction 6.18.1956B, supra, should be modified appropriately to address the meaning and method of proof that the defendant "knew" the source of the monetary instrument or funds and the purpose of their actual or attempted transportation, transmission or transfer. See Instructions 6.18.1956G, H & I,, infra; see also Note 12, Instruction 6.18.1956B, supra (situations where Instruction 7.04, infra, on willful blindness is appropriate).

7. See Instruction 6.18.1956J(6) (Proceeds), infra.

9. See Notes 8, 12-15 and text preceding them, Instruction 6.18.1956C, supra.

10. See Instruction 8.01, infra.

11. See Note 11, Instruction 6.18.1956A, supra.

12. See Note 12, Instruction 6.18.1956C, supra.

13. See Note 13, Instruction 6.18.1956C, supra.

14. See Note 14, Instruction 6.18.1956C, supra.

Committee Comments

See Ninth Cir. Crim. Jury Instr. 8.123 (2000). See generally United States v. Cruz; 993 F.2d 164 (8th Cir. 1993); United States v. Peery, 977 F.2d 1230, 1234 (8th Cir. 1992); United States v. Turner, 975 F.2d 490, 497 (8th Cir. 1992); United States v. Posters 'N' Things Ltd., 969 F.2d 652, 661 (8th Cir. 1992), aff'd on other grounds, 511 U.S. 513 (1994); United States v. Davila, 964 F.2d 778, 782 (8th Cir. 1992); United States v. Sutera, 933 F.2d 641, 644-46 (8th Cir. 1991); United States v. Martin, 933 F.2d 609, 610 (8th Cir. 1991); United States v. Lucas, 932 F.2d 1210, 1214 n.3, 1219 (8th Cir. 1991); United States v. Blackman, 904 F.2d 1250, 1257 (8th Cir. 1990); United States v. Lee, 886 F.2d 998, 1002-03 (8th Cir. 1989). See also U.S. Dept. of Justice, Money Laundering Federal Prosecution Manual (Feb. 1992).

See Instruction 6.18.1956J, infra, for additional instructions which should be given in most cases.

For 2000 version see below

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

2000 Version

The crime of illegally [attempting to] [transport[ing]] [transmit[ting]] [transfer[ring] a monetary instrument as charged in [Count[s] ____ of] the indictment has four essential elements which are:

One, on or about (date),1 the defendant[s] [(name)] knowingly [attempted to]2 [transport[ed]] [transmit[ted]] [transfer[red]]3 [a] [monetary instrument[s]]4 [funds];5

Two, at the time of the [attempted] act described in element one, above, the defendant[s] knew6 the [monetary instrument[s]] [funds] represented the proceeds7 of some form of unlawful activity8];

Three, at the same time, the defendant[s] knew6 that the [attempted] act was designed in whole or in part to avoid a transaction reporting requirement under State or Federal law;9 and

Four, the [attempted] act was [from a place in the United States to or through a place outside the United States] [to a place in the United States from or through a place outside the United States].

[A defendant may be found to have attempted to [transport] [transmit] [transfer] [a] [monetary instrument[s]] [funds] if [he] [she] intended to commit the offense and voluntarily and intentionally carried out some act which was a substantial step toward conducting that offense, even if the [transportation] [transmission] [transfer] was never completed.]10

[You are further instructed regarding the crime[s] charged in [Count[s] ____ of] the indictment that the following definitions apply: (Insert applicable portions of Instruction 6.18.1956J, unless the indictment charges multiple money laundering violations and there will be no confusion in adding the definitions common to all counts after all of the substantive money laundering instructions).]11

[The Currency Transaction Reporting (CTR) requirement of federal law12 requires financial institutions to file a report for each deposit, withdrawal, exchange of currency, or other payment or transfer, by, through, or to such financial institution which involves a transaction in currency of more than $10,000. Multiple currency transactions are treated as a single transaction if the financial institution has knowledge that they are by or on behalf of any person and result in either cash in or cash out totaling more than $10,000 during any one business day. A financial institution includes all of its domestic branch offices for purposes of this requirement. The phrase "financial institution" includes (insert appropriate institution from 31 C.F.R. § 103.11(i), such as "bank" or "savings & loan").]13

[You may find that defendant[s] [(name)] knew that the purpose of the [attempted] act was to avoid the CTR reporting requirement if you find beyond a reasonable doubt that (insert appropriate language from Instruction 7.04).]14

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

Committee Comments

See Ninth Cir. Crim. Jury Instr. 8.33.4 (1997). See generally United States v. Cruz; 993 F.2d 164 (8th Cir. 1993); United States v. Peery, 977 F.2d 1230, 1234 (8th Cir. 1992); United States v. Turner, 975 F.2d 490, 497 (8th Cir. 1992), cert. denied, 506 U.S. 1082 (1993); United States v. Posters 'N' Things Ltd., 969 F.2d 652, 661 (8th Cir. 1992), aff'd on other grounds, 511 U.S. 513, 114 S. Ct. 1747 (1994); United States v. Davila, 964 F.2d 778, 782 (8th Cir. 1992); United States v. Sutera, 933 F.2d 641, 644-46 (8th Cir. 1991); United States v. Martin, 933 F.2d 609, 610 (8th Cir. 1991); United States v. Lucas, 932 F.2d 1210, 1214 n.3, 1219 (8th Cir.), cert. denied, 502 U.S. 949 (1991); United States v. Blackman, 904 F.2d 1250, 1257 (8th Cir. 1990); United States v. Lee, 886 F.2d 998, 1002-03 (8th Cir. 1989), cert. denied, 493 U.S. 1032 (1990). See also U.S. Dept. of Justice, Money Laundering Federal Prosecution Manual (Feb. 1992).

See Instruction 6.18.1956J, infra, for additional instructions which should be given in most cases.

Notes on Use

1. The statutes and implementing regulations have been amended frequently. The date of the offense is critical in verifying that the criminal conduct charged was covered by the statute and regulation in effect on that date. Additionally, changes in reporting requirements under Treasury regulations (31 C.F.R.) may affect offenses charged under sections 1956(a)(1)(B)(ii) and 1956(a)(2)(B)(ii).

d. Effective October 28, 1992, Pub. L. 102-550, Title XV, §§ 1504(c), 1524, 1526(a), 1527(a), 1530, 1531, 1534 and 1536, 106 Stat. 4055 and 4064-67 added, inter alia, use of a safe deposit box to the definition of "transaction" (section 1956(c)(3)), added transfer of title to real property, vehicles, vessels or aircraft to the definitions of "financial transaction" (section 1956(c)(4)), expanded the scope of the term "specified unlawful activity" regarding offenses against foreign nations (section 1956(c)(7)(B)), deleted and added several predicate SUA offenses (section 1956(c)(7)(D)) and created the offense of conspiracy to violate sections 1956 or 1957, carrying the same penalties as the object offenses. Instead of a statutory five-year maximum under 18 USC 371, a conspiracy to violate 18 USC 1956 now carries a 20-year statutory maximum. See 18 USC 1956(g). Prior to the amendment, the five-year statutory maximum for conspiracy would have precluded imposition of a sentence corresponding to the sentencing guideline range for defendants who conspired to launder large sums or who had significant prior criminal histories. See United States Sentencing Guideline § 2S1.1 and Chapter 5, Part A (Sentencing Table).

2. See Instruction 6.18.1956A, Note 2, supra.

4. See 18 USC 1956(c)(5). See also Instruction 6.18.1956J(4) (Monetary Instrument), infra. The present definition became effective November 29, 1990. Although not listed in section 1956(c)(5), cashier's checks are negotiable instruments in "[s]uch form that title thereto passes upon delivery." S. Rep. No. 433, 99th Cong., 2d Sess. 13 (1986). This definition was explicitly clarified, effective May 8, 1987, when "cashier's checks" was added to the definition of "monetary instruments" in 31 C.F.R. § 103.11(j)(iii). See 52 Fed. Reg. 11436 (1987) (Final Rule).

5. See Instruction 6.18.1956J(3) (Funds), infra.

If the monetary instrument or funds were not actually proceeds of some form of unlawful activity but were represented as such in a "sting" by law enforcement officers, Instruction 6.18.1956B, supra, should be modified appropriately to address the meaning and method of proof that the defendant "knew" the source of the monetary instrument or funds and the purpose of their actual or attempted transportation, transmission or transfer. See Instructions 6.18.1956G, H & I, infra; see also Instruction 6.18.1956B, Note 12, supra (situations where Instruction 7.04, infra, on willful blindness is appropriate).

7. See Instruction 6.18.1956J(6) (Proceeds), infra.

8. See Instruction 6.18.1956A, Note 7, supra, and 6.18.1956J(7) (Specified Unlawful Activity), infra. The phrase "unlawful activity" as used in this instruction is broader than the phrase "specified unlawful activity" as used in 18 USC 1956.

9. See Instruction 6.18.1956C, Notes 8, 12-15, supra, and text preceding them.

10. See Instruction 8.01, infra.

11. See Instruction 6.18.1956A, Note 11, supra.

12. See Instruction 6.18.1956C, Note 12, supra.

13. See Instruction 6.18.1956C, Note 13, supra.

14. See Instruction 6.18.1956C, Note 14, supra.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1956G MONEY LAUNDERING "STING" -- FINANCIAL
TRANSACTION WITH INTENT TO PROMOTE SPECIFIED UNLAWFUL ACTIVITY
(18 USC 1956(a)(3)(A))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Laundering Of Monetary Instruments (18 USC 1956(a)(3)(A) and 1956(a)(3)(B))

See FORECITE National™ Federal Models By Offense: Money Laundering "Sting" -- Financial Transaction With Intent To Promote Specified Unlawful Activity (18 USC 1956(a)(3)(A))

The crime of [conducting] [attempting to conduct] an illegal financial transaction, as charged in [Count[s] ____ of] the indictment has three elements, which are:

One, on or about (date),¹ [the defendant] [defendant[s] (name[s])] [conducted] [attempted to conduct]² a financial transaction,³ that is, (describe in simple terms, e.g., the purchase of an automobile), which in any way or degree affected interstate or foreign commerce;⁴

Two, the financial transaction involved (describe the "property," e.g., money) which was represented⁵ to the defendant[s] by [a law enforcement officer] [a person acting at the direction of or with the approval of an agent of the (name of agency, see 18 USC 1956(e))] to be the proceeds⁶ of (describe the specified unlawful activity,⁷ e.g., unlawful distribution of cocaine); and

Three, the defendant [conducted] [attempted to conduct] the financial transaction with the intent to promote the carrying on of (describe the specified unlawful activity).⁸

[A defendant may be found to have attempted to conduct a financial transaction if [he] [she] intended to conduct a financial transaction and voluntarily and intentionally carried out some act which was a substantial step toward conducting that financial transaction, even if the transaction was never completed.]⁹

[The term "conducted," as used in [this] [Instruction[s] _____] includes initiating, concluding or participating in initiating or concluding a transaction.]¹⁰

[You are further instructed regarding the crime[s] charged in [Count[s] ___ of] the indictment that the following definitions apply: (Insert applicable portions of Instruction 6.18.1956J, unless the indictment charges multiple money laundering violations and there will be no confusion in adding the definitions common to all counts after all of the substantive money laundering instructions).]¹¹

[It is not necessary to show that [a] [the] defendant intended to commit (specify additional crime) [himself] [herself];¹² it is sufficient that in [conducting] [attempting to conduct] the financial transaction, [a] [the] defendant [himself] [herself] intended to make the unlawful activity easier or less difficult.]

[The crime charged in [Count[s] ____ of] the indictment alleges multiple purposes for the crime, that is, that [the defendant] [defendant[s] (name[s])] knew that the transaction was [conducted] [attempted] for the purposes of (list all objectives). To find [the defendant] [defendant[s] (name[s])] guilty of the offense[s], you must agree unanimously that one or more of the objectives charged were proved beyond a reasonable doubt.]¹³

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

Notes on Use

1. The statutes and implementing regulations have been amended frequently. The date of the offense is critical in verifying that the criminal conduct charged was covered by the statute and regulation in effect on that date. Additionally, changes in reporting requirements under Treasury regulations (31 C.F.R.) may affect offenses charged under sections 1956(a)(1)(B)(ii) and 1956(a)(2)(B)(ii).

a. The Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, Title I, Subtitle H (Money Laundering Control Act of 1986), § 1352(a), 100 Stat. 3207-18 to 22, added sections 1956 and 1957 to Title 18 of the United States Code. The Anti-Drug Abuse Act of 1986, including the newly added sections 1956 and 1957 of Title 18, became effective on October 27, 1986.

b. The Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Title VI, §§ 6183, 6465, 6469(a)(1) and 6471(a)-(b), and Title VII, § 7031, 102 Stat. 4354, 4375, 4377, 4378 and 4398 became effective on November 18, 1988. Inter alia it added a new offense, section 1956(a)(1)(A)(ii), conducting a financial transaction with intent to engage in violations of the tax code (26 USC 7201 or 7206), expanded the scope of section 1956(a)(2), added a "sting" section, 1956(a)(3), and added a number of "specified unlawful activity" predicate offenses as defined in section 1956(c)(7).

c. The Crime Control Act of 1990, Pub. L. No. 101-647, Title I, §§ 105-108, Title XII, § 1205(j), Title XIV, §§ 1402 and 1404, Title XXV, § 2506 and Title XXXV, § 3557, 104 Stat. 4791-92, 4831, 4835, 4862 and 4927 became effective November 29, 1990. Inter alia it amended the provisions of section 1956(a)(2)(B) to permit the government to establish the defendant's knowledge of the illegality of his actions through the law enforcement officer's representations and the defendant's subsequent statements or actions indicating the defendant believed the representation, added violations of foreign law to the definition of "unlawful activity" (18 USC 1956(c)(1)), amended the definition of "financial transaction" (section 1956(c)(4)) and "monetary instruments" (section 1956(c)(5)) to emphasize the alternative means of meeting the definitions, revised and expanded the scope of the term "specified unlawful activity" (SUA) (sections 1956(c)(7)(A) and (D), added as predicate SUA several "environmental" offenses (section 1956(c)(7)(E)), added a new section, 1956(c)(8), defining "state," and added agencies authorized to investigate section 1956 violations. See Instruction 6.18.1956J(7) (Specified Unlawful Activity), infra..

d. Effective October 28, 1992, Pub. L. 102-550, Title XV, §§ 1504(c), 1524, 1526(a), 1527(a), 1530, 1531, 1534 and 1536, 106 Stat. 4055 and 4064-67 added, inter alia, use of a safe deposit box to the definition of "transaction" (section 1956(c)(3)), added transfer of title to real property, vehicles, vessels or aircraft to the definitions of "financial transaction" (section 1956(c)(4)), expanded the scope of the term "specified unlawful activity" regarding offenses against foreign nations (section 1956(c)(7)(B)), deleted and added several predicate SUA offenses (section 1956(c)(7)(D)), and created the offense of conspiracy to violate sections 1956 or 1957, carrying the same penalties as the object offenses. Instead of a statutory five-year maximum under 18 USC 371, a conspiracy to violate 18 USC 1956 now carries a 20-year statutory maximum. See 18 USC 1956(g). Prior to the amendment, the five-year statutory maximum for conspiracy would have precluded imposition of a sentence corresponding to the sentencing guideline range for the defendants who conspired to launder large sums or who had significant prior criminal histories. See United States Sentencing Guideline § 2S1.1 and Chapter 5, Part A (Sentencing Table).

2. Both types of activity have been proscribed since original enactment of section 1956. See 18 USC 1956(a)(1), (a)(2) and (a)(3).

4. See Instruction 6.18.1956J(2) (Interstate and Foreign Commerce), infra. All section 1956 offenses require proof that the financial transaction itself or the financial institution, if one was involved, in some way affected interstate or foreign commerce. See 18 USC 1956(c)(4); United States v. Baker, 985 F.2d 1248, 1252 (4th Cir. 1993) (element under section 1956(a)(1)(B)(i)); United States v. Posters 'N' Things Ltd., 969 F.2d 652, 661 n.6 (8th Cir. 1992) (expert witness testified as to issue), aff'd on other grounds, 511 U.S. 513 (1994); United States v. Gonzalez-Rodriguez, 966 F.2d 918, 924 (5th Cir. 1992) (discussing United States v. Gallo, 927 F.2d 815, 823 (5th Cir. 1991) and United States v. Hamilton, 931 F.2d 1046, 1051-52 (5th Cir. 1991)). The Eighth Circuit has not ruled whether the indictment must explicitly allege the interstate/foreign commerce nexus. United States v. Lucas, 932 F.2d 1210, 1219 (8th Cir. 1991) (court was not required to reach the issue because the indictment which alleged construction of a shopping center and purchase of merchandise could be reasonably construed to allege the element). See also United States v. Green, 964 F.2d 365, 374 (5th Cir. 1992) (citing Lucas); United States v. Lovett, 964 F.2d 1029, 1038 (10th Cir. 1992) (under section 1957, the interstate commerce nexus is jurisdictional but not an element of the crime charged) (citing United States v. Kelley, 929 F.2d 582, 586 (10th Cir. 1991)). Given the lack of controlling law on this issue, the Committee recommends that the nexus be alleged in the indictment. In any case, a finding of an effect on interstate or foreign commerce of either the transaction itself or the activities of the financial institution, if one was involved, is essential. See United States v. Ben M. Hogan Co., Inc., 809 F.2d 480 (8^th Cir. 1987) (failure to instruct jury that it must find an interstate commerce connection can be harmless error).

5. On the issue of what constitutes a sufficient representation, the Seventh Circuit has stated, "[i]t is enough that the government prove that an enforcement officer or authorized person made the defendant aware of circumstances from which a reasonable person would infer that the property was drug proceeds." United States v. Kaufmann, 985 F.2d 884, 893 (7th Cir. 1993).

6. See Instruction 6.18.1956J(6) (Proceeds). The term is not defined in 18 USC 1956(c). In the event that the representation was that the property "was used to conduct or facilitate specified unlawful activity" rather than "constituted proceeds," the following language might be used: "property used to [conduct] [facilitate] (describe the specified unlawful activity)." There is some ambiguity as to whether this a crime as the statute is written. See Money Laundering Federal Prosecution Manual, p.277.

7. See Instruction 6.18.1956J(7) (Specified Unlawful Activity), infra. The term should not be confused with "unlawful activity" in general and has a specific, statutory meaning, as set forth in section 1956(c)(7). Because that section has had numerous amendments, and itself incorporates activities defined in several other statutes, the Committee recommends careful review of both the provisions of section 1956(c)(7) and of the incorporated statutes which were in effect at the time of the alleged financial transaction (1956(a)(1)) or transportation, transmission or transfer (1956)(a)(2)).

Under sections 1956(a)(1)(A)(i), 1956(a)(2)(a) and 1956(a)(3), the defendant must have acted with the intent to promote a "specified" unlawful activity, as defined in 18 USC 1956(c)(7), rather than the more broadly described unlawful activity defined in 18 USC 1956(c)(1). See Note 11, infra. Although the specified unlawful activity inserted in the second element, see Note 6, supra, will frequently be the same set forth regarding the defendant's intent, the two forms of specified unlawful activity need not be the same, e.g., drug proceeds with which the defendant conducts a transaction with the intent of making a fraudulent credit application.

9. See Instruction 8.01, infra.

10. See 18 USC 1956(c)(2). This definition was included in the October 27, 1986, version of the statute and has not changed since.

13. The multiple objective situation may apply to multiple intent allegations, i.e., sections 1956(a)(3)(A), (B) and (C). The indictment, and the government, should provide notice of the provisions that are meant to apply in a particular case. See United States v. Jackson, 935 F.2d 832, 842 (7th Cir. 1991). Although there is no case law requiring unanimity on objectives, if an instruction to that effect is desired, see Instruction 5.06(F), supra.

Committee Comments

See Ninth Cir. Crim. Jury Instr. 8.120 (formerly 8.33.1 (1997)). See generally United States v. Cruz, 993 F.2d 164 (8th Cir. 1993); United States v. Peery, 977 F.2d 1230, 1234 (8th Cir. 1992); United States v. Turner, 975 F.2d 490, 497 (8th Cir. 1992); United States v. Posters 'N' Things Ltd., 969 F.2d 652, 661 (8th Cir. 1992), aff'd on other grounds, 511 U.S. 513 (1994); United States v. Davila, 964 F.2d 778, 782 (8th Cir. 1992); United States v. Sutera, 933 F.2d 641, 644-46 (8th Cir. 1991); United States v. Martin, 933 F.2d 609, 610 (8th Cir. 1991); United States v. Lucas, 932 F.2d 1210, 1214 n.3, 1219 (8th Cir. 1991); United States v. Blackman, 904 F.2d 1250, 1257 (8th Cir. 1990); United States v. Lee, 886 F.2d 998, 1002-03 (8th Cir. 1989). See also U.S. Dept. of Justice, Money Laundering Federal Prosecution Manual (Feb. 1992).

See Instruction 6.18.1956J, infra, for additional instructions which should be given in most cases.

(For 2008 version see below).

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

2008 Version

The crime of [conducting] [attempting to conduct] an illegal financial transaction, as charged in [Count[s] ____ of] the indictment has three elements, which are:

One, on or about (date),¹ [the defendant] [defendant[s] (name[s])] [conducted] [attempted to conduct]² a financial transaction,³ that is, (describe in simple terms, e.g., the purchase of an automobile), which in any way or degree affected interstate or foreign commerce;⁴

Two, the financial transaction involved (describe the "property," e.g., money) which was represented⁵ to the defendant[s] by [a law enforcement officer] [a person acting at the direction of or with the approval of an agent of the (name of agency, see 18 USC 1956(e))] to be the proceeds⁶ of (describe the specified unlawful activity,⁷ e.g., unlawful distribution of cocaine); and

Three, the defendant [conducted] [attempted to conduct] the financial transaction with the intent to promote the carrying on of (describe the specified unlawful activity).⁸

[A defendant may be found to have attempted to conduct a financial transaction if [he] [she] intended to conduct a financial transaction and voluntarily and intentionally carried out some act which was a substantial step toward conducting that financial transaction, even if the transaction was never completed.]⁹

[The term "conducted," as used in [this] [Instruction[s] _____] includes initiating, concluding or participating in initiating or concluding a transaction.]¹⁰

[You are further instructed regarding the crime[s] charged in [Count[s] ___ of] the indictment that the following definitions apply: (Insert applicable portions of Instruction 6.18.1956J, unless the indictment charges multiple money laundering violations and there will be no confusion in adding the definitions common to all counts after all of the substantive money laundering instructions).]¹¹

[It is not necessary to show that [a] [the] defendant intended to commit (specify additional crime) [himself] [herself];¹² it is sufficient that in [conducting] [attempting to conduct] the financial transaction, [a] [the] defendant [himself] [herself] intended to make the unlawful activity easier or less difficult.]

[The crime charged in [Count[s] ____ of] the indictment alleges multiple purposes for the crime, that is, that [the defendant] [defendant[s] (name[s])] knew that the transaction was [conducted] [attempted] for the purposes of (list all objectives). To find [the defendant] [defendant[s] (name[s])] guilty of the offense[s], you must agree unanimously that one or more of the objectives charged were proved beyond a reasonable doubt.]¹³

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

Notes on Use

1. The statutes and implementing regulations have been amended frequently. The date of the offense is critical in verifying that the criminal conduct charged was covered by the statute and regulation in effect on that date. Additionally, changes in reporting requirements under Treasury regulations (31 C.F.R.) may affect offenses charged under sections 1956(a)(1)(B)(ii) and 1956(a)(2)(B)(ii).

a. The Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, Title I, Subtitle H (Money Laundering Control Act of 1986), § 1352(a), 100 Stat. 3207-18 to 22, added sections 1956 and 1957 to Title 18 of the United States Code. The Anti-Drug Abuse Act of 1986, including the newly added sections 1956 and 1957 of Title 18, became effective on October 27, 1986.

b. The Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Title VI, §§ 6183, 6465, 6469(a)(1) and 6471(a)-(b), and Title VII, § 7031, 102 Stat. 4354, 4375, 4377, 4378 and 4398 became effective on November 18, 1988. Inter alia it added a new offense, section 1956(a)(1)(A)(ii), conducting a financial transaction with intent to engage in violations of the tax code (26 USC§ 7201 or 7206), expanded the scope of section 1956(a)(2), added a "sting" section, 1956(a)(3), and added a number of "specified unlawful activity" predicate offenses as defined in section 1956(c)(7).

c. The Crime Control Act of 1990, Pub. L. No. 101-647, Title I, §§ 105-108, Title XII, § 1205(j), Title XIV, §§ 1402 and 1404, Title XXV, § 2506 and Title XXXV, § 3557, 104 Stat. 4791-92, 4831, 4835, 4862 and 4927 became effective November 29, 1990. Inter alia it amended the provisions of section 1956(a)(2)(B) to permit the government to establish the defendant's knowledge of the illegality of his actions through the law enforcement officer's representations and the defendant's subsequent statements or actions indicating the defendant believed the representation, added violations of foreign law to the definition of "unlawful activity" (18 USC 1956(c)(1)), amended the definition of "financial transaction" (section 1956(c)(4)) and "monetary instruments" (section 1956(c)(5)) to emphasize the alternative means of meeting the definitions, revised and expanded the scope of the term "specified unlawful activity" (SUA) (sections 1956(c)(7)(A) and (D), added as predicate SUA several "environmental" offenses (section 1956(c)(7)(E)), added a new section, 1956(c)(8), defining "state," and added agencies authorized to investigate section 1956 violations. See Instruction 6.18.1956J(7) (Specified Unlawful Activity), infra..

d. Effective October 28, 1992, Pub. L. 102-550, Title XV, §§ 1504(c), 1524, 1526(a), 1527(a), 1530, 1531, 1534 and 1536, 106 Stat. 4055 and 4064-67 added, inter alia, use of a safe deposit box to the definition of "transaction" (section 1956(c)(3)), added transfer of title to real property, vehicles, vessels or aircraft to the definitions of "financial transaction" (section 1956(c)(4)), expanded the scope of the term "specified unlawful activity" regarding offenses against foreign nations (section 1956(c)(7)(B)), deleted and added several predicate SUA offenses (section 1956(c)(7)(D)), and created the offense of conspiracy to violate sections 1956 or 1957, carrying the same penalties as the object offenses. Instead of a statutory five-year maximum under 18 USC 371, a conspiracy to violate 18 USC 1956 now carries a 20-year statutory maximum. See 18 USC 1956(g). Prior to the amendment, the five-year statutory maximum for conspiracy would have precluded imposition of a sentence corresponding to the sentencing guideline range for the defendants who conspired to launder large sums or who had significant prior criminal histories. See United States Sentencing Guideline § 2S1.1 and Chapter 5, Part A (Sentencing Table).

2. Both types of activity have been proscribed since original enactment of section 1956. See 18 USC§ 1956(a)(1), (a)(2) and (a)(3).

4. See Instruction 6.18.1956J(2) (Interstate and Foreign Commerce), infra. All section 1956 offenses require proof that the financial transaction itself or the financial institution, if one was involved, in some way affected interstate or foreign commerce. See 18 USC 1956(c)(4); United States v. Baker, 985 F.2d 1248, 1252 (4th Cir. 1993) (element under section 1956(a)(1)(B)(i)); United States v. Posters 'N' Things Ltd., 969 F.2d 652, 661 n.6 (8th Cir. 1992) (expert witness testified as to issue), aff'd on other grounds, 511 U.S. 513 (1994); United States v. Gonzalez-Rodriguez, 966 F.2d 918, 924 (5th Cir. 1992) (discussing United States v. Gallo, 927 F.2d 815, 823 (5th Cir. 1991) and United States v. Hamilton, 931 F.2d 1046, 1051-52 (5th Cir. 1991)). The Eighth Circuit has not ruled whether the indictment must explicitly allege the interstate/foreign commerce nexus. United States v. Lucas, 932 F.2d 1210, 1219 (8th Cir. 1991) (court was not required to reach the issue because the indictment which alleged construction of a shopping center and purchase of merchandise could be reasonably construed to allege the element). See also United States v. Green, 964 F.2d 365, 374 (5th Cir. 1992) (citing Lucas); United States v. Lovett, 964 F.2d 1029, 1038 (10th Cir. 1992) (under section 1957, the interstate commerce nexus is jurisdictional but not an element of the crime charged) (citing United States v. Kelley, 929 F.2d 582, 586 (10th Cir. 1991)). Given the lack of controlling law on this issue, the Committee recommends that the nexus be alleged in the indictment. In any case, a finding of an effect on interstate or foreign commerce of either the transaction itself or the activities of the financial institution, if one was involved, is essential. See United States v. Ben M. Hogan Co., Inc., 809 F.2d 480 (8^th Cir. 1987) (failure to instruct jury that it must find an interstate commerce connection can be harmless error).

Under sections 1956(a)(1)(A)(i), 1956(a)(2)(a) and 1956(a)(3), the defendant must have acted with the intent to promote a "specified" unlawful activity, as defined in 18 USC 1956(c)(7), rather than the more broadly described unlawful activity defined in 18 USC 1956(c)(1). See Note 11, infra. Although the specified unlawful activity inserted in the second element, see Note 6, supra, will frequently be the same set forth regarding the defendant's intent, the two forms of specified unlawful activity need not be the same, e.g., drug proceeds with which the defendant conducts a transaction with the intent of making a fraudulent credit application.

9. See Instruction 8.01, infra.

10. See 18 USC 1956(c)(2). This definition was included in the October 27, 1986, version of the statute and has not changed since.

Committee Comments

See Ninth Cir. Crim. Jury Instr. 8.120 (formerly 8.33.1 (1997)). See generally United States v. Cruz, 993 F.2d 164 (8th Cir. 1993); United States v. Peery, 977 F.2d 1230, 1234 (8th Cir. 1992); United States v. Turner, 975 F.2d 490, 497 (8th Cir. 1992); United States v. Posters 'N' Things Ltd., 969 F.2d 652, 661 (8th Cir. 1992), aff'd on other grounds, 511 U.S. 513 (1994); United States v. Davila, 964 F.2d 778, 782 (8th Cir. 1992); United States v. Sutera, 933 F.2d 641, 644-46 (8th Cir. 1991); United States v. Martin, 933 F.2d 609, 610 (8th Cir. 1991); United States v. Lucas, 932 F.2d 1210, 1214 n.3, 1219 (8th Cir. 1991); United States v. Blackman, 904 F.2d 1250, 1257 (8th Cir. 1990); United States v. Lee, 886 F.2d 998, 1002-03 (8th Cir. 1989). See also U.S. Dept. of Justice, Money Laundering Federal Prosecution Manual (Feb. 1992).

See Instruction 6.18.1956J, infra, for additional instructions which should be given in most cases.

(For 2006 version see below)

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

2006 Version

The crime of [conducting] [attempting to conduct] an illegal financial transaction, as charged in [Count[s] ____ of] the indictment has three elements, which are:

One, on or about (date),1 [the defendant] [defendant[s] (name[s])] [conducted] [attempted to conduct]2 a financial transaction,3 that is, (describe in simple terms, e.g., the purchase of an automobile), which in any way or degree affected interstate or foreign commerce;4

Two, the financial transaction involved (describe the "property," e.g., money) which was represented5 to the defendant[s] by [a law enforcement officer] [a person acting at the direction of or with the approval of an agent of the (name of agency, see 18 USC 1956(e))] to be the proceeds6 of (describe the specified unlawful activity,7 e.g., unlawful distribution of cocaine); and

Three, the defendant [conducted] [attempted to conduct] the financial transaction with the intent to promote the carrying on of (describe the specified unlawful activity).8

[A defendant may be found to have attempted to conduct a financial transaction if [he] [she] intended to conduct a financial transaction and voluntarily and intentionally carried out some act which was a substantial step toward conducting that financial transaction, even if the transaction was never completed.]9

[The term "conducted," as used in [this] [Instruction[s] _____] includes initiating, concluding or participating in initiating or concluding a transaction.]10

[You are further instructed regarding the crime[s] charged in [Count[s] ___ of] the indictment that the following definitions apply: (Insert applicable portions of Instruction 6.18.1956J, unless the indictment charges multiple money laundering violations and there will be no confusion in adding the definitions common to all counts after all of the substantive money laundering instructions).]11

[It is not necessary to show that [a] [the] defendant intended to commit (specify additional crime) [himself] [herself];12 it is sufficient that in [conducting] [attempting to conduct] the financial transaction, [a] [the] defendant [himself] [herself] intended to make the unlawful activity easier or less difficult.]

[The crime charged in [Count[s] ____ of] the indictment alleges multiple purposes for the crime, that is, that [the defendant] [defendant[s] (name[s])] knew that the transaction was [conducted] [attempted] for the purposes of (list all objectives). To find [the defendant] [defendant[s] (name[s])] guilty of the offense[s], you must agree unanimously that one or more of the objectives charged were proved beyond a reasonable doubt.]13

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

Notes on Use

a. The Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, Title I, Subtitle H (Money Laundering Control Act of 1986), § 1352(a), 100 Stat. 3207-18 to 22, added sections 1956 and 1957 to Title 18 of the United States Code. The Anti-Drug Abuse Act of 1986, including the newly added sections 1956 and 1957 of Title 18, became effective on October 27, 1986.

b. The Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Title VI, §§ 6183, 6465, 6469(a)(1) and 6471(a)-(b), and Title VII, § 7031, 102 Stat. 4354, 4375, 4377, 4378 and 4398 became effective on November 18, 1988. Inter alia it added a new offense, section 1956(a)(1)(A)(ii), conducting a financial transaction with intent to engage in violations of the tax code (26 USC 7201 or 7206), expanded the scope of section 1956(a)(2), added a "sting" section, 1956(a)(3), and added a number of "specified unlawful activity" predicate offenses as defined in section 1956(c)(7).

c. The Crime Control Act of 1990, Pub. L. No. 101-647, Title I, §§ 105-108, Title XII, § 1205(j), Title XIV, §§ 1402 and 1404, Title XXV, § 2506 and Title XXXV, § 3557, 104 Stat. 4791-92, 4831, 4835, 4862 and 4927 became effective November 29, 1990. Inter alia it amended the provisions of section 1956(a)(2)(B) to permit the government to establish the defendant's knowledge of the illegality of his actions through the law enforcement officer's representations and the defendant's subsequent statements or actions indicating the defendant believed the representation, added violations of foreign law to the definition of "unlawful activity" (18 USC 1956(c)(1)), amended the definition of "financial transaction" (section 1956(c)(4)) and "monetary instruments" (section 1956(c)(5)) to emphasize the alternative means of meeting the definitions, revised and expanded the scope of the term "specified unlawful activity" (SUA) (sections 1956(c)(7)(A) and (D), added as predicate SUA several "environmental" offenses (section 1956(c)(7)(E)), added a new section, 1956(c)(8), defining "state," and added agencies authorized to investigate section 1956 violations. See Instruction 6.18.1956J(7) (Specified Unlawful Activity), infra..

d. Effective October 28, 1992, Pub. L. 102-550, Title XV, §§ 1504(c), 1524, 1526(a), 1527(a), 1530, 1531, 1534 and 1536, 106 Stat. 4055 and 4064-67 added, inter alia, use of a safe deposit box to the definition of "transaction" (section 1956(c)(3)), added transfer of title to real property, vehicles, vessels or aircraft to the definitions of "financial transaction" (section 1956(c)(4)), expanded the scope of the term "specified unlawful activity" regarding offenses against foreign nations (section 1956(c)(7)(B)), deleted and added several predicate SUA offenses (section 1956(c)(7)(D)), and created the offense of conspiracy to violate sections 1956 or 1957, carrying the same penalties as the object offenses. Instead of a statutory five-year maximum under 18 USC 371, a conspiracy to violate 18 USC 1956 now carries a 20-year statutory maximum. See 18 USC 1956(g). Prior to the amendment, the five-year statutory maximum for conspiracy would have precluded imposition of a sentence corresponding to the sentencing guideline range for the defendants who conspired to launder large sums or who had significant prior criminal histories. See United States Sentencing Guideline § 2S1.1 and Chapter 5, Part A (Sentencing Table).

2. Both types of activity have been proscribed since original enactment of section 1956. See 18 USC 1956(a)(1), (a)(2) and (a)(3).

4. See Instruction 6.18.1956J(2) (Interstate and Foreign Commerce), infra. All section 1956 offenses require proof that the financial transaction itself or the financial institution, if one was involved, in some way affected interstate or foreign commerce. See 18 USC 1956(c)(4); United States v. Baker, 985 F.2d 1248, 1252 (4th Cir. 1993) (element under section 1956(a)(1)(B)(i)); United States v. Posters 'N' Things Ltd., 969 F.2d 652, 661 n.6 (8th Cir. 1992) (expert witness testified as to issue), aff'd on other grounds, 511 U.S. 513 (1994); United States v. Gonzalez-Rodriguez, 966 F.2d 918, 924 (5th Cir. 1992) (discussing United States v. Gallo, 927 F.2d 815, 823 (5th Cir. 1991) and United States v. Hamilton, 931 F.2d 1046, 1051-52 (5th Cir. 1991)). The Eighth Circuit has not ruled whether the indictment must explicitly allege the interstate/foreign commerce nexus. United States v. Lucas, 932 F.2d 1210, 1219 (8th Cir. 1991) (court was not required to reach the issue because the indictment which alleged construction of a shopping center and purchase of merchandise could be reasonably construed to allege the element). See also United States v. Green, 964 F.2d 365, 374 (5th Cir. 1992) (citing Lucas); United States v. Lovett, 964 F.2d 1029, 1038 (10th Cir. 1992) (under section 1957, the interstate commerce nexus is jurisdictional but not an element of the crime charged) (citing United States v. Kelley, 929 F.2d 582, 586 (10th Cir. 1991)). Given the lack of controlling law on this issue, the Committee recommends that the nexus be alleged in the indictment. In any case, a finding of an effect on interstate or foreign commerce of either the transaction itself or the activities of the financial institution, if one was involved, is essential. See United States v. Ben M. Hogan Co., Inc., 809 F.2d 480 (8th Cir. 1987) (failure to instruct jury that it must find an interstate commerce connection can be harmless error).

Under sections 1956(a)(1)(A)(i), 1956(a)(2)(a) and 1956(a)(3), the defendant must have acted with the intent to promote a "specified" unlawful activity, as defined in 18 USC 1956(c)(7), rather than the more broadly described unlawful activity defined in 18 USC 1956(c)(1). See Note 11, infra. Although the specified unlawful activity inserted in the second element, see Note 6, supra, will frequently be the same set forth regarding the defendant's intent, the two forms of specified unlawful activity need not be the same, e.g., drug proceeds with which the defendant conducts a transaction with the intent of making a fraudulent credit application.

9. See Instruction 8.01, infra.

10. See 18 USC 1956(c)(2). This definition was included in the October 27, 1986, version of the statute and has not changed since.

Committee Comments

See Ninth Cir. Crim. Jury Instr. 8.120 (2000). See generally United States v. Cruz, 993 F.2d 164 (8th Cir. 1993); United States v. Peery, 977 F.2d 1230, 1234 (8th Cir. 1992); United States v. Turner, 975 F.2d 490, 497 (8th Cir. 1992); United States v. Posters 'N' Things Ltd., 969 F.2d 652, 661 (8th Cir. 1992), aff'd on other grounds, 511 U.S. 513 (1994); United States v. Davila, 964 F.2d 778, 782 (8th Cir. 1992); United States v. Sutera, 933 F.2d 641, 644-46 (8th Cir. 1991); United States v. Martin, 933 F.2d 609, 610 (8th Cir. 1991); United States v. Lucas, 932 F.2d 1210, 1214 n.3, 1219 (8th Cir. 1991); United States v. Blackman, 904 F.2d 1250, 1257 (8th Cir. 1990); United States v. Lee, 886 F.2d 998, 1002-03 (8th Cir. 1989). See also U.S. Dept. of Justice, Money Laundering Federal Prosecution Manual (Feb. 1992).

See Instruction 6.18.1956J, infra, for additional instructions which should be given in most cases.

For 2000 version see below

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

2000 Version

The crime of [conducting] [attempting to conduct] an illegal financial transaction, as charged in [Count[s] ____ of] the indictment has three essential elements, which are:

One, on or about (date),1 the defendant[s] [(name/s)] [conducted] [attempted to conduct]2 a financial transaction,3 that is, (describe in simple terms, e.g., the purchase of an automobile), which in any way or degree affected interstate or foreign commerce;4

Two, the financial transaction involved (describe the "property," e.g., money) which was represented5 to the defendant[s] by [a law enforcement officer] [a person acting at the direction of or with the approval of an agent of the (name of agency, see 18 USC 1956(e))] to be the proceeds6 of (describe the specified unlawful activity,7 e.g., unlawful distribution of cocaine); and

Three, the defendant [conducted] [attempted to conduct] the financial transaction with the intent to promote the carrying on of (describe the specified unlawful activity).8

[A defendant may be found to have attempted to conduct a financial transaction if [he] [she] intended to conduct a financial transaction and voluntarily and intentionally carried out some act which was a substantial step toward conducting that financial transaction, even if the transaction was never completed.]9

[The term "conducted," as used in [this] [Instruction[s] _____] includes initiating, concluding or participating in initiating or concluding a transaction.]10

[You are further instructed regarding the crime[s] charged in [Count[s] ___ of] the indictment that the following definitions apply: (Insert applicable portions of Instruction 6.18.1956J, unless the indictment charges multiple money laundering violations and there will be no confusion in adding the definitions common to all counts after all of the substantive money laundering instructions).]11

[It is not necessary to show that [a] [the] defendant intended to commit (specify additional crime) [himself] [herself];12 it is sufficient that in [conducting] [attempting to conduct] the financial transaction, [a] [the] defendant [himself] [herself] intended to make the unlawful activity easier or less difficult.]

[The crime charged in [Count[s] ____ of] the indictment alleges multiple purposes for the crime, that is, that [the defendant] [defendant[s] [(name/s)]] knew that the transaction was [conducted] [attempted] for the purposes of (list all objectives). To find [the defendant] [defendant[s] [(name/s)]] guilty of the offense[s], you must agree unanimously that one or more of the objectives charged were proved beyond a reasonable doubt.]13

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

Committee Comments

See Ninth Cir. Crim. Jury Instr. 8.33.1 (1997). See generally United States v. Cruz, 993 F.2d 164 (8th Cir. 1993); United States v. Peery, 977 F.2d 1230, 1234 (8th Cir. 1992); United States v. Turner, 975 F.2d 490, 497 (8th Cir. 1992), cert. denied, 506 U.S. 1082 (1993); United States v. Posters 'N' Things Ltd., 969 F.2d 652, 661 (8th Cir. 1992), aff'd on other grounds, 511 U.S. 513, 114 S. Ct. 1747 (1994); United States v. Davila, 964 F.2d 778, 782 (8th Cir. 1992); United States v. Sutera, 933 F.2d 641, 644-46 (8th Cir. 1991); United States v. Martin, 933 F.2d 609, 610 (8th Cir. 1991); United States v. Lucas, 932 F.2d 1210, 1214 n.3, 1219 (8th Cir.), cert. denied, 502 U.S. 929 (1991); United States v. Blackman, 904 F.2d 1250, 1257 (8th Cir. 1990); United States v. Lee, 886 F.2d 998, 1002-03 (8th Cir. 1989), cert. denied, 493 U.S. 1032 (1990). See also U.S. Dept. of Justice, Money Laundering Federal Prosecution Manual (Feb. 1992).

See Instruction 6.18.1956J, infra, for additional instructions which should be given in most cases.

Notes on Use

1. The statutes and implementing regulations have been amended frequently. The date of the offense is critical in verifying that the criminal conduct charged was covered by the statute and regulation in effect on that date. Additionally, changes in reporting requirements under Treasury regulations (31 C.F.R.) may affect offenses charged under sections 1956(a)(1)(B)(ii) and 1956(a)(2)(B)(ii).

2. Both types of activity have been proscribed since original enactment of section 1956. See 18 USC§ 1956(a)(1), (a)(2) and (a)(3).

4. See Instruction 6.18.1956J(2) (Interstate and Foreign Commerce), infra. All section 1956 offenses require proof that the financial transaction itself or the financial institution, if one was involved, in some way affected interstate or foreign commerce. See 18 USC 1956(c)(4); United States v. Baker, 985 F.2d 1248, 1252 (4th Cir. 1993) (essential element under section 1956(a)(1)(B)(i)); United States v. Posters 'N' Things Ltd., 969 F.2d 652, 661 n.6 (8th Cir. 1992) (expert witness testified as to issue), aff'd on other grounds, 511 U.S. 513, 114 S. Ct. 1747 (1994); United States v. Gonzalez-Rodriguez, 966 F.2d 918, 924 (5th Cir. 1992) (discussing United States v. Gallo, 927 F.2d 815, 823 (5th Cir. 1991) and United States v. Hamilton, 931 F.2d 1046, 1051-52 (5th Cir. 1991)). The Eighth Circuit has not ruled whether the indictment must explicitly allege the interstate/foreign commerce nexus. United States v. Lucas, 932 F.2d 1210, 1219 (8th Cir.) (court was not required to reach the issue because the indictment which alleged construction of a shopping center and purchase of merchandise could be reasonably construed to allege the element), cert. denied, 502 U.S. 929 (1991). See also United States v. Green, 964 F.2d 365, 374 (5th Cir. 1992) (citing Lucas); United States v. Lovett, 964 F.2d 1029, 1038 (10th Cir. 1992) (under section 1957, the interstate commerce nexus is jurisdictional but not an essential element of the crime charged) (citing United States v. Kelley, 929 F.2d 582, 586 (10th Cir. 1991)). Given the lack of controlling law on this issue, the Committee recommends that the nexus be alleged in the indictment. In any case, a finding of an effect on interstate or foreign commerce of either the transaction itself or the activities of the financial institution, if one was involved, is essential. See United States v. Ben M. Hogan Co., Inc., 769 F.2d 1293, 1297 (8th Cir. 1985) (reversible error for a district court to give an instruction which could have been understood to include a conclusive presumption of effect on interstate commerce, where such a finding by the jury was essential in a prosecution under the Sherman Anti-Trust Act).

Under sections 1956(a)(1)(A)(i), 1956(a)(2)(a) and 1956(a)(3), the defendant must have acted with the intent to promote a "specified" unlawful activity, as defined in 18 USC 1956(c)(7), rather than the more broadly described unlawful activity defined in 18 USC 1956(c)(1). See Note 11, infra. Although the specified unlawful activity inserted in the second element, see Note 6, supra, will frequently be the same set forth regarding the defendant's intent, the two forms of specified unlawful activity need not be the same, e.g., drug proceeds with which the defendant conducts a transaction with the intent of making a fraudulent credit application.

9. See Instruction 8.01, infra.

10. See 18 USC 1956(c)(2). This definition was included in the October 27, 1986, version of the statute and has not changed since.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1956H MONEY LAUNDERING "STING" -- FINANCIAL TRANSACTION
WITH INTENT TO CONCEAL NATURE OF PROPERTY
(18 USC 1956(a)(3)(B))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Laundering Of Monetary Instruments (18 USC 1956(a)(3)(A) and 1956(a)(3)(B))

See FORECITE National™ Federal Models By Offense: Money Laundering "Sting" -- Financial Transaction With Intent To Conceal Nature Of Property (18 USC 1956(a)(3)(B))

The crime of [conducting] [attempting to conduct] an illegal financial transaction, as charged in [Count[s] ____ of] the indictment has three elements, which are:

One, on or about (date),¹ [the defendant] [defendant[s] (name[s])] [conducted] [attempted to conduct]² a financial transaction,³ that is, (describe in simple terms, e.g., the purchase of an automobile), which in any way or degree affected interstate or foreign commerce;⁴

Two, the financial transaction involved (describe the "property," e.g., money) which was represented⁵ to the defendant[s] by [a law enforcement officer] [a person acting at the direction of or with the approval of an agent of the (name of agency, see 18 USC 1956(e))] to be the proceeds⁶ of (describe the specified unlawful activity,⁷ e.g., unlawful distribution of cocaine); and

Three, the defendant [conducted] [attempted to conduct] the financial transaction with the intent to conceal and disguise⁸ the nature, location, source, ownership or control of (describe the "property") which the defendant believed⁹ to be the proceeds of (describe the specified unlawful activity).

[A defendant may be found to have attempted to conduct a financial transaction if [he] [she] intended to conduct a financial transaction and voluntarily and intentionally carried out some act which was a substantial step toward conducting that financial transaction, even if the transaction was never completed.]¹⁰

[The term "conducted," as used in [this] [Instruction[s] _____] includes initiating, concluding or participating in initiating or concluding a transaction.]¹¹

[You are further instructed regarding the crime[s] charged in [Count[s] ___ of] the indictment that the following definitions apply: (Insert applicable portions of Instruction 6.18.1956J, unless the indictment charges multiple money laundering violations and there will be no confusion in adding the definitions common to all counts after all of the substantive money laundering instructions).]¹²

[It is not necessary to show that [a] [the] defendant intended to commit (specify additional crime) [himself] [herself], it is sufficient that in [conducting] [attempting to conduct] the financial transaction, [a] [the] defendant [himself] [herself] intended to make the unlawful activity easier or less difficult.].¹³

[The crime charged in [Count[s] ____ of] the indictment alleges multiple purposes for the crime, that is, that [the defendant] [defendant[s] (name[s])] knew that the transaction was [conducted] [attempted] for the purposes of (list all objectives). To find [the defendant] [defendant[s] (name[s])] guilty of the offense[s], you must agree unanimously that one or more of the objectives charged were proved beyond a reasonable doubt.]¹⁴

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

Notes on Use

1. The statutes and implementing regulations have been amended frequently. The date of the offense is critical in verifying that the criminal conduct charged was covered by the statute and regulation in effect on that date. Additionally, changes in reporting requirements under Treasury regulations (31 C.F.R.) may affect offenses charged under sections 1956(a)(1)(B)(ii) and 1956(a)(2)(B)(ii).

a. The Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, Title I, Subtitle H (Money Laundering Control Act of 1986), § 1352(a), 100 Stat. 3207-18 to 22, added sections 1956 and 1957 to Title 18 of the United States Code. The Anti-Drug Abuse Act of 1986, including the newly added sections 1956 and 1957 of Title 18, became effective on October 27, 1986.

b. The Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Title VI, §§ 6183, 6465, 6469(a)(1) and 6471(a)-(b), and Title VII, § 7031, 102 Stat. 4354, 4375, 4377, 4378 and 4398 became effective November 18, 1988. Inter alia it added a new offense, section 1956(a)(1)(A)(ii), conducting a financial transaction with intent to engage in violations of the tax code (26 USC 7201 or 7206), expanded the scope of section 1956(a)(2), added a "sting" section, 1956(a)(3), and added a number of "specified unlawful activity" predicate offenses as defined in section 1956(c)(7).

c. The Crime Control Act of 1990, Pub. L. No. 101-647, Title I, §§ 105-108, Title XII, § 1205(j), Title XIV, §§ 1402 and 1404, Title XXV, § 2506 and Title XXXV, § 3557, 104 Stat. 4791-92, 4831, 4835, 4862 and 4927 became effective November 29, 1990. Inter alia it amended the provisions of section 1956(a)(2)(B) to permit the government to establish the defendant's knowledge of the illegality of his actions through the law enforcement officer's representations and the defendant's subsequent statements or actions indicating the defendant believed the representation, added violations of foreign law to the definition of "unlawful activity" (18 USC 1956(c)(1)), amended the definition of "financial transaction" (section 1956(c)(4)) and "monetary instruments" (section 1956(c)(5)) to emphasize the alternative means of meeting the definitions, revised and expanded the scope of the term "specified unlawful activity" (SUA) (sections 1956(c)(7)(A) and (D), added as predicate SUA several "environmental" offenses (section 1956(c)(7)(E)), added a new section, 1956(c)(8), defining "state," and added agencies authorized to investigate section 1956 violations. See Instruction 6.18.1956J(7) (Specified Unlawful Activity), infra.

d. Effective October 28, 1992, Pub. L. 102-550, Title XV, §§ 1504(c), 1524, 1526(a), 1527(a), 1530, 1531, 1534 and 1536, 106 Stat. 4055 and 4064-67 added, inter alia, use of a safe deposit box to the definition of "transaction" (section 1956(c)(3)), added transfer of title to real property, vehicles, vessels or aircraft to the definitions of "financial transaction" (section 1956(c)(4)), expanded the scope of the term "specified unlawful activity" regarding offenses against foreign nations (section 1956(c)(7)(B)), deleted and added several predicate SUA offenses (section 1956(c)(7)(D)) and created the offense of conspiracy to violate sections 1956 or 1957, carrying the same penalties as the object offenses. Instead of a statutory five-year maximum under 18 USC 371, a conspiracy to violate 18 USC 1956 now carries a 20-year statutory maximum. See 18 USC 1956(g). Prior to the amendment, the five-year statutory maximum for conspiracy would have precluded imposition of a sentence corresponding to the sentencing guideline range for the defendants who conspired to launder large sums or who had significant prior criminal histories. See United States Sentencing Guideline § 2S1.1 and Chapter 5, Part A (Sentencing Table).

2. Both types of activity have been proscribed since original enactment of section 1956. See 18 USC 1956(a)(1), (a)(2) and (a)(3).

6. See Instruction 6.18.1956J(6) (Proceeds), infra. The term is not defined in 18 USC 1956(c). In the event that the representation was that the property "was used to conduct or facilitate specified unlawful activity" rather than "constituted proceeds," the following language might be used: "property used to [conduct] [facilitate] (describe the specified unlawful activity)." There is some ambiguity as to whether this is a crime as the statute is written. See Money Laundering Federal Prosecution Manual, p.277.

7. See Instruction 6.18.1956J(7) (Specified Unlawful Activity), infra. The term should not be confused with "unlawful activity" in general and has a specific, statutory meaning, as set forth in section 1956(c)(7). Because that section has had numerous amendments, and itself incorporates activities defined in several other statutes, the Committee recommends careful review of both the provisions of section 1956(c)(7) and of the incorporated statutes which were in effect at the time of the alleged financial transaction (section 1956(a)(1)) or transportation, transmission or transfer (section 1956)(a)(2)).

8. There must be proof of a design to conceal or disguise the nature, location, source, ownership or control of the proceeds. A "typical" money laundering transaction involving purchases in third-party names frequently satisfies this element. Purchases in the names of close family members, however, are problematic, especially where the defendant's subsequent use of the asset is open and conspicuous. Compare United States v. Sanders, 929 F.2d 1466, 1472 (10th Cir. 1991) (contrasting United States v. Lee, 886 F.2d 998, 1002-03 (8th Cir. 1989)) with United States v. Sutera, 933 F.2d 641, 648 (8th Cir. 1991) (money laundering statute did not require that the defendant did a good job of laundering the proceeds; the jury simply had to find that the defendant intended to hide them) and United States v. Posters 'N' Things Ltd., 969 F.2d 652, 661 n.7 (8th Cir. 1992) (the defendant commingled legitimate and illegitimate business receipts over a three year period; despite no attempt to disguise control of the account, one could infer from her record keeping and bank activity a design to conceal or disguise her illegal proceeds), aff'd on other grounds, 511 U.S. 513 (1994).

9. The government must prove that the defendant believed that the "property" was in fact proceeds of specified unlawful activity when prosecuting under section 1956(a)(3)(B). United States v. Kaufmann, 985 F.2d 884, 896-97 (7th Cir. 1993). "Knowledge" and "belief" are separate concepts, and a "willful blindness" or "deliberate ignorance" theory cannot be used to establish belief in the way it can be used to establish knowledge. United States v. Kaufmann.

10. See Instruction 8.01, infra.

11. See 18 USC 1956(c)(2). This definition was included in the October 27, 1986, version of the statute and has not changed since.

12. The supplemental definitions and instructions contained in Instruction 6.18.1956J, infra, should be given in most cases. Whether they are inserted in each 6.18.1956 instruction or given after a series of 6.18.1956A through 6.18.1956I instructions is an option for the court to consider based on the number and types of money laundering counts and the ability of the jury to relate the definitions to the applicable counts.

13. See United States v. Jackson, 935 F.2d 832, 841 (7th Cir. 1991); United States v. Rogers, 788 F.2d 1472, 1476 (11th Cir. 1986) (facilitating the promotion of unlawful activity in the context of 18 USC 1952(a)(3) ("Travel Act") cases is satisfied by proof the defendant's action made the unlawful activity easy or less difficult); see also United States v. Corona, 885 F.2d 766, 773 (11th Cir. 1989) (the defendant himself does not have to be involved in the offense being facilitated). The specified unlawful activity which a defendant intends to promote may be a continuing offense, may be still underway or may be an offense that will be committed in the future. The financial transaction need not be linked to a specific future offense; it is sufficient if a defendant intended to promote a specified unlawful activity generally. For example, issuing checks to vendors providing beeper and mobile telephone services used in a continuing criminal enterprise would qualify, but purchases of cellular phones not previously used or clearly intended for use in the enterprise would not.

14. The multiple objective situation may apply to multiple intent allegations, i.e., sections 1956(a)(3)(A), (B) and (C). The indictment, and the government, should provide notice of the provisions that are meant to apply in a particular case. See United States v. Jackson, 935 F.2d 832, 842 (7th Cir. 1991). Although there is no case law requiring unanimity on objectives, if an instruction to that effect is desired, see Instruction 5.06(F), supra.

Committee Comments

See Instruction 6.18.1956J, infra, for additional instructions which should be given in most cases.

(For 2008 version see below).

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

2008 Version

The crime of [conducting] [attempting to conduct] an illegal financial transaction, as charged in [Count[s] ____ of] the indictment has three elements, which are:

One, on or about (date),¹ [the defendant] [defendant[s] (name[s])] [conducted] [attempted to conduct]² a financial transaction,³ that is, (describe in simple terms, e.g., the purchase of an automobile), which in any way or degree affected interstate or foreign commerce;⁴

Two, the financial transaction involved (describe the "property," e.g., money) which was represented⁵ to the defendant[s] by [a law enforcement officer] [a person acting at the direction of or with the approval of an agent of the (name of agency, see 18 USC 1956(e))] to be the proceeds⁶ of (describe the specified unlawful activity,⁷ e.g., unlawful distribution of cocaine); and

Three, the defendant [conducted] [attempted to conduct] the financial transaction with the intent to conceal and disguise⁸ the nature, location, source, ownership or control of (describe the "property") which the defendant believed⁹ to be the proceeds of (describe the specified unlawful activity).

[A defendant may be found to have attempted to conduct a financial transaction if [he] [she] intended to conduct a financial transaction and voluntarily and intentionally carried out some act which was a substantial step toward conducting that financial transaction, even if the transaction was never completed.]¹⁰

[The term "conducted," as used in [this] [Instruction[s] _____] includes initiating, concluding or participating in initiating or concluding a transaction.]¹¹

[You are further instructed regarding the crime[s] charged in [Count[s] ___ of] the indictment that the following definitions apply: (Insert applicable portions of Instruction 6.18.1956J, unless the indictment charges multiple money laundering violations and there will be no confusion in adding the definitions common to all counts after all of the substantive money laundering instructions).]¹²

[It is not necessary to show that [a] [the] defendant intended to commit (specify additional crime) [himself] [herself], it is sufficient that in [conducting] [attempting to conduct] the financial transaction, [a] [the] defendant [himself] [herself] intended to make the unlawful activity easier or less difficult.].¹³

[The crime charged in [Count[s] ____ of] the indictment alleges multiple purposes for the crime, that is, that [the defendant] [defendant[s] (name[s])] knew that the transaction was [conducted] [attempted] for the purposes of (list all objectives). To find [the defendant] [defendant[s] (name[s])] guilty of the offense[s], you must agree unanimously that one or more of the objectives charged were proved beyond a reasonable doubt.]¹⁴

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

Notes on Use

1. The statutes and implementing regulations have been amended frequently. The date of the offense is critical in verifying that the criminal conduct charged was covered by the statute and regulation in effect on that date. Additionally, changes in reporting requirements under Treasury regulations (31 C.F.R.) may affect offenses charged under sections 1956(a)(1)(B)(ii) and 1956(a)(2)(B)(ii).

a. The Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, Title I, Subtitle H (Money Laundering Control Act of 1986), § 1352(a), 100 Stat. 3207-18 to 22, added sections 1956 and 1957 to Title 18 of the United States Code. The Anti-Drug Abuse Act of 1986, including the newly added sections 1956 and 1957 of Title 18, became effective on October 27, 1986.

b. The Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Title VI, §§ 6183, 6465, 6469(a)(1) and 6471(a)-(b), and Title VII, § 7031, 102 Stat. 4354, 4375, 4377, 4378 and 4398 became effective November 18, 1988. Inter alia it added a new offense, section 1956(a)(1)(A)(ii), conducting a financial transaction with intent to engage in violations of the tax code (26 USC§ 7201 or 7206), expanded the scope of section 1956(a)(2), added a "sting" section, 1956(a)(3), and added a number of "specified unlawful activity" predicate offenses as defined in section 1956(c)(7).

c. The Crime Control Act of 1990, Pub. L. No. 101-647, Title I, §§ 105-108, Title XII, § 1205(j), Title XIV, §§ 1402 and 1404, Title XXV, § 2506 and Title XXXV, § 3557, 104 Stat. 4791-92, 4831, 4835, 4862 and 4927 became effective November 29, 1990. Inter alia it amended the provisions of section 1956(a)(2)(B) to permit the government to establish the defendant's knowledge of the illegality of his actions through the law enforcement officer's representations and the defendant's subsequent statements or actions indicating the defendant believed the representation, added violations of foreign law to the definition of "unlawful activity" (18 USC 1956(c)(1)), amended the definition of "financial transaction" (section 1956(c)(4)) and "monetary instruments" (section 1956(c)(5)) to emphasize the alternative means of meeting the definitions, revised and expanded the scope of the term "specified unlawful activity" (SUA) (sections 1956(c)(7)(A) and (D), added as predicate SUA several "environmental" offenses (section 1956(c)(7)(E)), added a new section, 1956(c)(8), defining "state," and added agencies authorized to investigate section 1956 violations. See Instruction 6.18.1956J(7) (Specified Unlawful Activity), infra.

d. Effective October 28, 1992, Pub. L. 102-550, Title XV, §§ 1504(c), 1524, 1526(a), 1527(a), 1530, 1531, 1534 and 1536, 106 Stat. 4055 and 4064-67 added, inter alia, use of a safe deposit box to the definition of "transaction" (section 1956(c)(3)), added transfer of title to real property, vehicles, vessels or aircraft to the definitions of "financial transaction" (section 1956(c)(4)), expanded the scope of the term "specified unlawful activity" regarding offenses against foreign nations (section 1956(c)(7)(B)), deleted and added several predicate SUA offenses (section 1956(c)(7)(D)) and created the offense of conspiracy to violate sections 1956 or 1957, carrying the same penalties as the object offenses. Instead of a statutory five-year maximum under 18 USC 371, a conspiracy to violate 18 USC 1956 now carries a 20-year statutory maximum. See 18 USC 1956(g). Prior to the amendment, the five-year statutory maximum for conspiracy would have precluded imposition of a sentence corresponding to the sentencing guideline range for the defendants who conspired to launder large sums or who had significant prior criminal histories. See United States Sentencing Guideline § 2S1.1 and Chapter 5, Part A (Sentencing Table).

2. Both types of activity have been proscribed since original enactment of section 1956. See 18 USC 1956(a)(1), (a)(2) and (a)(3).

7. See Instruction 6.18.1956J(7) (Specified Unlawful Activity), infra. The term should not be confused with "unlawful activity" in general and has a specific, statutory meaning, as set forth in section 1956(c)(7). Because that section has had numerous amendments, and itself incorporates activities defined in several other statutes, the Committee recommends careful review of both the provisions of section 1956(c)(7) and of the incorporated statutes which were in effect at the time of the alleged financial transaction (section 1956(a)(1)) or transportation, transmission or transfer (section 1956)(a)(2)).

10. See Instruction 8.01, infra.

11. See 18 USC 1956(c)(2). This definition was included in the October 27, 1986, version of the statute and has not changed since.

Committee Comments

See Instruction 6.18.1956J, infra, for additional instructions which should be given in most cases.

(For 2006 version see below)

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

2006 Version

The crime of [conducting] [attempting to conduct] an illegal financial transaction, as charged in [Count[s] ____ of] the indictment has three elements, which are:

One, on or about (date),1 [the defendant] [defendant[s] (name[s])] [conducted] [attempted to conduct]2 a financial transaction,3 that is, (describe in simple terms, e.g., the purchase of an automobile), which in any way or degree affected interstate or foreign commerce;4

Two, the financial transaction involved (describe the "property," e.g., money) which was represented5 to the defendant[s] by [a law enforcement officer] [a person acting at the direction of or with the approval of an agent of the (name of agency, see 18 USC 1956(e))] to be the proceeds6 of (describe the specified unlawful activity,7 e.g., unlawful distribution of cocaine); and

Three, the defendant [conducted] [attempted to conduct] the financial transaction with the intent to conceal and disguise8 the nature, location, source, ownership or control of (describe the "property") which the defendant believed9 to be the proceeds of (describe the specified unlawful activity).

[A defendant may be found to have attempted to conduct a financial transaction if [he] [she] intended to conduct a financial transaction and voluntarily and intentionally carried out some act which was a substantial step toward conducting that financial transaction, even if the transaction was never completed.]10

[The term "conducted," as used in [this] [Instruction[s] _____] includes initiating, concluding or participating in initiating or concluding a transaction.]11

[You are further instructed regarding the crime[s] charged in [Count[s] ___ of] the indictment that the following definitions apply: (Insert applicable portions of Instruction 6.18.1956J, unless the indictment charges multiple money laundering violations and there will be no confusion in adding the definitions common to all counts after all of the substantive money laundering instructions).]12

[It is not necessary to show that [a] [the] defendant intended to commit (specify additional crime) [himself] [herself], it is sufficient that in [conducting] [attempting to conduct] the financial transaction, [a] [the] defendant [himself] [herself] intended to make the unlawful activity easier or less difficult.].13

[The crime charged in [Count[s] ____ of] the indictment alleges multiple purposes for the crime, that is, that [the defendant] [defendant[s] (name[s])] knew that the transaction was [conducted] [attempted] for the purposes of (list all objectives). To find [the defendant] [defendant[s] (name[s])] guilty of the offense[s], you must agree unanimously that one or more of the objectives charged were proved beyond a reasonable doubt.]14

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

Notes on Use

a. The Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, Title I, Subtitle H (Money Laundering Control Act of 1986), § 1352(a), 100 Stat. 3207-18 to 22, added sections 1956 and 1957 to Title 18 of the United States Code. The Anti-Drug Abuse Act of 1986, including the newly added sections 1956 and 1957 of Title 18, became effective on October 27, 1986.

b. The Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Title VI, §§ 6183, 6465, 6469(a)(1) and 6471(a)-(b), and Title VII, § 7031, 102 Stat. 4354, 4375, 4377, 4378 and 4398 became effective November 18, 1988. Inter alia it added a new offense, section 1956(a)(1)(A)(ii), conducting a financial transaction with intent to engage in violations of the tax code (26 USC 7201 or 7206), expanded the scope of section 1956(a)(2), added a "sting" section, 1956(a)(3), and added a number of "specified unlawful activity" predicate offenses as defined in section 1956(c)(7).

c. The Crime Control Act of 1990, Pub. L. No. 101-647, Title I, §§ 105-108, Title XII, § 1205(j), Title XIV, §§ 1402 and 1404, Title XXV, § 2506 and Title XXXV, § 3557, 104 Stat. 4791-92, 4831, 4835, 4862 and 4927 became effective November 29, 1990. Inter alia it amended the provisions of section 1956(a)(2)(B) to permit the government to establish the defendant's knowledge of the illegality of his actions through the law enforcement officer's representations and the defendant's subsequent statements or actions indicating the defendant believed the representation, added violations of foreign law to the definition of "unlawful activity" (18 USC 1956(c)(1)), amended the definition of "financial transaction" (section 1956(c)(4)) and "monetary instruments" (section 1956(c)(5)) to emphasize the alternative means of meeting the definitions, revised and expanded the scope of the term "specified unlawful activity" (SUA) (sections 1956(c)(7)(A) and (D), added as predicate SUA several "environmental" offenses (section 1956(c)(7)(E)), added a new section, 1956(c)(8), defining "state," and added agencies authorized to investigate section 1956 violations. See Instruction 6.18.1956J(7) (Specified Unlawful Activity), infra.

d. Effective October 28, 1992, Pub. L. 102-550, Title XV, §§ 1504(c), 1524, 1526(a), 1527(a), 1530, 1531, 1534 and 1536, 106 Stat. 4055 and 4064-67 added, inter alia, use of a safe deposit box to the definition of "transaction" (section 1956(c)(3)), added transfer of title to real property, vehicles, vessels or aircraft to the definitions of "financial transaction" (section 1956(c)(4)), expanded the scope of the term "specified unlawful activity" regarding offenses against foreign nations (section 1956(c)(7)(B)), deleted and added several predicate SUA offenses (section 1956(c)(7)(D)) and created the offense of conspiracy to violate sections 1956 or 1957, carrying the same penalties as the object offenses. Instead of a statutory five-year maximum under 18 USC 371, a conspiracy to violate 18 USC 1956 now carries a 20-year statutory maximum. See 18 USC 1956(g). Prior to the amendment, the five-year statutory maximum for conspiracy would have precluded imposition of a sentence corresponding to the sentencing guideline range for the defendants who conspired to launder large sums or who had significant prior criminal histories. See United States Sentencing Guideline § 2S1.1 and Chapter 5, Part A (Sentencing Table).

2. Both types of activity have been proscribed since original enactment of section 1956. See 18 USC 1956(a)(1), (a)(2) and (a)(3).

7. See Instruction 6.18.1956J(7) (Specified Unlawful Activity), infra. The term should not be confused with "unlawful activity" in general and has a specific, statutory meaning, as set forth in section 1956(c)(7). Because that section has had numerous amendments, and itself incorporates activities defined in several other statutes, the Committee recommends careful review of both the provisions of section 1956(c)(7) and of the incorporated statutes which were in effect at the time of the alleged financial transaction (section 1956(a)(1)) or transportation, transmission or transfer (section 1956)(a)(2)).

10. See Instruction 8.01, infra.

11. See 18 USC 1956(c)(2). This definition was included in the October 27, 1986, version of the statute and has not changed since.

Committee Comments

See Instruction 6.18.1956J, infra, for additional instructions which should be given in most cases.

For 2000 version see below

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

2000 Version

The crime of [conducting] [attempting to conduct] an illegal financial transaction, as charged in [Count[s] ____ of] the indictment has three essential elements, which are:

One, on or about (date),1 the defendant[s] [(name/s)] [conducted] [attempted to conduct]2 a financial transaction,3 that is, (describe in simple terms, e.g., the purchase of an automobile), which in any way or degree affected interstate or foreign commerce;4

Two, the financial transaction involved (describe the "property," e.g., money) which was represented5 to the defendant[s] by [a law enforcement officer] [a person acting at the direction of or with the approval of an agent of the (name of agency, see 18 USC 1956(e))] to be the proceeds6 of (describe the specified unlawful activity,7 e.g., unlawful distribution of cocaine); and

Three, the defendant [conducted] [attempted to conduct] the financial transaction with the intent to conceal and disguise8 the nature, location, source, ownership or control of (describe the "property") which defendant believed9 to be the proceeds of (describe the specified unlawful activity).

[A defendant may be found to have attempted to conduct a financial transaction if [he] [she] intended to conduct a financial transaction and voluntarily and intentionally carried out some act which was a substantial step toward conducting that financial transaction, even if the transaction was never completed.]10

[The term "conducted," as used in [this] [Instruction[s] _____] includes initiating, concluding or participating in initiating or concluding a transaction.]11

[You are further instructed regarding the crime[s] charged in [Count[s] ___ of] the indictment that the following definitions apply: (Insert applicable portions of Instruction 6.18.1956J, unless the indictment charges multiple money laundering violations and there will be no confusion in adding the definitions common to all counts after all of the substantive money laundering instructions).]12

[It is not necessary to show that [a] [the] defendant intended to commit (specify additional crime) [himself] [herself], it is sufficient that in [conducting] [attempting to conduct] the financial transaction, [a] [the] defendant [himself] [herself] intended to make the unlawful activity easier or less difficult.].13

[The crime charged in [Count[s] ____ of] the indictment alleges multiple purposes for the crime, that is, that [the defendant] [defendant[s] [(name/s)]] knew that the transaction was [conducted] [attempted] for the purposes of (list all objectives). To find [the defendant] [defendant[s] [(name/s)]] guilty of the offense[s], you must agree unanimously that one or more of the objectives charged were proved beyond a reasonable doubt.]14

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

Committee Comments

See Instruction 6.18.1956J, infra, for additional instructions which should be given in most cases.

Notes on Use

1. The statutes and implementing regulations have been amended frequently. The date of the offense is critical in verifying that the criminal conduct charged was covered by the statute and regulation in effect on that date. Additionally, changes in reporting requirements under Treasury regulations (31 C.F.R.) may affect offenses charged under sections 1956(a)(1)(B)(ii) and 1956(a)(2)(B)(ii).

newly added sections 1956 and 1957 of Title 18, became effective on October 27, 1986.

b. The Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Title VI, §§ 6183, 6465, 6469(a)(1) and 6471(a)-(b), and Title VII, § 7031, 102 Stat. 4354, 4375, 4377, 4378 and 4398 became effective November 18, 1988. Inter alia it added a new offense, section 1956(a)(1)(A)(ii), conducting a financial transaction with intent to engage in violations of the tax code (26 USC§ 7201 or 7206), expanded the scope of section 1956(a)(2), added a "sting" section, 1956(a)(3), and added a number of "specified unlawful activity" predicate offenses as defined in section 1956(c)(7).

d. Effective October 28, 1992, Pub. L. 102-550, Title XV, §§ 1504(c), 1524, 1526(a), 1527(a), 1530, 1531, 1534 and 1536, 106 Stat. 4055 and 4064-67 added, inter alia, use of a safe deposit box to the definition of "transaction" (section 1956(c)(3)), added transfer of title to real property, vehicles, vessels or aircraft to the definitions of "financial transaction" (section 1956(c)(4)), expanded the scope of the term "specified unlawful activity" regarding offenses against foreign nations (section 1956(c)(7)(B)), deleted and added several predicate SUA offenses (section 1956(c)(7)(D)) and created the offense of conspiracy to violate sections 1956 or 1957, carrying the same penalties as the object offenses. Instead of a statutory five-year maximum under 18 USC 371, a conspiracy to violate 18 USC 1956 now carries a 20-year statutory maximum. See 18 USC 1956(g). Prior to the amendment, the five-year statutory maximum for conspiracy would have precluded imposition of a sentence corresponding to the sentencing guideline range for defendants who conspired to launder large sums or who had significant prior criminal histories. See United States Sentencing Guideline § 2S1.1 and Chapter 5, Part A (Sentencing Table).

2. Both types of activity have been proscribed since original enactment of section 1956. See 18 USC§ 1956(a)(1), (a)(2) and (a)(3).

4. See Instruction 6.18.1956J(2) (Interstate and Foreign Commerce), infra. All section 1956 offenses require proof that the financial transaction itself or the financial institution, if one was involved, in some way affected interstate or foreign commerce. See 18 USC 1956(c)(4); United States v. Baker, 985 F.2d 1248, 1252 (4th Cir. 1993) (essential element under section 1956(a)(1)(B)(i)); United States v. Posters 'N' Things Ltd., 969 F.2d 652, 661 n.6 (8th Cir. 1992) (expert witness testified as to issue), aff'd on other grounds, 511 U.S. 513, 114 S. Ct. 1747 (1994); United States v. Gonzalez-Rodriguez, 966 F.2d 918, 924 (5th Cir. 1992) (discussing United States v. Gallo, 927 F.2d 815, 823 (5th Cir. 1991) and United States v. Hamilton, 931 F.2d 1046, 1051-52 (5th Cir. 1991)). The Eighth Circuit has not ruled whether the indictment must explicitly allege the interstate/foreign commerce nexus. United States v. Lucas, 932 F.2d 1210, 1219 (8th Cir.) (court was not required to reach the issue because the indictment which alleged construction of a shopping center and purchase of merchandise could be reasonably construed to allege the element), cert. denied, 502 U.S. 929 (1991). See also United States v. Green, 964 F.2d 365, 374 (5th Cir. 1992) (citing Lucas); United States v. Lovett, 964 F.2d 1029, 1038 (10th Cir. 1992) (under section 1957, the interstate commerce nexus is jurisdictional but not an essential element of the crime charged) (citing United States v. Kelley, 929 F.2d 582, 586 (10th Cir. 1991)). Given the lack of controlling law on this issue, the Committee recommends that the nexus be alleged in the indictment. In any case, a finding of an effect on interstate or foreign commerce of either the transaction itself or the activities of the financial institution, if one was involved, is essential. See United States v. Ben M. Hogan Co., Inc., 769 F.2d 1293, 1297 (8th Cir. 1985) (reversible error for a district court to give an instruction which could have been understood to include a conclusive presumption of effect on interstate commerce, where such a finding by the jury was essential in a prosecution under the Sherman Anti-Trust Act).

7. See Instruction 6.18.1956J(7) (Specified Unlawful Activity), infra. The term should not be confused with "unlawful activity" in general and has a specific, statutory meaning, as set forth in section 1956(c)(7). Because that section has had numerous amendments, and itself incorporates activities defined in several other statutes, the Committee recommends careful review of both the provisions of section 1956(c)(7) and of the incorporated statutes which were in effect at the time of the alleged financial transaction (section 1956(a)(1)) or transportation, transmission or transfer (section 1956)(a)(2)).

8. There must be proof of a design to conceal or disguise the nature, location, source, ownership or control of the proceeds. A "typical" money laundering transaction involving purchases in third-party names frequently satisfies this element. Purchases in the names of close family members, however, are problematic, especially where the defendant's subsequent use of the asset is open and conspicuous. Compare United States v. Sanders, 929 F.2d 1466, 1472 (10th Cir. 1991) (contrasting United States v. Lee, 886 F.2d 998, 1002-03 (8th Cir. 1989), cert. denied, 493 U.S. 1932 (1990)), cert. denied, 502 U.S. 846 (1991) with United States v. Sutera, 933 F.2d 641, 648 (8th Cir. 1991) (money laundering statute did not require that defendant did a good job of laundering the proceeds; the jury simply had to find that the defendant intended to hide them) and United States v. Posters 'N' Things Ltd., 969 F.2d 652, 661 n.7 (8th Cir. 1992) (defendant commingled legitimate and illegitimate business receipts over a three year period; despite no attempt to disguise control of the account, one could infer from her record keeping and bank activity a design to conceal or disguise her illegal proceeds), aff'd on other grounds, 511 U.S. 513, 114 S. Ct. 1747 (1994).

10. See Instruction 8.01, infra.

11. See 18 USC 1956(c)(2). This definition was included in the October 27, 1986, version of the statute and has not changed since.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1956I MONEY LAUNDERING "STING" -- FINANCIAL
TRANSACTION WITH INTENT TO AVOID TRANSACTION REPORTING REQUIREMENT
(18 USC 1956(a)(3)(C))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Money Laundering "Sting" -- Financial Transaction With Intent To Avoid Transaction Reporting Requirement (18 USC 1956(a)(3)(C))

The crime of [conducting] [attempting to conduct] an illegal financial transaction, as charged in [Count[s] ____ of] the indictment has three elements, which are:

One, on or about (date),¹ [the defendant] [defendant[s] (name[s])] [conducted] [attempted to conduct]² a financial transaction,³ that is, (describe in simple terms, e.g., the purchase of an automobile), which in any way or degree affected interstate or foreign commerce;⁴

Two, the financial transaction involved (describe the "property," e.g., money) which was represented⁵ to the defendant[s] by [a law enforcement officer] [a person acting at the direction of or with the approval of an agent of the (name of agency, see 18 USC 1956(e))] to be the proceeds⁶ of (describe the specified unlawful activity,⁷ e.g., unlawful distribution of cocaine); and

Three, the defendant [conducted] [attempted to conduct] the financial transaction with the intent to avoid a transaction reporting requirement of State or Federal law.⁸

[A defendant may be found to have attempted to conduct a financial transaction if [he] [she] intended to conduct a financial transaction and voluntarily and intentionally carried out some act which was a substantial step toward conducting that financial transaction, even if the transaction was never completed.]⁹

[The term "conducted," as used in [this] [Instruction[s] _____] includes initiating, concluding or participating in initiating or concluding a transaction.]¹⁰

[You are further instructed regarding the crime[s] charged in [Count[s] ___ of] the indictment that the following definitions apply: (Insert applicable portions of Instruction 6.18.1956J, unless the indictment charges multiple money laundering violations and there will be no confusion in adding the definitions common to all counts after all of the substantive money laundering instructions).]¹¹

[The Currency Transaction Reporting (CTR) requirement of federal law¹² requires financial institutions to file a report for each deposit, withdrawal, exchange of currency, or other payment or transfer, by, through, or to such financial institution which involves a transaction in currency of more than $10,000. Multiple currency transactions are treated as a single transaction if the financial institution has knowledge that they are by or on behalf of any person and result in either cash in or cash out totaling more than $10,000 during any one business day. A financial institution includes all of its domestic branch offices for purposes of this requirement. The phrase "financial institution" includes (insert appropriate institution from 31 C.F.R. § 103.11(i), such as "bank" or "savings & loan").]¹³

[The crime charged in [Count[s] ____ of] the indictment alleges multiple purposes for the crime, that is, that [the defendant] [defendant[s] (name[s])] knew that the transaction was [conducted] [attempted] for the purposes of (list all objectives). To find [the defendant] [defendant[s] (name[s])] guilty of the offense[s], you must agree unanimously that one or more of the objectives charged were proved beyond a reasonable doubt.]¹⁴

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

Notes on Use

1. The statutes and implementing regulations have been amended frequently. The date of the offense is critical in verifying that the criminal conduct charged was covered by the statute and regulation in effect on that date. Additionally, changes in reporting requirements under Treasury regulations (31 C.F.R.) may affect offenses charged under sections 1956(a)(1)(B)(ii) and 1956(a)(2)(B)(ii).

a. The Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, Title I, Subtitle H (Money Laundering Control Act of 1986), § 1352(a), 100 Stat. 3207-18 to 22, added sections 1956 and 1957 to Title 18 of the United States Code. The Anti-Drug Abuse Act of 1986, including the newly added sections 1956 and 1957 of Title 18, became effective on October 27, 1986.

b. The Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Title VI, §§ 6183, 6465, 6469(a)(1) and 6471(a)-(b), and Title VII, § 7031, 102 Stat. 4354, 4375, 4377, 4378 and 4398 became effective on November 18, 1988. Inter alia it added a new offense, section 1956(a)(1)(A)(ii), conducting a financial transaction with intent to engage in violations of the tax code (26 USC 7201 or 7206), expanded the scope of section 1956(a)(2), added a "sting" section, 1956(a)(3), and added a number of "specified unlawful activity" predicate offenses as defined in section 1956(c)(7).

c. The Crime Control Act of 1990, Pub. L. No. 101-647, Title I, §§ 105-108, Title XII, § 1205(j), Title XIV, §§ 1402 and 1404, Title XXV, § 2506 and Title XXXV, § 3557, 104 Stat. 4791-92, 4831, 4835, 4862 and 4927 became effective on November 29, 1990. Inter alia it amended the provisions of section 1956(a)(2)(B) to permit the government to establish the defendant's knowledge of the illegality of his actions through the law enforcement officer's representations and the defendant's subsequent statements or actions indicating the defendant believed the representation, added violations of foreign law to the definition of "unlawful activity" (18 USC 1956(c)(1)), amended the definition of "financial transaction" (section 1956(c)(4)) and "monetary instruments" (section 1956(c)(5)) to emphasize the alternative means of meeting the definitions, revised and expanded the scope of the term "specified unlawful activity" (SUA) (sections 1956(c)(7)(A) and (D), added as predicate SUA several "environmental" offenses (section 1956(c)(7)(E)), added a new section, 1956(c)(8), defining "state," and added agencies authorized to investigate section 1956 violations. See Instruction 6.18.1956J(7) (Specified Unlawful Activity).

d. Effective October 28, 1992, Pub. L. 102-550, Title XV, §§ 1504(c), 1524, 1526(a), 1527(a), 1530, 1531, 1534 and 1536, 106 Stat. 4055 and 4064-67 added, inter alia, use of a safe deposit box to the definition of "transaction" (section 1956(c)(3)), added transfer of title to real property, vehicles, vessels or aircraft to the definitions of "financial transaction" (section 1956(c)(4)), expanded the scope of the term "specified unlawful activity" regarding offenses against foreign nations (section 1956(c)(7)(B)), deleted and added several predicate SUA offenses (section 1956(c)(7)(D)) and created the offense of conspiracy to violate sections 1956 or 1957, carrying the same penalties as the object offenses. Instead of a statutory five-year maximum under 18 USC 371, a conspiracy to violate 18 USC 1956 now carries a 20-year statutory maximum. See 18 USC 1956(g). Prior to the amendment, the five-year statutory maximum for conspiracy would have precluded imposition of a sentence corresponding to the sentencing guideline range for the defendants who conspired to launder large sums or who had significant prior criminal histories. See United States Sentencing Guideline § 2S1.1 and Chapter 5, Part A (Sentencing Table).

2. Both types of activity have been proscribed since original enactment of section 1956. See 18 USC 1956(a)(1), (a)(2) and (a)(3).

4. See Instruction 6.18.1956J(2) (Interstate and Foreign Commerce), infra. All section 1956 offenses require proof that the financial transaction itself or the financial institution, if one was involved, in some way affected interstate or foreign commerce. See 18 USC 1956(c)(4); United States v. Baker, 985 F.2d 1248, 1252 (4th Cir. 1993) (element under 1956(a)(1)(B)(i)); United States v. Posters 'N' Things Ltd., 969 F.2d 652, 661 n.6 (8th Cir. 1992) (expert witness testified as to issue), aff'd on other grounds, 511 U.S. 513 (1994); United States v. Gonzalez-Rodriguez, 966 F.2d 918, 924 (5th Cir. 1992) (discussing United States v. Gallo, 927 F.2d 815, 823 (5th Cir. 1991) and United States v. Hamilton, 931 F.2d 1046, 1051-52 (5th Cir. 1991)). The Eighth Circuit has not ruled whether the indictment must explicitly allege the interstate/foreign commerce nexus. United States v. Lucas, 932 F.2d 1210, 1219 (8th Cir. 1991) (court was not required to reach the issue because the indictment which alleged construction of a shopping center and purchase of merchandise could be reasonably construed to allege the element). See also United States v. Green, 964 F.2d 365, 374 (5th Cir. 1992) (citing Lucas); United States v. Lovett, 964 F.2d 1029, 1038 (10th Cir. 1992) (under section 1957, the interstate commerce nexus is jurisdictional but not an element of the crime charged) (citing United States v. Kelley, 929 F.2d 582, 586 (10th Cir. 1991)). Given the lack of controlling law on this issue, the Committee recommends that the nexus be alleged in the indictment. In any case, a finding of an effect on interstate or foreign commerce of either the transaction itself or the activities of the financial institution, if one was involved, is essential. See United States v. Ben M. Hogan Co., Inc., 769 F.2d 1293, 1297 (8th Cir. 1985) (reversible error for a district court to give an instruction which could have been understood to include a conclusive presumption of effect on interstate commerce, where such a finding by the jury was essential in a prosecution under the Sherman Anti-Trust Act).

7. See Instruction 6.18.1956J(7) (Specified Unlawful Activity), infra. The term should not be confused with "unlawful activity" in general and has a specific, statutory meaning, as set forth in section 1956(c)(7). Because that section has had numerous amendments, and itself incorporates activities defined in several other statutes, the Committee recommends careful review of both the provisions of section 1956(c)(7) and of the incorporated statutes which were in effect at the time of the alleged financial transaction (section 1956(a)(1)) or transportation, transmission or transfer (section 1956)(a)(2)).

8. See Instruction 6.18.1956J(1) (Financial Transaction), infra. Determination of the transaction reporting requirements in effect on the date of the alleged transaction requires reviewing the provisions of both 31 USC 5311-5327 and 31 C.F.R. Chapter 103, in effect on that date. Further, if the alleged financial transaction involves the use of a "financial institution," both 31 USC 5312(a)(2) and the regulations promulgated thereunder, should be reviewed to ensure that the entity was a financial institution. See 18 USC 1956(c)(6) (incorporating by reference 31 USC 5312(a)(2) and its regulations).

9. See Instruction 8.01, infra.

10. See 18 USC 1956(c)(2). This definition was included in the October 27, 1986, version of the statute and has not changed since.

12. In addition to Currency Transaction Report (CTR) requirements under 31 USC 5313, two other common reporting requirements are Currency and Monetary Instrument Reports (CMIR) under 31 USC 5316 and Forms 8300, under 26 USC 6050I. Analogous instructions about those reporting requirements and their applicable provisions can be tailored for such cases.

Committee Comments

See Instruction 6.18.1956J, infra, for additional instructions which should be given in most cases.

(For 2008 version see below).

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

2008 Version

The crime of [conducting] [attempting to conduct] an illegal financial transaction, as charged in [Count[s] ____ of] the indictment has three elements, which are:

One, on or about (date),¹ [the defendant] [defendant[s] (name[s])] [conducted] [attempted to conduct]² a financial transaction,³ that is, (describe in simple terms, e.g., the purchase of an automobile), which in any way or degree affected interstate or foreign commerce;⁴

Two, the financial transaction involved (describe the "property," e.g., money) which was represented⁵ to the defendant[s] by [a law enforcement officer] [a person acting at the direction of or with the approval of an agent of the (name of agency, see 18 USC 1956(e))] to be the proceeds⁶ of (describe the specified unlawful activity,⁷ e.g., unlawful distribution of cocaine); and

Three, the defendant [conducted] [attempted to conduct] the financial transaction with the intent to avoid a transaction reporting requirement of State or Federal law.⁸

[A defendant may be found to have attempted to conduct a financial transaction if [he] [she] intended to conduct a financial transaction and voluntarily and intentionally carried out some act which was a substantial step toward conducting that financial transaction, even if the transaction was never completed.]⁹

[The term "conducted," as used in [this] [Instruction[s] _____] includes initiating, concluding or participating in initiating or concluding a transaction.]¹⁰

[You are further instructed regarding the crime[s] charged in [Count[s] ___ of] the indictment that the following definitions apply: (Insert applicable portions of Instruction 6.18.1956J, unless the indictment charges multiple money laundering violations and there will be no confusion in adding the definitions common to all counts after all of the substantive money laundering instructions).]¹¹

[The Currency Transaction Reporting (CTR) requirement of federal law¹² requires financial institutions to file a report for each deposit, withdrawal, exchange of currency, or other payment or transfer, by, through, or to such financial institution which involves a transaction in currency of more than $10,000. Multiple currency transactions are treated as a single transaction if the financial institution has knowledge that they are by or on behalf of any person and result in either cash in or cash out totaling more than $10,000 during any one business day. A financial institution includes all of its domestic branch offices for purposes of this requirement. The phrase "financial institution" includes (insert appropriate institution from 31 C.F.R. § 103.11(i), such as "bank" or "savings & loan").]¹³

[The crime charged in [Count[s] ____ of] the indictment alleges multiple purposes for the crime, that is, that [the defendant] [defendant[s] (name[s])] knew that the transaction was [conducted] [attempted] for the purposes of (list all objectives). To find [the defendant] [defendant[s] (name[s])] guilty of the offense[s], you must agree unanimously that one or more of the objectives charged were proved beyond a reasonable doubt.]¹⁴

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

Notes on Use

1. The statutes and implementing regulations have been amended frequently. The date of the offense is critical in verifying that the criminal conduct charged was covered by the statute and regulation in effect on that date. Additionally, changes in reporting requirements under Treasury regulations (31 C.F.R.) may affect offenses charged under sections 1956(a)(1)(B)(ii) and 1956(a)(2)(B)(ii).

a. The Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, Title I, Subtitle H (Money Laundering Control Act of 1986), § 1352(a), 100 Stat. 3207-18 to 22, added sections 1956 and 1957 to Title 18 of the United States Code. The Anti-Drug Abuse Act of 1986, including the newly added sections 1956 and 1957 of Title 18, became effective on October 27, 1986.

b. The Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Title VI, §§ 6183, 6465, 6469(a)(1) and 6471(a)-(b), and Title VII, § 7031, 102 Stat. 4354, 4375, 4377, 4378 and 4398 became effective on November 18, 1988. Inter alia it added a new offense, section 1956(a)(1)(A)(ii), conducting a financial transaction with intent to engage in violations of the tax code (26 USC§ 7201 or 7206), expanded the scope of section 1956(a)(2), added a "sting" section, 1956(a)(3), and added a number of "specified unlawful activity" predicate offenses as defined in section 1956(c)(7).

c. The Crime Control Act of 1990, Pub. L. No. 101-647, Title I, §§ 105-108, Title XII, § 1205(j), Title XIV, §§ 1402 and 1404, Title XXV, § 2506 and Title XXXV, § 3557, 104 Stat. 4791-92, 4831, 4835, 4862 and 4927 became effective on November 29, 1990. Inter alia it amended the provisions of section 1956(a)(2)(B) to permit the government to establish the defendant's knowledge of the illegality of his actions through the law enforcement officer's representations and the defendant's subsequent statements or actions indicating the defendant believed the representation, added violations of foreign law to the definition of "unlawful activity" (18 USC 1956(c)(1)), amended the definition of "financial transaction" (section 1956(c)(4)) and "monetary instruments" (section 1956(c)(5)) to emphasize the alternative means of meeting the definitions, revised and expanded the scope of the term "specified unlawful activity" (SUA) (sections 1956(c)(7)(A) and (D), added as predicate SUA several "environmental" offenses (section 1956(c)(7)(E)), added a new section, 1956(c)(8), defining "state," and added agencies authorized to investigate section 1956 violations. See Instruction 6.18.1956J(7) (Specified Unlawful Activity).

d. Effective October 28, 1992, Pub. L. 102-550, Title XV, §§ 1504(c), 1524, 1526(a), 1527(a), 1530, 1531, 1534 and 1536, 106 Stat. 4055 and 4064-67 added, inter alia, use of a safe deposit box to the definition of "transaction" (section 1956(c)(3)), added transfer of title to real property, vehicles, vessels or aircraft to the definitions of "financial transaction" (section 1956(c)(4)), expanded the scope of the term "specified unlawful activity" regarding offenses against foreign nations (section 1956(c)(7)(B)), deleted and added several predicate SUA offenses (section 1956(c)(7)(D)) and created the offense of conspiracy to violate sections 1956 or 1957, carrying the same penalties as the object offenses. Instead of a statutory five-year maximum under 18 USC 371, a conspiracy to violate 18 USC 1956 now carries a 20-year statutory maximum. See 18 USC 1956(g). Prior to the amendment, the five-year statutory maximum for conspiracy would have precluded imposition of a sentence corresponding to the sentencing guideline range for the defendants who conspired to launder large sums or who had significant prior criminal histories. See United States Sentencing Guideline § 2S1.1 and Chapter 5, Part A (Sentencing Table).

2. Both types of activity have been proscribed since original enactment of section 1956. See 18 USC§ 1956(a)(1), (a)(2) and (a)(3).

4. See Instruction 6.18.1956J(2) (Interstate and Foreign Commerce), infra. All section 1956 offenses require proof that the financial transaction itself or the financial institution, if one was involved, in some way affected interstate or foreign commerce. See 18 USC 1956(c)(4); United States v. Baker, 985 F.2d 1248, 1252 (4th Cir. 1993) (element under 1956(a)(1)(B)(i)); United States v. Posters 'N' Things Ltd., 969 F.2d 652, 661 n.6 (8th Cir. 1992) (expert witness testified as to issue), aff'd on other grounds, 511 U.S. 513 (1994); United States v. Gonzalez-Rodriguez, 966 F.2d 918, 924 (5th Cir. 1992) (discussing United States v. Gallo, 927 F.2d 815, 823 (5th Cir. 1991) and United States v. Hamilton, 931 F.2d 1046, 1051-52 (5th Cir. 1991)). The Eighth Circuit has not ruled whether the indictment must explicitly allege the interstate/foreign commerce nexus. United States v. Lucas, 932 F.2d 1210, 1219 (8th Cir. 1991) (court was not required to reach the issue because the indictment which alleged construction of a shopping center and purchase of merchandise could be reasonably construed to allege the element). See also United States v. Green, 964 F.2d 365, 374 (5th Cir. 1992) (citing Lucas); United States v. Lovett, 964 F.2d 1029, 1038 (10th Cir. 1992) (under section 1957, the interstate commerce nexus is jurisdictional but not an element of the crime charged) (citing United States v. Kelley, 929 F.2d 582, 586 (10th Cir. 1991)). Given the lack of controlling law on this issue, the Committee recommends that the nexus be alleged in the indictment. In any case, a finding of an effect on interstate or foreign commerce of either the transaction itself or the activities of the financial institution, if one was involved, is essential. See United States v. Ben M. Hogan Co., Inc., 769 F.2d 1293, 1297 (8th Cir. 1985) (reversible error for a district court to give an instruction which could have been understood to include a conclusive presumption of effect on interstate commerce, where such a finding by the jury was essential in a prosecution under the Sherman Anti-Trust Act).

7. See Instruction 6.18.1956J(7) (Specified Unlawful Activity), infra. The term should not be confused with "unlawful activity" in general and has a specific, statutory meaning, as set forth in section 1956(c)(7). Because that section has had numerous amendments, and itself incorporates activities defined in several other statutes, the Committee recommends careful review of both the provisions of section 1956(c)(7) and of the incorporated statutes which were in effect at the time of the alleged financial transaction (section 1956(a)(1)) or transportation, transmission or transfer (section 1956)(a)(2)).

8. See Instruction 6.18.1956J(1) (Financial Transaction), infra. Determination of the transaction reporting requirements in effect on the date of the alleged transaction requires reviewing the provisions of both 31 USC§ 5311-5327 and 31 C.F.R. Chapter 103, in effect on that date. Further, if the alleged financial transaction involves the use of a "financial institution," both 31 USC 5312(a)(2) and the regulations promulgated thereunder, should be reviewed to ensure that the entity was a financial institution. See 18 USC 1956(c)(6) (incorporating by reference 31 USC 5312(a)(2) and its regulations).

9. See Instruction 8.01, infra.

10. See 18 USC 1956(c)(2). This definition was included in the October 27, 1986, version of the statute and has not changed since.

Committee Comments

See Instruction 6.18.1956J, infra, for additional instructions which should be given in most cases.

For 2006 version see below)

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

2006 Version

The crime of [conducting] [attempting to conduct] an illegal financial transaction, as charged in [Count[s] ____ of] the indictment has three elements, which are:

One, on or about (date),1 [the defendant] [defendant[s] (name[s])] [conducted] [attempted to conduct]2 a financial transaction,3 that is, (describe in simple terms, e.g., the purchase of an automobile), which in any way or degree affected interstate or foreign commerce;4

Two, the financial transaction involved (describe the "property," e.g., money) which was represented5 to the defendant[s] by [a law enforcement officer] [a person acting at the direction of or with the approval of an agent of the (name of agency, see 18 USC 1956(e))] to be the proceeds6 of (describe the specified unlawful activity,7 e.g., unlawful distribution of cocaine); and

Three, the defendant [conducted] [attempted to conduct] the financial transaction with the intent to avoid a transaction reporting requirement of State or Federal law.8

[A defendant may be found to have attempted to conduct a financial transaction if [he] [she] intended to conduct a financial transaction and voluntarily and intentionally carried out some act which was a substantial step toward conducting that financial transaction, even if the transaction was never completed.]9

[The term "conducted," as used in [this] [Instruction[s] _____] includes initiating, concluding or participating in initiating or concluding a transaction.]10

[You are further instructed regarding the crime[s] charged in [Count[s] ___ of] the indictment that the following definitions apply: (Insert applicable portions of Instruction 6.18.1956J, unless the indictment charges multiple money laundering violations and there will be no confusion in adding the definitions common to all counts after all of the substantive money laundering instructions).]11

[The Currency Transaction Reporting (CTR) requirement of federal law12 requires financial institutions to file a report for each deposit, withdrawal, exchange of currency, or other payment or transfer, by, through, or to such financial institution which involves a transaction in currency of more than $10,000. Multiple currency transactions are treated as a single transaction if the financial institution has knowledge that they are by or on behalf of any person and result in either cash in or cash out totaling more than $10,000 during any one business day. A financial institution includes all of its domestic branch offices for purposes of this requirement. The phrase "financial institution" includes (insert appropriate institution from 31 C.F.R. § 103.11(i), such as "bank" or "savings & loan").]13

[The crime charged in [Count[s] ____ of] the indictment alleges multiple purposes for the crime, that is, that [the defendant] [defendant[s] (name[s])] knew that the transaction was [conducted] [attempted] for the purposes of (list all objectives). To find [the defendant] [defendant[s] (name[s])] guilty of the offense[s], you must agree unanimously that one or more of the objectives charged were proved beyond a reasonable doubt.]14

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

Notes on Use

a. The Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, Title I, Subtitle H (Money Laundering Control Act of 1986), § 1352(a), 100 Stat. 3207-18 to 22, added sections 1956 and 1957 to Title 18 of the United States Code. The Anti-Drug Abuse Act of 1986, including the newly added sections 1956 and 1957 of Title 18, became effective on October 27, 1986.

b. The Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Title VI, §§ 6183, 6465, 6469(a)(1) and 6471(a)-(b), and Title VII, § 7031, 102 Stat. 4354, 4375, 4377, 4378 and 4398 became effective on November 18, 1988. Inter alia it added a new offense, section 1956(a)(1)(A)(ii), conducting a financial transaction with intent to engage in violations of the tax code (26 USC 7201 or 7206), expanded the scope of section 1956(a)(2), added a "sting" section, 1956(a)(3), and added a number of "specified unlawful activity" predicate offenses as defined in section 1956(c)(7).

c. The Crime Control Act of 1990, Pub. L. No. 101-647, Title I, §§ 105-108, Title XII, § 1205(j), Title XIV, §§ 1402 and 1404, Title XXV, § 2506 and Title XXXV, § 3557, 104 Stat. 4791-92, 4831, 4835, 4862 and 4927 became effective on November 29, 1990. Inter alia it amended the provisions of section 1956(a)(2)(B) to permit the government to establish the defendant's knowledge of the illegality of his actions through the law enforcement officer's representations and the defendant's subsequent statements or actions indicating the defendant believed the representation, added violations of foreign law to the definition of "unlawful activity" (18 USC 1956(c)(1)), amended the definition of "financial transaction" (section 1956(c)(4)) and "monetary instruments" (section 1956(c)(5)) to emphasize the alternative means of meeting the definitions, revised and expanded the scope of the term "specified unlawful activity" (SUA) (sections 1956(c)(7)(A) and (D), added as predicate SUA several "environmental" offenses (section 1956(c)(7)(E)), added a new section, 1956(c)(8), defining "state," and added agencies authorized to investigate section 1956 violations. See Instruction 6.18.1956J(7) (Specified Unlawful Activity).

d. Effective October 28, 1992, Pub. L. 102-550, Title XV, §§ 1504(c), 1524, 1526(a), 1527(a), 1530, 1531, 1534 and 1536, 106 Stat. 4055 and 4064-67 added, inter alia, use of a safe deposit box to the definition of "transaction" (section 1956(c)(3)), added transfer of title to real property, vehicles, vessels or aircraft to the definitions of "financial transaction" (section 1956(c)(4)), expanded the scope of the term "specified unlawful activity" regarding offenses against foreign nations (section 1956(c)(7)(B)), deleted and added several predicate SUA offenses (section 1956(c)(7)(D)) and created the offense of conspiracy to violate sections 1956 or 1957, carrying the same penalties as the object offenses. Instead of a statutory five-year maximum under 18 USC 371, a conspiracy to violate 18 USC 1956 now carries a 20-year statutory maximum. See 18 USC 1956(g). Prior to the amendment, the five-year statutory maximum for conspiracy would have precluded imposition of a sentence corresponding to the sentencing guideline range for the defendants who conspired to launder large sums or who had significant prior criminal histories. See United States Sentencing Guideline § 2S1.1 and Chapter 5, Part A (Sentencing Table).

2. Both types of activity have been proscribed since original enactment of section 1956. See 18 USC 1956(a)(1), (a)(2) and (a)(3).

4. See Instruction 6.18.1956J(2) (Interstate and Foreign Commerce), infra. All section 1956 offenses require proof that the financial transaction itself or the financial institution, if one was involved, in some way affected interstate or foreign commerce. See 18 USC 1956(c)(4); United States v. Baker, 985 F.2d 1248, 1252 (4th Cir. 1993) (element under 1956(a)(1)(B)(i)); United States v. Posters 'N' Things Ltd., 969 F.2d 652, 661 n.6 (8th Cir. 1992) (expert witness testified as to issue), aff'd on other grounds, 511 U.S. 513 (1994); United States v. Gonzalez-Rodriguez, 966 F.2d 918, 924 (5th Cir. 1992) (discussing United States v. Gallo, 927 F.2d 815, 823 (5th Cir. 1991) and United States v. Hamilton, 931 F.2d 1046, 1051-52 (5th Cir. 1991)). The Eighth Circuit has not ruled whether the indictment must explicitly allege the interstate/foreign commerce nexus. United States v. Lucas, 932 F.2d 1210, 1219 (8th Cir. 1991) (court was not required to reach the issue because the indictment which alleged construction of a shopping center and purchase of merchandise could be reasonably construed to allege the element). See also United States v. Green, 964 F.2d 365, 374 (5th Cir. 1992) (citing Lucas); United States v. Lovett, 964 F.2d 1029, 1038 (10th Cir. 1992) (under section 1957, the interstate commerce nexus is jurisdictional but not an element of the crime charged) (citing United States v. Kelley, 929 F.2d 582, 586 (10th Cir. 1991)). Given the lack of controlling law on this issue, the Committee recommends that the nexus be alleged in the indictment. In any case, a finding of an effect on interstate or foreign commerce of either the transaction itself or the activities of the financial institution, if one was involved, is essential. See United States v. Ben M. Hogan Co., Inc., 769 F.2d 1293, 1297 (8th Cir. 1985) (reversible error for a district court to give an instruction which could have been understood to include a conclusive presumption of effect on interstate commerce, where such a finding by the jury was essential in a prosecution under the Sherman Anti-Trust Act).

7. See Instruction 6.18.1956J(7) (Specified Unlawful Activity), infra. The term should not be confused with "unlawful activity" in general and has a specific, statutory meaning, as set forth in section 1956(c)(7). Because that section has had numerous amendments, and itself incorporates activities defined in several other statutes, the Committee recommends careful review of both the provisions of section 1956(c)(7) and of the incorporated statutes which were in effect at the time of the alleged financial transaction (section 1956(a)(1)) or transportation, transmission or transfer (section 1956)(a)(2)).

9. See Instruction 8.01, infra.

10. See 18 USC 1956(c)(2). This definition was included in the October 27, 1986, version of the statute and has not changed since.

Committee Comments

See Instruction 6.18.1956J, infra, for additional instructions which should be given in most cases.

For 2000 version see below

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

2000 Version

The crime of [conducting] [attempting to conduct] an illegal financial transaction, as charged in [Count[s] ____ of] the indictment has three essential elements, which are:

One, on or about (date),1 the defendant[s] [(name/s)] [conducted] [attempted to conduct]2 a financial transaction,3 that is, (describe in simple terms, e.g., the purchase of an automobile), which in any way or degree affected interstate or foreign commerce;4

Two, the financial transaction involved (describe the "property," e.g., money) which was represented5 to the defendant[s] by [a law enforcement officer] [a person acting at the direction of or with the approval of an agent of the (name of agency, see 18 USC 1956(e))] to be the proceeds6 of (describe the specified unlawful activity,7 e.g., unlawful distribution of cocaine); and

Three, the defendant [conducted] [attempted to conduct] the financial transaction with the intent to avoid a transaction reporting requirement of State or Federal law.8

[A defendant may be found to have attempted to conduct a financial transaction if [he] [she] intended to conduct a financial transaction and voluntarily and intentionally carried out some act which was a substantial step toward conducting that financial transaction, even if the transaction was never completed.]9

[The term "conducted," as used in [this] [Instruction[s] _____] includes initiating, concluding or participating in initiating or concluding a transaction.]10

[You are further instructed regarding the crime[s] charged in [Count[s] ___ of] the indictment that the following definitions apply: (Insert applicable portions of Instruction 6.18.1956J, unless the indictment charges multiple money laundering violations and there will be no confusion in adding the definitions common to all counts after all of the substantive money laundering instructions).]11

[The Currency Transaction Reporting (CTR) requirement of federal law12 requires financial institutions to file a report for each deposit, withdrawal, exchange of currency, or other payment or transfer, by, through, or to such financial institution which involves a transaction in currency of more than $10,000. Multiple currency transactions are treated as a single transaction if the financial institution has knowledge that they are by or on behalf of any person and result in either cash in or cash out totaling more than $10,000 during any one business day. A financial institution includes all of its domestic branch offices for purposes of this requirement. The phrase "financial institution" includes (insert appropriate institution from 31 C.F.R. § 103.11(i), such as "bank" or "savings & loan").]13

[The crime charged in [Count[s] ____ of] the indictment alleges multiple purposes for the crime, that is, that [the defendant] [defendant[s] [(name/s)]] knew that the transaction was [conducted] [attempted] for the purposes of (list all objectives). To find [the defendant] [defendant[s] [(name/s)]] guilty of the offense[s], you must agree unanimously that one or more of the objectives charged were proved beyond a reasonable doubt.]14

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

Committee Comments

See Instruction 6.18.1956J, infra, for additional instructions which should be given in most cases.

Notes on Use

1. The statutes and implementing regulations have been amended frequently. The date of the offense is critical in verifying that the criminal conduct charged was covered by the statute and regulation in effect on that date. Additionally, changes in reporting requirements under Treasury regulations (31 C.F.R.) may affect offenses charged under sections 1956(a)(1)(B)(ii) and 1956(a)(2)(B)(ii).

c. The Crime Control Act of 1990, Pub. L. No. 101-647, Title I, §§ 105-108, Title XII, § 1205(j), Title XIV, §§ 1402 and 1404, Title XXV, § 2506 and Title XXXV, § 3557, 104 Stat. 4791-92, 4831, 4835, 4862 and 4927 became effective on November 29, 1990. Inter alia it amended the provisions of section 1956(a)(2)(B) to permit the government to establish the defendant's knowledge of the illegality of his actions through the law enforcement officer's representations and the defendant's subsequent statements or actions indicating the defendant believed the representation, added violations of foreign law to the definition of "unlawful activity" (18 USC 1956(c)(1)), amended the definition of "financial transaction" (section 1956(c)(4)) and "monetary instruments" (section 1956(c)(5)) to emphasize the alternative means of meeting the definitions, revised and expanded the scope of the term "specified unlawful activity" (SUA) (sections 1956(c)(7)(A) and (D), added as predicate SUA several "environmental" offenses (section 1956(c)(7)(E)), added a new section, 1956(c)(8), defining "state," and added agencies authorized to investigate section 1956 violations. See Instruction 6.18.1956J(7) (Specified Unlawful Activity).

d. Effective October 28, 1992, Pub. L. 102-550, Title XV, §§ 1504(c), 1524, 1526(a), 1527(a), 1530, 1531, 1534 and 1536, 106 Stat. 4055 and 4064-67 added, inter alia, use of a safe deposit box to the definition of "transaction" (section 1956(c)(3)), added transfer of title to real property, vehicles, vessels or aircraft to the definitions of "financial transaction" (section 1956(c)(4)), expanded the scope of the term "specified unlawful activity" regarding offenses against foreign nations (section 1956(c)(7)(B)), deleted and added several predicate SUA offenses (section 1956(c)(7)(D)) and created the offense of conspiracy to violate sections 1956 or 1957, carrying the same penalties as the object offenses. Instead of a statutory five-year maximum under 18 USC 371, a conspiracy to violate 18 USC 1956 now carries a 20-year statutory maximum. See 18 USC 1956(g). Prior to the amendment, the five-year statutory maximum for conspiracy would have precluded imposition of a sentence corresponding to the sentencing guideline range for defendants who conspired to launder large sums or who had significant prior criminal histories. See United States Sentencing Guideline § 2S1.1 and Chapter 5, Part A (Sentencing Table).

2. Both types of activity have been proscribed since original enactment of section 1956. See 18 USC§ 1956(a)(1), (a)(2) and (a)(3).

4. See Instruction 6.18.1956J(2) (Interstate and Foreign Commerce), infra. All section 1956 offenses require proof that the financial transaction itself or the financial institution, if one was involved, in some way affected interstate or foreign commerce. See 18 USC 1956(c)(4); United States v. Baker, 985 F.2d 1248, 1252 (4th Cir. 1993) (essential element under 1956(a)(1)(B)(i)); United States v. Posters 'N' Things Ltd., 969 F.2d 652, 661 n.6 (8th Cir. 1992) (expert witness testified as to issue), aff'd on other grounds, 511 U.S. 513, 114 S. Ct. 1747 (1994); United States v. Gonzalez-Rodriguez, 966 F.2d 918, 924 (5th Cir. 1992) (discussing United States v. Gallo, 927 F.2d 815, 823 (5th Cir. 1991) and United States v. Hamilton, 931 F.2d 1046, 1051-52 (5th Cir. 1991)). The Eighth Circuit has not ruled whether the indictment must explicitly allege the interstate/foreign commerce nexus. United States v. Lucas, 932 F.2d 1210, 1219 (8th Cir.) (court was not required to reach the issue because the indictment which alleged construction of a shopping center and purchase of merchandise could be reasonably construed to allege the element), cert. denied, 502 U.S. 929 (1991). See also United States v. Green, 964 F.2d 365, 374 (5th Cir. 1992) (citing Lucas); United States v. Lovett, 964 F.2d 1029, 1038 (10th Cir. 1992) (under section 1957, the interstate commerce nexus is jurisdictional but not an essential element of the crime charged) (citing United States v. Kelley, 929 F.2d 582, 586 (10th Cir. 1991)). Given the lack of controlling law on this issue, the Committee recommends that the nexus be alleged in the indictment. In any case, a finding of an effect on interstate or foreign commerce of either the transaction itself or the activities of the financial institution, if one was involved, is essential. See United States v. Ben M. Hogan Co., Inc., 769 F.2d 1293, 1297 (8th Cir. 1985) (reversible error for a district court to give an instruction which could have been understood to include a conclusive presumption of effect on interstate commerce, where such a finding by the jury was essential in a prosecution under the Sherman Anti-Trust Act).

7. See Instruction 6.18.1956J(7) (Specified Unlawful Activity), infra. The term should not be confused with "unlawful activity" in general and has a specific, statutory meaning, as set forth in section 1956(c)(7). Because that section has had numerous amendments, and itself incorporates activities defined in several other statutes, the Committee recommends careful review of both the provisions of section 1956(c)(7) and of the incorporated statutes which were in effect at the time of the alleged financial transaction (section 1956(a)(1)) or transportation, transmission or transfer (section 1956)(a)(2)).

8. See Instruction 6.18.1956J(1) (Financial Transaction), infra. Determination of the transaction reporting requirements in effect on the date of the alleged transaction requires reviewing the provisions of both 31 USC§ 5311-5327 and 31 C.F.R. Chapter 103, in effect on that date. Further, if the alleged financial transaction involves the use of a "financial institution," both 31 USC 5312(a)(2) and the regulations promulgated thereunder, should be reviewed to ensure that the entity was a financial institution. See 18 USC 1956(c)(6) (incorporating by reference 31 USC 5312(a)(2) and its regulations).

9. See Instruction 8.01, infra.

10. See 18 USC 1956(c)(2). This definition was included in the October 27, 1986, version of the statute and has not changed since.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1956J SUPPLEMENTAL INSTRUCTIONS¹

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Laundering Of Monetary Instruments (18 USC 1956(a)(1)(A)(i) and 1956(a)(1)(B)(i))

(1) FINANCIAL TRANSACTION

[The phrase "financial transaction," as used in [this] [Instruction[s] _____] means²

[a transaction which in any way or degree affects interstate or foreign commerce

[involving the movement of funds by wire or other means.]

[involving one or more monetary instruments.]³

[involving the transfer of title to any [real property] [vehicle] [vessel] [aircraft.]]⁴

[a transaction involving the use of a financial institution⁵ which is engaged in, or the activities of which affect, interstate or foreign commerce in any way or degree.]⁶

The term "transaction," as used above, means⁷

[a purchase, sale, loan, pledge, gift, transfer, delivery, or other disposition of property]

[with respect to a financial institution, a deposit, withdrawal, transfer between accounts, exchange of currency, loan, extension of credit, purchase or sale of any stock, bond, certificate of deposit, or other monetary instrument, [use of a safe deposit box]⁸ or any other payment, transfer, or delivery by, through, or to a financial institution, by whatever means.]]

(2) INTERSTATE AND FOREIGN COMMERCE

[The phrase "interstate commerce," as used above, means commerce between any combination of states, territories, and possessions of the United States, including the District of Columbia.]⁹

[The phrase "foreign commerce," as used above, means commerce between any state, territory or possession of the United States and a foreign country.]⁹

[The term "commerce" includes, among other things, travel, trade, transportation and communication.]¹⁰

[It is not necessary for the government to show that [the defendant] [defendant[s] (name[s])] actually intended or anticipated an effect on interstate or foreign commerce. All that is necessary is that interstate or foreign commerce was affected as a natural and probable consequence of [the defendant's] [defendant[s] (name['s][s'])] actions.]¹¹

[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 currency is printed in Washington D.C., that the gemstones came from another country.)]¹²

[It is not necessary for the government to show that [the defendant's] [defendant[s] (name['s][s'])] transaction with a financial institution, that is with (name institution) itself affected interstate or foreign commerce. All that is necessary is that at the time of the alleged offense (name institution) was engaged in or had other activities which affected interstate or foreign commerce in any way or degree.]¹³

[You may find that the transaction involved the use of a financial institution which engaged in or the activities of which affected interstate or foreign commerce in any way or degree if you find from the evidence beyond a reasonable doubt: (describe government's evidence at trial that the financial institution engaged in or affected interstate or foreign commerce, e.g., that it sent checks for clearing to another state or transferred funds to another country).]]¹⁴

(3) FUNDS

[The term funds includes (specify the property involved which the court determines constitutes "funds" under the statute).]¹⁵

(4) MONETARY INSTRUMENT

[The phrase "monetary instrument," means, among other things, [coin or currency of the United States [or of any other country]] [traveler's checks] [cashier's checks] [personal checks] [bank checks] [money orders] [investment securities] [[negotiable instruments] in bearer form or otherwise in such form that title thereto passes upon delivery.]¹⁶

(5) FINANCIAL INSTITUTION

[The phrase "financial institution," means, among other things, (insert applicable definitions from 31 USC 5312(a)(2)(A)-(Y) and 31 C.F.R. § 103.11(i).]¹⁷

[The phrase "financial institution," includes each agent, agency, branch or office within the United States of any person doing business, whether or not on a regular basis or as an organized business concern, as a[n] (insert appropriate reference from 31 C.F.R. § 103.11(i)).] [Individuals, groups of individuals, and businesses not formally established as financial institutions, may in fact be a financial institution if they act in one of the capacities I have listed.]¹⁸ [In this case, the government alleges that (name of individual, group or entity) was a financial institution in that (name) acted in the capacity of (insert one of the categories from 31 C.F.R. § 103.11(i)). If you find beyond a reasonable doubt that (name of individual, group or entity) did act as a (insert appropriate reference from 31 C.F.R. § 103.11(i)), whether or not (name) did so on a regular basis or as an organized business concern, then you may find that the government has established that the transaction in this case involved a financial institution.]]¹⁹

(6) PROCEEDS

[The term "proceeds" means any property, or any interest in property, that someone acquires or retains as a result of the commission of (describe the specified unlawful activity).²⁰ [Proceeds can be any kind of property, not just money. It can include personal property, like a car or a piece of jewelry, or real property, like an interest in land.]²¹ [So, for example:] [If someone robs a bank, the money he takes from the teller is the proceeds of the bank robbery.] [If someone steals a car, the car is the proceeds of the theft.] [If someone commits a fraud scheme and thereby acquires an interest in land, or shares of stock, or a joint interest in a bank account, that interest, whatever it may be, is the proceeds of the crime.] [If someone sells drugs for cash and uses the cash to buy a cashier's check, the cash received is proceeds and the cashier's check is still proceeds of the crime.]²¹

[It does not matter whether or not the person who committed the underlying crime, and thereby acquired or retained the proceeds, was [the] [a] defendant. It is a crime to [conduct a financial transaction] [transport, transmit or transfer monetary instruments or funds]²² involving property that is the proceeds of a crime, even if that crime was committed by another person, as long as all of the elements of the offense are satisfied.]²³

[The government is not required to trace the property it alleges to be proceeds of (describe the specified unlawful activity) to a particular underlying offense. It is sufficient if the government proves that the property was the proceeds of (describe the specified unlawful activity) generally.²⁴ [For example, in a case involving alleged drug proceeds, the government would not have to trace the money to a particular drug offense, but could satisfy the requirement by proving that the money was the proceeds of drug trafficking generally.]²⁵

[The government need not prove that all of the property involved in the [transaction] [transportation, transmission or transfer]²² was the proceeds of (describe the unlawful activity). It is sufficient if the government proves that at least part of the property represents such proceeds.]]²⁶

(7) SPECIFIED UNLAWFUL ACTIVITY

[The phrase "specified unlawful activity," means any one of a large variety of offenses defined by statute. I instruct you as a matter of law that (describe the specified unlawful activity) falls within the definition. To assist you in determining whether someone [committed] [attempted to commit] (describe the specified unlawful activity), you are advised that the elements of (name offense) are: (set out elements).]²⁷

(8) KNOWLEDGE

[The phrase "knew the (describe property) represented the proceeds of some form of unlawful activity," means that [the defendant] [defendant[s] (name[s])] knew the property involved in the transaction represented proceeds from some form, though not necessarily which form, of activity that constitutes a felony offense under [State or Federal] [or] [foreign] law.²⁸ Thus, the government need not prove that the defendant specifically knew that the (describe property) involved in the financial transaction represented the proceeds of (describe the specified unlawful activity which is the predicate offense) or any other specific offense; it need only prove that [he] [she] [they] knew it represented the proceeds of some form, though not necessarily which form, of felony under [state] [or] [federal] [or] [foreign] law. [I instruct you as a matter of law (describe offense) is a felony under (insert applicable jurisdiction) law.]]

Notes on Use

1. The Committee recommends the Court explain the terms set forth in this instruction which are applicable to the section 1956 count[s] in the indictment. They should, of course, be tailored to the facts of the particular case.

2. See 18 USC 1956(c)(4).

Section 1956(c)(4) defines the term "financial transaction" very broadly. Because of the broad definition of the term "transaction" [see Note 6, infra] in section [1956](c)(3), the term "financial transaction" is not limited to transactions involving financial institutions. It includes all forms of commercial activity. The only requirement is that the transaction must "affect interstate or foreign commerce" or be conducted through or by a financial institution "which is engaged in or the activities of which affect interstate or foreign commerce," in any way or degree.

S. Rep. No. 433, 99th Cong. 2d Sess 13 (1986).

3. Use where the transaction involves monetary instruments. "Transaction" includes the purchase, sale or disposition of any kind of property as long as the disposition involves a monetary instrument. See United States v. Blackman, 904 F.2d 1250, 1257 (8th Cir. 1990); United States v. Lee, 886 F.2d 998, 1002-03 (8th Cir. 1989). A "financial transaction" includes transferring cash from one person to another without involvement of a financial institution, as long as it affects interstate or foreign commerce. See United States v. Kaufmann, 985 F.2d 884, 892 n.3 (7th Cir. 1993) ("financial transaction" found for cash sale of car); United States v. Isabel, 945 F.2d 1193, 1201 (1st Cir. 1991) (giving a check in exchange for cash); United States v. Hamilton, 931 F.2d 1046, 1051-52 (5th Cir. 1991) (sending cash through the mail); United States v. Gallo, 927 F.2d 815, 822 (5th Cir. 1991) (transfer of a box of currency between individuals). It may also include merely writing a check. See United States v. Jackson, 935 F.2d 832, 841 (7th Cir. 1991); United States v. Blackman, 904 F.2d 1250, 1257 (8th Cir. 1990).

Although not listed in section 1956(c)(5), cashier's checks are negotiable instruments in "[s]uch form that title thereto passes upon delivery." S. Rep. No. 433, 99th Cong., 2d Sess. 13 (1986). This definition was explicitly clarified, effective May 8, 1987, when "cashier's checks" was added to the definition of "monetary instruments" in 31 C.F.R. § 103.11(j)(iii). See 52 Fed. Reg. 11436 (1987) (Final Rule).

4. This third alternative definition involving the transfer of titles became effective October 28, 1992. Previously, only the other two types of transactions affecting interstate or foreign commerce applied. See Note 1, Instruction 6.18.1956A, supra.

5. See Notes 17-19, infra. The term "financial institution" is generally defined for purposes of Title 18 in 18 USC 20. However, 18 USC 1956(c)(6) specifically incorporates for section 1956 purposes the somewhat different definition found in 31 USC 5312(a)(2) and its implementing regulations, e.g. 31 C.F.R. § 103.11(i). The scope is quite broad and includes insurance companies, pawnbrokers, travel agencies, vehicle dealers, realtors, the United States Postal Service and a number of other entities which a lay person might not consider to be a financial institution. Because of the periodic amendments to section 5312(a)(2) and to 31 C.F.R. § 103.11 the Committee recommends reviewing the versions applicable at the time of the alleged transaction.

6. As defined in 18 USC 1956(c)(4), the financial transaction may itself affect interstate or foreign commerce. Alternatively, the transaction, regardless of whether it itself has such a nexus, may involve the use of a "financial institution" which supplies the nexus. Section 1956(a)(1) does not require that the use of the financial institution, i.e., the financial transaction, with the interstate commerce nexus, be a part of or even contribute to or facilitate the requisite design to conceal the nature, ownership or source of the proceeds. See United States v. Koller, 956 F.2d 1408, 1412 (7th Cir. 1992) (the defendant purchased money order at a bank which he then took to the probation officer to satisfy his girlfriend's restitution).

7. See 18 USC 1956(c)(3). According to the legislative history, the term "also includes activities not involving banks such as the purchase, sale or other disposition of property of all kinds . . . . [E]ach transaction involving "dirty money" is intended to be a separate offense." S. Rep. No. 433, 99th Cong., 2d Sess. 13 (1986). The history uses the example of a drug dealer who takes $1 million in cash from drug sales, deposits portions in ten different banks, withdraws some and then uses the money withdrawn to purchase a luxury item. There are twelve violations, ten for the deposits, one for the withdrawal and one for the purchase. Id.

8. Until the October 28, 1992, amendments, merely depositing money in a safe deposit box in a financial institution was not a transaction. See Instruction 6.18.1956A, supra, Note 1; United States v. Bell, 936 F.2d 337, 340-41 (7th Cir. 1991) (holding that use of a safe deposit box to hold the proceeds of specified unlawful activity did not constitute a "transaction"). Since that date, mere "use of a safe deposit box" with respect to a financial institution is explicitly included.

9. See 18 USC 10; 18 USC 1951(b)(3); 18 USC 1956(c)(8) (definition of "state"); Fifth Circuit Criminal Instructions 1.37 - 1.39 (West 1991). The terms "interstate," "foreign" and "commerce" are not specifically defined in 18 USC 1956. The statutory definitions in other portions of Title 18 define them consistently with the ordinary meanings of the terms. Optional definitions are included for use if the facts of the case raise an issue in this regard or if the jury should have a question.

10. The term "commerce" as used throughout Title 18 was intended to avoid the narrower connotation of the word "transportation." 18 USC 10, Revision Notes.

11. Use where the transaction itself affected interstate or foreign commerce. See United States v. Evans, 272 F.3d 1069 (8^th Cir. 2001). The legislative history of section 1956 indicates that the phrase was derived from the Hobbs Act, 18 USC 1951, and "intended to reflect the full exercise of Congress's power under the Commerce Clause." S. Rep. No. 433, 99th Cong. 2d Sess. 13 (1986). See also United States v. Perez, 402 U.S. 146, 154 (1971) (loan sharking).

12. Because there is no clear requirement that the commerce nexus be alleged in the detail required under the Hobbs Act, the wording of Instruction 6.18.1951, supra, is different. If this instruction does not precede a paragraph describing the government's burden of proof, the Committee recommends adding "otherwise, you must find [the] [that particular] defendant not guilty [under Count[s] ____]." See Instruction 3.09, supra.

13. See 18 USC 1956(c)(4). Use when a "financial institution" [see Note 5, supra] is involved, regardless of whether the transaction itself had an effect on interstate or foreign commerce.

14. Because the requirement under the Hobbs Act is somewhat different, the wording of Instruction 6.18.1951, supra, is different. If this instruction does not precede a paragraph describing the government's burden of proof, the Committee recommends adding, "[o]therwise, you must find [the] [that particular] defendant not guilty [under Count[s] ____]." The Committee has been unable to find a definition specifically applicable to sections 1956 and 1957.

15. See generally Black's Law Dictionary 673 (6th ed. 1990) ("monies and much more, such as notes, bills, checks, drafts, stocks and bonds....") For use where the financial transaction involved the movement of funds rather than monetary instruments or the transfer of title to property. See Notes 2-4, supra.

16. For use where the financial transaction involved the use of a monetary instrument. See Notes 2-4, supra.

17. See Note 5, supra. For use in response to a question by the jury or where the nature of the financial institution is not intuitive. Section 5312(a)(2) was already in effect on October 27, 1986, and was amended November 18, 1988. Section 103.11 was effective October 27, 1986, and amended May 8, 1987, inter alia adding cashier checks to the definition of "monetary instruments."

18. See 31 C.F.R. § 103.11(a). This portion of the regulation was already in effect on October 27, 1986. See 50 Fed. Reg. 42691 (1985) and corrected at 50 Fed. Reg. 47390 (1985) (Final Rule). On May 8, 1987, the definition was expanded to include persons whether or not on a regular basis or as an organized business concern. See 52 Fed. Reg. 11436 (1987) (Final Rule). See also United States v. Tannebaum, 934 F.2d 8, 11-12 (2d Cir. 1991) (an individual can be a financial institution); United States v. Gollott, 939 F.2d 255, 258 (5th Cir. 1991) (group of individuals laundering cash for undercover agent was a financial institution required to file Currency Transaction Reports).

19. This optional expansion of the instruction may be given when this is an issue.

20. "Proceeds" is not a term defined in 18 USC 1956(c)(1)-(8). In defining criminally derived property, 18 USC 1957(f)(2) refers to "any property constituting, or derived from, proceeds obtained from a criminal offense . . ." (emphasis added). However, in United States v. Santos, 553 U.S. ___, 128 S. Ct. 2020 (2008), involving an illegal lottery operator’s payments to his winners and runners using the receipts from his lottery operation, a plurality of the Supreme Court found that the term proceeds in section 1956(a)(1)(A)(i) applies only to criminal profits, not criminal receipts. Justice Stevens, in a concurring opinion which was the determinative opinion, concluded that the term "proceeds" does not include revenue used to pay essential operating expenses in a gambling business, but it does include gross revenue from the sale of contraband and the operation of organized crime syndicates.

The statutory definition is virtually identical to the scope of property subject to criminal forfeiture set forth in 21 USC 853(a)(1): "any property constituting, or derived from any proceeds the person obtained, directly or indirectly, as the result of such [predicate drug] violation;" (emphasis added). Thus in the closest analogous statutes, property and proceeds may be the same when the property constitutes proceeds. For purposes of section 853, "property" includes: "(1) real property, including things growing on, affixed to, and found in land; and (2) tangible and intangible personal property, including rights, privileges, interests, claims and securities." 21 USC 853(b).

Prior to the above cases, at least one commentator argued for a narrower definition, based on a construction of the legislative history. See G. Richard Strafer, Money Laundering: The Crime of the '90's, 27 Amer. Crim. L. Rev. 149, 182-85 (1989). In Werber, the Court rejected the defendant's reliance on legislative history. The Court found that the express language of the statute (section 1956(a)(1)) was clear without citation to dictionaries, that there was no clear legislative history contradicting the plain meaning of the word "proceeds" and that Congress' failure to mention factual situations such as the counterfeit cashier's check and subsequent sale of automobiles scheme did not preclude the automobiles from being proceeds. 787 F. Supp. at 356-57. In a typical case where the proceeds are cash or a monetary instrument, the Committee recommends the use of the definition shown. More complex situations may require briefing by the parties to update this evolving area of the law.

21. These optional expansions of the definition should be tailored to the facts of a specific case. For an example where the court found that proceeds can include other than money or cash equivalents, even where that property was not purchased with the monetary proceeds of unlawful activity, see United States v. Werber, 787 F. Supp. 353, 357 (S.D.N.Y. 1992).

22. Use with Instructions 6.18.1956D, E & F (18 USC 1956(a)(2)).

23. See United States v. Atterson, 926 F.2d 649, 656 (7th Cir. 1991) (the defendant was girlfriend of a drug dealer who wired cash for him); United States v. Isabel, 945 F.2d 1193, 1202-03 (1st Cir. 1991) (the defendant issued false paycheck in return for cash received from person who said he was a drug dealer).

24. The statute merely requires that the transaction "involves" the proceeds. See United States v. Blackman, 904 F.2d 1250, 1257 (8th Cir. 1990); accord United States v. Jackson, 983 F.2d 757, 766 (7th Cir. 1993) (citing Blackman); United States v. Isabel, 945 F.2d 1193, 1201 (1st Cir. 1991) (citing Blackman and United States v. Jackson, 935 F.2d 832, 840 (8th Cir. 1991)).

25. This optional example, which should be tailored to the facts of the case, is based on facts in United States v. Blackman, 904 F.2d 1250, 1257 (8th Cir. 1990).

26. The requirement that the financial transaction "involves the proceeds" of unlawful activity does not require that the government prove that the transaction involved only illegally derived proceeds. The sanction of the statute cannot be avoided by commingling funds. See United States v. Jackson, 983 F.2d 757, 765 (7th Cir. 1993) (citing United States v. Jackson, 935 F.2d 832, 840 (7th Cir. 1991)). Nor need the evidence of criminally derived funds be direct. See United States v. Turner, 975 F.2d 490, 497 (8th Cir. 1992) (reasonable for jury to infer that money used to purchase and renovate a building came from drug sales, where there was extensive testimony about the defendant's drug operations and evidence that his expenses far exceeded his income). But Cf. United States v. Baker, 985 F.2d 1248, 1254, 1261-62 (4th Cir. 1993) (reversal of jury's verdict in absence of specific evidence identifying the boat purchased by a third party, identifying the defendant as the owner or possessor of the boat, showing that the money used by the third party belonged to the defendant and that the money was the product of drug transactions).

27. Throughout these instructions, the plain description of the offense has been substituted for the phrase "specified unlawful activity" (SUA) which is a term of art specifically defined in 18 USC 1956(c)(7), and which incorporates inter alia most of 18 USC 1961(1). If the indictment is read to the jury and contains the phrase, any inquiry by the jury as to whether a particular offense is "specified unlawful activity" can be answered as a matter of law. Section 1956(c)(7) as originally enacted effective October 27, 1986, was amended on November 18, 1988, on November 29, 1990, and on October 28, 1992. See Note 1, Instruction 6.18.1956A, supra. The provisions of section 1956(c)(7) used should correspond to the alleged date of the offense. Further, many of the most common SUAs, such as drug trafficking, are derived from the definition of "racketeering activity," contained in 18 USC 1961(1). That statute has also been amended since October 27, 1986, on November 10, 1986, November 18, 1988, and on November 29, 1990. Therefore, when determining whether an offense qualifies as an SUA, the applicable provisions of section 1961(1) should also be reviewed. NOTE: Although the general trend of amendments to section 1956(c)(7) has been to expand the statute, the 1990 amendment added violations of sections 1341 and 1343 (mail and wire fraud) "affecting a financial institution." Because all RICO (18 USC 1961) predicates, including sections 1341 and 1343, were already incorporated within section 1956(c)(7), it is unclear whether Congress intended to restrict section 1956(c)(7) and exclude section 1341 and 1343 offenses not affecting a financial institution after November 29, 1990. See United States v. Taylor, 984 F.2d 298, 301-02 (9th Cir. 1993). This ambiguity was eliminated, effective October 28, 1992, when the questionable references to sections 1341 and 1343 (as well as the section 1344 relating to bank fraud) were deleted. Where the substantive offense constituting the SUA is not also charged in the indictment, the Committee recommends that, upon request of either party, the jury be instructed as to the elements of the SUA[s] alleged in the money laundering counts. See, e.g., Instruction 5.06C, supra.

28. The financial transaction (or transportation, transmission or transfer, in the case of 18 USC 1956(a)(2)) must have involved proceeds from "specified" unlawful activity, as defined in 18 USC 1956(c)(7); however, the defendant need not have known the actual source of the proceeds, as long as the defendant knew that the proceeds represented "some form of unlawful activity." 18 USC 1956(a)(1). Section 1956(c)(1) defines the term broadly to require only that "the person knew the property involved in the transaction represented proceeds from some form, though not necessarily which form, of activity that constitutes a felony under State, Federal, or foreign law, regardless of whether or not such activity is specified in paragraph [1956(c)](7)." Although the most common situation will be that the defendant's knowledge and the actual source of the proceeds coincide, where the evidence shows that the defendant thought that the property used in the transaction was proceeds from a different unlawful activity, the instruction should be tailored to reflect the defendant's knowledge, e.g. "at the time the defendant conducted the financial transaction, he believed that the money he used in the financial transaction represented the proceeds of unlawful [prostitution] [dogfighting] [gambling]." See, e.g., United States v. Long, 977 F.2d 1264, 1277 (8th Cir. 1992) (discussing the laundering of "any proceeds from a myriad of specified unlawful activities," and how that results in different offense levels under section 2S1.1 of the Sentencing Guidelines).

Committee Comments

See Committee Comments and Notes on Use, Instructions 6.18.1956A through I, supra.

(For 2008 version see below).

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

2008 Version

(1) FINANCIAL TRANSACTION

[The phrase "financial transaction," as used in [this] [Instruction[s] _____] means²

[a transaction which in any way or degree affects interstate or foreign commerce

[involving the movement of funds by wire or other means.]

[involving one or more monetary instruments.]³

[involving the transfer of title to any [real property] [vehicle] [vessel] [aircraft.]]⁴

[a transaction involving the use of a financial institution⁵ which is engaged in, or the activities of which affect, interstate or foreign commerce in any way or degree.]⁶

The term "transaction," as used above, means⁷

[a purchase, sale, loan, pledge, gift, transfer, delivery, or other disposition of property]

[with respect to a financial institution, a deposit, withdrawal, transfer between accounts, exchange of currency, loan, extension of credit, purchase or sale of any stock, bond, certificate of deposit, or other monetary instrument, [use of a safe deposit box]⁸ or any other payment, transfer, or delivery by, through, or to a financial institution, by whatever means.]]

(2) INTERSTATE AND FOREIGN COMMERCE

[The phrase "interstate commerce," as used above, means commerce between any combination of states, territories, and possessions of the United States, including the District of Columbia.]⁹

[The phrase "foreign commerce," as used above, means commerce between any state, territory or possession of the United States and a foreign country.]⁹

[The term "commerce" includes, among other things, travel, trade, transportation and communication.]¹⁰

[It is not necessary for the government to show that [the defendant] [defendant[s] (name[s])] actually intended or anticipated an effect on interstate or foreign commerce. All that is necessary is that interstate or foreign commerce was affected as a natural and probable consequence of [the defendant's] [defendant[s] (name['s][s'])] actions.]¹¹

[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 currency is printed in Washington D.C., that the gemstones came from another country.)]¹²

[It is not necessary for the government to show that [the defendant's] [defendant[s] (name['s][s'])] transaction with a financial institution, that is with (name institution) itself affected interstate or foreign commerce. All that is necessary is that at the time of the alleged offense (name institution) was engaged in or had other activities which affected interstate or foreign commerce in any way or degree.]¹³

[You may find that the transaction involved the use of a financial institution which engaged in or the activities of which affected interstate or foreign commerce in any way or degree if you find from the evidence beyond a reasonable doubt: (describe government's evidence at trial that the financial institution engaged in or affected interstate or foreign commerce, e.g., that it sent checks for clearing to another state or transferred funds to another country).]]¹⁴

(3) FUNDS

[The term funds includes (specify the property involved which the court determines constitutes "funds" under the statute).]¹⁵

(4) MONETARY INSTRUMENT

[The phrase "monetary instrument," means, among other things, [coin or currency of the United States [or of any other country]] [traveler's checks] [cashier's checks] [personal checks] [bank checks] [money orders] [investment securities] [[negotiable instruments] in bearer form or otherwise in such form that title thereto passes upon delivery.]¹⁶

(5) FINANCIAL INSTITUTION

[The phrase "financial institution," means, among other things, (insert applicable definitions from 31 USC 5312(a)(2)(A)-(Y) and 31 C.F.R. § 103.11(i).]¹⁷

[The phrase "financial institution," includes each agent, agency, branch or office within the United States of any person doing business, whether or not on a regular basis or as an organized business concern, as a[n] (insert appropriate reference from 31 C.F.R. § 103.11(i)).] [Individuals, groups of individuals, and businesses not formally established as financial institutions, may in fact be a financial institution if they act in one of the capacities I have listed.]¹⁸ [In this case, the government alleges that (name of individual, group or entity) was a financial institution in that (name) acted in the capacity of (insert one of the categories from 31 C.F.R. § 103.11(i)). If you find beyond a reasonable doubt that (name of individual, group or entity) did act as a (insert appropriate reference from 31 C.F.R. § 103.11(i)), whether or not (name) did so on a regular basis or as an organized business concern, then you may find that the government has established that the transaction in this case involved a financial institution.]]¹⁹

(6) PROCEEDS

[The term "proceeds" means any property, or any interest in property, that someone acquires or retains as a result of the commission of (describe the specified unlawful activity).²⁰ [Proceeds can be any kind of property, not just money. It can include personal property, like a car or a piece of jewelry, or real property, like an interest in land.]²¹ [So, for example:] [If someone robs a bank, the money he takes from the teller is the proceeds of the bank robbery.] [If someone steals a car, the car is the proceeds of the theft.] [If someone commits a fraud scheme and thereby acquires an interest in land, or shares of stock, or a joint interest in a bank account, that interest, whatever it may be, is the proceeds of the crime.] [If someone sells drugs for cash and uses the cash to buy a cashier's check, the cash received is proceeds and the cashier's check is still proceeds of the crime.]²¹

[It does not matter whether or not the person who committed the underlying crime, and thereby acquired or retained the proceeds, was [the] [a] defendant. It is a crime to [conduct a financial transaction] [transport, transmit or transfer monetary instruments or funds]²² involving property that is the proceeds of a crime, even if that crime was committed by another person, as long as all of the elements of the offense are satisfied.]²³

[The government is not required to trace the property it alleges to be proceeds of (describe the specified unlawful activity) to a particular underlying offense. It is sufficient if the government proves that the property was the proceeds of (describe the specified unlawful activity) generally.²⁴ [For example, in a case involving alleged drug proceeds, the government would not have to trace the money to a particular drug offense, but could satisfy the requirement by proving that the money was the proceeds of drug trafficking generally.]²⁵

[The government need not prove that all of the property involved in the [transaction] [transportation, transmission or transfer]²² was the proceeds of (describe the unlawful activity). It is sufficient if the government proves that at least part of the property represents such proceeds.]]²⁶

(7) SPECIFIED UNLAWFUL ACTIVITY

[The phrase "specified unlawful activity," means any one of a large variety of offenses defined by statute. I instruct you as a matter of law that (describe the specified unlawful activity) falls within the definition. To assist you in determining whether someone [committed] [attempted to commit] (describe the specified unlawful activity), you are advised that the elements of (name offense) are: (set out elements).]²⁷

(8) KNOWLEDGE

[The phrase "knew the (describe property) represented the proceeds of some form of unlawful activity," means that [the defendant] [defendant[s] (name[s])] knew the property involved in the transaction represented proceeds from some form, though not necessarily which form, of activity that constitutes a felony offense under [State or Federal] [or] [foreign] law.²⁸ Thus, the government need not prove that the defendant specifically knew that the (describe property) involved in the financial transaction represented the proceeds of (describe the specified unlawful activity which is the predicate offense) or any other specific offense; it need only prove that [he] [she] [they] knew it represented the proceeds of some form, though not necessarily which form, of felony under [state] [or] [federal] [or] [foreign] law. [I instruct you as a matter of law (describe offense) is a felony under (insert applicable jurisdiction) law.]]

Notes on Use

2. See 18 USC 1956(c)(4).

Section 1956(c)(4) defines the term "financial transaction" very broadly. Because of the broad definition of the term "transaction" [see Note 6, infra] in section [1956](c)(3), the term "financial transaction" is not limited to transactions involving financial institutions. It includes all forms of commercial activity. The only requirement is that the transaction must "affect interstate or foreign commerce" or be conducted through or by a financial institution "which is engaged in or the activities of which affect interstate or foreign commerce," in any way or degree.

S. Rep. No. 433, 99th Cong. 2d Sess 13 (1986).

10. The term "commerce" as used throughout Title 18 was intended to avoid the narrower connotation of the word "transportation." 18 USC 10, Revision Notes.

13. See 18 USC 1956(c)(4). Use when a "financial institution" [see Note 5, supra] is involved, regardless of whether the transaction itself had an effect on interstate or foreign commerce.

16. For use where the financial transaction involved the use of a monetary instrument. See Notes 2-4, supra.

19. This optional expansion of the instruction may be given when this is an issue.

20. "Proceeds" is not a term defined in 18 USC 1956(c)(1)-(8). In defining criminally derived property, 18 USC 1957(f)(2) refers to "any property constituting, or derived from, proceeds obtained from a criminal offense . . ." (emphasis added). This is virtually identical to the scope of property subject to criminal forfeiture set forth in 21 USC 853(a)(1): "any property constituting, or derived from any proceeds the person obtained, directly or indirectly, as the result of such [predicate drug] violation;" (emphasis added). Thus in the closest analogous statutes, property and proceeds may be the same when the property constitutes proceeds. For purposes of section 853, "property" includes: "(1) real property, including things growing on, affixed to, and found in land; and (2) tangible and intangible personal property, including rights, privileges, interests, claims and securities." 21 USC 853(b).

22. Use with Instructions 6.18.1956D, E & F (18 USC 1956(a)(2)).

25. This optional example, which should be tailored to the facts of the case, is based on facts in United States v. Blackman, 904 F.2d 1250, 1257 (8th Cir. 1990).

Committee Comments

See Committee Comments and Notes on Use, Instructions 6.18.1956A through I, supra.

(For 2006 version see below)

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

2006 Version

(1) FINANCIAL TRANSACTION

[The phrase "financial transaction," as used in [this] [Instruction[s] _____] means2

[a transaction which in any way or degree affects interstate or foreign commerce

[involving the movement of funds by wire or other means.]

[involving one or more monetary instruments.]3

[involving the transfer of title to any [real property] [vehicle] [vessel] [aircraft.]]4

[a transaction involving the use of a financial institution5 which is engaged in, or the activities of which affect, interstate or foreign commerce in any way or degree.]6

The term "transaction," as used above, means7

[a purchase, sale, loan, pledge, gift, transfer, delivery, or other disposition of property]

[with respect to a financial institution, a deposit, withdrawal, transfer between accounts, exchange of currency, loan, extension of credit, purchase or sale of any stock, bond, certificate of deposit, or other monetary instrument, [use of a safe deposit box]8 or any other payment, transfer, or delivery by, through, or to a financial institution, by whatever means.]]

(2) INTERSTATE AND FOREIGN COMMERCE

[The phrase "interstate commerce," as used above, means commerce between any combination of states, territories, and possessions of the United States, including the District of Columbia.]9

[The phrase "foreign commerce," as used above, means commerce between any state, territory or possession of the United States and a foreign country.]9

[The term "commerce" includes, among other things, travel, trade, transportation and communication.]10

[It is not necessary for the government to show that [the defendant] [defendant[s] (name[s])] actually intended or anticipated an effect on interstate or foreign commerce. All that is necessary is that interstate or foreign commerce was affected as a natural and probable consequence of [the defendant's] [defendant[s] (name['s][s'])] actions.]11

[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 currency is printed in Washington D.C., that the gemstones came from another country.)]12

[It is not necessary for the government to show that [the defendant's] [defendant[s] (name['s][s'])] transaction with a financial institution, that is with (name institution) itself affected interstate or foreign commerce. All that is necessary is that at the time of the alleged offense (name institution) was engaged in or had other activities which affected interstate or foreign commerce in any way or degree.]13

[You may find that the transaction involved the use of a financial institution which engaged in or the activities of which affected interstate or foreign commerce in any way or degree if you find from the evidence beyond a reasonable doubt: (describe government's evidence at trial that the financial institution engaged in or affected interstate or foreign commerce, e.g., that it sent checks for clearing to another state or transferred funds to another country).]]14

(3) FUNDS

[The term funds includes (specify the property involved which the court determines constitutes "funds" under the statute).]15

(4) MONETARY INSTRUMENT

[The phrase "monetary instrument," means, among other things, [coin or currency of the United States [or of any other country]] [traveler's checks] [cashier's checks] [personal checks] [bank checks] [money orders] [investment securities] [[negotiable instruments] in bearer form or otherwise in such form that title thereto passes upon delivery.]16

(5) FINANCIAL INSTITUTION

[The phrase "financial institution," means, among other things, (insert applicable definitions from 31 USC 5312(a)(2)(A)-(Y) and 31 C.F.R. § 103.11(i).]17

[The phrase "financial institution," includes each agent, agency, branch or office within the United States of any person doing business, whether or not on a regular basis or as an organized business concern, as a[n] (insert appropriate reference from 31 C.F.R. § 103.11(i)).] [Individuals, groups of individuals, and businesses not formally established as financial institutions, may in fact be a financial institution if they act in one of the capacities I have listed.]18 [In this case, the government alleges that (name of individual, group or entity) was a financial institution in that (name) acted in the capacity of (insert one of the categories from 31 C.F.R. § 103.11(i)). If you find beyond a reasonable doubt that (name of individual, group or entity) did act as a (insert appropriate reference from 31 C.F.R. § 103.11(i)), whether or not (name) did so on a regular basis or as an organized business concern, then you may find that the government has established that the transaction in this case involved a financial institution.]]19

(6) PROCEEDS

[The term "proceeds" means any property, or any interest in property, that someone acquires or retains as a result of the commission of (describe the specified unlawful activity).20 [Proceeds can be any kind of property, not just money. It can include personal property, like a car or a piece of jewelry, or real property, like an interest in land.]21 [So, for example:] [If someone robs a bank, the money he takes from the teller is the proceeds of the bank robbery.] [If someone steals a car, the car is the proceeds of the theft.] [If someone commits a fraud scheme and thereby acquires an interest in land, or shares of stock, or a joint interest in a bank account, that interest, whatever it may be, is the proceeds of the crime.] [If someone sells drugs for cash and uses the cash to buy a cashier's check, the cash received is proceeds and the cashier's check is still proceeds of the crime.]21

[It does not matter whether or not the person who committed the underlying crime, and thereby acquired or retained the proceeds, was [the] [a] defendant. It is a crime to [conduct a financial transaction] [transport, transmit or transfer monetary instruments or funds]22 involving property that is the proceeds of a crime, even if that crime was committed by another person, as long as all of the elements of the offense are satisfied.]23

[The government is not required to trace the property it alleges to be proceeds of (describe the specified unlawful activity) to a particular underlying offense. It is sufficient if the government proves that the property was the proceeds of (describe the specified unlawful activity) generally.24 [For example, in a case involving alleged drug proceeds, the government would not have to trace the money to a particular drug offense, but could satisfy the requirement by proving that the money was the proceeds of drug trafficking generally.]25

[The government need not prove that all of the property involved in the [transaction] [transportation, transmission or transfer]22 was the proceeds of (describe the unlawful activity). It is sufficient if the government proves that at least part of the property represents such proceeds.]]26

(7) SPECIFIED UNLAWFUL ACTIVITY

[The phrase "specified unlawful activity," means any one of a large variety of offenses defined by statute. I instruct you as a matter of law that (describe the specified unlawful activity) falls within the definition. To assist you in determining whether someone [committed] [attempted to commit] (describe the specified unlawful activity), you are advised that the elements of (name offense) are: (set out elements).]27

(8) KNOWLEDGE

[The phrase "knew the (describe property) represented the proceeds of some form of unlawful activity," means that [the defendant] [defendant[s] (name[s])] knew the property involved in the transaction represented proceeds from some form, though not necessarily which form, of activity that constitutes a felony offense under [State or Federal] [or] [foreign] law.28 Thus, the government need not prove that the defendant specifically knew that the (describe property) involved in the financial transaction represented the proceeds of (describe the specified unlawful activity which is the predicate offense) or any other specific offense; it need only prove that [he] [she] [they] knew it represented the proceeds of some form, though not necessarily which form, of felony under [state] [or] [federal] [or] [foreign] law. [I instruct you as a matter of law (describe offense) is a felony under (insert applicable jurisdiction) law.]]

Notes on Use

2. See 18 USC 1956(c)(4).

Section 1956(c)(4) defines the term "financial transaction" very broadly. Because of the broad definition of the term "transaction" [see Note 6, infra] in section [1956](c)(3), the term "financial transaction" is not limited to transactions involving financial institutions. It includes all forms of commercial activity. The only requirement is that the transaction must "affect interstate or foreign commerce" or be conducted through or by a financial institution "which is engaged in or the activities of which affect interstate or foreign commerce," in any way or degree.

S. Rep. No. 433, 99th Cong. 2d Sess 13 (1986).

Although not listed in section 1956(c)(5), cashier's checks are negotiable instruments in "[s]uch form that title thereto passes upon delivery." S. Rep. No. 433, 99th Cong., 2d Sess. 13 (1986). This definition was explicitly clarified, effective May 8, 1987, when "cashier's checks" was added to the definition of "monetary instruments" in 31 CFR 103.11(j)(iii). See 52 Fed. Reg. 11436 (1987) (Final Rule).

5. See Notes 17-19, infra. The term "financial institution" is generally defined for purposes of Title 18 in 18 USC 20. However, 18 USC 1956(c)(6) specifically incorporates for section 1956 purposes the somewhat different definition found in 31 USC 5312(a)(2) and its implementing regulations, e.g. 31 CFR 103.11(i). The scope is quite broad and includes insurance companies, pawnbrokers, travel agencies, vehicle dealers, realtors, the United States Postal Service and a number of other entities which a lay person might not consider to be a financial institution. Because of the periodic amendments to section 5312(a)(2) and to 31 CFR 103.11 the Committee recommends reviewing the versions applicable at the time of the alleged transaction.

10. The term "commerce" as used throughout Title 18 was intended to avoid the narrower connotation of the word "transportation." 18 USC 10, Revision Notes.

11. Use where the transaction itself affected interstate or foreign commerce. See United States v. Evans, 272 F.3d 1069 (8th Cir. 2001). The legislative history of section 1956 indicates that the phrase was derived from the Hobbs Act, 18 USC 1951, and "intended to reflect the full exercise of Congress's power under the Commerce Clause." S. Rep. No. 433, 99th Cong. 2d Sess. 13 (1986). See also United States v. Perez, 402 U.S. 146, 154 (1971) (loan sharking).

13. See 18 USC 1956(c)(4). Use when a "financial institution" [see Note 5, supra] is involved, regardless of whether the transaction itself had an effect on interstate or foreign commerce.

16. For use where the financial transaction involved the use of a monetary instrument. See Notes 2-4, supra.

18. See 31 CFR 103.11(a). This portion of the regulation was already in effect on October 27, 1986. See 50 Fed. Reg. 42691 (1985) and corrected at 50 Fed. Reg. 47390 (1985) (Final Rule). On May 8, 1987, the definition was expanded to include persons whether or not on a regular basis or as an organized business concern. See 52 Fed. Reg. 11436 (1987) (Final Rule). See also United States v. Tannebaum, 934 F.2d 8, 11-12 (2d Cir. 1991) (an individual can be a financial institution); United States v. Gollott, 939 F.2d 255, 258 (5th Cir. 1991) (group of individuals laundering cash for undercover agent was a financial institution required to file Currency Transaction Reports).

19. This optional expansion of the instruction may be given when this is an issue.

20. "Proceeds" is not a term defined in 18 USC 1956(c)(1)-(8). In defining criminally derived property, 18 USC 1957(f)(2) refers to "any property constituting, or derived from, proceeds obtained from a criminal offense . . ." (emphasis added). This is virtually identical to the scope of property subject to criminal forfeiture set forth in 21 USC 853(a)(1): "any property constituting, or derived from any proceeds the person obtained, directly or indirectly, as the result of such [predicate drug] violation;" (emphasis added). Thus in the closest analogous statutes, property and proceeds may be the same when the property constitutes proceeds. For purposes of section 853, "property" includes: "(1) real property, including things growing on, affixed to, and found in land; and (2) tangible and intangible personal property, including rights, privileges, interests, claims and securities." 21 USC 853(b).

The limited case law construing the term, specifically as applied to section 1956, holds that "proceeds" "can include 'property' other than money or cash equivalents, even if that 'property' has not been purchased with the monetary 'proceeds' of unlawful activity." United States v. Werber, 787 F. Supp. 353, 357 (S.D.N.Y. 1992). In Werber, the defendants allegedly uttered counterfeit bank cashier's checks to purchase automobiles and then sold those automobiles. The financial transaction was the sale of the automobiles which, the government alleged, represented the "proceeds" of the uttered counterfeit checks. The defendants argued unsuccessfully that "proceeds" was restricted to money or cash equivalents. 787 F. Supp. at 356. Other courts have held that "proceeds" is a term susceptible of finding an "ordinary, contemporary, common meaning." United States v. Gleave, 786 F. Supp. 258, 270 (W.D.N.Y. 1992). In Gleave, the specified unlawful activity was concealment of funds from the Trustee and creditors in bankruptcy; the financial transactions included wire transfer and the use of monetary instruments. 786 F. Supp. at 269. Similarly, in United States v. Ortiz, 738 F. Supp. 1394, 1400 (S.D. Fla. 1990), the court found that a hot water heater full of money was clearly proceeds within the commonly accepted meaning of the word. Id. Drawing upon a dictionary, law dictionary, and Supreme Court case law, the district court, in dicta, provided an expansive definition which includes the sum, amount or value of property sold or converted into money or other property, not necessarily only cash or money. Id.

22. Use with Instructions 6.18.1956D, E & F (18 USC 1956(a)(2)).

25. This optional example, which should be tailored to the facts of the case, is based on facts in United States v. Blackman, 904 F.2d 1250, 1257 (8th Cir. 1990).

Committee Comments

See Committee Comments and Notes on Use, Instructions 6.18.1956A through I, supra.

For 2000 version see below

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

2000 Version

(1) FINANCIAL TRANSACTION

[The phrase "financial transaction," as used in [this]

[Instruction[s] _____] means2 [a transaction which in any way or degree affects interstate or foreign commerce

[involving the movement of funds by wire or other means.]

[involving one or more monetary instruments.]3

[involving the transfer of title to any [real property] [vehicle] [vessel] [aircraft.]]4

[a transaction involving the use of a financial institution5 which is engaged in, or the activities of which affect, interstate or foreign commerce in any way or degree.]6

The term "transaction," as used above, means7

[a purchase, sale, loan, pledge, gift, transfer, delivery, or other disposition of property]

[with respect to a financial institution, a deposit, withdrawal, transfer between accounts, exchange of currency, loan, extension of credit, purchase or sale of any stock, bond, certificate of deposit, or other monetary instrument, [use of a safe deposit box]8 or any other payment, transfer, or delivery by, through, or to a financial institution, by whatever means.]]

(2) INTERSTATE AND FOREIGN COMMERCE

[The phrase "interstate commerce," as used above, means commerce between any combination of states, territories, and possessions of the United States, including the District of Columbia.]9

[The phrase "foreign commerce," as used above, means commerce between any state, territory or possession of the United States and a foreign country.]9

[The term "commerce" includes, among other things, travel, trade, transportation and communication.] 10

[It is not necessary for the Government to show that [the [defendant] [defendant[s] (name)] actually intended or anticipated an effect on interstate or foreign commerce, or that commerce was actually affected. All that is necessary is that the natural and probable consequences of [the defendant's] [defendants'] (name's/s') actions would be to affect interstate or foreign commerce no matter how minimal.]11

[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 currency is printed in Washington D.C., that the gemstones came from another country.)]12

[It is not necessary for the Government to show that [the defendant's] [defendants'] (name's)/s') transaction with a financial institution, that is with (name institution) itself affected interstate or foreign commerce. All that is necessary is that at the time of the alleged offense (name institution) was engaged in or had other activities which affected interstate or foreign commerce in any way or degree.]13

[You may find that the transaction involved the use of a financial institution which engaged in or the activities of which affected interstate or foreign commerce in any way or degree if you find from the evidence beyond a reasonable doubt: (describe Government's evidence at trial that the financial institution engaged in or affected interstate or foreign commerce, e.g., that it sent checks for clearing to another state or transferred funds to another country).]]14

(3) FUNDS

[The term funds includes (specify the property involved which the court determines constitutes "funds" under the statute).]15

(4) MONETARY INSTRUMENT

[The phrase "monetary instrument," means, among other things, [coin or currency of the United States [or of any other country]] [traveler's checks] [cashier's checks] [personal checks] [bank checks] [money orders] [investment securities] [[negotiable instruments] in bearer form or otherwise in such form that title thereto passes upon delivery.]16

(5) FINANCIAL INSTITUTION

[The phrase "financial institution," means, among other things, (insert applicable definitions from 31 USC 5312(a)(2)(A)-(Y) and 31 C.F.R. § 103.11(i).]17

[The phrase "financial institution," includes each agent, agency, branch or office within the United States of any person doing business, whether or not on a regular basis or as an organized business concern, as a[n] (insert appropriate reference from 31 C.F.R. § 103.11(i)).] [Individuals, groups of individuals, and businesses not formally established as financial institutions, may in fact be a financial institution if they act in one of the capacities I have listed.]18 [In this case, the Government alleges that (name of individual, group or entity) was a financial institution in that (name) acted in the capacity of (insert one of the categories from 31 C.F.R. § 103.11(i)). If you find beyond a reasonable doubt that (name of individual, group or entity) did act as a (insert appropriate reference from 31 C.F.R. § 103.11(i)), whether or not (name) did so on a regular basis or as an organized business concern, then you may find that the Government has established that the transaction in this case involved a financial institution.]]19

(6) PROCEEDS

[The term "proceeds" means any property, or any interest in property, that someone acquires or retains as a result of the commission of (describe the specified unlawful activity).20 [Proceeds can be any kind of property, not just money. It can include personal property, like a car or a piece of jewelry, or real property, like an interest in land.]21 [So, for example:] [If someone robs a bank, the money he takes from the teller is the proceeds of the bank robbery.] [If someone steals a car, the car is the proceeds of the theft.] [If someone commits a fraud scheme and thereby acquires an interest in land, or shares of stock, or a joint interest in a bank account, that interest, whatever it may be, is the proceeds of the crime.] [If someone sells drugs for cash and uses the cash to buy a cashier's check, the cash received is proceeds and the cashier's check is still proceeds of the crime.]21

[It does not matter whether or not the person who committed the underlying crime, and thereby acquired or retained the proceeds, was [the] [a] defendant. It is a crime to [conduct a financial transaction] [transport, transmit or transfer monetary instruments or funds]22 involving property that is the proceeds of a crime, even if that crime was committed by another person, as long as all of the elements of the offense are satisfied.]23

[The Government is not required to trace the property it alleges to be proceeds of (describe the specified unlawful activity) to a particular underlying offense. It is sufficient if the Government proves that the property was the proceeds of (describe the specified unlawful activity) generally.24 [For example, in a case involving alleged drug proceeds, the Government would not have to trace the money to a particular drug offense, but could satisfy the requirement by proving that the money was the proceeds of drug trafficking generally.]25

[The Government need not prove that all of the property involved in the [transaction] [transportation, transmission or transfer]22 was the proceeds of (describe the unlawful activity). It is sufficient if the Government proves that at least part of the property represents such proceeds.]]26

(7) SPECIFIED UNLAWFUL ACTIVITY

[The phrase "specified unlawful activity," means any one of a large variety of offenses defined by statute. I instruct you as a matter of law that (describe the specified unlawful activity) falls within the definition. To assist you in determining whether someone [committed] [attempted to commit] (describe the specified unlawful activity), you are advised that the elements of (name offense) are: (set out essential elements).]27

(8) KNOWLEDGE

[The phrase "knew the (describe property) represented the proceeds of some form of unlawful activity," means that [the defendant] [defendant[s] (name)] knew the property involved in the transaction represented proceeds from some form, though not necessarily which form, of activity that constitutes a felony offense under [State or Federal] [or] [foreign] law.28 Thus, the Government need not prove that the defendant specifically knew that the (describe property) involved in the financial transaction represented the proceeds of (describe the specified unlawful activity which is the predicate offense) or any other specific offense; it need only prove that [he] [she] [they] knew it represented the proceeds of some form, though not necessarily which form, of felony under [state] [or] [federal] [or] [foreign] law. [I instruct you as a matter of law (describe offense) is a felony under (insert applicable jurisdiction) law.]]

Committee Comments

See Instructions 6.18.1956A through I (Committee Comments and Notes on Use), supra.

Notes on Use

2. See 18 USC 1956(c)(4).

Section 1956(c)(4) defines the term "financial transaction" very broadly. Because of the broad definition of the term "transaction" [see Note 6, infra] in section [1956](c)(3), the term "financial transaction" is not limited to transactions involving financial institutions. It includes all forms of commercial activity. The only requirement is that the transaction must "affect interstate or foreign commerce" or be conducted through or by a financial institution "which is engaged in or the activities of which affect interstate or foreign commerce," in any way or degree.

S. Rep. No. 433, 99th Cong. 2d Sess 13 (1986).

3. Use where the transaction involves monetary instruments. "Transaction" includes the purchase, sale or disposition of any kind of property as long as the disposition involves a monetary instrument. See United States v. Blackman, 904 F.2d 1250, 1257 (8th Cir. 1990); United States v. Lee, 886 F.2d 998, 1002-03 (8th Cir. 1989), cert. denied, 493 U.S. 1032 (1990). A "financial transaction" includes transferring cash from one person to another without involvement of a financial institution, as long as it affects interstate or foreign commerce. See United States v. Kaufmann, 985 F.2d 884, 892 n.3 (7th Cir. 1993) ("financial transaction" found for cash sale of car); United States v. Isabel, 945 F.2d 1193, 1201 (1st Cir. 1991) (giving a check in exchange for cash); United States v. Hamilton, 931 F.2d 1046, 1051- 52 (5th Cir. 1991) (sending cash through the mail); United States v. Gallo, 927 F.2d 815, 822 (5th Cir. 1991) (transfer of a box of currency between individuals). It may also include merely writing a check. See United States v. Jackson, 935 F.2d 832, 841 (7th Cir. 1991); United States v. Blackman, 904 F.2d 1250, 1257 (8th Cir. 1990).

5. See Notes 17-19, infra. The term "financial institution" is generally defined for purposes of Title 18 in 18 USC 20. However, 18 USC 1956(c)(6) specifically incorporates for section 1956 purposes the somewhat different definition found in 31 USC 5312(a)(2) and its implementing regulations, e.g., 31 C.F.R. § 103.11(i). The scope is quite broad and includes insurance companies, pawnbrokers, travel agencies, vehicle dealers, realtors, the United States Postal Service and a number of other entities which a lay person might not consider to be a financial institution. Because of the periodic amendments to section 5312(a)(2) and to 31 C.F.R. § 103.11 the Committee recommends reviewing the versions applicable at the time of the alleged transaction.

6. As defined in 18 USC 1956(c)(4), the financial transaction may itself affect interstate or foreign commerce. Alternatively, the transaction, regardless of whether it itself has such a nexus, may involve the use of a "financial institution" which supplies the nexus. Section 1956(a)(1) does not require that the use of the financial institution, i.e., the financial transaction, with the interstate commerce nexus, be a part of or even contribute to or facilitate the requisite design to conceal the nature, ownership or source of the proceeds. See United States v. Koller, 956 F.2d 1408, 1412 (7th Cir. 1992) (defendant purchased money order at a bank which he then took to the probation officer to satisfy his girlfriend's restitution).

8. Until the October 28, 1992, amendments, merely depositing money in a safe deposit box in a financial institution was not a transaction. See Instruction 6.18.1956A, Note 1, supra; United States v. Bell, 936 F.2d 337, 340-41 (7th Cir. 1991) (holding that use of a safe deposit box to hold the proceeds of specified unlawful activity did not constitute a "transaction"). Since that date, mere "use of a safe deposit box" with respect to a financial institution is explicitly included.

10. The term "commerce" as used throughout Title 18 was intended to avoid the narrower connotation of the word "transportation." 18 USC 10, Revision Notes.

11. Use where the transaction itself affected interstate or foreign commerce. The actual, potential or threatened effect on commerce need only be minimal. The Commerce Clause authorizes Congress to punish any criminal activity bearing even a de minimis relation to interstate commerce. The legislative history of section 1956 indicates that the phrase was derived from the Hobbs Act, 18 USC 1951, and "intended to reflect the full exercise of Congress's power under the Commerce Clause." S. Rep. No. 433, 99th Cong. 2d Sess. 13 (1986) construed in United States v. Gallo, 927 F.2d 815, 822-23 (5th Cir. 1991) (transfer of box of currency between cars). See also Perez v. United States, 402 U.S. 146, 154 (1971) (loan sharking); United States v. Kelley, 929 F.2d 582, 585-86 (10th Cir. 1991) (purchase of a car from a dealer who will use proceeds of sale to buy more inventory in interstate commerce); United States v. Voss, 787 F.2d 393, 397 (8th Cir. 1986) (citing Perez, in an attempted arson case); United States v. Stillwell, 900 F.2d 1104, 1111 (7th Cir.) (relevant statutory inquiry for the court is whether Congress had any rational basis for finding that a regulated activity affects interstate commerce), cert. denied, 498 U.S. 838 (1990); Instruction 6.18.1951 Committee Comment at 270 (West 1992) (only minimal, probable or potential effect required to establish jurisdiction).

13. See 18 USC 1956(c)(4). Use when a "financial institution" [see Note 5, supra] is involved, regardless of whether the transaction itself had an effect on interstate or foreign commerce.

15. See generally Black's Law Dictionary 673 (6th ed. 1990) ("monies and much more, such as notes, bills, checks, drafts, stocks and bonds . . . .") For use where the financial transaction involved the movement of funds rather than monetary instruments or the transfer of title to property. See Notes 2-4, supra.

16. For use where the financial transaction involved the use of a monetary instrument. See Notes 2-4, supra.

19. This optional expansion of the instruction may be given when this is an issue.

20. "Proceeds" is not a term defined in 18 USC 1956(c)(1)-(8). In defining criminally derived property, 18 USC 1957(f)(2) refers to "any property constituting, or derived from, proceeds obtained from a criminal offense . . ." (emphasis added). This is virtually identical to the scope of property subject to criminal forfeiture set forth in 21 USC 853(a)(1): "any property constituting, or derived from any proceeds the person obtained, directly or indirectly, as the result of such [predicate drug] violation;" (emphasis added). Thus in the closest analogous statutes, property and proceeds may be the same when the property constitutes proceeds. For purposes of section 853, "property" includes: "(1) real property, including things growing on, affixed to, and found in land; and (2) tangible and intangible personal property, including rights, privileges, interests, claims and securities." 21 USC 853(b).

The limited case law construing the term, specifically as applied to section 1956, holds that "proceeds" "can include 'property' other than money or cash equivalents, even if that 'property' has not been purchased with the monetary 'proceeds' of unlawful activity." United States v. Werber, 787 F. Supp. 353, 357 (S.D.N.Y. 1992). In Werber, defendants allegedly uttered counterfeit bank cashier's checks to purchase automobiles and then sold those automobiles. The financial transaction was the sale of the automobiles which, the government alleged, represented the "proceeds" of the uttered counterfeit checks. Defendants argued unsuccessfully that "proceeds" was restricted to money or cash equivalents. 787 F. Supp. at 356. Other courts have held that "proceeds" is a term susceptible of finding an "ordinary, contemporary, common meaning." United States v. Gleave, 786 F. Supp. 258, 270 (W.D.N.Y. 1992). In Gleave, the specified unlawful activity was concealment of funds from the Trustee and creditors in bankruptcy; the financial transactions included wire transfer and the use of monetary instruments. 786 F. Supp. at 269. Similarly, in United States v. Ortiz, 738 F. Supp. 1394, 1400 (S.D. Fla. 1990), the court found that a hot water heater full of money was clearly proceeds within the commonly accepted meaning of the word. Id. Drawing upon a dictionary, law dictionary, and Supreme Court case law, the district court, in dicta, provided an expansive definition which includes the sum, amount or value of property sold or converted into money or other property, not necessarily only cash or money. Id.

Prior to the above cases, at least one commentator argued for a narrower definition, based on a construction of the legislative history. See G. Richard Strafer, Money Laundering: The Crime of the '90's, 27 Amer. Crim. L. Rev. 149, 182-85 (1989). In Werber, the Court rejected defendant's reliance on legislative history. The Court found that the express language of the statute (section 1956(a)(1)) was clear without citation to dictionaries, that there was no clear legislative history contradicting the plain meaning of the word "proceeds" and that Congress' failure to mention factual situations such as the counterfeit cashier's check and subsequent sale of automobiles scheme did not preclude the automobiles from being proceeds. 787 F. Supp. at 356-57. In a typical case where the proceeds are cash or a monetary instrument, the Committee recommends the use of the definition shown. More complex situations may require briefing by the parties to update this evolving area of the law.

22. Use with Instructions 6.18.1956D, E & F (18 USC 1956(a)(2)).

23. See United States v. Atterson, 926 F.2d 649, 656 (7th Cir. 1991) (defendant was girlfriend of a drug dealer who wired cash for him); United States v. Isabel, 945 F.2d 1193, 1202-03 (1st Cir. 1991) (defendant issued false paycheck in return for cash received from person who said he was a drug dealer).

25. This optional example, which should be tailored to the facts of the case, is based on facts in United States v. Blackman, 904 F.2d 1250, 1257 (8th Cir. 1990).

26. The requirement that the financial transaction "involves the proceeds" of unlawful activity does not require that the government prove that the transaction involved only illegally derived proceeds. The sanction of the statute cannot be avoided by commingling funds. See United States v. Jackson, 983 F.2d 757, 765 (7th Cir. 1993) (citing United States v. Jackson, 935 F.2d 832, 840 (7th Cir. 1991)). Nor need the evidence of criminally derived funds be direct. See United States v. Turner, 975 F.2d 490, 497 (8th Cir. 1992) (reasonable for jury to infer that money used to purchase and renovate a building came from drug sales, where there was extensive testimony about defendant's drug operations and evidence that his expenses far exceeded his income), cert. denied, 506 U.S. 1082 (1993). But Cf. United States v. Baker, 985 F.2d 1248, 1254, 1261-62 (4th Cir. 1993) (reversal of jury's verdict in absence of specific evidence identifying the boat purchased by a third party, identifying the defendant as the owner or possessor of the boat, showing that the money used by the third party belonged to defendant and that the money was the product of drug transactions).

27. Throughout these instructions, the plain description of the offense has been substituted for the phrase "specified unlawful activity" (SUA) which is a term of art specifically defined in 18 USC 1956(c)(7), and which incorporates inter alia most of 18 USC 1961(1). If the indictment is read to the jury and contains the phrase, any inquiry by the jury as to whether a particular offense is "specified unlawful activity" can be answered as a matter of law. Section 1956(c)(7) as originally enacted effective October 27, 1986, was amended on November 18, 1988, on November 29, 1990, and on October 28, 1992. See Instruction 6.18.1956A, Note 1, supra. The provisions of section 1956(c)(7) used should correspond to the alleged date of the offense. Further, many of the most common SUAs, such as drug trafficking, are derived from the definition of "racketeering activity," contained in 18 USC 1961(1). That statute has also been amended since October 27, 1986, on November 10, 1986, November 18, 1988, and on November 29, 1990. Therefore, when determining whether an offense qualifies as an SUA, the applicable provisions of section 1961(1) should also be reviewed. NOTE: Although the general trend of amendments to section 1956(c)(7) has been to expand the statute, the 1990 amendment added violations of sections 1341 and 1343 (mail and wire fraud) "affecting a financial institution." Because all RICO (18 USC 1961) predicates, including sections 1341 and 1343, were already incorporated within section 1956(c)(7), it is unclear whether Congress intended to restrict section 1956(c)(7) and exclude section 1341 and 1343 offenses not affecting a financial institution after November 29, 1990. See United States v. Taylor, 984 F.2d 298, 301-02 (9th Cir. 1993). This ambiguity was eliminated, effective October 28, 1992, when the questionable references to sections 1341 and 1343 (as well as the section 1344 relating to bank fraud) were deleted. Where the substantive offense constituting the SUA is not also charged in the indictment, the Committee recommends that, upon request of either party, the jury be instructed as to the elements of the SUA[s] alleged in the money laundering counts. See, e.g., Instruction 5.06C, supra.

28. The financial transaction (or transportation, transmission or transfer, in the case of 18 USC 1956(a)(2)) must have involved proceeds from "specified" unlawful activity, as defined in 18 USC 1956(c)(7); however, the defendant need not have known the actual source of the proceeds, as long as the defendant knew that the proceeds represented "some form of unlawful activity." 18 USC 1956(a)(1). Section 1956(c)(1) defines the term broadly to require only that "the person knew the property involved in the transaction represented proceeds from some form, though not necessarily which form, of activity that constitutes a felony under State, Federal, or foreign law, regardless of whether or not such activity is specified in paragraph [1956(c)](7)." Although the most common situation will be that the defendant's knowledge and the actual source of the proceeds coincide, where the evidence shows that the defendant thought that the property used in the transaction was proceeds from a different unlawful activity, the instruction should be tailored to reflect the defendant's knowledge, e.g., "at the time the defendant conducted the financial transaction, he believed that the money he used in the financial transaction represented the proceeds of unlawful [prostitution] [dogfighting] [gambling]." See, e.g., United States v. Long, 977 F.2d 1264, 1277 (8th Cir. 1992) (discussing the laundering of "any proceeds from a myriad of specified unlawful activities," and how that results in different offense levels under section 2S1.1 of the Sentencing Guidelines).