8TH CIRCUIT MODEL INSTRUCTIONS 2000

8TH CIRCUIT MODEL INSTRUCTIONS 2009
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Final Instructions: Elements of Offenses (6.18.1957 - 6.42.1320)

        6.18.1957          Engaging In Monetary Transactions In Property Derived From Specified Unlawful
                                  Activity (18 USC 1957)
        6.18.1962A       RICO-Participation In the Affairs Through A Pattern Of Racketeering Activity (18 USC 1962(c))
        6.18.1962B       RICO-Conspiracy (18 USC 1962(d))
        6.18.1962C       RICO-Conspiracy-Agreement Explained
        6.18.1962D       "Enterprise" Defined
        6.18.1962E       "Conduct/Participation" Defined
        6.18.1962F       RICO-Pattern Of Racketeering
        6.18.1962G       Sample Verdict Form – RICO (18 USC 1962(c))
        6.18.2113A       Bank Robbery (18 USC 2113(a)) (First Paragraph)
        6.18.2113B       Bank Robbery (18 USC 2113(d))
        6.18.2119A       Carjacking (No Serious Bodily Injury Or Death) (18 USC 2119(1))
        6.18.2119B       Carjacking (Serious Bodily Injury) (18 USC 2119(2))
        6.18.2119C       Carjacking (Death Resulting) (18 USC 2119(3))
        6.18.2252          Receipt, Possession or Distribution of Material Containing Child
                                  Pornography (18 USC2252A(a)(2)(A) and (B) and (a)(5)(B))
        6.18.2252A       "Lascivious" Explained
        6.18.2252B       "Interstate Commerce" Defined
        6.18.2252C       "Computer" Defined
        6.18.2312          Interstate Transportation Of Stolen Vehicle (18 USC 2312)
        6.18.2313          Receipt Or Sale Of A Stolen Motor Vehicle Or Aircraft (18 USC 2313)
        6.18.2314          Interstate Transportation of Stolen Property (18 USC 2314) (First Paragraph)
        6.18.2421          Transportation for Prostitution (18 USC 2421)
        6.18.2422A       Persuading or Coercing to Travel to Engage in Prostitution (18 USC 2422(a))
        6.18.2422B       Persuading or Coercing a Minor to Engage in Sexual Activity (18 USC 2422(b))
         6.18.2423A       Transportation of Minor to Engage in Criminal Sexual Activity (18 USC 2423(a))
        6.21.841A         Controlled Substances--Possession With Intent To Distribute (21 USC 841(a)(1))
        6.21.841A.1      Controlled Substances - Possession with Intent to Distribute (21 USC 841(a)(1))
                                  (Apprendi-affected Possession) (Short Version)
        6.21.841A.1      Controlled Substances - Possession with Intent to Distribute (21 USC 841(a)(1))
                                  (Apprendi-affected Possession) (Long Version)
        6.21.841A.1(a) Verdict Form; With Lesser Included Offense
        6.21.841A.1(b) Special Verdict Form (Interrogatories to Follow Finding of Guilt)
        6.21.841B         Controlled Substances--Distribution (21 USC 841(a)(1))
        6.21.843            Controlled Substances - Use Of A Communications Facility (21 USC 843(b))
        6.21.846A         Conspiracy (21 USC 846)
        6.21.846A.1     Conspiracy (21 USC 846) (Apprendi-affected Conspiracy)
        6.21.846B         Attempt (21 USC 846)
        6.21.848A         Controlled Substances --Continuing Criminal Enterprise (21 USC 848(c))
        6.21.848B         Felony Violations Of Federal Narcotic Laws (21 USC 848(c)(1))
        6.21.853           Criminal Forfeiture Of Property
        6.21.856A         Establishment of Manufacturing Operations (Maintaining Any Place For
                                  Manufacturing) 21 USC 856(a)(1)
        6.21.856B         Establishment of Manufacturing Operations (Managing or Controlling a Manufacturing Place For
                                 Compensation 21 USC 856(a)(2)
        6.26.5861         Firearms – Possession Of Unregistered Firearms (26 USC 5861(d))
        6.26.7201         Tax Evasion (26 USC 7201)
        6.26.7203         Failure To File Tax Return (26 USC 7203)
        6.26.7206         False Income Tax return (26 USC 7206(1))
        6.42.1320         Soliciting or Receiving Kickbacks in Connection with Medicare or Federal Health Care Program
                                 Payments (42 USC 1320a-7b(b)(1)(A))

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1957
ENGAGING IN MONETARY TRANSACTIONS IN PROPERTY DERIVED
FROM SPECIFIED UNLAWFUL ACTIVITY(18 USC 1957)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Unlawful Monetary Transactions--Elements (18 USC 1957)

The crime of engaging in a monetary transaction in property derived from (describe specified unlawful activity), as charged in [Count[s] ____ of] the indictment, has five elements, which are:

One, on or about (date),¹ the defendant[s] knowingly (describe the "monetary transaction," e.g., withdrew funds from an account at ABC Bank);²

Two, the (describe "monetary transaction," e.g., withdrawal) was [of] [in] property³ of a value greater than $10,000 derived from (describe "specified unlawful activity," e.g., bank fraud) as defined in Instruction No. _____;⁴

Three, the defendant[s] then knew that (describe the "monetary transaction") involved proceeds of a criminal offense;⁵

Four, the (describe the "monetary transaction") took place in (describe location of the transaction);⁶ and

Five, the (describe the "monetary transaction") in some way or degree affected interstate commerce.

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

Notes on Use

1. See Note 1, Instruction 6.18.1956A, supra. The statute became effective October 27, 1986. Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, Title I, § 1352(a), 100 Stat. 3207-21. Effective November 18, 1988, the definition of "monetary transaction" was decoupled from the definition of "monetary instrument" under 31 USC 5312 and made the same as 18 USC 1956(c)(5). Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Title VI, §§ 6182, 6184 and 6469(a)(2), 102 Stat. 4354 and 4377. The statute was further amended, effective October 28, 1992. Pub. L. 102-550, Title XV, §§ 1526(b) and 1527(b), 106 Stat. 4065. That change decoupled the definition of "financial institution" from 31 USC 5312 and made it the same as 18 USC 1956[(c)(6)], thus requiring a consideration of not only 31 USC 5312 but its implementing regulations.

2. The term "monetary transaction" is defined in 18 USC 1957(f)(1). The section defining "monetary transaction" adopts by reference the section 1956 definition of "financial institution," which in turn adopts definitions contained in or promulgated under Title 31. Therefore, a wide variety of transactions beyond dealings with traditional financial institutions such as banks are covered by the statute. See, e.g., United States v. Kelley, 929 F.2d 582 (10th Cir. 1991) (section 1957 violated by purchase of automobile with proceeds from fraud scheme). The definition of "monetary transaction" excludes "any transaction necessary to preserve a person's right to representation as guaranteed by the Sixth Amendment to the Constitution." The Committee recommends that the "monetary transaction" be described in simple terms, e.g., "a withdraw from ABC Bank," or "purchase of an automobile," according to the allegations of the indictment and the evidence in the case. The "monetary transaction" must also, by definition, be "in or affecting interstate or foreign commerce." Cf. United States v. Kelley, 929 F.2d at 585-86 (commerce nexus jurisdictional, but not an element of the offense). See Note 4, Instruction 6.18.1956A, supra.

3. The term "property" is not defined in the statute. In some situations, it may be preferable to use a term such as "currency" to more precisely describe the property at issue in the case. In other situations, it may be helpful to include a separate paragraph defining "property" in terms of what is included or excluded in the application of the statute to the facts of the particular case. The statutory language -- "a monetary transaction in criminally derived property" -- is awkward when describing certain transactions. The Committee recommends using "of" when describing transactions such as "withdrawal of," "deposit of," etc.

4. The Government must prove that the property was, in fact, derived from "specified unlawful activity" as defined in section 1957(f)(3), which adopts the definition from section 1956. See, e.g., United States v. Hare, 49 F.3d 447, 451 (8th Cir. 1995). However, it is not necessary to prove that the defendant knew that the offense from which the property was derived was specified unlawful activity. 18 USC 1957(c). If the underlying criminal activity, e.g., bank fraud, is charged in the same indictment, a reference to the instruction defining the elements of the underlying specified unlaw activity may be included in this instruction. For example, "The withdrawal was of funds of a value greater than $10,000 derived from bank fraud as defined in Instruction No. _____." If the underlying criminal activity is not charged in the same indictment, the Government will be required to prove that the underlying criminal activity occurred by proving the elements of the underlying offense or a prior conviction of it. In such a case, the elements of the underlying offense should be spelled out as part of this instruction. See also Note 27, Instruction 6.18.1956J, supra, and Instruction 5.06C, supra.

5. The knowledge element of a section 1957 offense requires proof that the defendant knew the transaction involved "criminally derived property" as defined in section 1957(f)(2), that is, "property constituting, or derived from, proceeds obtained from a criminal offense." While reference to the definition (elements) of specified unlawful activity is recommended in all cases, any issues about whether the defendant believed that the activity generating the proceeds did not amount to a criminal offense should be dealt with in a defense theory instruction. See part 9 of this manual, Defenses and Theories of Defense. The Committee has avoided use of the statutory term "criminally derived property" in drafting this instruction since that phrase would require further definition and the statutory requirement can be explained in more understandable language.

6. There must be proof that the offense occurred within the United States or within special maritime and territorial jurisdiction. 18 USC 1957(a) and (d). Special maritime and territorial jurisdiction is defined in 18 USC 7. When the indictment alleges such a "circumstance," the court should determine whether the evidence permits a finding that the element has been established and then submit to the jury the more precise question of whether the offense, or transaction, occurred at the location alleged in the indictment. As an alternative, the Government may allege and prove that the defendant was a person defined in 18 USC 3077(2)(A), (B), (C), (E) or (F). The Committee assumes that prosecutions under the latter alternative "circumstance" will be rare, but the fourth element would have to be redrafted to fit the situation in such cases.

Committee Comments

Section 1957 of Title 18 applies to monetary transactions occurring after the completion of the underlying criminal activity. United States v. Johnson, 971 F.2d 562, 567-70 (10th Cir. 1992). Such an interpretation of the statute means that the proceeds must have been "obtained" from the underlying criminal activity before the monetary transaction prohibited by section 1957 occurs. Monetary transactions occurring simultaneously with the efforts to "obtain" proceeds of crime, that is, simultaneously with the underlying drug sale, execution of the scheme to defraud, etc., would not be covered. Id., 971 F.2d at 569.

(For 2008 version see below).

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2008 Version

The crime of engaging in a monetary transaction in property derived from (describe specified unlawful activity), as charged in [Count[s] ____ of] the indictment, has five elements, which are:

One, on or about (date),¹ the defendant[s] knowingly (describe the "monetary transaction," e.g., withdrew funds from an account at ABC Bank);²

Two, the (describe "monetary transaction," e.g., withdrawal) was [of] [in] property³ of a value greater than $10,000 derived from (describe "specified unlawful activity," e.g., bank fraud) as defined in Instruction No. _____;⁴

Three, the defendant[s] then knew that (describe the "monetary transaction") involved proceeds of a criminal offense;⁵

Four, the (describe the "monetary transaction") took place in (describe location of the transaction);⁶ and

Five, the (describe the "monetary transaction") in some way or degree affected interstate commerce.

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

Notes on Use

Committee Comments

(For 2006 version see below)

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2006 Version

The crime of engaging in a monetary transaction in property derived from (describe specified unlawful activity), as charged in [Count[s] ____ of] the indictment, has five elements, which are:

One, on or about (date),¹ the defendant[s] knowingly (describe the "monetary transaction," e.g., withdrew funds from an account at ABC Bank);²

Two, the (describe "monetary transaction," e.g., withdrawal) was [of] [in] property³ of a value greater than $10,000 derived from (describe "specified unlawful activity," e.g., bank fraud) as defined in Instruction No. _____;⁴

Three, the defendant[s] then knew that (describe the "monetary transaction") involved proceeds of a criminal offense;⁵

Four, the (describe the "monetary transaction") took place in (describe location of the transaction);⁶ and

Five, the (describe the "monetary transaction") in some way or degree affected interstate commerce.

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

Notes on Use

Committee Comments

For 2000 version see below

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2000 Version

The crime of engaging in a monetary transaction in property derived from (describe specified unlawful activity), as charged in [Count[s] ____ of] the indictment, has five essential elements, which are:

One, on or about (date),1 the defendant[s] knowingly (describe the "monetary transaction," e.g., withdrew funds from an account at ABC Bank);2

Two, the (describe "monetary transaction," e.g., withdrawal) was [of] [in] property3 of a value greater than $10,000 derived from (describe "specified unlawful activity," e.g., bank fraud) as defined in Instruction No. _____;4

Three, the defendant[s] then knew that (describe the "monetary transaction") involved proceeds of a criminal offense;5

Four, the (describe the "monetary transaction") took place in (describe location of the transaction);6 and

Five, the (describe the "monetary transaction") in some way or degree affected interstate commerce.

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

Committee Comments

Notes on Use

1. See Instruction 6.18.1956A, Note 1, supra. The statute became effective October 27, 1986. Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, Title I, § 1352(a), 100 Stat. 3207-21. Effective November 18, 1988, the definition of "monetary transaction" was decoupled from the definition of "monetary instrument" under 31 USC 5312 and made the same as 18 USC 1956(c)(5). Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Title VI, §§ 6182, 6184 and 6469(a)(2), 102 Stat. 4354 and 4377. The statute was further amended, effective October 28, 1992. Pub. L. 102-550, Title XV, §§ 1526(b) and 1527(b), 106 Stat. 4065. That change decoupled the definition of "financial institution" from 31 USC 5312 and made it the same as 18 USC 1956[(c)(6)], thus requiring a consideration of not only 31 USC 5312 but its implementing regulations.

4. The Government must prove that the property was, in fact, derived from "specified unlawful activity" as defined in section 1957(f)(3), which adopts the definition from section 1956. See, e.g., United States v. Hare, 49 F.3d 447, 451 (8th Cir. 1995). However, it is not necessary to prove that the defendant knew that the offense from which the property was derived was specified unlawful activity. 18 USC 1957(c). If the underlying criminal activity, e.g., bank fraud, is charged in the same indictment, a reference to the instruction defining the elements of the underlying specified unlaw activity may be included in this instruction. For example, "The withdrawal was of funds of a value greater than $10,000 derived from bank fraud as defined in Instruction No. _____." If the underlying criminal activity is not charged in the same indictment, the Government will be required to prove that the underlying criminal activity occurred by proving the elements of the underlying offense or a prior conviction of it. In such a case, the elements of the underlying offense should be spelled out as part of this instruction. See also Instruction 6.18.1956J, Note 27, supra, and Instruction 5.06C, supra.

5. The knowledge element of a section 1957 offense requires proof that the defendant knew the transaction involved "criminally derived property" as defined in section 1957(f)(2), that is, "property constituting, or derived from, proceeds obtained from a criminal offense." While reference to the definition (elements) of specified unlawful activity is recommended in all cases, any issues about whether defendant believed that the activity generating the proceeds did not amount to a criminal offense should be dealt with in a defense theory instruction. See part 9 of this manual, Defenses and Theories of Defense. The Committee has avoided use of the statutory term "criminally derived property" in drafting this instruction since that phrase would require further definition and the statutory requirement can be explained in more understandable language.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1962A
RICO-PARTICIPATION IN THE AFFAIRS THROUGH A
PATTERN OF RACKETEERING ACTIVITY
(18 USC 1962(c))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Racketeer Influenced Corrupt Organizations Act (18 USC 1962(c))

The crime of participating in a racketeering enterprise¹ as charged in [Count ____] of the indictment has five elements, which are:

One, an enterprise existed as alleged in the indictment;²

Two, the enterprise [was engaged in] [had some affect on] interstate commerce;³

Three, the defendant was [associated with] [employed by]⁴ the enterprise;

Four, the defendant participated, either directly or indirectly, in the conduct of the affairs of the enterprise⁵; and

Five, the defendant’s participation was through a pattern of racketeering activity,⁶ and consisted of the [knowing] [willful]⁷commission of at least two racketeering acts.

The term "racketeering activity," as used in [the] [this] Instruction[s] includes the acts charged as separate crimes in Counts ___, ___, and ___. The element of the crimes charged in Count ___, ___, and ___ are defined in Instructions ___, ___, and ___. [If the predicate acts are not charged in separate counts, instructions on the elements of each racketeering activity must be given as part of the racketeering charge.]⁸

For you to find [a] defendant guilty of this crime the government must prove all of these elements beyond a reasonable doubt [as to that defendant]; otherwise you must find [that] [the] defendant not guilty.⁹

Notes on Use

1. If the violation of section 1962 (c) is through the collection of an unlawful debt, substitute "collection of an unlawful debt" for "pattern of racketeering activity." An unlawful debt is defined at 18 USC 1961(6). See Committee Comments, infra.

2. The jury should be instructed on the meaning of "enterprise." See infra, Instruction D.

3. The racketeering activity must have some effect on interstate commerce. However, the element may be satisfied when the predicate acts form a nexus with interstate commerce; when the interstate commerce is affected by either the enterprise or its activities. See United States v. Muskovsky , 863 F.2d 1319 (7th Cir. 1988); R.A.G.S. Couture, Inc. v. Hyatt, 774 F.2d 1350 (5th Cir. 1985); United States v. Barton, 647 F.2d 224 (2d Cir. 1981).

4. Proof of association-in-fact enterprise requires evidence that a group of persons associated together for a common purpose of engaging in a course of conduct. United States v. Turkette, 452 U.S. 576 (1981). The enterprise element may also be satisfied if the entity has a legal existence. United States v. Kirk, 844 F.2d 660 (9th Cir. 1988); United States v. Cauble, 706 F.2d 1322 (5th Cir. 1983).

5. A defendant’s participation must be in the conduct of the affairs of the enterprise which means either some participation in the operation or management of the enterprise itself. Reves v. Ernst & Young, 507 U.S. 170, (1993); United States v. Darden, 70 F.3d 1507, 1518 (8th Cir. 1995). Participation may be direct or indirect. See e.g., United States v. Martino, 648 F.2d 367 (5th Cir. 1981); United States v. Starnes, 644 F.2d 673 (7th Cir. 1981).

6. The jury should be instructed on the meaning of "pattern of racketeering." See infra, Instruction E.

7. The RICO statute does not require any mens rea beyond that necessary for the predicate acts. The Instruction should be modified to conform to the mens rea requirement contained within the statute governing the predicate act.

8. "Racketeering activity" is defined at 18 USC 1961(1).

9. The jury must be instructed that in order to convict, the government must prove beyond a reasonable doubt each element of the charge. It is recommended that the burden of proof paragraph be included in the element instruction. See United States v. Fairchild, 122 F.3d 605, 612 (8th Cir. 1997); Instruction 3.09, supra.

Committee Comments

See Fifth Circuit Pattern Jury Instructions: Criminal § 2.72 (1997); Ninth Circ. Crim. Jury Instr. 8.129, 8.130 (2000) 8.34.3, 8.34.4 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal § 61.1 (1997); Modern Federal Jury Instructions, Criminal, 52-21; 2B Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 56.03 (5th ed. 2000); Federal Criminal Jury Instructions § 60.06; United States v. Ellison, 793 F.2d 942 (8th Cir. 1986).

A violation of section 1962 may occur either by a defendant engaging in a "pattern of racketeering activity" or "collection of an unlawful debt." An unlawful debt is defined in 18 USC 1961(6). See, e.g., United States v. Wong, 40 F.3d 1347 (2d Cir. 1994); United States v. Oreto, 37 F.3d 739 (1st Cir. 1994); United States v. DiSalvo, 34 F.3d 1204 (3d Cir. 1994); United States v. Aucoin, 964 F.2d 1492 (5th Cir. 1992); United States v. Tripp, 782 F.2d 38 (6th Cir. 1986).

RICO requires proof of the conduct of an enterprise effecting commerce through a pattern of racketeering activity involving two or more predicate acts. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985); United States v. Ellison, 793 F.2d 942 (8th Cir. 1986). See also Salinas v. United States, 522 U.S. 52, __, 118 S. Ct. 469, 476 (1997) (discussing elements of substantive RICO violation). A RICO defendant does not have to be convicted of each racketeering activity before a substantive RICO offense may be charged, as long as the racketeering activity is indictable under an applicable criminal statute. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. at 488. While a minimum of two predicate acts are necessary, more than two may be required to establish a RICO violation. H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229 (1989). 18 USC 1961(1) describes those state and federal crimes which constitute racketeering activity.

A conviction under RICO requires no proof of a connection between organized crime and the defendant. See Bennett v. Berg, 685 F.2d 1053 (8th Cir. 1982), modified, 710 F.2d 1361 (8th Cir. 1983) (en banc); Moss v. Morgan Stanley Inc., 719 F.2d 5 (2d Cir. 1983); Schact v. Brown, 711 F.2d 1343 (7th Cir. 1983).

The RICO statute does not specify any mens rea beyond that specified in the predicate acts. United States v. Scotto, 641 F.2d 47 (2d Cir. 1980). It is recommended that the elements of the offense instruction clearly set out the mens rea requirement of the predicate acts in that portion which pertains to the predicate acts.

To prove the existence of an enterprise, the government must prove (1) a common purpose; (2) a formal or informal organization of the participants in which they function as a unit; and (3) an ascertainable structure distinct from that inherent in the conduct of a pattern of racketeering activity. United States v. Kehoe, 310 F.3d 579, 586 (8^th Cir. 2002); United States v. Darden, 70 F.3d 1507 (8th Cir. 1995); United States v. Bledsoe, 674 F.2d 647 (8th Cir. 1982). The enterprise element may be satisfied upon a showing either that the entity has a legal existence or proof of an association in fact. United States v. Turkette, 452 U.S. 576 (1981). The enterprise must have an existence entirely separate and independent of the racketeering activity. See also United States v. Console, 13 F.3d 641 (3d Cir. 1993); United States v. Masters, 924 F.2d 1362 (7th Cir. 1991); United States v. Tillett, 763 F.2d 628 (4th Cir. 1985).

Section 1962(c) requires a relationship between the pattern of racketeering and the enterprise. Conduct forms a pattern of racketeering activity if it embraces criminal acts that have the same or similar purpose, results, participants, victims or methods of commission or are inextricably intertwined and not isolated events. United States v. Ellison, 793 F.2d 942 (8th Cir. 1986). The necessary nexus only exists when the defendant’s predicate acts "rise to the level" of participation in the management or operation of the enterprise. Reves v. Ernst & Young, 507 U.S. 170 (1993). Mere participation in the predicate offenses in conjunction with a RICO enterprise may be insufficient to support a RICO charge. Bennett v. Berg, 685 F.2d 1053 (8th Cir. 1982), modified, 710 F.2d 1361 (en banc 1983). An enterprise may be "operated" or "managed" by others "associated with" the enterprise who exert control of the enterprise. Reves v. Ernst & Young, 507 U.S. 170 (1993). A person may also be liable under section 1962(c) even though he had no control of the enterprise but participated or operated in the conduct of the enterprise. United States v. Darden, 70 F.3d 1507, 1518 (8th Cir. 1995). Yet the Eighth Circuit has held that Congress did not mean for 1962(c) to penalize all who are employed by or associated with a RICO enterprise, but only those, who by virtue of their association of employment, play a part in directing the enterprise’s affairs. Handeen v. Lemaire, 112 F.3d 1339, 1347 (8th Cir. 1997). An attorney or other professional does not conduct an enterprise’s affairs through run-of-the-mill professional services. Id.

The government need not prove that the racketeering activity benefitted the enterprise but only that the predicate acts affected the enterprise. United States v. Cauble, 706 F.2d 1322 (5th Cir. 1983). The same piece of evidence may establish both pattern and enterprise elements. United States v. Darden, 70 F.3d 1507, 1521 (8th Cir. 1995).

Isolated predicate acts do not constitute a pattern. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985). In order to prove a pattern of racketeering activity, the government must show both relationship and continuity as separate elements. H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229 (1989). Generally continuity over a close period is not met when the predicate acts extend less than one year. Primary Care Investors, Seven, Inc. v. PHP Healthcare Corp., 986 F.2d 1208 (8th Cir. 1993); see also Uni*Quality, Inc. v. Infotronx, Inc., 974 F.2d 918 (7th Cir. 1992); Aldridge v. Lily-Tulip Inc. Salary Retirement Plan, 961 F.2d 224 (11th Cir. 1992); Hughes v. Consolidated Pennsylvania Coal Co., 945 F.2d 594 (3d Cir. 1991). Generally pattern requires a showing of a relationship plus continuity. However, determining what constitutes a pattern is ultimately a question of fact. Diamonds Plus, Inc. v. Kolber, 960 F.2d 765 (8th Cir. 1992); Atlas Pile Driving Co. v. DiCon Financial Co., 886 F.2d 986 (8th Cir. 1989).

Courts have provided a broad interpretation to the interstate commerce requirement. See e.g., United States v. Robertson, 514 U.S. 669 (1995) (purchase of equipment and supplies from out of state as well as employment of out of state persons to work mine constituted interstate commerce); see also United States v. Qaoud, 777 F.2d 1105 (6th Cir. 1985) (activities of United States District Court constituted interstate commerce.)

The jury must be unanimous that predicate acts had been committed and the defendant committed at least two of the predicate acts. It is recommended that the instructions require the jury to be unanimous as to which acts have specifically been committed by the defendant. United States v. Flynn, 87 F.3d 996 (8th Cir. 1996); see also United States v. Kragness, 830 F.2d 842 (8th Cir. 1987); 2B Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 56.03 (5th ed. 2000).

(For 2008 version see below).

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2008 Version

The crime of participating in a racketeering enterprise¹ as charged in [Count ____] of the indictment has five elements, which are:

One, an enterprise existed as alleged in the indictment;²

Two, the enterprise [was engaged in] [had some affect on] interstate commerce;³

Three, the defendant was [associated with] [employed by]⁴ the enterprise;

Four, the defendant participated, either directly or indirectly, in the conduct of the affairs of the enterprise⁵; and

Five, the defendant’s participation was through a pattern of racketeering activity,⁶ and consisted of the [knowing] [willful]⁷commission of at least two racketeering acts.

The term "racketeering activity," as used in [the] [this] Instruction[s] includes the acts charged as separate crimes in Counts ___, ___, and ___. The element of the crimes charged in Count ___, ___, and ___ are defined in Instructions ___, ___, and ___. [If the predicate acts are not charged in separate counts, instructions on the elements of each racketeering activity must be given as part of the racketeering charge.]⁸

For you to find [a] defendant guilty of this crime the government must prove all of these elements beyond a reasonable doubt [as to that defendant]; otherwise you must find [that] [the] defendant not guilty.⁹

Notes on Use

2. The jury should be instructed on the meaning of "enterprise." See, infra, Instruction D.

6. The jury should be instructed on the meaning of "pattern of racketeering." See, infra, Instruction E.

8. "Racketeering activity" is defined at 18 USC 1961(1).

Committee Comments

Isolated predicate acts do not constitute a pattern. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985). In order to prove a pattern of racketeering activity, the government must show both relationship and continuity as separate elements. H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229 (1989). Generally continuity over a close period is not met when the predicate acts extend less than one year. Primary Care Investors, Seven, Inc. v. PHP Healthcare Corp., 986 F.2d 1208 (8th Cir. 1993); see also, Uni*Quality, Inc. v. Infotronx, Inc., 974 F.2d 918 (7th Cir. 1992); Aldridge v. Lily-Tulip Inc. Salary Retirement Plan, 961 F.2d 224 (11th Cir. 1992); Hughes v. Consolidated Pennsylvania Coal Co., 945 F.2d 594 (3d Cir. 1991). Generally pattern requires a showing of a relationship plus continuity. However, determining what constitutes a pattern is ultimately a question of fact. Diamonds Plus, Inc. v. Kolber, 960 F.2d 765 (8th Cir. 1992); Atlas Pile Driving Co. v. DiCon Finanical Co., 886 F.2d 986 (8th Cir. 1989).

Courts have provided a broad interpretation to the interstate commerce requirement. See e.g., United States v. Robertson, 514 U.S. 669 (1995) (purchase of equipment and supplies from out of state as well as employment of out of state persons to work mine constituted interstate commerce); see also, United States v. Qaoud, 777 F.2d 1105 (6th Cir. 1985) (activities of United States District Court constituted interstate commerce.)

The jury must be unanimous that predicate acts had been committed and the defendant committed at least two of the predicate acts. It is recommended that the instructions require the jury to be unanimous as to which acts have specifically been committed by the defendant. United States v. Flynn, 87 F.3d 996 (8th Cir. 1996); see also, United States v. Kragness, 830 F.2d 842 (8th Cir. 1987); 2B Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 56.03 (5th ed. 2000).

(For 2006 version see below)

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2006 Version

The crime of participating in a racketeering enterprise¹ as charged in [Count ____] of the indictment has five elements, which are:

One, an enterprise existed as alleged in the indictment;²

Two, the enterprise [was engaged in] [had some affect on] interstate commerce;³

Three, the defendant was [associated with] [employed by]⁴ the enterprise;

Four, the defendant participated, either directly or indirectly, in the conduct of the affairs of the enterprise⁵; and

Five, the defendant’s participation was through a pattern of racketeering activity,⁶ and consisted of the [knowing] [willful]⁷commission of at least two racketeering acts.

The term "racketeering activity," as used in [the] [this] Instruction[s] includes the acts charged as separate crimes in Counts ___, ___, and ___. The element of the crimes charged in Count ___, ___, and ___ are defined in Instructions ___, ___, and ___. [If the predicate acts are not charged in separate counts, instructions on the elements of each racketeering activity must be given as part of the racketeering charge.]⁸

For you to find [a] defendant guilty of this crime the government must prove all of these elements beyond a reasonable doubt [as to that defendant]; otherwise you must find [that] [the] defendant not guilty.⁹

Notes on Use

2. The jury should be instructed on the meaning of "enterprise." See, infra, Instruction D.

6. The jury should be instructed on the meaning of "pattern of racketeering." See, infra, Instruction E.

8. "Racketeering activity" is defined at 18 USC 1961(1).

Committee Comments

See Fifth Circuit Pattern Jury Instructions: Criminal § 2.72 (1997); Ninth Circ. Crim. Jury Instr. 8.129, 8.130 (2000); Eleventh Circuit Pattern Jury Instructions: Criminal § 61.1 (1997); Modern Federal Jury Instructions, Criminal, 52-21; 2B Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 56.03 (5th ed. 2000); Federal Criminal Jury Instructions § 60.06; United States v. Ellison, 793 F.2d 942 (8th Cir. 1986).

Isolated predicate acts do not constitute a pattern. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985). In order to prove a pattern of racketeering activity, the government must show both relationship and continuity as separate elements. H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229 (1989). Generally continuity over a close period is not met when the predicate acts extend less than one year. Primary Care Investors, Seven, Inc. v. PHP Healthcare Corp., 986 F.2d 1208 (8th Cir. 1993); see also, Uni*Quality, Inc. v. Infotronx, Inc., 974 F.2d 918 (7th Cir. 1992); Aldridge v. Lily-Tulip Inc. Salary Retirement Plan, 961 F.2d 224 (11th Cir. 1992); Hughes v. Consolidated Pennsylvania Coal Co., 945 F.2d 594 (3d Cir. 1991). Generally pattern requires a showing of a relationship plus continuity. However, determining what constitutes a pattern is ultimately a question of fact. Diamonds Plus, Inc. v. Kolber, 960 F.2d 765 (8th Cir. 1992); Atlas Pile Driving Co. v. DiCon Finanical Co., 886 F.2d 986 (8th Cir. 1989).

Courts have provided a broad interpretation to the interstate commerce requirement. See e.g., United States v. Robertson, 514 U.S. 669 (1995) (purchase of equipment and supplies from out of state as well as employment of out of state persons to work mine constituted interstate commerce); see also, United States v. Qaoud, 777 F.2d 1105 (6th Cir. 1985) (activities of United States District Court constituted interstate commerce.)

The jury must be unanimous that predicate acts had been committed and the defendant committed at least two of the predicate acts. It is recommended that the instructions require the jury to be unanimous as to which acts have specifically been committed by the defendant. United States v. Flynn, 87 F.3d 996 (8th Cir. 1996); see also, United States v. Kragness, 830 F.2d 842 (8th Cir. 1987); 2B Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 56.03 (5th ed. 2000).

For 2000 version see below

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2000 Version

The crime of participating in a racketeering enterprise1 as charged in [Count ____] of the indictment has five essential elements, which are:

One, an enterprise existed as alleged in the indictment;2

Two, the enterprise [was engaged in] [had some affect on] interstate commerce;3

Three, the defendant was [associated with] [employed by]4 the enterprise;

Four, the defendant participated, either directly or indirectly, in the conduct of the affairs of the enterprise5; and

Five, the defendant’s participation was through a pattern of racketeering activity,6 and consisted of the [knowing] [willful]7 commission of at least two racketeering acts.

The term "racketeering activity," as used in [the] [this] Instruction[s] includes the acts charged as separate crimes in Counts ___, ___, and ___. The element of the crimes charged in Count ___, ___, and ___ are defined in Instructions ___, ___, and ___. [If the predicate acts are not charged in separate counts, instructions on the elements of each racketeering activity must be given as part of the racketeering charge.]8

For you to find [a] defendant guilty of this crime the government must prove all of these essential elements beyond a reasonable doubt [as to that defendant]; otherwise you must find [that] [the] defendant not guilty.9

Committee Comments

See Fifth Circuit Pattern Jury Instructions: Criminal § 2.72 (1997); Ninth Circ. Crim. Jury Instr. 8.34.3, 8.34.4 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal § 61.1 (1997); Modern Federal Jury Instructions, Criminal, 52-21; 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 48.03 (4th ed. 1990); Federal Criminal Jury Instructions § 60.06; United States v. Ellison, 793 F.2d 942 (8th Cir.), cert. denied, 479 U.S. 937 (1986).

A violation of section 1962 may occur either by a defendant engaging in a "pattern of racketeering activity" or "collection of an unlawful debt." An unlawful debt is defined in 18 USC 1961(6). See, e.g., United States v. Wong, 40 F.3d 1347 (2d Cir. 1994), cert. denied, 516 U.S. 870 (1995); United States v. Oreto, 37 F.3d 739 (1st Cir. 1994), cert. denied, 513 U.S. 1177 (1995); United States v. DiSalvo, 34 F.3d 1204 (3d Cir. 1994); United States v. Aucoin, 964 F.2d 1492 (5th Cir. 1992), cert. denied, 506 U.S. 1023 (1992); United States v. Tripp, 782 F.2d 38 (6th Cir.), cert. denied, 475 U.S. 1128 (1986).

RICO requires proof of the conduct of an enterprise effecting commerce through a pattern of racketeering activity involving two or more predicate acts. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985); United States v. Ellison, 793 F.2d 942 (8th Cir.), cert. denied, 479 U.S. 937 (1986). See also Salinas v. United States, 522 U.S. 52, ____, 118 S. Ct. 469, 476 (1997) (discussing elements of substantive RICO violation). A RICO defendant does not have to be convicted of each racketeering activity before a substantive RICO offense may be charged, as long as the racketeering activity is indictable under an applicable criminal statute. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. at 488. While a minimum of two predicate acts are necessary, more than two may be required to establish a RICO violation. H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229 (1989). 18 USC 1961(1) describes those state and federal crimes which constitute racketeering activity.

A conviction under RICO requires no proof of a connection between organized crime and the defendant. See Bennett v. Berg, 685 F.2d 1053 (8th Cir. 1982), modified, 710 F.2d 1361 (8th Cir. 1983) (en banc), cert. denied, 464 U.S. 1008 (1983); Moss v. Morgan Stanley Inc., 719 F.2d 5 (2d Cir. 1983), cert. denied, 465 U.S. 1025 (1984); Schact v. Brown, 711 F.2d 1343 (7th Cir.), cert. denied, 464 U.S. 1002 (1983).

The RICO statute does not specify any mens rea beyond that specified in the predicate acts. United States v. Scotto, 641 F.2d 47 (2d Cir. 1980), cert. denied, 452 U.S. 961 (1981). It is recommended that the elements of the offense instruction clearly set out the mens rea requirement of the predicate acts in that portion which pertains to the predicate acts.

To prove the existence of an enterprise, the government must prove (1) a common purpose; (2) a formal or informal organization of the participants in which they function as a unit; and (3) an ascertainable structure distinct from that inherent in the conduct of a pattern of racketeering activity. United States v. Darden, 70 F.3d 1507 (8th Cir. 1995), cert. denied, 517 U.S. 1149 (1996); United States v. Bledsoe, 674 F.2d 647 (8th Cir.), cert. denied, 459 U.S. 1040 (1982). The enterprise element may be satisfied upon a showing either that the entity has a legal existence or proof of an association in fact. United States v. Turkette, 452 U.S. 576 (1981). The enterprise must have an existence entirely separate and independent of the racketeering activity. See also United States v. Console, 13 F.3d 641 (3d Cir. 1993), cert. denied, 511 U.S. 1076 (1994); United States v. Masters, 924 F.2d 1362 (7th Cir.), cert. denied, 500 U.S. 919 (1991); United States v. Tillett, 763 F.2d 628 (4th Cir. 1985).

Section 1962(c) requires a relationship between the pattern of racketeering and the enterprise. Conduct forms a pattern of racketeering activity if it embraces criminal acts that have the same or similar purpose, results, participants, victims or methods of commission or are inextricably intertwined and not isolated events. United States v. Ellison, 793 F.2d 942 (8th Cir.), cert. denied, 479 U.S. 937 (1986). The necessary nexus only exists when the defendant’s predicate acts "rise to the level" of participation in the management or operation of the enterprise. Reves v. Ernst & Young, 507 U.S. 170 (1993). Mere participation in the predicate offenses in conjunction with a RICO enterprise may be insufficient to support a RICO charge. Bennett v. Berg, 685 F.2d 1053 (8th Cir. 1982), modified, 710 F.2d 1361 (en banc), cert. denied, 464 U.S. 1008 (1983). An enterprise may be "operated" or "managed" by others "associated with" the enterprise who exert control of the enterprise. Reves v. Ernst & Young, 507 U.S. 170 (1993). A person may also be liable under section 1962(c) even though he had no control of the enterprise but participated or operated in the conduct of the enterprise. United States v. Darden, 70 F.3d 1507, 1518 (8th Cir. 1995). Yet the Eighth Circuit has held that Congress did not mean for 1962(c) to penalize all who are employed by or associated with a RICO enterprise, but only those, who by virtue of their association of employment, play a part in directing the enterprise’s affairs. Handeen v. Lemaire, 112 F.3d 1339, 1347 (8th Cir. 1997). An attorney or other professional does not conduct an enterprise’s affairs through run-of-the-mill professional services. Id.

The government need not prove that the racketeering activity benefitted the enterprise but only that the predicate acts affected the enterprise. United States v. Cauble, 706 F.2d 1322 (5th Cir. 1983), cert. denied, 465 U.S. 1005 (1984). The same piece of evidence may establish both pattern and enterprise elements. United States v. Darden, 70 F.3d 1507, 1521 (8th Cir. 1995).

Isolated predicate acts do not constitute a pattern. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985). In order to prove a pattern of racketeering activity, the government must show both relationship and continuity as separate elements. H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229 (1989). Generally continuity over a close period is not met when the predicate acts extend less than one year. Primary Care Inv., Seven, Inc. v. PHP Healthcare Corp., 986 F.2d 1208 (8th Cir. 1993); see also, Uni Quality, Inc. v. Infotronx, Inc., 974 F.2d 918 (7th Cir. 1992); Aldridge v. Lily-Tulip Inc. Salary Retirement Plan, 961 F.2d 224 (11th Cir. 1992); Hughes v. Consolidated Pennsylvania Coal Co., 945 F.2d 594 (3d Cir. 1991), cert. denied, 504 U.S. 955 (1992). Generally pattern requires a showing of a relationship plus continuity. However, determining what constitutes a pattern is ultimately a question of fact. Diamonds Plus, Inc. v. Kolber, 960 F.2d 765 (8th Cir. 1992); Atlas Pile Driving Co. v. Dicon Fin. Co., 886 F.2d 986 (8th Cir. 1989).

Courts have provided a broad interpretation to the interstate commerce requirement. See e.g., United States v. Robertson, 514 U.S. 669 (1995) (purchase of equipment and supplies from out of state as well as employment of out of state persons to work mine constituted interstate commerce); see also, United States v. Qaoud, 777 F.2d 1105 (6th Cir. 1985), cert. denied, 475 U. S. 1098 (1986) (activities of United States District Court constituted interstate commerce.)

The jury must be unanimous that predicate acts had been committed and the defendant committed at least two of the predicate acts. It is recommended that the instructions require the jury to be unanimous as to which acts have specifically been committed by the defendant. United States v. Flynn, 87 F.3d 996 (8th Cir. 1996); see also, United States v. Kragness, 830 F.2d 842 (8th Cir. 1987); D & B. 48.06.

Notes on Use

2. The jury should be instructed on the meaning of "enterprise." See, infra, Instruction D.

3. The racketeering activity must have some effect on interstate commerce. However, the element may be satisfied when the predicate acts form a nexus with interstate commerce; when the interstate commerce is affected by either the enterprise or its activities. See United States v. Muskovsky , 863 F.2d 1319 (7th Cir. 1988), cert. denied, 489 U.S. 1067 (1989); R.A.G.S. Couture, Inc. v. Hyatt, 774 F.2d 1350 (5th Cir. 1985); United States v. Barton, 647 F.2d 224 (2d Cir.), cert. denied, 454 U.S. 857 (1981).

4. Proof of association-in-fact enterprise requires evidence that a group of persons associated together for a common purpose of engaging in a course of conduct. United States v. Turkette, 452 U.S. 576 (1981). The enterprise element may also be satisfied if the entity has a legal existence. United States v. Kirk, 844 F.2d 660 (9th Cir.), cert. denied, 488 U.S. 890 (1988); United States v. Cauble, 706 F.2d 1322 (5th Cir. 1983), cert. denied, 465 U.S. 1005 (1984).

5. A defendant’s participation must be in the conduct of the affairs of the enterprise which means either some participation in the operation or management of the enterprise itself. Reves v. Ernst & Young, 507 U.S. 170, (1993); United States v. Darden, 70 F.3d 1507, 1518 (8th Cir. 1995). Participation may be direct or indirect. See e.g., United States v. Martino, 648 F.2d 867 (5th Cir. 1981); United States v. Starnes, 644 F.2d 673 (7th Cir.), cert. denied, 454 U.S. 826 (1981).

6. The jury should be instructed on the meaning of "pattern of racketeering." See, infra, Instruction E.

8. "Racketeering activity" is defined at 18 USC 1961 (1).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1962B RICO - CONSPIRACY
(18 USC 1962(d))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Racketeering Conspiracy--Elements (18 USC 1962(d))

The crime of conspiracy¹ to [invest or use income derived from racketeering activity] [acquire or maintain an interest in or control of an enterprise] [participate, directly or indirectly, in the affairs of an enterprise] through a pattern of racketeering activity as charged in [Count ____] of the indictment has five elements, which are:²

One, an enterprise existed as alleged in the indictment;³

Two, the enterprise [was engaged in] [had some effect on] interstate commerce;⁴

Three, the defendant was [associated with] [employed by] an enterprise;⁵

Four, that on or about [insert date] two [or more] persons reached an agreement or came to an understanding [to invest or use income derived from racketeering activity] [to acquire or maintain an interest in or control of an enterprise] [to conduct or participate in the affairs of an enterprise, directly or indirectly,] through a pattern of racketeering activity; ⁶and

Five, that the defendant voluntarily and intentionally joined in the agreement or understanding, either at the time it was first reached or at some later time while it was still in existence, and at the time the defendant joined in the agreement or understanding [he] [she] specifically intended to otherwise participate in the affairs of the enterprise.⁷

For you to find [a] defendant guilty of this crime the government must prove all of these elements beyond a reasonable doubt [as to that defendant]; otherwise you must find [that] [the] defendant not guilty.⁸

Notes on Use

1. The general conspiracy statute is 18 USC 371. Unlike the general conspiracy statute, the government need not prove an overt act was committed in furtherance of the conspiracy.

2. Section 1962(d) prohibits conspiring to violate any provision of § 1962 (a)(b)(c).

3. The jury should be instructed on the meaning of "enterprise." See infra, Instruction D.

4. The racketeering activity must have some effect on interstate commerce. Section 1962 (c) also provides that a pattern of racketeering activity which affects foreign commerce is unlawful. If supported by evidence, substitute foreign commerce for interstate commerce. However the element may be satisfied when the predicate acts form a nexus with interstate commerce; when the interstate commerce is affected by either the enterprise or its activities. See United States v. Muskovsky , 863 F.2d 1319 (7th Cir 1988); R.A.G.S. Couture, Inc. v. Hyatt, 774 F.2d 1350 (5th Cir. 1985); United States v. Barton, 647 F.2d 224 (2d Cir. 1981).

5. Proof of association-in-fact enterprise requires evidence that a group of persons associated together for a common purpose of engaging in a course of conduct. United States v. Turkette, 452 U.S. 576 (1981). The enterprise element may also be satisfied if the entity has a legal existence. United States v. Kirk, 844 F.2d 660 (9th Cir. 1988); United States v. Cauble, 706 F.2d 1322 (5th Cir. 1983).

6. The jury should be instructed on the meaning of "pattern of racketeering." See infra, Instruction E.

7. The government must prove that the defendant objectively manifested an agreement to participate in the affairs of the enterprise. United States v. Darden, 70 F.3d 1507, 1518 (1995). The Court’s statement in Darden regarding "objectively manifested" appears to be a comment on the amount of evidence the government must introduce to allow the jury to infer an intent to participate. The Committee does not believe that the term "objectively manifest" is an element of the offense because it would lessen the level of intent. Proof of an express agreement is not required. The government need only establish a tacit understanding between the parties and this may be shown wholly through circumstantial evidence of each defendant’s actions. Id.

8. The jury must be instructed that in order to convict, the government must prove beyond a reasonable doubt each element of the charge. It is recommended that the burden of proof paragraph be included in the element instruction. See United States v. Fairchild, 122 F.3d 605, 612 (8th Cir. 1997); Instruction 3.09, supra.

Committee Comments

Eleventh Circuit Pattern Jury Instructions: Criminal § 61.2 (1997); Modern Federal Jury Instructions, Criminal 52.29; 2B Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 56.11 (5th ed. 2000); Federal Criminal Jury Instructions § 60.12; United States v. Darden, 70 F.3d 1507, 1518 (8th Cir. 1995).

See Committee Comments and Notes on Use, Instruction 6.18.1962A, supra.

Unlike the general conspiracy statute, 18 USC 371, the RICO conspiracy statute does not require the government to either plead or prove that an overt act was committed in furtherance of the conspiracy. Salinas v. United States, 522 U.S. 52, 63 (1997); United States v. Pepe, 747 F.2d 632 (11th Cir. 1984); United States v. Barton, 647 F.2d 224 (2d Cir. 1981). Therefore the RICO conspiracy provision is more comprehensive than the general conspiracy statute, 18 USC 371. Salinas v. United States, 522 U.S. at 61. Proof of an express agreement is not required; the government need only establish a tacit understanding between the parties. United States v. Darden, 70 F.3d 1507 (8th Cir. 1995). However, mere association with a RICO enterprise, in itself, is not violative of a conspiracy under § 1962(d). See, e.g., United States v. Neapolitan, 791 F.2d 489 (7th Cir. 1986).

In order to prove a RICO conspiracy, the Government need only show that the defendant agreed to the criminal objective. Salinas v. United States, 522 U.S. at 52; United States v. Bennett, 44 F.3d 1364 (8th Cir. 1995) (it is not necessary that the defendant personally agree to commit requisite acts, but only that he agrees to join conspiracy). United States v. Leisure, 844 F.2d 1347 (8th Cir. 1988); United States v. Kragness, 830 F.2d 842 (8th Cir. 1987). In order to be guilty of conspiracy under RICO, a defendant must simply agree to the objective of the RICO violation and need not himself have committed or agreed to commit the two predicate acts. See Salinas v. United States, 522 U.S. at 52. A defendant may be acquitted of the substantive offense but still convicted of conspiracy if there is proof of an agreement to commit the substantive act. See, e.g., Salinas v. United States, 522 U.S. at 55. United States v. Alonso, 740 F.2d 862 (11th Cir. 1985).

Withdrawal from a RICO conspiracy is a permissible defense but the defendant must prove that he took affirmative steps, inconsistent with the object of the conspiracy, to disavow or to defeat the conspiratorial objectives. See United States v. Starrett, 55 F.3d 1525 (11th Cir. 1995). Further, the defendant must have made a reasonable effort to communicate these steps to his co-conspirators or disclosed their conspiracy to law enforcement authorities. See United States v. Finestone, 816 F.2d 583 (11th Cir. 1987); see also Hyde v. United States, 225 U.S. 347 (1912).

(For 2008 version see below).

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2008 Version

The crime of conspiracy¹ to [invest or use income derived from racketeering activity] [acquire or maintain an interest in or control of an enterprise] [participate, directly or indirectly, in the affairs of an enterprise] through a pattern of racketeering activity as charged in [Count ____] of the indictment has five elements, which are:²

One, an enterprise existed as alleged in the indictment;³

Two, the enterprise [was engaged in] [had some effect on] interstate commerce;⁴

Three, the defendant was [associated with] [employed by] an enterprise;⁵

Four, that on or about [insert date] two [or more] persons reached an agreement or came to an understanding [to invest or use income derived from racketeering activity] [to acquire or maintain an interest in or control of an enterprise] [to conduct or participate in the affairs of an enterprise, directly or indirectly,] through a pattern of racketeering activity; ⁶and

Five, that the defendant voluntarily and intentionally joined in the agreement or understanding, either at the time it was first reached or at some later time while it was still in existence, and at the time the defendant joined in the agreement or understanding [he] [she] specifically intended to otherwise participate in the affairs of the enterprise.⁷

For you to find [a] defendant guilty of this crime the government must prove all of these elements beyond a reasonable doubt [as to that defendant]; otherwise you must find [that] [the] defendant not guilty.⁸

Notes on Use

1. The general conspiracy statute is 18 USC 371. Unlike the general conspiracy statute, the government need not prove an overt act was committed in furtherance of the conspiracy.

2. Section 1962(d) prohibits conspiring to violate any provision of § 1962 (a)(b)(c).

3. The jury should be instructed on the meaning of "enterprise." See, infra, Instruction D.

6. The jury should be instructed on the meaning of "pattern of racketeering." See, infra, Instruction E.

Committee Comments

See Committee Comments and Notes on Use, Instruction 6.18.1962A, supra.

(For 2006 version see below)

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2006 Version

The crime of conspiracy¹ to [invest or use income derived from racketeering activity] [acquire or maintain an interest in or control of an enterprise] [participate, directly or indirectly, in the affairs of an enterprise] through a pattern of racketeering activity as charged in [Count ____] of the indictment has five elements, which are:²

One, an enterprise existed as alleged in the indictment;³

Two, the enterprise [was engaged in] [had some effect on] interstate commerce;⁴

Three, the defendant was [associated with] [employed by] an enterprise;⁵

Four, that on or about [insert date] two [or more] persons reached an agreement or came to an understanding [to invest or use income derived from racketeering activity] [to acquire or maintain an interest in or control of an enterprise] [to conduct or participate in the affairs of an enterprise, directly or indirectly,] through a pattern of racketeering activity; ⁶and

Five, that the defendant voluntarily and intentionally joined in the agreement or understanding, either at the time it was first reached or at some later time while it was still in existence, and at the time the defendant joined in the agreement or understanding [he] [she] specifically intended to otherwise participate in the affairs of the enterprise.⁷

For you to find [a] defendant guilty of this crime the government must prove all of these elements beyond a reasonable doubt [as to that defendant]; otherwise you must find [that] [the] defendant not guilty.⁸

Notes on Use

1. The general conspiracy statute is 18 USC 371. Unlike the general conspiracy statute, the government need not prove an overt act was committed in furtherance of the conspiracy.

2. Section 1962(d) prohibits conspiring to violate any provision of § 1962 (a)(b)(c).

3. The jury should be instructed on the meaning of "enterprise." See, infra, Instruction D.

6. The jury should be instructed on the meaning of "pattern of racketeering." See, infra, Instruction E.

Committee Comments

See Committee Comments and Notes on Use, Instruction 6.18.1962A, supra.

For 2000 version see below

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2000 Version

The crime of conspiracy1 to [invest or use income derived from racketeering activity] [acquire or maintain an interest in or control of an enterprise] [participate, directly or indirectly, in the affairs of an enterprise] through a pattern of racketeering activity as charged in [Count ____] of the indictment has five essential elements, which are:2

One, an enterprise existed as alleged in the indictment;3

Two, the enterprise [was engaged in] [had some effect on] interstate commerce;4

Three, the defendant was [associated with] [employed by] an enterprise;5

Four, that on or about [insert date] two [or more] persons reached an agreement or came to an understanding [to invest or use income derived from racketeering activity] [to acquire or maintain an interest in or control of an enterprise] [to conduct or participate in the affairs of an enterprise, directly or indirectly,] through a pattern of racketeering activity; 6 and

Five, that the defendant voluntarily and intentionally joined in the agreement or understanding, either at the time it was first reached or at some later time while it was still in existence, and at the time the defendant joined in the agreement or understanding [he] [she] specifically intended to otherwise participate in the affairs of the enterprise.7

For you to find [a] defendant guilty of this crime the government must prove all of these essential elements beyond a reasonable doubt [as to that defendant]; otherwise you must find [that] [the] defendant not guilty.8

Committee Comments

Eleventh Circuit Pattern Jury Instructions: Criminal § 61.2 (1997); Modern Federal Jury Instructions, Criminal 52.29; 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 48.11 (4th ed. 1990); Federal Criminal Jury Instructions § 60.12; United States v. Darden, 70 F.3d 1507, 1518 (8th Cir. 1995).

See Committee Notes, No. A, supra.

Unlike the general conspiracy statute, 18 USC 371, the RICO conspiracy statute does not require the government to either plead or prove that an overt act was committed in furtherance of the conspiracy. Salinas v. United States, 522 U.S. 52, ___, 118 S. Ct. 469, 476 (1997); United States v. Pepe, 747 F.2d 632 (11th Cir. 1984); United States v. Barton, 647 F.2d 224 (2d Cir.), cert. denied, 454 U.S. 857 (1981). Therefore the RICO conspiracy provision is more comprehensive than the general conspiracy statute, 18 USC 371. Salinas v. United States, 522 U.S. at ____, 118 S. Ct. at 476. Proof of an express agreement is not required; the government need only establish a tacit understanding between the parties. United States v. Darden, 70 F.3d 1507 (8th Cir. 1995). However, mere association with a RICO enterprise, in itself, is not violative of a conspiracy under § 1962(d). See, e.g., United States v. Neapolitan, 791 F.2d 489 (7th Cir.), cert. denied, 479 U.S. 939 (1986).

In order to prove a RICO conspiracy, the Government need only show that the defendant agreed to the criminal objective. Salinas v. United States, 522 U.S. 52, ___, 118 S. Ct. 469, 471 (1997; United States v. Bennett, 44 F.3d 1364 (8th Cir. 1995) (it is not necessary that defendant personally agree to commit requisite acts, but only that he agrees to join conspiracy). United States v. Leisure, 844 F.2d 1347 (8th Cir.), cert. denied, 488 U.S. 932 (1988); United States v. Kragness, 830 F.2d 842 (8th Cir. 1987). In order to be guilty of conspiracy under RICO, a defendant must simply agree to the objective of the RICO violation and need not himself have committed or agreed to commit the two predicate acts. See Salinas v. United States, 522 U.S. 52, ___, 118 S. Ct. 469, 471 (1997). A defendant may be acquitted of the substantive offense but still convicted of conspiracy if there is proof of an agreement to commit the substantive act. See, e.g., Salinas v. United States, 118 S. Ct. at 473. United States v. Alonso, 740 F.2d 862 (11th Cir.), cert. denied, 469 U.S. 1166 (1985).

Withdrawal from a RICO conspiracy is a permissible defense but the defendant must prove that he took affirmative steps, inconsistent with the object of the conspiracy, to disavow or to defeat the conspiratorial objectives. See United States v. Starrett, 55 F.3d 1525 (11th Cir. 1995). Further, the defendant must have made a reasonable effort to communicate these steps to his co-conspirators or disclosed their conspiracy to law enforcement authorities. See United States v. Finestone, 816 F.2d 583 (11th Cir.), cert. denied, 484 U.S. 948 (1987); see also Hyde v. United States, 225 U.S. 347 (1912)

Notes on Use

1. The general conspiracy statute is 18 USC 371. Unlike the general conspiracy statute, the government need not prove an overt act was committed in furtherance of the conspiracy.

2. Section 1962(d) prohibits conspiring to violate any provision of § 1962 (a)(b)(c).

3. The jury should be instructed on the meaning of "enterprise." See, infra, Instruction D.

4. The racketeering activity must have some effect on interstate commerce. Section 1962 (c) also provides that a pattern of racketeering activity which affects foreign commerce is unlawful. If supported by evidence, substitute foreign commerce for interstate commerce. However the element may be satisfied when the predicate acts form a nexus with interstate commerce; when the interstate commerce is affected by either the enterprise or its activities. See United States v. Muskovsky , 863 F.2d 1319 (7th Cir), cert. denied, 489 U.S. 1067 (1988); R.A.G.S. Couture, Inc. v. Hyatt Co., 774 F.2d 1350 (5th Cir. 1985); United States v. Barton, 647 F.2d 224 (2d Cir.), cert. denied, 454 U.S. 857 (1981).

5. Proof of association-in-fact enterprise requires evidence that a group of persons associated together for a common purpose of engaging in a course of conduct. United States v. Turkette, 452 U.S. 576 (1981). The enterprise element may also be satisfied if the entity has a legal existence. United States v. Kirk, 844 F.2d 660 (9th Cir.), cert. denied, 488 U.S. 890 (1988); United States v. Cauble, 706 F.2d 1322 (5th Cir. 1983), cert. denied, 465 U.S. 1005 (1984).

6. The jury should be instructed on the meaning of "pattern of racketeering." See, infra, Instruction E.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1962C RICO-CONSPIRACY -- AGREEMENT EXPLAINED

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: RICO (18 USC 1962)

The government must prove beyond a reasonable doubt that the defendant knowingly reached an agreement¹ or understanding with at least one other person to [invest or use income derived from racketeering activity] [acquire or maintain an interest in or control of an enterprise] [participate, directly or indirectly, in the affairs of an enterprise] through a pattern of racketeering activity.²However, you don’t have to find that any racketeering acts were actually committed.³

The agreement or understanding need not be an express or formal agreement or be in writing or cover all the details of how it is to be carried out. Nor is it necessary that the members have directly stated between themselves the details or purpose of the scheme.

You should understand that merely being present at the scene of an event, or merely acting in the same way as others or merely associating with others, does not prove that a person has joined in an agreement or understanding. A person who has no knowledge of a conspiracy but who happens to act in a way which advances some purpose of one does not thereby become a member.

But a person may join in an agreement or understanding, as required by this element, without knowing all the details of the agreement or understanding, and without knowing who all the other members are. Further it is not necessary that a person agree to play any particular part in carrying out the agreement or understanding. A person may become a member of a conspiracy even if that person agrees to play only a minor part in the conspiracy, as long as that person has an understanding of the unlawful nature of the plan and voluntarily and intentionally joins in it.

In determining whether the alleged conspiracy existed you may consider the actions and statements of all the alleged participants. The agreement may be inferred from all the circumstances and the conduct of the alleged participants. ⁴

[Acts and statements which are made before the conspiracy began or after it ended are admissible only against the person making them and should not be considered by you against any other defendant.]⁵

Notes on Use

1. Where enterprise is defined as an association in fact, proof of that enterprise may prove an unlawful agreement. United States v. Bennett, 44 F.3d 1364, 1372 (8th Cir. 1995); United States v. Pungitore, 910 F.2d 1084, 1114 (3d Cir. 1990).

2. The United States Supreme Court has held that it is not necessary that a defendant personally agreed to commit the requisite acts, but only that he agreed to join the conspiracy. Salinas v. United States, 522 U.S. 52, 65 (1997). United States v. Bennett, 44 F.3d at 1374; United States v. Kragness, 830 F.2d 842 (8th Cir. 1987).

3. A person may be liable for the RICO conspiracy even thought he was incapable of committing the substantive offense. See Salinas v. United States, 522 U.S. 52, 64 (1997).

4. For purposes of a RICO prosecution an enterprise may only be comprised of the defendants. United States v. Nabors, 45 F.3d 238, 240 (8th Cir. 1995).

5. An explicit limiting instruction must be given if evidence of acts or statements by any co-conspirator made before or after the conspiracy began or ended has been admitted. See United States v. Snider, 720 F.2d 985, 989 (8th Cir. 1983).

Committee Comments

See Model Federal Jury Instructions, Criminal 52-31, 32; Salinas v. United States, 522 U.S. 52 (1997); United States v. Bennett, 44 F.3d 1364 (8th Cir. 1995); United States v. Elliott, 571 F.2d 880 (5th Cir. 1978).

The RICO conspiracy statute is designed to facilitate prosecution of multi-faceted, highly diversified criminal activity by creating a substantive offense which ties together the diverse parties and crimes. In order to be convicted of a RICO conspiracy, an individual must have, by words or actions, objectively manifested an agreement to participate in the affairs of the enterprise. United States v. Darden, 70 F.3d 1507, 1518 (8th Cir. 1995); United States v. Bennett, 44 F.3d at 1372; see United States v. Boffa, 688 F.2d 919 (3d Cir. 1982); United States v. Winter, 663 F.2d 1120 (1st Cir. 1981). Conspiracy to commit a narcotics violation may be a proper predicate act for a conspiracy to commit RICO. United States v. Darden, 70 F.3d 1507, 1524 (8th Cir. 1995). Simple possession cannot serve as a predicate act under the RICO statute. Id. at 1525.

(For 2008 version see below).

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

2008 Version

The government must prove beyond a reasonable doubt that the defendant knowingly reached an agreement¹ or understanding with at least one other person to [invest or use income derived from racketeering activity] [acquire or maintain an interest in or control of an enterprise] [participate, directly or indirectly, in the affairs of an enterprise] through a pattern of racketeering activity.²However, you don’t have to find that any racketeering acts were actually committed.³

The agreement or understanding need not be an express or formal agreement or be in writing or cover all the details of how it is to be carried out. Nor is it necessary that the members have directly stated between themselves the details or purpose of the scheme.

You should understand that merely being present at the scene of an event, or merely acting in the same way as others or merely associating with others, does not prove that a person has joined in an agreement or understanding. A person who has no knowledge of a conspiracy but who happens to act in a way which advances some purpose of one does not thereby become a member.

But a person may join in an agreement or understanding, as required by this element, without knowing all the details of the agreement or understanding, and without knowing who all the other members are. Further it is not necessary that a person agree to play any particular part in carrying out the agreement or understanding. A person may become a member of a conspiracy even if that person agrees to play only a minor part in the conspiracy, as long as that person has an understanding of the unlawful nature of the plan and voluntarily and intentionally joins in it.

In determining whether the alleged conspiracy existed you may consider the actions and statements of all the alleged participants. The agreement may be inferred from all the circumstances and the conduct of the alleged participants. ⁴

[Acts and statements which are made before the conspiracy began or after it ended are admissible only against the person making them and should not be considered by you against any other defendant.]⁵

Notes on Use

3. A person may be liable for the RICO conspiracy even thought he was incapable of committing the substantive offense. See Salinas v. United States, 522 U.S. 52, 64 (1997).

4. For purposes of a RICO prosecution an enterprise may only be comprised of the defendants. United States v. Nabors, 45 F.3d 238, 240 (8th Cir. 1995).

Committee Comments

(For 2006 version see below)

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

2006 Version

The government must prove beyond a reasonable doubt that the defendant knowingly reached an agreement¹ or understanding with at least one other person to [invest or use income derived from racketeering activity] [acquire or maintain an interest in or control of an enterprise] [participate, directly or indirectly, in the affairs of an enterprise] through a pattern of racketeering activity.²However, you don’t have to find that any racketeering acts were actually committed.³

The agreement or understanding need not be an express or formal agreement or be in writing or cover all the details of how it is to be carried out. Nor is it necessary that the members have directly stated between themselves the details or purpose of the scheme.

You should understand that merely being present at the scene of an event, or merely acting in the same way as others or merely associating with others, does not prove that a person has joined in an agreement or understanding. A person who has no knowledge of a conspiracy but who happens to act in a way which advances some purpose of one does not thereby become a member.

But a person may join in an agreement or understanding, as required by this element, without knowing all the details of the agreement or understanding, and without knowing who all the other members are. Further it is not necessary that a person agree to play any particular part in carrying out the agreement or understanding. A person may become a member of a conspiracy even if that person agrees to play only a minor part in the conspiracy, as long as that person has an understanding of the unlawful nature of the plan and voluntarily and intentionally joins in it.

In determining whether the alleged conspiracy existed you may consider the actions and statements of all the alleged participants. The agreement may be inferred from all the circumstances and the conduct of the alleged participants. ⁴

[Acts and statements which are made before the conspiracy began or after it ended are admissible only against the person making them and should not be considered by you against any other defendant.]⁵

Notes on Use

3. A person may be liable for the RICO conspiracy even thought he was incapable of committing the substantive offense. See Salinas v. United States, 522 U.S. 52, 64 (1997).

4. For purposes of a RICO prosecution an enterprise may only be comprised of the defendants. United States v. Nabors, 45 F.3d 238, 240 (8th Cir. 1995).

Committee Comments

For 2000 version see below

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

2000 Version

The government must prove beyond a reasonable doubt that the defendant knowingly reached an agreement1 or understanding with at least one other person to [invest or use income derived from racketeering activity] [acquire or maintain an interest in or control of an enterprise] [participate, directly or indirectly, in the affairs of an enterprise] through a pattern of racketeering activity.2 However, you don’t have to find that any racketeering acts were actually committed.3 The agreement or understanding need not be an express or formal agreement or be in writing or cover all the details of how it is to be carried out. Nor is it necessary that the members have directly stated between themselves the details or purpose of the scheme.

You should understand that merely being present at the scene of an event, or merely acting in the same way as others or merely associating with others, does not prove that a person has joined in an agreement or understanding. A person who has no knowledge of a conspiracy but who happens to act in a way which advances some purpose of one does not thereby become a member.

But a person may join in an agreement or understanding, as required by this element, without knowing all the details of the agreement or understanding, and without knowing who all the other members are. Further it is not necessary that a person agree to play any particular part in carrying out the agreement or understanding. A person may become a member of a conspiracy even if that person agrees to play only a minor part in the conspiracy, as long as that person has an understanding of the unlawful nature of the plan and voluntarily and intentionally joins in it.

In determining whether the alleged conspiracy existed you may consider the actions and statements of all the alleged participants. The agreement may be inferred from all the circumstances and the conduct of the alleged participants. 4

[Acts and statements which are made before the conspiracy began or after it ended are admissible only against the person making them and should not be considered by you against any other defendant.]5

Committee Comments

See Model Federal Jury Instructions, Criminal 52-31, 32; Salinas v. United States, 522 U.S. 52, ___, 118 S. Ct. 469, 477 (1997); United States v. Bennett, 44 F.3d 1364 (8th Cir.), cert. denied, 515 U.S. 1123 (1995); United States v. Elliott, 571 F.2d 880 (5th Cir.), cert. denied, 439 U.S. 953 (1978).

The RICO conspiracy statute is designed to facilitate prosecution of multi-faceted, highly diversified criminal activity by creating a substantive offense which ties together the diverse parties and crimes. In order to be convicted of a RICO conspiracy, an individual must have, by words or actions, objectively manifested an agreement to participate in the affairs of the enterprise. United States v. Darden, 70 F.3d 1507, 1518 (8th Cir. 1995); United States v. Bennett, 44 F.3d at 1372; see United States v. Boffa, 688 F.2d 919 (3d Cir. 1982), cert. denied, 460 U.S. 1022 (1983); United States v. Melton, 689 F.2d 1120 (1st Cir. 1981); United States v. Winter, 663 F.2d 1120 (1st Cir. 1981), cert. denied, 460 U.S. 1001 (1983). Conspiracy to commit a narcotics violation may be a proper predicate act for a conspiracy to commit RICO. United States v. Darden, 70 F.3d 1507, 1524 (8th Cir. 1995), cert. denied, 517 U.S. 1149 (1996). Simple possession cannot serve as a predicate act under the RICO statute. Id. at 1525.

Notes on Use

2. The United States Supreme Court has held that it is not necessary that a defendant personally agreed to commit the requisite acts, but only that he agreed to join the conspiracy. Salinas v. United States, 522 U.S. 52, ___, 118 S. Ct. 469, 477 (1997). United States v. Bennett, 44 F.3d at 1374; United States v. Kragness, 830 F.2d 842 (8th Cir. 1987).

3. A person may be liable for the RICO conspiracy even thought he was incapable of committing the substantive offense. See Salinas v. United States, 522 U.S. 52, ___, 118 S. Ct. 469, 477 (1997).

4. For purposes of a RICO prosecution an enterprise may only be comprised of defendants. United States v. Nabors, 45 F.3d 238, 240 (8th Cir. 1995). 5. An explicit limiting instruction must be given if evidence of acts or statements by any coconspirator made before or after the conspiracy began or ended has been admitted. See United States v. Snider, 720 F.2d 985, 989 (8th Cir. 1983), cert. denied, 465 U.S. 1107 (1984).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1962D
"ENTERPRISE" DEFINED

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: RICO (18 USC 1962)

An enterprise includes any individual, partnership, corporation, association, or other legal entity, in any union or group of individuals associated in fact, although not a legal entity.¹

The term "enterprise," as used in these instructions, may include a group of people associated in fact, even though this association is not recognized as a legal entity.² A group or association of people can be an enterprise if these individuals have joined together for the purpose of engaging in a common course of conduct. This group of people, in addition to having a common purpose, must have personnel who function as a continuing unit. This group of people does not have to be a legally recognized entity, such as a partnership or corporation.³ Such an association of individuals may retain its status as an enterprise even though the membership of the association changes by adding or losing individuals during the course of its existence.

If you find that this was, in fact, a legal entity such as a partnership, corporation, or association, then you may find that an enterprise existed.⁴

The government must also prove that the association had a structure distinct from that necessary to conduct the pattern of racketeering activity.⁵

Notes on Use

1. The first paragraph of the instruction includes the entire definition of enterprise provided by Congress and found at 18 USC 1961(4).

2. United States v. Kragness, 830 F.2d 842 (8th Cir. 1987) (approved jury instruction as to definition of enterprise and RICO drug prosecution, which included the definition of the term "enterprise" as including any group of individuals associated in fact, although not a legal entity).

3. Associations, in fact, may include legal entities. See 18 USC 1961(4); United States v. Darden, 70 F.3d 1507, 1541 (8^th Cir. 1995). See also Seventh Circuit Federal Jury Instructions: Criminal at 315-23 (1999). Thus, the group may be organized for a legitimate and lawful purpose or may be organized for an unlawful purpose.

4. Courts have provided broad interpretation as to the term "legal entity" in the enterprise requirement. Courts have held that various enterprise categories listed in the RICO statute are illustrative but not exhaustive. See United States v. Aimone, 715 F.2d 822 (3d Cir. 1983). The enterprise concept can encompass a combination of entities. See, e.g., United States v. Stolfi, 889 F.2d 378 (2d Cir. 1989); United States v. Feldman, 853 F.2d 648 (9th Cir. 1988).

5. The Fourth and Eighth Circuits have held that the government must prove that the association or enterprise exists separate and apart from the pattern of racketeering in which it engages. See United States v. Leisure, 844 F.2d 1347 (8th Cir. 1988); United States v. Lemm, 680 F.2d 1193 (8th Cir. 1982).

Committee Comments

See Fifth Circuit Pattern Jury Instructions: Criminal § 2.78 (1997); Ninth Cir. Crim. Jury Instr. 8.34.3; 8.34.4 (1997); Modern Federal Jury Instructions; Criminal 52.22; 2B Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 56.04 (5th ed. 2000); Federal Criminal Jury Instructions § 60.02.

Courts have given a broad reading to the term "enterprise." Congress has mandated a liberal construction of the RICO statute in order to effectuate its remedial purpose. Therefore, courts have held that the various enterprise categories listed in the RICO statute are illustrative but not exhaustive. United States v. Aimone, 715 F.2d 822 (3d Cir. 1983). The definition of the term "enterprise" is of a necessity, a shifting one given the fluid nature of criminal associations. United States v. Swiderski, 593 F.2d 1246 (D.C. Cir. 1978).

A RICO enterprise is a group of persons associated together for a common purpose in a course of conduct. United States v. Turkette, 452 U.S. 576 (1981). A RICO enterprise must exhibit three basic characteristics: (1) a common or shared purpose; (2) some continuity of structure and personnel; and (3) an ascertainable structure distinct from that in a pattern of racketeering. United States v. Kehoe, 310 F.3d 579, 586 (8^th Cir. 2002); United States v. Nabors, 45 F.3d 238 (8th Cir. 1995); see also United States v. Perholtz, 842 F.2d 343 (D.C. Cir. 1988); United States v. Mazzei, 700 F.2d 85 (2d Cir. 1983).

The enterprise element is satisfied upon a showing that the entity has a legal existence. See, e.g., United States v. Kirk, 844 F.2d 660 (9th Cir. 1988); United States v. Cauble, 706 F.2d 1322 (5th Cir. 1984). Proof of an association in fact enterprise requires proof that a group of persons associated together for a common purpose of engaging in a course of conduct. United States v. Turkette, 452 U.S. 576 (1981). While the enterprise in existence of a racketeering activity are distinct elements of a RICO charge, the proof needed to establish either can consist of the same evidence. United States v. Turkette, 452 U.S. 576 (1981). However, more than proof of a pattern of racketeering activity is necessary to establish the existence of an enterprise. An enterprise must have an existence entirely separate and independent of the racketeering activity. See Bennett v. Berg, 685 F.2d 1053 (8th Cir.), modified, 710 F.2d 1361 (en banc 1983). The government must demonstrate that the alleged enterprise functions as a continuing unit has an ascertainable structure distinct from that inherent in the conduct of a pattern of racketeering activity and has associates who have a common or shared purpose. Id.; United States v. Bledsoe, 674 F.2d 647 (8th Cir. 1982).

Several circuits have refused to distinguish between legal and non-legal entity categories. See, e.g., United States v. Perholtz, 842 F.2d 343 (D.C. Cir. 1988); McCullough v. Suter, 757 F.2d 142 (7th Cir. 1985); United States v. Navarro-Ordas, 770 F.2d 959 (11th Cir. 1985); United States v. Aimone, 715 F.2d 822 (3d Cir. 1983); see also United States v. Turkette, 452 U.S. 576 (1981) (rejects claim that RICO only reaches entities performing illegal acts).

Actions brought under section 1962(a) or (b) do not require a separate RICO defendant and enterprise. See Bennett v. Berg, 685 F.2d 1053, modified, 710 F.2d 1361 (en banc 1983). However, section 1962(c) requires the person liable to be separate from the enterprise which has its affairs conducted through a pattern of racketeering. Atlas Pile Driving Co. v. DiCon Fin. Co., 886 F.2d 986 (8th Cir. 1989).

(For 2008 version see below).

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

2008 Version

6.18.1962D
ENTERPRISE - DEFINITION

An enterprise includes any individual, partnership, corporation, association, or other legal entity, in any union or group of individuals associated in fact, although not a legal entity.¹

The term "enterprise," as used in these instructions, may include a group of people associated in fact, even though this association is not recognized as a legal entity.² A group or association of people can be an enterprise if these individuals have joined together for the purpose of engaging in a common course of conduct. This group of people, in addition to having a common purpose, must have personnel who function as a continuing unit. This group of people does not have to be a legally recognized entity, such as a partnership or corporation.³ Such an association of individuals may retain its status as an enterprise even though the membership of the association changes by adding or losing individuals during the course of its existence.

If you find that this was, in fact, a legal entity such as a partnership, corporation, or association, then you may find that an enterprise existed.⁴

The government must also prove that the association had a structure distinct from that necessary to conduct the pattern of racketeering activity.⁵

Notes on Use

1. The first paragraph of the instruction includes the entire definition of enterprise provided by Congress and found at 18 USC 1961(4).

Committee Comments

(For 2006 version see below)

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

2006 Version

An enterprise includes any individual, partnership, corporation, association, or other legal entity, in any union or group of individuals associated in fact, although not a legal entity.¹

The term "enterprise," as used in these instructions, may include a group of people associated in fact, even though this association is not recognized as a legal entity.² A group or association of people can be an enterprise if these individuals have joined together for the purpose of engaging in a common course of conduct. This group of people, in addition to having a common purpose, must have personnel who function as a continuing unit. This group of people does not have to be a legally recognized entity, such as a partnership or corporation.³ Such an association of individuals may retain its status as an enterprise even though the membership of the association changes by adding or losing individuals during the course of its existence.

If you find that this was, in fact, a legal entity such as a partnership, corporation, or association, then you may find that an enterprise existed.⁴

The government must also prove that the association had a structure distinct from that necessary to conduct the pattern of racketeering activity.⁵

Notes on Use

1. The first paragraph of the instruction includes the entire definition of enterprise provided by Congress and found at 18 USC 1961(4).

Committee Comments

For 2000 version see below

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

2000 Version

An enterprise includes any individual, partnership, corporation, association, or other legal entity, in any union or group of individuals associated in fact, although not a legal entity.1

The term "enterprise," as used in these instructions, may include a group of people associated in fact, even though this association is not recognized as a legal entity.2 A group or association of people can be an enterprise if these individuals have joined together for the purpose of engaging in a common course of conduct. This group of people, in addition to having a common purpose, must have personnel who function as a continuing unit. This group of people does not have to be a legally recognized entity, such as a partnership or corporation.3 Such an association of individuals may retain its status as an enterprise even though the membership of the association changes by adding or losing individuals during the course of its existence.

If you find that this was, in fact, a legal entity such as a partnership, corporation, or association, then you may find that an enterprise existed.4

The government must also prove that the association had a structure distinct from that necessary to conduct the pattern of racketeering activity.5

Committee Comments

See Fifth Circuit Pattern Jury Instructions: Criminal § 2.78 (1997); Ninth Cir. Crim. Jury Instr. 8.34.3; 8.34.4 (1997); Modern Federal Jury Instructions; Criminal 52.22; 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 48.04 (4th ed. 1990); Federal Criminal Jury Instructions § 60.02.

Courts have given a broad reading to the term "enterprise." Congress has mandated a liberal construction of the RICO statute in order to effectuate its remedial purpose. Therefore, courts have held that the various enterprise categories listed in the RICO statute are illustrative but not exhaustive. United States v. Aimone, 715 F.2d 822 (3d Cir. 1983), cert. denied, 468 U.S. 1217 (1984). The definition of the term "enterprise" is of a necessity, a shifting one given the fluid nature of criminal associations. United States v. Swiderski, 593 F.2d 1246 (D.C. Cir. 1978), cert. denied, 441 U.S. 933 (1979).

A RICO enterprise is a group of persons associated together for a common purpose in a course of conduct. United States v. Turkette, 452 U.S. 576 (1981). A RICO enterprise must exhibit three basic characteristics: (1) a common or shared purpose; (2) some continuity of structure and personnel; and (3) an ascertainable structure distinct from that in a pattern of racketeering. United States v. Nabors, 45 F.3d 238 (8th Cir. 1995); see also United States v. Perholtz, 842 F.2d 343 (D.C. Cir.), cert. denied, 488 U.S. 821 (1988); United States v. Mazaei, 700 F.2d 85 (2d Cir.), cert. denied, 461 U.S. 945 (1983).

The enterprise element is satisfied upon a showing that the entity has a legal existence. See, e.g., United States v. Kirk, 844 F.2d 660 (9th Cir.), cert. denied, 488 U.S. 890 (1988); United States v. Kauble, 706 F.2d 1322 (5th Cir.), cert. denied, 465 U.S. 1005 (1984). Proof of an association in fact enterprise requires proof that a group of persons associated together for a common purpose of engaging in a course of conduct. United States v. Turkette, 452 U.S. 576 (1981). While the enterprise in existence of a racketeering activity are distinct elements of a RICO charge, the proof needed to establish either can consist of the same evidence. United States v. Turkette, 452 U.S. 576 (1981). However, more than proof of a pattern of racketeering activity is necessary to establish the existence of an enterprise. An enterprise must have an existence entirely separate and independent of the racketeering activity. See Bennett v. Berg, 685 F.2d 1053 (8th Cir.), modified, 710 F.2d 1361 (en banc), cert. denied, 464 U.S. 1008 (1983). The government must demonstrate that the alleged enterprise functions as a continuing unit has an ascertainable structure distinct from that inherent in the conduct of a pattern of racketeering activity and has associates who have a common or shared purpose. Id.; United States v. Bledsoe, 674 F.2d 647 (8th Cir.), cert. denied, 459 U.S. 1040 (1982).

Several circuits have refused to distinguish between legal and non-legal entity categories. See, e.g., United States v. Perholtz, 842 F.2d 343 (D.C. Cir.), cert. denied, 488 U.S. 821 (1988); McCullough v. Suter, 757 F.2d 142 (7th Cir. 1985); United States v. Navarro-Ordas, 770 F.2d 959 (11th Cir. 1985); United States v. Aimone, 715 F.2d 822 (3d Cir. 1983), cert. denied, 455 U.S. 1016 (1986); see also, United States v. Turkette, 452 U.S. 576 (1981) (rejects claim that RICO only reaches entities performing illegal acts).

Actions brought under section 1962(a) or (b) do not require a separate RICO defendant and enterprise. See Bennett v. Berg, 685 F.2d 1053, modified, 710 F.2d 1361 (en banc), cert. denied, 464 U.S. 1008 (1983). However, section 1962(c) requires the person liable to be separate from the enterprise which has its affairs conducted through a pattern of racketeering. Atlas Pile Driving Co. v. DiCon Fin. Co., 886 F.2d 986 (8th Cir. 1989).

Notes on Use

1. The first paragraph of the instruction includes the entire definition of enterprise provided by Congress and found at 18 USC 1961(4).

3. Associations, in fact, may include legal entities. See 18 USC 1961(4); United States v. Darden, 70 F.3d 1507, 1541 (8th Cir. 1995). See also Seventh Circuit Federal Jury Instructions: Criminal at 315-23 (1999). Thus, the group may be organized for a legitimate and lawful purpose or may be organized for an unlawful purpose.

4. Courts have provided broad interpretation as to the term "legal entity" in the enterprise requirement. Courts have held that various enterprise categories listed in the RICO statute are illustrative but not exhaustive. See United States v. Aimone, 715 F.2d 822 (3d Cir. 1983), cert. denied, 468 U.S. 1217 (1984). The enterprise concept can encompass a combination of entities. See, e.g., United States v. Stolfi, 889 F.2d 378 (2d Cir. 1989); United States v. Feldman, 853 F.2d 648 (9th Cir. 1988), cert. denied, 489 U.S. 1030 (1989).

5. The Fourth and Eighth Circuits have held that the government must prove that the association or enterprise exists separate and apart from the pattern of racketeering in which it engages. See United States v. Leisure, 844 F.2d 1347 (8th Cir.), cert. denied, 488 U.S. 932 (1988); United States v. Lemm, 680 F.2d 1193 (8th Cir. 1982), cert. denied, 459 U.S. 1110 (1983).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1962E
"CONDUCT/PARTICIPATION" DEFINED

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: RICO (18 USC 1962)

A person conducts or participates in the conduct of the affairs of an enterprise if that person uses [his][her] position in, or association with¹ the enterprise, to [participate in the operation or management of the enterprise itself]² [to perform acts which are involved in some way in the operation or management of the enterprise]³ directly or indirectly, or if the person causes another to do so. [A person participates in the operation of the affairs of the enterprise if [he][she] has some part in directing those affairs.]⁴ [An enterprise may be "operated" not just by upper management but also by lower rung participants in the enterprise who are under the direction of upper management.]⁵

In order to have conducted or participated in the conduct of the affairs of an enterprise, a person need not have participated in all the activity alleged in [Count(s) ____] of the indictment.

Notes on Use

1. There must be a distinction between those who merely participate in the enterprise and those who are liable for the operation or management of the enterprise. See United States v. Darden, 70 F.3d at 1543. Liability under the statute, however, is not limited to those who are employed by the enterprise, but may also extend to those outside the enterprise, who are associated with the enterprise and who exert control over it. Reves v. Ernst & Young, 507 U.S. at 184. The committee recognizes that evidence presented at a specific trial may raise issues regarding upper and lower rung management. .

2. Liability is limited and excludes complete outsiders who do not participate in the conduct of the enterprise’s affairs, but rather their own affairs. Reves v. Ernst & Young, 507 U.S. at 185.

3. The Supreme Court in Reves v. Ernst & Young, 507 U.S. at 185, specifically defines "to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs", as "one must participate in the operation or management of the enterprise itself." The Seventh Circuit Federal Jury Instructions: Criminal at 315-18 (1999) Conduct-Definition, defines conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs as "to perform acts which are involved in some way in the operation or management of the enterprise". The Committee takes no position as to whether the Supreme Court language is mandatory, or whether the Seventh Circuit language is sufficiently analogous.

4. The Supreme Court in Reves v. Ernst & Young, 507 U.S. at 177-79, goes into detail explaining ascertaining the meaning of the terms "conduct" and "participation." It found by finding that in order to participate, directly or indirectly, in the conduct of such enterprise’s affairs, "one must have some part in directing those affairs." The Committee believes that this definition may be helpful in certain specific cases, to assist the jury, and in such cases recommends the inclusion of the definition.

5. The committee recognizes that evidence presented at a specific trial may raise issues regarding upper and lower rung management. In such cases, the committee recommends that the bracketed language be used. The Supreme Court, while discussing the operation and management test, did not decide the extent the "ladder of operation" could apply. Reves v. Ernst & Young, 507 U.S. at 185 n.9.

Committee Comments

See Seventh Circuit Federal Jury Instructions: Criminal at 321 (1999); Eleventh Circuit Pattern Jury Instructions: Criminal § 61.1 (1997); 2B Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 56.08 (5th ed. 2000); Reves v. Ernst & Young, 507 U.S. 170 (1993); United States v. Darden, 70 F.3d 1507 (8th Cir. 1996).

An enterprise may be "operated" or "managed" by others "associated with" the enterprise who exert control of the enterprise. Reves v. Ernst & Young, 507 U.S. 170, 184-85 (1993). A person may also be liable under § 1962(c) even though he had no control of the enterprise but participated or operated in the conduct of the enterprise. United States v. Darden, 70 F.3d 1507, 1518 (8th Cir. 1995). The government need only prove that the defendant had some part in the direction, not control of the enterprise affairs. Id. (citing Reves v. Ernst & Young, 507 U.S. at 184-85). The Eighth Circuit has held that section 1962(c) does not penalize all who are employed by or associated with a RICO enterprise, but rather only those, who by virtue of their association or employment play a part in directing the enterprise’s affairs. Handeen v. Lemaire, 112 F.3d 1339, 1347 (8th Cir. 1997).

However, as noted by the Supreme Court in Reves, liability under section 1962 may not be limited to upper management, but may also be extended to lower rung participants who are under the direction of upper management. Reves v. Ernst & Young, 507 U.S. at 184.

(For 2008 version see below).

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

2008 Version

6.18.1962E
CONDUCT/PARTICIPATION -DEFINITION

A person conducts or participates in the conduct of the affairs of an enterprise if that person uses [his][her] position in, or association with¹ the enterprise, to [participate in the operation or management of the enterprise itself]² [to perform acts which are involved in some way in the operation or management of the enterprise]³ directly or indirectly, or if the person causes another to do so. [A person participates in the operation of the affairs of the enterprise if [he][she] has some part in directing those affairs.]⁴ [An enterprise may be "operated" not just by upper management but also by lower rung participants in the enterprise who are under the direction of upper management.]⁵

In order to have conducted or participated in the conduct of the affairs of an enterprise, a person need not have participated in all the activity alleged in [Count(s) ____] of the indictment.

Notes on Use

2. Liability is limited and excludes complete outsiders who do not participate in the conduct of the enterprise’s affairs, but rather their own affairs. Reves v. Ernst & Young, 507 U.S. at 185.

Committee Comments

(For 2006 version see below)

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

2006 Version

A person conducts or participates in the conduct of the affairs of an enterprise if that person uses [his][her] position in, or association with¹ the enterprise, to [participate in the operation or management of the enterprise itself]² [to perform acts which are involved in some way in the operation or management of the enterprise]³ directly or indirectly, or if the person causes another to do so. [A person participates in the operation of the affairs of the enterprise if [he][she] has some part in directing those affairs.]⁴ [An enterprise may be "operated" not just by upper management but also by lower rung participants in the enterprise who are under the direction of upper management.]⁵

In order to have conducted or participated in the conduct of the affairs of an enterprise, a person need not have participated in all the activity alleged in [Count(s) ____] of the indictment.

Notes on Use

2. Liability is limited and excludes complete outsiders who do not participate in the conduct of the enterprise’s affairs, but rather their own affairs. Reves v. Ernst & Young, 507 U.S. at 185.

Committee Comments

For 2000 version see below

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

2000 Version

A person conducts or participates in the conduct of the affairs of an enterprise if that person uses [his][her] position in, or association with1 the enterprise, to [participate in the operation or management of the enterprise itself] 2 [to perform acts which are involved in some way in the operation or management of the enterprise]3 directly or indirectly, or if the person causes another to do so. [A person participates in the operation of the affairs of the enterprise if [he][she] has some part in directing those affairs.]4 [An enterprise may be "operated" not just by upper management but also by lower rung participants in the enterprise who are under the direction of upper management.]5

In order to have conducted or participated in the conduct of the affairs of an enterprise, a person need not have participated in all the activity alleged in [Count(s) ____] of the indictment.

Committee Comments

See Seventh Circuit Federal Jury Instructions: Criminal at 321 (1999); Eleventh Circuit Pattern Jury Instructions: Criminal § 61.1 (1997); 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 48.04 (4th ed. 1990); Reves & Ernst & Young, 507 U.S. 170 (1993); United States v. Darden, 70 F.3d 1507 (8th Cir.), cert. denied, 517 U.S. 1149 (1996).

An enterprise may be "operated" or "managed" by others "associated with" the enterprise who exert control of the enterprise. Reves v. Ernst & Young, 507 U.S. 170, 184-85 (1993). A person may also be liable under § 1962(c) even though he had no control of the enterprise but participated or operated in the conduct of the enterprise. United States v. Darden, 70 F.3d 1507, 1518 (8th Cir. 1995). The government need only prove that the defendant had some part in the direction, not control of the enterprise affairs. Id. (citing Reves v. Ernst & Young, 507 U.S. at 184-85). The Eighth Circuit has held that section 1962(c) does not penalize all who are employed by or associated with a RICO enterprise, but rather only those, who by virtue of their association or employment play a part in directing the enterprise’s affairs. Handeen v. Lemaire, 112 F.3d 1339, 1347 (8th Cir. 1997).

Notes on Use

2. Liability is limited and excludes complete outsiders who do not participate in the conduct of the enterprise’s affairs, but rather their own affairs. Reves v. Ernst & Young, 507 U.S. at 185.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1962F
RICO - PATTERN OF RACKETEERING

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: RICO (18 USC 1962)

In order to establish a pattern of racketeering activity, the government must prove beyond a reasonable doubt that: (1) at least two acts of racketeering, (list acts as detailed in the indictment or which are defined under 18 USC 1961(1) for which there is sufficient evidence)¹ were committed within ten years of each other;² (2) the racketeering acts [had the same or similar purpose, results, participants, victims, or methods of commission,] or [are interrelated by distinguishing characteristics and are not isolated events];³and (3) the racketeering acts themselves amount to or otherwise constitute a threat of continued activity.⁴Continued activity is sufficiently established when [predicate acts can be attributed to a defendant operating as part of a long-term association that exists for criminal purposes] [racketeering acts were a regular way of conducting the defendant’s ongoing legitimate business].⁵

Notes on Use

1. See 18 USC 1961(1) which enumerates acts which may constitute racketeering activity.

2. 18 USC 1961(5); see Thornton v. Bank of Joplin, 4 F.3d 650, 652 (8th Cir. 1993) (statute defines pattern of racketeering activity as at least two acts of racketeering, one of which occurred after RICO was enacted, and the last of which occurred within ten years after the commission of a prior act of racketeering activity.)

3. See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985).

4. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985); Feinstein v. Resolution Trust Corp., 942 F.2d 34 (1st Cir. 1991) (describes threat approach).

5. See H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229 (1989); United States v. Fairchild, 122 F.3d 605, 611-12 (8th Cir. 1997). Continuity is both a closed and open ended concept, referring either to a closed period of repeated conduct, or to past conduct that by its nature projects into the future with a threat of repetition. Whether predicates proved or establish a threat of continued racketeering activity depends on the specific facts of each case. Use of bracketed language, is dependent on whether the government proves a closed or open threat.

Committee Comments

See Fifth Circuit Pattern Jury Instructions: Criminal § 2.78 (1997); Ninth Cir. Crim. Jury Instr. 8.34.7 (1997); Modern Federal Jury Instructions, Criminal, 52.7; 2B Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 56.07 (5th ed. 2000); H.J., Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229 (1989); Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479 (1985).

RICO requires the commission of two predicate acts constituting a pattern. In construing the pattern requirement, the Supreme Court has held that in order to prove a pattern of racketeering activity, the prosecutor must show both relationship and continuity as separate elements. H.J., Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229 (1989). These elements may, however, overlap. Id. The Court has held that criminal conduct forms a pattern if it embraces criminal acts that have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events. Id.

Continuity is proven if the government can show actual continuity during a past, close period of repeated conduct or the threat of continuity of racketeering activity in the future. Id. See also United HealthCare Corp. v. American Trade Ins. Co., Ltd., 88 F.3d 563, 571-72 (8th Cir. 1996). A pattern consists of continuity plus relationship. See Sedima S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985); Diamonds Plus, Inc. v. Kolber, 960 F.2d 765 (8th Cir. 1992); Atlas Pile Driving Co. v. DiCon Financial Co., 886 F.2d 986 (8th Cir. 1989) (listing pattern factors, including length of time, number of episodes and victims, and complexity of scheme). See also Primary Care Investors, Seven, Inc. v. PHP Healthcare Corp., 986 F.2d 1208 (8th Cir. 1993) (continuity over a closed period is not met when predicate act extends less than one year); Uni*Quality, Inc. v. Infotronx, Inc., 974 F.2d 918 (7th Cir. 1992) (seven to eight months insufficient). Continuity over a closed period is generally proven by a showing of a series of related predicate acts extending over a period of time. Continuity generally is not met when the predicate acts extend less than a year. See Primary Care Investors, Seven, Inc. v. PHP Healthcare Corp., 986 F.2d at 1215; Aldridge v. Lily-Tulip, Inc. Salary Requirement Plan Benefits Committee, 953 F.2d 587, 593 (11th Cir. 1992) (six months to a year insufficient).

(For 2008 version see below).

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

2008 Version

In order to establish a pattern of racketeering activity, the government must prove beyond a reasonable doubt that: (1) at least two acts of racketeering, [list acts as detailed in the indictment or which are defined under 18 USC 1961(1) for which there is sufficient evidence]¹ were committed within ten years of each other;² (2) the racketeering acts [had the same or similar purpose, results, participants, victims, or methods of commission,] or [are interrelated by distinguishing characteristics and are not isolated events];³and (3) the racketeering acts themselves amount to or otherwise constitute a threat of continued activity.⁴Continued activity is sufficiently established when [predicate acts can be attributed to a defendant operating as part of a long-term association that exists for criminal purposes] [racketeering acts were a regular way of conducting the defendant’s ongoing legitimate business].⁵

Notes on Use

1. See 18 USC 1961(1) which enumerates acts which may constitute racketeering activity.

2. 18 USC 1961(5); see, Thornton v. Bank of Joplin, 4 F.3d 650, 652 (8th Cir. 1993) (statute defines pattern of racketeering activity as at least two acts of racketeering, one of which occurred after RICO was enacted, and the last of which occurred within ten years after the commission of a prior act of racketeering activity.)

3. See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985).

4. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985); Feinstein v. Resolution Trust Corp., 942 F.2d 34 (1st Cir. 1991) (describes threat approach).

Committee Comments

Continuity is proven if the government can show actual continuity during a past, close period of repeated conduct or the threat of continuity of racketeering activity in the future. Id. See also, United HealthCare Corp. v. American Trade Ins. Co., Ltd., 88 F.3d 563, 571-72 (8th Cir. 1996). A pattern consists of continuity plus relationship. See Sedima S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985); Diamonds Plus, Inc. v. Kolber, 960 F.2d 765 (8th Cir. 1992); Atlas Pile Driving Co. v. DiCon Financial Co., 886 F.2d 986 (8th Cir. 1989) (listing pattern factors, including length of time, number of episodes and victims, and complexity of scheme). See also Primary Care Investors, Seven, Inc. v. PHP Healthcare Corp., 986 F.2d 1208 (8th Cir. 1993) (continuity over a closed period is not met when predicate act extends less than one year); Uni*Quality, Inc. v. Infotronx, Inc., 974 F.2d 918 (7th Cir. 1992) (seven to eight months insufficient). Continuity over a closed period is generally proven by a showing of a series of related predicate acts extending over a period of time. Continuity generally is not met when the predicate acts extend less than a year. See Primary Care Investors, Seven, Inc. v. PHP Healthcare Corp., 986 F.2d at 1215; Aldridge v. Lily-Tulip, Inc. Salary Requirement Plan Benefits Committee, 953 F.2d 587, 593 (11th Cir. 1992) (six months to a year insufficient).

(For 2006 version see below)

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

2006 Version

In order to establish a pattern of racketeering activity, the government must prove beyond a reasonable doubt that: (1) at least two acts of racketeering, [list acts as detailed in the indictment or which are defined under 18 USC 1961(1) for which there is sufficient evidence]¹ were committed within ten years of each other;² (2) the racketeering acts [had the same or similar purpose, results, participants, victims, or methods of commission,] or [are interrelated by distinguishing characteristics and are not isolated events];³and (3) the racketeering acts themselves amount to or otherwise constitute a threat of continued activity.⁴Continued activity is sufficiently established when [predicate acts can be attributed to a defendant operating as part of a long-term association that exists for criminal purposes] [racketeering acts were a regular way of conducting the defendant’s ongoing legitimate business].⁵

Notes on Use

1. See 18 USC 1961(1) which enumerates acts which may constitute racketeering activity.

3. See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985).

4. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985); Feinstein v. Resolution Trust Corp., 942 F.2d 34 (1st Cir. 1991) (describes threat approach).

Committee Comments

Continuity is proven if the government can show actual continuity during a past, close period of repeated conduct or the threat of continuity of racketeering activity in the future. Id. See also, United HealthCare Corp. v. American Trade Ins. Co., Ltd., 88 F.3d 563, 571-72 (8th Cir. 1996). A pattern consists of continuity plus relationship. See Sedima S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985); Diamonds Plus, Inc. v. Kolber, 960 F.2d 765 (8th Cir. 1992); Atlas Pile Driving Co. v. DiCon Financial Co., 886 F.2d 986 (8th Cir. 1989) (listing pattern factors, including length of time, number of episodes and victims, and complexity of scheme). See also Primary Care Investors, Seven, Inc. v. PHP Healthcare Corp., 986 F.2d 1208 (8th Cir. 1993) (continuity over a closed period is not met when predicate act extends less than one year); Uni*Quality, Inc. v. Infotronx, Inc., 974 F.2d 918 (7th Cir. 1992) (seven to eight months insufficient). Continuity over a closed period is generally proven by a showing of a series of related predicate acts extending over a period of time. Continuity generally is not met when the predicate acts extend less than a year. See Primary Care Investors, Seven, Inc. v. PHP Healthcare Corp., 986 F.2d at 1215; Aldridge v. Lily-Tulip, Inc. Salary Requirement Plan Benefits Committee, 953 F.2d 587, 593 (11th Cir. 1992) (six months to a year insufficient).

For 2000 version see below

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

2000 Version

In order to establish a pattern of racketeering activity, the government must prove beyond a reasonable doubt that: (1) at least two acts of racketeering, [list acts as detailed in the indictment or which are defined under 18 USC 1961(1) for which there is sufficient evidence]1 were committed within ten years of each other;2 (2) the racketeering acts [had the same or similar purpose, results, participants, victims, or methods of commission,] or [are interrelated by distinguishing characteristics and are not isolated events];3 and (3) the racketeering acts themselves amount to or otherwise constitute a threat of continued activity.4 Continued activity is sufficiently established when [predicate acts can be attributed to a defendant operating as part of a long-term association that exists for criminal purposes] [racketeering acts were a regular way of conducting defendant’s ongoing legitimate business].5

Committee Comments

See Fifth Circuit Pattern Jury Instructions: Criminal § 2.78 (1997); Ninth Cir. Crim. Jury Instr. 8.34.7 (1997); Modern Federal Jury Instructions, Criminal, 52.7; 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 48.07 (4th ed. 1990); H.J., Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229 (1989); Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479 (1985).

Continuity is proven if the government can show actual continuity during a past, close period of repeated conduct or the threat of continuity of racketeering activity in the future. Id. See also, United Healthcare v. American Trade Ins. Co., LTD, 88 F.3d 563, 571-72 (8th Cir. 1996). A pattern consists of continuity plus relationship. See Sedima S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985); Diamonds Plus, Inc. v. Kolber, 960 F.2d 765 (8th Cir. 1992); Atlas Pile Driving Co. v. DiCon Fin. Co., 886 F.2d 986 (8th Cir. 1989) (listing pattern factors, including length of time, number of episodes and victims, and complexity of scheme). See also Primary Care Inv. Seven v. PHP Healthcare, 986 F.2d 1208 (8th Cir. 1993) (continuity over a closed period is not met when predicate act extends less than one year); UniQuality, Inc. v. Infotronx, Inc., 974 F.2d 918 (7th Cir. 1992) (seven to eight months insufficient). Continuity over a closed period is generally proven by a showing of a series of related predicate acts extending over a period of time. Continuity generally is not met when the predicate acts extend less than a year. See Primary Care, Inv., Seven v. PHP Healthcare, 986 F.2d 1208, 1215 (8th Cir. 1993); Aldridge v. Lily-Tulip, Inc. Salary Requirement Plan Benefits Committee, 953 F.2d 587, 593 (11th Cir.), reh’g denied, 961 F.2d 224 (11th Cir. 1992) (six months to a year insufficient), cert. denied, 516 U.S. 1009 (1995).

Notes on Use

1. See 18 USC 1961(1) which enumerates acts which may constitute racketeering activity.

2. 18 USC 1961(5); see, Thorton v. Bank of Joplin, 4 F.3d 650, 652 (8th Cir. 1993) (statute defines pattern of racketeering activity as at least two acts of racketeering, one of which occurred after RICO was enacted, and the last of which occurred within ten years after the commission of a prior act of racketeering activity.)

3. See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985).

4. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 U.S. 479 (1985); Feinstein v. Resolution Trust Corp., 942 F.2d 34 (1st Cir. 1991) (describes threat approach).

5. See H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229 (1989); United States v. Fairchild, 122 F.3d 605, 611-12 (8th Cir. 1997). Continuity is both a closed and open ended concept, referring either to a closed period of repeated conduct, or to past conduct that by its nature projects into the future with a threat of repetition. Whether predicates proved or establish a threat of continued racketeering activity depends on the specific facts of each case. Use of bracketed language, is dependent on whether the government proves a closed or open threat.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.1962G
SAMPLE VERDICT FORM - RICO
(18 USC 1962(c))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Racketeer Influenced Corrupt Organizations Act (18 USC 1962(c))

We, the jury, find Defendant (name) ______________________ (guilty/not guilty) of the crime of participating in racketeering enterprise [as charged in Count __ of the indictment] [under instruction No. ___ ]

If you find the defendant guilty of [Count ___] [under Instruction No. ___] beyond a reasonable doubt check the predicate acts you unanimously found to have been proven with respect to Defendant (name) _________________________.

Racketeering Act Number 1 (Narcotics conspiracy 1989-1991) __________

Racketeering Act Number 2 (Murder of Jane Doe) __________

Racketeering Act Number 3 (Attempted Possession of Ephedrine) __________

Racketeering Act Number 4 (Narcotics Conspiracy 1996-1998) __________

__________________________________
Foreperson

________________
Date

Notes on Use

1. See Instructions 3.09 and 3.12, supra. If the elements instructions does not refer to a count in the indictment, the verdict form should refer to the elements instruction.

Committee Comments

The jury must be unanimous that the predicate acts have been committed and the defendant committed at least two of the predicate acts. It is recommended that the instructions require the jury to be unanimous as to which acts have specifically been committed by the defendant. United States v. Flynn, 87 F.3d 996 (8th Cir. 1996); United States v. Kragness, 830 F.2d 1374 (8th Cir. 1988); see also United States v. Ham, 58 F.3d 78 (4th Cir. 1995).

Double jeopardy may not attach and retrial may not be barred should a jury fail to check a predicate act. See United States v. Petty, 62 F.3d 265, 266-67 (8th Cir. 1995); United States v. Ham, 58 F.3d 78, 85 (4th Cir. 1995). A jury’s failure to decide an issue will be treated as an implied acquittal only where the jury’s verdict necessarily resolves an issue in the defendant’s favor. See Schiro v. Farley, 510 U.S. 222, 235 (1994).

(For 2008 version see below).

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

2008 Version

We, the jury, find Defendant (name) ______________________ guilty/not guilty of the crime of participating in racketeering enterprise [as charged in Count __ of the indictment] [under instruction No. ___ ]

If you find the defendant guilty of [Count ___] [under Instruction No. ___] beyond a reasonable doubt check the predicate acts you unanimously found to have been proven with respect to Defendant (name) _________________________.

Racketeering Act Number 1 (Narcotics conspiracy 1989-1991) __________

Racketeering Act Number 2 (Murder of Jane Doe) __________

Racketeering Act Number 3 (Attempted Possession of Ephedrine) __________

Racketeering Act Number 4 (Narcotics Conspiracy 1996-1998) __________

__________________________________
Foreperson

________________
Date

Notes on Use

1. See Instructions 3.09 and 3.12, supra. If the elements instructions does not refer to a count in the indictment, the verdict form should refer to the elements instruction.

Committee Comments

(For 2006 version see below)

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

2006 Version

We, the jury, find Defendant (name) ______________________(guilty/not guilty) of the crime of participating in racketeering enterprise [as charged in Count __ of the indictment] [under instruction No. ___ ]

If you find the defendant guilty of [Count ___] [under Instruction No. ___] beyond a reasonable doubt check the predicate acts you unanimously found to have been proven with respect to Defendant (name) _________________________.

Racketeering Act Number 1 (Narcotics conspiracy 1989-1991) __________

Racketeering Act Number 2 (Murder of Jane Doe) __________

Racketeering Act Number 3 (Attempted Possession of Ephedrine) __________

Racketeering Act Number 4 (Narcotics Conspiracy 1996-1998) __________

__________________________________
Foreperson

________________
Date

Notes on Use

1. See Instructions 3.09 and 3.12, supra. If the elements instructions does not refer to a count in the indictment, the verdict form should refer to the elements instruction.

Committee Comments

For 2000 version see below

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

2000 Version

We, the jury, find the Defendant (name) ______________________ guilty/not guilty of the crime of participating in racketeering enterprise [as charged in Count __ of the indictment] [under instruction No. ___ ]

If you find the Defendant guilty of [Count ___] [under Instruction No. ___] beyond a reasonable doubt check the predicate acts you unanimously found to have been proven with respect to Defendant (name) _________________________.

Racketeering Act Number 1 (Narcotics conspiracy 1989-1991) __________

Racketeering Act Number 2 (Murder of Jane Doe) __________

Racketeering Act Number 3 (Attempted Possession of Ephedrine) __________

Racketeering Act Number 4 (Narcotics Conspiracy 1996-1998) __________

__________________________________ Foreperson ________________ Date

Committee Comments

The jury must be unanimous that the predicate acts have been committed and the defendant committed at least two of the predicate acts. It is recommended that the instructions require the jury to be unanimous as to which acts have specifically been committed by the Defendant. United States v. Flynn, 87 F.3d 996 (8th Cir. 1996); United States v. Kragness, 830 F.2d 1374 (8th Cir. 1988); see also United States v. Ham, 58 F.3d 78 (4th Cir.), cert. denied, 516 U.S. 986.

Notes on Use

1. See Instructions 3.09 and 3.12, supra. If the elements instructions does not refer to a count in the indictment, the verdict form should refer to the elements instruction.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.2113A BANK ROBBERY
(18 USC 2113(a)) (First Paragraph)

FORECITE National™ Materials Related To This Instruction:

Federal Models By Offense: Robbery And Burglary (Title 18 - Sections 2111-2119)

The crime of bank robbery, as charged in [Count of] the indictment, has three elements, which are:

One, the defendant [took] [attempted to take] (describe property, money, etc.) from the [person] [presence] of [another] [(name of person)]¹, while that (describe property, money, etc.) was in the care or custody of (name of bank, etc.²).

Two, such [taking] [attempted taking] was by [force and violence] [intimidation]³; and

Three, the deposits of (name of bank, etc.) were then insured by (name insuring agency, e.g., the FDIC).⁴

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

Notes on Use

1. In certain fact situations the money may be taken from the presence of literally everyone in the bank, for example when the defendant has everyone including the bank employees lie face on the floor in middle of the bank while he enters all the tellers' drawers. In such a fact situation, the alternative "taken from the presence of another" should be used rather than inserting the names of the persons.

2. The statute also applies to robbery of any credit union or savings and loan association. Appropriate terms should be used. The terms "bank," "savings and loan association" and "credit union" are defined in sections 2113(f), (g) and (h).

3. "Intimidation" may be defined in a proper case. A concise definition of "intimidation" is as follows:

Intimidation means doing something that would make an ordinary person fear bodily harm.

Ninth Cir. Crim. Jury Instr. 8.35.1 (1997). See also Fifth Circuit Pattern Jury Instructions: Criminal § 2.79 (1997); Seventh Circuit Federal Jury Instructions: Criminal at 325 (1999); 2B Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 57.10 (5th ed. 2000). The meaning of "intimidation" is thoroughly treated in United States v. Brown, 412 F.2d 381 (8th Cir. 1969).

4. Most institutions are covered by virtue of the insurance of their deposits by some federal agency. If the institution is one which is covered by the statute for some other reason, Element Three should be modified accordingly.

Absent a stipulation between the government and the defendant, this instruction must include the element that the affected financial institution was of the nature covered by the statute. See United States v. Glidden, 688 F.2d 58 (8th Cir. 1982); United States v. Brown, 616 F.2d 844 (5th Cir. 1980).

Committee Comments

See Seventh Circuit Federal Jury Instructions: Criminal at 325 (1999).

(For 2008 version see below).

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2008 Version

The crime of bank robbery, as charged in [Count of] the indictment, has three elements, which are:

One, the defendant [took] [attempted to take] (describe property, money, etc.) from the [person] [presence] of [another] [(name of person)]¹, while that (describe property, money, etc.) was in the care or custody of (name of bank, etc.²).

Two, such [taking] [attempted taking] was by [force and violence] [intimidation]³; and

Three, the deposits of (name of bank, etc.) were then insured by (name insuring agency, e.g., the FDIC).⁴

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

Notes on Use

3. "Intimidation" may be defined in a proper case. A concise definition of "intimidation" is as follows:

Intimidation means doing something that would make an ordinary person fear bodily harm.

Committee Comments

See Seventh Circuit Federal Jury Instructions: Criminal at 325 (1999).

(For 2006 version see below)

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

2006 Version

The crime of bank robbery, as charged in [Count of] the indictment, has three elements, which are:

One, the defendant [took] [attempted to take] (describe property, money, etc.) from the [person] [presence] of [another] [(name of person)]¹, while that (describe property, money, etc.) was in the care or custody of (name of bank, etc.²).

Two, such [taking] [attempted taking] was by [force and violence] [intimidation]³; and

Three, the deposits of (name of bank, etc.) were then insured by (name insuring agency, e.g., the FDIC).⁴

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

Notes on Use

3. "Intimidation" may be defined in a proper case. A concise definition of "intimidation" is as follows:

Intimidation means doing something that would make an ordinary person fear bodily harm.

Committee Comments

See Seventh Circuit Federal Jury Instructions: Criminal at 325 (1999).

For 2000 version see below

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2000 Version

The crime of bank robbery, as charged in [Count of] the indictment, has three essential elements, which are:

One, the defendant [took] [attempted to take] (describe property, money, etc.) from the [person] [presence] of [another] [(name of person)]1, while that (describe property, money, etc.) was in the care or custody of (name of bank, etc.2).

Two, such [taking] [attempted taking] was by [force and violence] [intimidation]3; and

Three, the deposits of (name of bank, etc.) were then insured by (name insuring agency, e.g., the FDIC).4

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

Committee Comments

See Seventh Circuit Federal Jury Instructions: Criminal at 325 (1999).

Notes on Use

3. "Intimidation" may be defined in a proper case. A concise definition of "intimidation" is as follows:

Intimidation means doing something that would make an ordinary person fear bodily harm.

Ninth Cir. Crim. Jury Instr. 8.35.1 (1997). See also Fifth Circuit Pattern Jury Instructions: Criminal § 2.79 (1997); Seventh Circuit Federal Jury Instructions: Criminal at 325 (1999); 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 49.10 (4th ed. 1990). The meaning of "intimidation" is thoroughly treated in United States v. Brown, 412 F.2d 381 (8th Cir. 1969).

Absent a stipulation between the government and the defendant, this instruction must include the element that the affected financial institution was of the nature covered by the statute. See United States v. Glidden, 688 F.2d 58 (8th Cir. 1982); United States v. Brown, 616 F.2d 844 (5th Cir. 1980).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.2113B BANK ROBBERY
(18 USC 2113(d))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Armed Or Aggravated Bank Robbery (18 USC 2113(a) & (d))

See FORECITE National™ Federal Models By Offense: Bank Robbery (Subsections (a) And (d) Alleged In Separate Counts) (18 USC 2113(a) and (d))

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

One, the defendant [took] [attempted to take] (describe property, money, etc.) from the [person] [presence] of [another] [(name of person)],¹ while that (describe property, money, etc.) was in the care or custody of (name of bank, etc.²),

Two, such [taking] [attempted taking] was by [force and violence] [intimidation];

Three, the defendant [assaulted (name of victim)] [put the life of (name of victim) in jeopardy]³ by use of a dangerous [weapon] [device]⁴ while [taking] [attempting to take] (describe property, money, etc.); and

Four, the deposits of (name of bank, etc.) were then insured by (name insuring agency, e.g., the FDIC).⁵

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

Notes on Use

3. In the ordinary case where the life of the victim was actually put in jeopardy by the use of a dangerous weapon such as a loaded gun, definitions of "assault" and "put life in jeopardy" such as those that appear in Fifth Circuit Pattern Jury Instructions: Criminal § 2.79 (1997), Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 62.2 (1997) and 2B Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 57.07-.08 (5th ed. 2000) would be appropriate.

Where the weapon was not recovered and there is no evidence whether it was operable or not, the jury may infer that the weapon was loaded and that the victim's life was placed in jeopardy. Morrow v. United States, 408 F.2d 1390, 1391 (8th Cir. 1969). See also United States v. Terry, 760 F.2d 939, 942 (9th Cir. 1985); United States v. Wardy, 777 F.2d 101, 105-06 (2d Cir. 1985).

Where the weapon is proved to be inoperable, it can still be dangerous. McLaughlin v. United States, 476 U.S. 16 (1986); United States v. York, 830 F.2d 885, 891 (8th Cir. 1987). These and subsequent opinions should be consulted in drafting definitions of "assault" and "put life in jeopardy" in this situation. The Committee has not formulated definitions to cover this situation.

4. An unloaded gun is a dangerous weapon or device within the meaning of the statute. McLaughlin v. United States, 476 U.S. at 6. The Court held:

Three reasons, each independently sufficient, support the conclusion that an unloaded gun is a "dangerous weapon." First, a gun is an article that is typically and characteristically dangerous; the use for which it is manufactured and sold is a dangerous one, and the law reasonably may presume that such an article is always dangerous even though it may not be armed at a particular time or place. In addition, the display of a gun instills fear in the average citizen; as a consequence, it creates an immediate danger that a violent response will ensue. Finally, a gun can cause harm when used as a bludgeon.

The Court noted that Congress regarded incitement of fear as sufficient to characterize an apparently dangerous article (such as a wooden gun) as "dangerous" within the meaning of the statute.

The Eighth Circuit has followed McLaughlin to hold that an inoperable gun is a "dangerous weapon." United States v. York, 830 F.2d at 891. Prior to McLaughlin, the Eighth Circuit used an "objective" standard to determine what constituted a dangerous or deadly weapon. See Morrow v. United States, 408 F.2d at 1391.

The phrase "by use of a dangerous weapon or device" modifies both the "assault" provision and the "putting in jeopardy" provision of section 2113(d). Simpson v. United States, 435 U.S. 6, 11 (1978).

5. Most institutions are covered by virtue of the insurance of their deposits by a federal agency. If the institution is one which is covered by the statute for some other reason, Element Four of the instruction should be modified accordingly.

Committee Comments

See Seventh Circuit Federal Jury Instructions: Criminal at 325 (1999).

(For 2008 version see below).

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2008 Version

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

One, the defendant [took] [attempted to take] (describe property, money, etc.) from the [person] [presence] of [another] [(name of person)],¹ while that (describe property, money, etc.) was in the care or custody of (name of bank, etc.²),

Two, such [taking] [attempted taking] was by [force and violence] [intimidation];

Three, the defendant [assaulted (name of victim)] [put the life of (name of victim) in jeopardy]³ by use of a dangerous [weapon] [device]⁴ while [taking] [attempting to take] (describe property, money, etc.); and

Four, the deposits of (name of bank, etc.) were then insured by (name insuring agency, e.g., the FDIC).⁵

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

Notes on Use

4. An unloaded gun is a dangerous weapon or device within the meaning of the statute. McLaughlin v. United States, 476 U.S. at 6. The Court held:

Three reasons, each independently sufficient, support the conclusion that an unloaded gun is a "dangerous weapon." First, a gun is an article that is typically and characteristically dangerous; the use for which it is manufactured and sold is a dangerous one, and the law reasonably may presume that such an article is always dangerous even though it may not be armed at a particular time or place. In addition, the display of a gun instills fear in the average citizen; as a consequence, it creates an immediate danger that a violent response will ensue. Finally, a gun can cause harm when used as a bludgeon.

The Court noted that Congress regarded incitement of fear as sufficient to characterize an apparently dangerous article (such as a wooden gun) as "dangerous" within the meaning of the statute.

Committee Comments

See Seventh Circuit Federal Jury Instructions: Criminal at 325 (1999).

(For 2006 version see below)

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

2006 Version

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

One, the defendant [took] [attempted to take] (describe property, money, etc.) from the [person] [presence] of [another] [(name of person)],¹ while that (describe property, money, etc.) was in the care or custody of (name of bank, etc.²),

Two, such [taking] [attempted taking] was by [force and violence] [intimidation];

Three, the defendant [assaulted (name of victim)] [put the life of (name of victim) in jeopardy]³ by use of a dangerous [weapon] [device]⁴ while [taking] [attempting to take] (describe property, money, etc.); and

Four, the deposits of (name of bank, etc.) were then insured by (name insuring agency, e.g., the FDIC).⁵

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

Notes on Use

4. An unloaded gun is a dangerous weapon or device within the meaning of the statute. McLaughlin v. United States, 476 U.S. at 6. The Court held:

Three reasons, each independently sufficient, support the conclusion that an unloaded gun is a "dangerous weapon." First, a gun is an article that is typically and characteristically dangerous; the use for which it is manufactured and sold is a dangerous one, and the law reasonably may presume that such an article is always dangerous even though it may not be armed at a particular time or place. In addition, the display of a gun instills fear in the average citizen; as a consequence, it creates an immediate danger that a violent response will ensue. Finally, a gun can cause harm when used as a bludgeon.

The Court noted that Congress regarded incitement of fear as sufficient to characterize an apparently dangerous article (such as a wooden gun) as "dangerous" within the meaning of the statute.

Committee Comments

See Seventh Circuit Federal Jury Instructions: Criminal at 325 (1999).

For 2000 version see below

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

2000 Version

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

One, the defendant [took] [attempted to take] (describe property, money, etc.) from the [person] [presence] of [another] [(name of person)],1 while that (describe property, money, etc.) was in the care or custody of (name of bank, etc.2),

Two, such [taking] [attempted taking] was by [force and violence] [intimidation];

Three, the defendant [assaulted (name of victim)] [put the life of (name of victim) in jeopardy]3 by use of a dangerous [weapon] [device]4 while [taking] [attempting to take] (describe property, money, etc.); and

Four, the deposits of (name of bank, etc.) were then insured by (name insuring agency, e.g., the FDIC).5

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

Committee Comments

See Seventh Circuit Federal Jury Instructions: Criminal at 325 (1999).

Notes on Use

3. In the ordinary case where the life of the victim was actually put in jeopardy by the use of a dangerous weapon such as a loaded gun, definitions of "assault" and "put life in jeopardy" such as those that appear in Fifth Circuit Pattern Jury Instructions: Criminal § 2.79 (1997), Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 62.2 (1997) and 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal §§ 49.07 and 49.08 (4th ed. 1990) would be appropriate.

Where the weapon was not recovered and there is no evidence whether it was operable or not, the jury may infer that the weapon was loaded and that the victim's life was placed in jeopardy. Morrow v. United States, 408 F.2d 1390, 1391 (8th Cir. 1969). See also United States v. Terry, 760 F.2d 939, 942 (9th Cir. 1985); United States v. Wardy, 777 F.2d 101, 105-06 (2d Cir. 1985), cert. denied, 475 U.S. 1053 (1986).

Where the weapon is proved to be inoperable, it can still be dangerous. McLaughlin v. United States, 476 U.S. 16 (1986); United States v. York, 830 F.2d 885, 891 (8th Cir. 1987), cert. denied, 484 U.S. 1074 (1988). These and subsequent opinions should be consulted in drafting definitions of "assault" and "put life in jeopardy" in this situation. The Committee has not formulated definitions to cover this situation.

4. An unloaded gun is a dangerous weapon or device within the meaning of the statute. McLaughlin v. United States, 476 U.S. at 6. The Court held:

Three reasons, each independently sufficient, support the conclusion that an unloaded gun is a "dangerous weapon." First, a gun is an article that is typically and characteristically dangerous; the use for which it is manufactured and sold is a dangerous one, and the law reasonably may presume that such an article is always dangerous even though it may not be armed at a particular time or place. In addition, the display of a gun instills fear in the average citizen; as a consequence, it creates an immediate danger that a violent response will ensue. Finally, a gun can cause harm when used as a bludgeon.

The Court noted that Congress regarded incitement of fear as sufficient to characterize an apparently dangerous article (such as a wooden gun) as "dangerous" within the meaning of the statute.

Absent a stipulation between the government and the defendant, this instruction must include the element that the affected financial institution was of the nature covered by the statute. See United States v. Glidden, 688 F.2d 58 (8th Cir. 1982); United States v. Brown, 616 F.2d 844 (5th Cir. 1980).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.2119A¹ CARJACKING (No Serious Bodily Injury or Death)
(18 USC 2119(1))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Carjacking (No Serious Bodily Injury Or Death) (18 USC 2119(1))

The crime of carjacking has four elements, which are:

One, the defendant, [took] [attempted to take] a (describe the motor vehicle, e.g., 1998 Ford Explorer, VIN #000000000000) from the [person] [presence of another];

Two, the defendant did so by means of [force and violence] [intimidation];

Three, the (describe motor vehicle) had been [transported] [shipped] [received] in [interstate] [foreign] commerce;

Four, at or during the time the defendant [took] [attempted to take] (describe the motor vehicle) (he) (she) intended to cause death or serious bodily injury². [

"Serious bodily injury" means an injury that involves [a substantial risk of death] [extreme physical pain] [long term and obvious disfigurement] [the long-term loss or impairment of a function of a bodily member or organ] [the long term loss or impairment of a mental function].

Notes on Use

1. If "serious bodily injury" resulted from the commission of the offense, Instruction 6.18.2119B should be used. If death resulted from the commission of the offense, Instruction 6.18.2119C should be used. The United States Supreme Court has held that the enhancements set out in the statute which increase penalties for "serious bodily injury" and "death" are, "distinct elements, each of which must be charged by indictment, proven beyond a reasonable doubt, and submitted to a jury for its verdict." Jones v. United States, 526 U.S. 227 (1999).

2. The statute uses the term "harm" in some places and "injury" in others, apparently interchangeably. A conditional intent to kill or cause serious bodily injury is sufficient to establish the intent requirement under the statute. "The intent requirement of section 2119 is satisfied when the Government proves that at the moment the defendant demanded or took control over the driver’s automobile the defendant possessed the intent to seriously harm or kill the driver if necessary to steal the car . . ." Holloway v. United States, 526 U.S. 1 (1999).

Committee Comments

The intent of Congress regarding the intended scope and purpose of the original 1992 version of the carjacking statute can be found in section 101(b) of Pub. L. 102-519. The statute has been subsequently amended by the Violent Crime Control and Law Enforcement Act of 1994, § 60003(a)(14), 108 Stat. 1970, and the Carjacking Correction Act of 1996, § 2, 110 Stat. 3020.

Guidance in interpretation of section 2119 may be obtained by reference to similar statutes since section 2119 tracks the language used in other federal robbery statutes (18 USC § 2111, 2113 and 2118). H.R. Rep. No. 851, 102d Cong. 2d Sess., pt. 1, at 17 (1992), U.S. Code Cong. & Admin. News 1992, p. 2834.

The term "motor vehicle" means a completely assembled automotive vehicle of some sort. United States v. Johnson, 56 F.3d 947, 957 (8^th Cir. 1995).

"Intimidation" has been defined under the bank robbery statute (18 USC 2113) as conduct reasonably calculated to put another in fear; under this test, subjective courageousness or timidity of the victim is irrelevant; the acts of the defendant must constitute an intimidation to an ordinary, reasonable person. United States v. Smith, 973 F.2d 603, 604 (8th Cir. 1992) (citing United States v. Higdon, 832 F.2d 312, 315 (5th Cir. 1987)).

The carjacking statute is a constitutional exercise of Congress' power under the Commerce Clause. United States v. Robinson, 62 F.3d 234 (8^th Cir. 1995). The "carjacking statute regulates an item of interstate commerce . . . [t]herefore fits squarely within the second category of activities regulable by Congress under the commerce clause." Also, the express findings by Congress of a direct link between carjacking and negative effects on interstate commerce provide additional support that the statute is constitutional. Robinson, 62 F.3d at 236-37. See also United States v. Harris, 25 F.3d 1275 (5^th Cir. 1994); United States v. Johnson, 32 F.3d 82 (4^th Cir. 1995); United States v. Martinez, 49 F.3d 1398, 1400-01 (9^th Cir. 1995); United States v. Overstreet, 40 F.3d 1090 (10^th Cir. 1994); United States v. Williams, 51 F.3d 1004, 1008-09 (11^th Cir. 1995).

(For 2008 version see below).

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

2008 Version

The crime of carjacking has four elements, which are:

One, the defendant, [took] [attempted to take] a (describe the motor vehicle, e.g., 1998 Ford Explorer, VIN #000000000000) from the [person] [presence of another];

Two, the defendant did so by means of [force and violence] [intimidation];

Three, the (describe motor vehicle) had been [transported] [shipped] [received] in [interstate] [foreign] commerce;

Four, at or during the time the defendant [took] [attempted to take] (describe the motor vehicle) (he) (she) intended to cause death or serious bodily injury². [

"Serious bodily injury" means an injury that involves [a substantial risk of death] [extreme physical pain] [long term and obvious disfigurement] [the long-term loss or impairment of a function of a bodily member or organ] [the long term loss or impairment of a mental function].

Notes on Use

Committee Comments

Guidance in interpretation of section 2119 may be obtained by reference to similar statutes since section 2119 tracks the language used in other federal robbery statutes (18 USC 2111, 2113 and 2118). H.R. Rep. No. 851, 102d Cong. 2d Sess., pt. 1, at 17 (1992), U.S. Code Cong. & Admin. News 1992, p. 2834.

The term "motor vehicle" means a completely assembled automotive vehicle of some sort. United States v. Johnson, 56 F. 3d 947, 957 (8^th Cir. 1995).

The carjacking statute is a constitutional exercise of Congress' power under the Commerce Clause. United States v. Robinson, 62 F. 3d 234 (8^th Cir. 1995). The "carjacking statute regulates an item of interstate commerce . . . [t]herefore fits squarely within the second category of activities regulable by Congress under the commerce clause." Also, the express findings by Congress of a direct link between carjacking and negative effects on interstate commerce provide additional support that the statute is constitutional. Robinson, 62 F.3d at 236-37. See also United States v. Harris, 25 F.3d 1275 (5^th Cir. 1994); United States v. Johnson, 32 F.3d 82 (4^th Cir. 1995); United States v. Martinez, 49 F. 3d 1398, 1400-01 (9^th Cir. 1995); United States v. Overstreet, 40 F.3d 1090 (10^th Cir. 1994); United States v. Williams, 51 F.3d 1004, 1008-09 (11^th Cir. 1995).

(For 2006 version see below)

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

2006 Version

The crime of carjacking has four elements, which are:

One, the defendant, [took] [attempted to take] a (describe the motor vehicle, e.g., 1998 Ford Explorer, VIN #000000000000) from the [person] [presence of another];

Two, the defendant did so by means of [force and violence] [intimidation];

Three, the (describe motor vehicle) had been [transported] [shipped] [received] in [interstate] [foreign] commerce;

Four, at or during the time the defendant [took] [attempted to take] (describe the motor vehicle) (he) (she) intended to cause death or serious bodily injury². [

"Serious bodily injury" means an injury that involves [a substantial risk of death] [extreme physical pain] [long term and obvious disfigurement] [the long-term loss or impairment of a function of a bodily member or organ] [the long term loss or impairment of a mental function].

Notes on Use

Committee Comments

Guidance in interpretation of section 2119 may be obtained by reference to similar statutes since section 2119 tracks the language used in other federal robbery statutes (18 USC 2111, 2113 and 2118). H.R. Rep. No. 851, 102d Cong. 2d Sess., pt. 1, at 17 (1992), U.S. Code Cong. & Admin. News 1992, p. 2834.

The term "motor vehicle" means a completely assembled automotive vehicle of some sort. United States v. Johnson, 56 F. 3d 947, 957 (8^th Cir. 1995).

The carjacking statute is a constitutional exercise of Congress' power under the Commerce Clause. United States v. Robinson, 62 F. 3d 234 (8^th Cir. 1995). The "carjacking statute regulates an item of interstate commerce . . . [t]herefore fits squarely within the second category of activities regulable by Congress under the commerce clause." Also, the express findings by Congress of a direct link between carjacking and negative effects on interstate commerce provide additional support that the statute is constitutional. Robinson, 62 F.3d at 236-37. See also United States v. Harris, 25 F.3d 1275 (5^th Cir. 1994); United States v. Johnson, 32 F.3d 82 (4^th Cir. 1995); United States v. Martinez, 49 F. 3d 1398, 1400-01 (9^th Cir. 1995); United States v. Overstreet, 40 F.3d 1090 (10^th Cir. 1994); United States v. Williams, 51 F.3d 1004, 1008-09 (11^th Cir. 1995).

For 2000 version see below

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

2000 Version

The crime of carjacking has four essential elements, which are:

One, the defendant, [took] [attempted to take] a (describe the motor vehicle, e.g., 1998 Ford Explorer, VIN #000000000000) from the [person] [presence of another];

Two, the defendant did so by means of [force and violence] [intimidation];

Three, the (describe motor vehicle) had been [transported] [shipped] [received] in [interstate] [foreign] commerce;

Four, at or during the time the defendant [took] [attempted to take] (describe the motor vehicle) (he) (she) intended to cause death or serious bodily injury2. [The intent to kill or cause serious bodily injury if necessary to steal the vehicle is sufficient.]3

"Serious bodily injury" means an injury that involves [a substantial risk of death] [extreme physical pain] [ long term and obvious disfigurement] [the long-term loss or impairment of a function of a bodily member or organ] [the long term loss or impairment of a mental function].

Committee Comments

Guidance in interpretation of section 2119 may be obtained by reference to similar statutes since section 2119 tracks the language used in other federal robbery statutes (18 USC§ 2111, 2113 and 2118). H.R. Rep. No. 851, 102d Cong. 2d Sess., pt. 1, at 17 (1992), U.S. Code Cong. & Admin. News 1992, p. 2834.

The term "motor vehicle" means a completely assembled automotive vehicle of some sort. United States v. Johnson, 56 F. 3d 947, 957 (8th Cir. 1995).

The carjacking statute is a constitutional exercise of Congress' power under the Commerce Clause. United States v. Robinson, 62 F. 3d 234 (8th Cir. 1995). The "carjacking statute regulates an item of interstate commerce . . . [t]herefore fits squarely within the second category of activities regulable by Congress under the commerce clause." Also, the express findings by Congress of a direct link between carjacking and negative effects on interstate commerce provide additional support that the statute is constitutional. Robinson, 62 F.3d at 236-37. See also United States v. Harris, 25 F.3d 1275 (5th Cir. 1994); United States v. Johnson, 32 F.3d 82 (4th Cir.), cert. denied, 513 U.S. 1050 (1995); United States v. Martinez, 49 F. 3d 1398, 1400-01 (9th Cir. 1995); United States v. Overstreet, 40 F.3d 1090 (10th Cir. 1994), cert. denied, 514 U.S. 1113 (1995); United States v. Williams, 51 F.3d 1004, 1008- 09 (11th Cir. 1995).

Notes on Use

2. The statute uses the term "harm" in some places and "injury" in others, apparently interchangeably.

3. A conditional intent to kill or cause serious bodily injury is sufficient to establish the intent requirement under the statute. "The intent requirement of § 2119 is satisfied when the Government proves that at the moment the defendant demanded or took control over the driver’s automobile the defendant possessed the intent to seriously harm or kill the driver if necessary to steal the car (or, alternatively, if unnecessary to steal the car)." Holloway v. United States, 526 U.S. 1, 119 S. Ct. 966 (1999).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.2119B¹ CARJACKING (Serious Bodily Injury)
(18 USC2119(2))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Carjacking (Serious Bodily Injury) (18 USC 2119(2))

The crime of carjacking has five elements which are:

One, the defendant, [took] [attempted to take] a (describe the motor vehicle, e.g., 1998 Ford Explorer, VIN #000000000000) from a [person];

Two, the defendant did so by means of [force and violence] [intimidation];

Three, the (describe motor vehicle) had been [transported] [shipped] [or] [received] in [interstate] [foreign] commerce;

Four, at the time the defendant [took] [attempted to take] the motor vehicle (he) (she) intended to cause death or serious bodily injury².

Five, the defendant [caused serious bodily injury to] [committed an act of [sexual abuse] [aggravated sexual abuse] upon] a person while [taking] [attempting to take] the (describe the motor vehicle).

"Serious bodily injury" means an injury that involves [a substantial risk of death] [extreme physical pain] [long-term and obvious disfigurement] [the long-term loss or impairment of a function of a bodily member or organ] [the long-term loss or impairment of a mental function].³

["Sexual abuse" means to cause another person to engage in a sexual act by threat or fear.]

["Aggravated sexual abuse" means to cause another person to engage in a sexual act by [force] [a threat of death or serious bodily injury] [a threat of kidnaping].]

Notes on Use

1. This Instruction should only be used where the indictment alleges "serious bodily injury" or the defendant committed an act of sexual abuse during the carjacking for purposes of the enhanced sentence in accordance with 18 USC 2119(2). The crime of carjacking subject to the enhanced penalties under section 2119(2) may be committed by either causing serious bodily injury as defined in 18 USC 1365 or by an act of sexual abuse during the course of the carjacking as defined in 18 USC § 2241 and 2242. There may be instances in which the indictment alleges that both an act of sexual abuse and serious bodily injury occurred, in which case both definitions should be given.

2. The statute uses the term "harm" in some places and "injury" in others, apparently interchangeably. A conditional intent to kill or cause serious bodily injury is sufficient to establish the intent requirement under the statute. "The intent requirement of section 2119 is satisfied when the Government proves that at the moment the defendant demanded or took control over the driver’s automobile the defendant possessed the intent to seriously harm or kill the driver if necessary to steal the car. . . ." Holloway v. United States, 526 U.S. 1 (1999).

3. The court should, if requested by a party, give 6.18.2119A as a lesser-included offense instruction. If a lesser-included offense instruction is given, the format in Instruction 3.10 should be used.

Committee Comments

See, generally, comments for 6.18.2119A.

"Serious bodily injury" is defined in 18 USC 1365. Serious bodily injury may include protracted impairment of mental faculties resulting from rape committed in the course of a carjacking even though evidence of extreme physical pain was lacking. United States v. Vasquez-Rivera, 135 F.3d 172 (1^st Cir. 1998). See also United States v. Lowe, 145 F.3d 45 (1^st Cir. 1998).

Sexual abuse is defined in 18 USC 2242. Aggravated sexual abuse is defined in 18 USC 2241.

(For 2008 version see below).

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

2008 Version

The crime of carjacking has five elements which are:

One, the defendant, [took] [attempted to take] a (describe the motor vehicle, e.g., 1998 Ford Explorer, VIN #000000000000) from a [person];

Two, the defendant did so by means of [force and violence] [intimidation];

Three, the (describe motor vehicle) had been [transported] [shipped] [or] [received] in [interstate] [foreign] commerce;

Four, at the time the defendant [took] [attempted to take] the motor vehicle (he) (she) intended to cause death or serious bodily injury².

Five, the defendant [caused serious bodily injury to] [committed an act of (sexual abuse) (aggravated sexual abuse) upon] a person while [taking] [attempting to take] the (describe the motor vehicle).

"Serious bodily injury" means an injury that involves [a substantial risk of death] [extreme physical pain] [ long term and obvious disfigurement] [the long-term loss or impairment of a function of a bodily member or organ] [the long term loss or impairment of a mental function].³

["Sexual abuse" means to cause another person to engage in a sexual act by threat or fear.]

["Aggravated sexual abuse" means to cause another person to engage in a sexual act by [force] [a threat of death or serious bodily injury] [a threat of kidnaping].]

Notes on Use

1. This Instruction should only be used where the indictment alleges "serious bodily injury" or the defendant committed an act of sexual abuse during the carjacking for purposes of the enhanced sentence in accordance with 18 USC 2119(2). The crime of carjacking subject to the enhanced penalties under section 2119(2) may be committed by either causing serious bodily injury as defined in 18 USC 1365 or by an act of sexual abuse during the course of the carjacking as defined in 18 USC§ 2241 and 2242. There may be instances in which the indictment alleges that both an act of sexual abuse and serious bodily injury occurred, in which case both definitions should be given.

2. The statute uses the term "harm" in some places and "injury" in others, apparently interchangeably. A conditional intent to kill or cause serious bodily injury is sufficient to establish the intent requirement under the statute. "The intent requirement of section 2119 is satisfied when the Government proves that at the moment the defendant demanded or took control over the driver’s automobile the defendant possessed the intent to seriously harm or kill the driver if necessary to steal the car. . . ." Holloway v. United States, 526 U.S. 1 (1999).

3. The court should, if requested by a party, give 6.18.2119A as a lesser included offense instruction. If a lesser include offense instruction is given, the format in Instruction 3.10 should be used.

Committee Comments

See, generally, comments for 6.18.2119A.

Sexual abuse is defined in 18 USC 2242. Aggravated sexual abuse is defined in 18 USC 2241.

(For 2006 version see below)

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

2006 Version

The crime of carjacking has five elements which are:

One, the defendant, [took] [attempted to take] a (describe the motor vehicle, e.g., 1998 Ford Explorer, VIN #000000000000) from a [person];

Two, the defendant did so by means of [force and violence] [intimidation];

Three, the (describe motor vehicle) had been [transported] [shipped] [or] [received] in [interstate] [foreign] commerce;

Four, at the time the defendant [took] [attempted to take] the motor vehicle (he) (she) intended to cause death or serious bodily injury².

Five, the defendant [caused serious bodily injury to] [committed an act of (sexual abuse) (aggravated sexual abuse) upon] a person while [taking] [attempting to take] the (describe the motor vehicle).

"Serious bodily injury" means an injury that involves [a substantial risk of death] [extreme physical pain] [ long term and obvious disfigurement] [the long-term loss or impairment of a function of a bodily member or organ] [the long term loss or impairment of a mental function].³

["Sexual abuse" means to cause another person to engage in a sexual act by threat or fear.]

["Aggravated sexual abuse" means to cause another person to engage in a sexual act by [force] [a threat of death or serious bodily injury] [a threat of kidnaping].]

Notes on Use

1. This Instruction should only be used where the indictment alleges "serious bodily injury" or the defendant committed an act of sexual abuse during the carjacking for purposes of the enhanced sentence in accordance with 18 USC 2119(2). The crime of carjacking subject to the enhanced penalties under section 2119(2) may be committed by either causing serious bodily injury as defined in 18 USC 1365 or by an act of sexual abuse during the course of the carjacking as defined in 18 USC§ 2241 and 2242. There may be instances in which the indictment alleges that both an act of sexual abuse and serious bodily injury occurred, in which case both definitions should be given.

2. The statute uses the term "harm" in some places and "injury" in others, apparently interchangeably. A conditional intent to kill or cause serious bodily injury is sufficient to establish the intent requirement under the statute. "The intent requirement of section 2119 is satisfied when the Government proves that at the moment the defendant demanded or took control over the driver’s automobile the defendant possessed the intent to seriously harm or kill the driver if necessary to steal the car. . . ." Holloway v. United States, 526 U.S. 1 (1999).

Committee Comments

See, generally, comments for 6.18.2119A.

Sexual abuse is defined in 18 USC 2242. Aggravated sexual abuse is defined in 18 USC 2241.

For 2000 version see below

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

2000 Version

The crime of carjacking has five essential elements which are:

One, the defendant, [took] [attempted to take] a (describe the motor vehicle, e.g., 1998 Ford Explorer, VIN #000000000000) from a [person];

Two, the defendant did so by means of [force and violence] [intimidation];

Three, the (describe motor vehicle) had been [transported] [shipped] [or] [received] in [interstate] [foreign] commerce;

Four, at the time the defendant [took] [attempted to take] the motor vehicle (he) (she) intended to cause death or serious bodily injury2. [The intent to kill or cause serious bodily injury if necessary to steal the vehicle is sufficient.]3

Five, the defendant [caused serious bodily injury to] [committed an act of (sexual abuse) (aggravated sexual abuse) upon] a person while [taking] [attempting to take] the (describe the motor vehicle).4

"Serious bodily injury" means an injury that involves [a substantial risk of death] [extreme physical pain] [ long term and obvious disfigurement] [the long-term loss or impairment of a function of a bodily member or organ] [the long term loss or impairment of a mental function].

["Sexual abuse" means to cause another person to engage in a sexual act by threat or fear.]

["Aggravated sexual abuse" means to cause another person to engage in a sexual act by [force] [a threat of death or serious bodily injury] [a threat of kidnaping].]

Committee Comments

See, generally, comments for 6.18.2119A.

"Serious bodily injury" is defined in 18 USC 1365. Serious bodily injury may include protracted impairment of mental faculties resulting from rape committed in the course of a carjacking even though evidence of extreme physical pain was lacking. United States v. Vasquez-Rivera, 135 F.3d 172 (1st Cir. 1998). See also United States v. Lowe, 145 F.3d 45 (1st Cir. 1998).

Sexual abuse is defined in 18 USC 2242. Aggravated sexual abuse is defined in 18 USC 2241.

Notes on Use

1. This Instruction should only be used where the indictment alleges "serious bodily injury" or the defendant committed an act of sexual abuse during the carjacking for purposes of the enhanced sentence in accordance with 18 USC 2119(2). The crime of carjacking subject to the enhanced penalties under section 2119(2) may be committed by either causing serious bodily injury as defined in 18 USC 1365 or by an act of sexual abuse during the course of the carjacking as defined in 18 USC§ 2241 and 2242. There may be instances in which the indictment alleges that both an act of sexual abuse and serious bodily injury occurred, in which case both definitions should be given.

2. The statute uses the term "harm" in some places and "injury" in others, apparently interchangeably.

4. The court should, if requested by a party, give 6.18.2119A as a lesser included offense instruction. If a lesser include offense instruction is given, the format in Instruction No. 3.10 should be used.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.2119C¹ CARJACKING (Death Resulting)
(18 USC 2119(3))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Carjacking (Death Resulting) (18 USC 2119(3))

The crime of carjacking has five elements, which are:

One, the defendant(s), [took] [attempted to take] a (describe the motor vehicle, e. g., 1998 Ford Explorer, VIN #000000000000) from a [person];

Two, the defendant did so by means of [force and violence] [intimidation];

Three, the (describe motor vehicle) had been [transported] [shipped] [or] [received] in [interstate] [foreign] commerce;

Four, at the time the defendant [took] [attempted to take] the motor vehicle (he) (she) (they) intended to cause death or serious bodily injury^{2, 3}.

Five, the death of a person resulted from [taking] [attempting to take] the (describe the motor vehicle).⁴

"Serious bodily injury" means an injury that involves [a substantial risk of death] [extreme physical pain] [ long term and obvious disfigurement] [the long-term loss or impairment of a function of a bodily member or organ] [the long term loss or impairment of a mental function].

Notes on Use

1. This Instruction should only be used where the indictment alleges that the defendant caused the death of a person for purposes of the enhanced sentence in accordance with 18 USC 2119(c).

2. The statute uses the term "harm" in some places and "injury" in others, apparently interchangeably.

3. A conditional intent to kill or cause serious bodily injury is sufficient to establish the intent requirement under the statute. "The intent requirement of section 2119 is satisfied when the Government proves that at the moment the defendant demanded or took control over the driver’s automobile the defendant possessed the intent to seriously harm or kill the driver if necessary to steal the car . . ." Holloway v. United States, 526 U.S. 1 (1999).

4. The court should, if requested by a party, give Instructions 6.18.2119A, 6.18.2119B, supra, or both, as lesser-included offense instructions. If lesser-included offense instructions are given, the format in Instruction 3.10, supra, should be used.

Committee Comments

See comments for Instruction 6.18.2119A, supra.

(For 2008 version see below).

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

2008 Version

The crime of carjacking has five elements, which are:

One, the defendant(s), [took] [attempted to take] a (describe the motor vehicle, e. g., 1998 Ford Explorer, VIN #000000000000) from a [person];

Two, the defendant did so by means of [force and violence] [intimidation];

Three, the (describe motor vehicle) had been [transported] [shipped] [or] [received] in [interstate] [foreign] commerce;

Four, at the time the defendant [took] [attempted to take] the motor vehicle (he) (she) (they) intended to cause death or serious bodily injury^{2, 3}.

Five, the death of a person resulted from [taking] [attempting to take] the (describe the motor vehicle).⁴

"Serious bodily injury" means an injury that involves [a substantial risk of death] [extreme physical pain] [ long term and obvious disfigurement] [the long-term loss or impairment of a function of a bodily member or organ] [the long term loss or impairment of a mental function].

Notes on Use

1. This Instruction should only be used where the indictment alleges that the defendant caused the death of a person for purposes of the enhanced sentence in accordance with 18 USC 2119(c).

2. The statute uses the term "harm" in some places and "injury" in others, apparently interchangeably.

4. The court should, if requested by a party, give Instructions 6.18.2119A, 6.18.2119B, supra, or both, as lesser included offense instructions. If lesser included offense instructions are given, the format in Instruction 3.10, supra, should be used.

Committee Comments

See comments for Instruction 6.18.2119A, supra.

(For 2006 version see below)

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

2006 Version

The crime of carjacking has five elements, which are:

One, the defendant(s), [took] [attempted to take] a (describe the motor vehicle, e. g., 1998 Ford Explorer, VIN #000000000000) from a [person];

Two, the defendant did so by means of [force and violence] [intimidation];

Three, the (describe motor vehicle) had been [transported] [shipped] [or] [received] in [interstate] [foreign] commerce;

Four, at the time the defendant [took] [attempted to take] the motor vehicle (he) (she) (they) intended to cause death or serious bodily injury^{2, 3}.

Five, the death of a person resulted from [taking] [attempting to take] the (describe the motor vehicle).⁴

"Serious bodily injury" means an injury that involves [a substantial risk of death] [extreme physical pain] [ long term and obvious disfigurement] [the long-term loss or impairment of a function of a bodily member or organ] [the long term loss or impairment of a mental function].

Notes on Use

1. This Instruction should only be used where the indictment alleges that the defendant caused the death of a person for purposes of the enhanced sentence in accordance with 18 USC 2119(c).

2. The statute uses the term "harm" in some places and "injury" in others, apparently interchangeably.

Committee Comments

See comments for Instruction 6.18.2119A., supra.

For 2000 version see below

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

2000 Version

The crime of carjacking has five essential elements, which are:

One, the defendant(s), [took] [attempted to take] a (describe the motor vehicle, e. g., 1998 Ford Explorer, VIN #000000000000) from a [person];

Two, the defendant did so by means of [force and violence] [intimidation];

Three, the (describe motor vehicle) had been [transported] [shipped] [or] [received] in [interstate] [foreign] commerce;

Four, at the time the defendant [took] [attempted to take] the motor vehicle (he) (she) (they) intended to cause death or serious bodily injury2. [The intent to kill or cause serious bodily injury if necessary to steal the vehicle is sufficient.].3

Five, the death of a person resulted from [taking] [attempting to take] the (describe the motor vehicle).4

"Serious bodily injury" means an injury that involves [a substantial risk of death] [extreme physical pain] [ long term and obvious disfigurement] [the long-term loss or impairment of a function of a bodily member or organ] [the long term loss or impairment of a mental function].

Committee Comments

See comments for 6.18.2119A.

Notes on Use

1. This Instruction should only be used where the indictment alleges that the defendant caused the death of a person for purposes of the enhanced sentence in accordance with 18 USC 2119(c).

2. The statute uses the term "harm" in some places and "injury" in others, apparently interchangeably.

4. The court should, if requested by a party, give 6.18.2119A, 6.18.2119B, or both, as lesser included offense instructions. If lesser included offense instructions are given, the format in Instruction No. 3.10 should be used.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.2252
RECEIPT, POSSESSION OR DISTRIBUTION OF MATERIAL CONTAINING CHILD PORNOGRAPHY
(18 USC2252A(a)(2)(A) and (B) and (a)(5)(B))

The crime of [receipt] [possession] [distribution] of child pornography[, as charged in [Count ] of the indictment,] has three elements, which are:

One, that on or about (date) the defendant knowingly [received] [possessed]¹[distributed] (name of item or items, e.g., a book, magazine, periodical, film, videotape, computer disk, etc.) that [were] [contained] [a] [multiple] visual depiction(s) of child pornography;

Two, that the defendant knew that the visual depiction(s) [was] [were] of a minor engaging in sexually explicit conduct;² and

Three, that the [material containing the] visual depiction(s) [[was] [were] produced using materials that]³ had been [mailed ] [shipped] [transported] [by computer] in interstate or foreign commerce.⁴

[You have heard evidence of more than one visual depiction involved in the offense. You must agree unanimously as to which visual depiction(s) the defendant possessed.]

The term "minor" means any person under the age of eighteen years.⁵

The phrase "child pornography" means any visual depiction of a minor engaging in sexually explicit conduct, where the minor was engaged in the sexually explicit conduct during production of the depiction.⁶ The term "visual depiction"includes [a] [any] [photograph] [film] [video] [picture] [or] [computer or computer-generated image or picture], whether made or produced by electronic, mechanical, or other means. [It includes undeveloped film and videotape, and data stored on computer disk or by electronic means which is capable of conversion into a visual image.]⁷

The term "sexually explicit conduct" means actual or simulated [sexual intercourse, including [genital-genital] [oral-genital] [anal-genital] [oral-anal], whether between persons of the same or opposite sex]; [bestiality] [masturbation] [sadistic or masochistic abuse]] [lascivious exhibition of the genitals or pubic area of any person].⁸

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

Notes on Use

1. Presence of child pornography images in a computer’s temporary cache file is not sufficient to establish the defendant’s knowing possession of the images. See, e.g., United States v. Stulock, 308 F.3d 922, 925 (8^th Cir. 2002) (the district court in a bench trial held that "one cannot be guilty of possession for simply having viewed an image on a web site, thereby causing the image to be automatically stored in the browser’s cache, without having purposely saved or downloaded the image." The government did not appeal.); but see United States v. Tucker, 305 F.3d 1193, 1205 (10^th Cir. 2002) (the defendant’s knowledge that the images would be stored in the temporary cache file was sufficient to show knowing possession of the images located there).

2. The Supreme Court in United States v. X-Citement Video, Inc., 513 U.S. 64 (1992), held with respect to a different statute, 18 USC 2252(a)(1) and (2), that proof of scienter as to the age of the person depicted is required for conviction. While the phraseology of § 2252A(a) is different, in that it uses the phrase "child pornography" instead of "visual depiction involving the use of a minor," the statute also contains as an element scienter of the age of the person depicted. See United States v. Acheson, 195 F.3d 645, 653 (11^th Cir. 1999). Courts have also held that the scienter requirement extends to knowledge that the visual depictions were sexually explicit. X-Citement Video, Inc, 513 U.S. at 78 (§ 2252(a)(2)); United States v. Fabiano, 169 F.3d 1299, 1303-04 (10^th Cir. 1999); United States v. Cedelle, 89 F.3d 181, 185 (4^th Cir. 1996).

The age of the child depicted may be proved by, inter alia, language used by the defendant in correspondence; Postal Inspector’s professional and personal familiarity with child development; and a pediatrics professor’s testimony. United States v. Broyles, 37 F.3d 1314, 1317-18 (8^th Cir. 1994); United States v. Rayl, 270 F.3d 709, 714 (8^th Cir. 2001). In United States v. Vig, 167 F.3d 443, 449-50 (8^th Cir. 1999), the court found that the jury could draw its own independent conclusion as to whether real children were depicted by examining the images presented to them. But see United States v. Hilton, 363 F.3d 58, 64-65 (1^st Cir. 2004) ("the government must introduce relevant evidence in addition to the images to prove the children are real."). Finally, in United States v. Deaton, 328 F.3d 454, 455 (8^th Cir. 2003), the court held that the government is not required to introduce affirmative evidence that images of children were not computer generated.

3. This bracketed material, which refers to production using materials that had been mailed, shipped or transported in interstate commerce, is for possible inclusion only in prosecutions brought under § 2252A(a)(5)(B). If the government alleges that multiple depictions are involved, the court may consider submitting special interrogatories. See 11.03.

4. Whether the statute requires the defendant have knowledge that the item traveled in interstate commerce has not yet been resolved by the Eighth Circuit; if analyzed similarly to federal gun statutes, interstate transportation without the knowledge of the defendant is sufficient. See United States v. Robinson, 137 F.3d 652, 655 (1^st Cir. 1998) (§ 2252); but see United States v. Colavito, 19 F.3d 69, 71 (2d Cir. 1994) (§ 2252) (the defendant must know that he was receiving material through interstate commerce and that the materials contained sexually explicit depictions of minors). See 6.18.2252B for definitions of interstate commerce.

5. 18 USC 2256(1).

6. 18 USC 2256(8)(A). The Committee believes that the greatest number of prosecutions will be brought under this subsection of the statute. Section 2256(8)(B) and (C) contain two additional definitions of child pornography.

Section 2256(8)(B) was amended in response to Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) to provide that:

such visual depiction is a digital image, computer image, or computer generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct.

The Committee expresses no opinion whether this provision will be found to have the same constitutional infirmity as its predecessor.

Section 2256(8)(C) can be instructed as follows:

The phrase "child pornography" means a visual depiction that has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.

If this subsection is used, the following definition of "identifiable minor" should be included:

The term "identifiable minor" as used in the definition of child pornography

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

18 USC 2256(9).

7. 18 USC § 2256(5) and (8).

8. 18 USC 2256(2)(A). If the prosecution is brought under 18 USC 2256(8)(B), the definition of sexually explicit conduct should be taken from 18 USC 2256(2)(B).

Committee Comments

This instruction has been drafted to comply with amendments made to § 2252A by the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today (PROTECT) Act of 2003, Pub. L. No. 108-21, 117 Stat. 650 (2003). The amendments are effective April 30, 2003. If the criminal conduct occurred prior to April 30, 2003, the instruction should be revised to comply with the unamended statute.

(For 2008 version see below).

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2008 Version

6.18.2252A
RECEIPT, POSSESSION OR DISTRIBUTION OF MATERIAL CONTAINING CHILD PORNOGRAPHY
(18 USC2252A(a)(2)(A) and (B) and (a)(5)(B))

The crime of [receipt] [possession] [distribution] of child pornography[, as charged in [Count ] of the indictment,] has three elements, which are:

One, that on or about (date) the defendant knowingly [received] [possessed]¹[distributed] (name of item or items, e.g., a book, magazine, periodical, film, videotape, computer disk, etc.) that [were] [contained] [a] [multiple] visual depiction(s) of child pornography;

Two, that the defendant knew that the visual depiction(s) [was] [were] of a minor engaging in sexually explicit conduct;² and

Three, that the [material containing the] visual depiction(s) [[was] [were] produced using materials that]³ had been [mailed ] [shipped] [transported] [by computer] in interstate or foreign commerce.⁴

[You have heard evidence of more than one visual depiction involved in the offense. You must agree unanimously as to which visual depiction(s) the defendant possessed.]

The term "minor" means any person under the age of eighteen years.⁵

The phrase "child pornography" means any visual depiction of a minor engaging in sexually explicit conduct, where the minor was engaged in the sexually explicit conduct during production of the depiction.⁶ The term "visual depiction" includes [a] [any] [photograph] [film] [video] [picture] [or] [computer or computer-generated image or picture], whether made or produced by electronic, mechanical, or other means. [It includes undeveloped film and videotape, and data stored on computer disk or by electronic means which is capable of conversion into a visual image.]⁷

The term "sexually explicit conduct" means actual or simulated [sexual intercourse, including [genital-genital] [oral-genital] [anal-genital] [oral-anal], whether between persons of the same or opposite sex]; [bestiality] [masturbation] [sadistic or masochistic abuse]] [lascivious exhibition of the genitals or pubic area of any person].⁸

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

Notes on Use

1. Presence of child pornography images in a computer’s temporary cache file is not sufficient to establish the defendant’s knowing possession of the images. See, e.g., United States v. Stulock, 308 F.3d 922, 925 (8^th Cir. 2002) (the district court in a bench trial held that "one cannot be guilty of possession for simply having viewed an image on a web site, thereby causing the image to be automatically stored in the browser’s cache, without having purposely saved or downloaded the image." The government did not appeal.); but see, United States v. Tucker, 305 F.3d 1193, 1205 (10^th Cir. 2002) (the defendant’s knowledge that the images would be stored in the temporary cache file was sufficient to show knowing possession of the images located there).

4. Whether the statute requires the defendant have knowledge that the item traveled in interstate commerce has not yet been resolved by the Eighth Circuit; if analyzed similarly to federal gun statutes, interstate transportation without the knowledge of the defendant is sufficient. See United States v. Robinson, 137 F.3d 652, 655 (1^st Cir. 1998)(§2252); but see United States v. Colavito, 19 F.3d 69, 71 (2d Cir. 1994) (§ 2252) (the defendant must know that he was receiving material through interstate commerce and that the materials contained sexually explicit depictions of minors). See 6.18.2252A (C) for definitions of interstate commerce.

5. 18 USC 2256(1).

Section 2256(8)(B) was amended in response to Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) to provide that:

such visual depiction is a digital image, computer image, or computer generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct.

The Committee expresses no opinion whether this provision will be found to have the same constitutional infirmity as its predecessor.

Section 2256(8)(C) can be instructed as follows:

The phrase "child pornography" means a visual depiction that has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.

If this subsection is used, the following definition of "identifiable minor" should be included:

The term "identifiable minor" as used in the definition of child pornography

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

18 USC 2256(9).

7. 18 USC 2256(5) and (8).

8. 18 USC 2256(2)(A). If the prosecution is brought under 18 USC 2256(8)(B), the definition of sexually explicit conduct should be taken from 18 USC 2256(2)(B).

Committee Comments

(For 2006 version see below)

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

2006 Version

The crime of [receipt] [possession] [distribution] of child pornography[, as charged in [Count ] of the indictment,] has three elements, which are:

One, that on or about (date) the defendant knowingly [received] [possessed]¹[distributed] (name of item or items, e.g., a book, magazine, periodical, film, videotape, computer disk, etc.) that [were] [contained] [a] [multiple] visual depiction(s) of child pornography;

Two, that the defendant knew that the visual depiction(s) [was] [were] of a minor engaging in sexually explicit conduct;² and

Three, that the [material containing the] visual depiction(s) [[was] [were] produced using materials that]³ had been [mailed ] [shipped] [transported] [by computer] in interstate or foreign commerce.⁴

[You have heard evidence of more than one visual depiction involved in the offense. You must agree unanimously as to which visual depiction(s) the defendant possessed.]

The term "minor" means any person under the age of eighteen years.⁵

The phrase "child pornography" means any visual depiction of a minor engaging in sexually explicit conduct, where the minor was engaged in the sexually explicit conduct during production of the depiction.⁶ The term "visual depiction"includes [a] [any] [photograph] [film] [video] [picture] [or] [computer or computer-generated image or picture], whether made or produced by electronic, mechanical, or other means. [It includes undeveloped film and videotape, and data stored on computer disk or by electronic means which is capable of conversion into a visual image.]⁷

The term "sexually explicit conduct" means actual or simulated [sexual intercourse, including [genital-genital] [oral-genital] [anal-genital] [oral-anal], whether between persons of the same or opposite sex]; [bestiality] [masturbation] [sadistic or masochistic abuse]] [lascivious exhibition of the genitals or pubic area of any person].⁸

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

Notes on Use

1. Presence of child pornography images in a computer’s temporary cache file is not sufficient to establish the defendant’s knowing possession of the images. See, e.g., United States v. Stulock, 308 F.3d 922, 925 (8^th Cir. 2002) (the district court in a bench trial held that "one cannot be guilty of possession for simply having viewed an image on a web site, thereby causing the image to be automatically stored in the browser’s cache, without having purposely saved or downloaded the image." The government did not appeal.); but see, United States v. Tucker, 305 F.3d 1193, 1205 (10^th Cir. 2002) (the defendant’s knowledge that the images would be stored in the temporary cache file was sufficient to show knowing possession of the images located there).

4. Whether the statute requires the defendant have knowledge that the item traveled in interstate commerce has not yet been resolved by the Eighth Circuit; if analyzed similarly to federal gun statutes, interstate transportation without the knowledge of the defendant is sufficient. See United States v. Robinson, 137 F.3d 652, 655 (1^st Cir. 1998)(§2252); but see United States v. Colavito, 19 F.3d 69, 71 (2d Cir. 1994) (§ 2252) (the defendant must know that he was receiving material through interstate commerce and that the materials contained sexually explicit depictions of minors). See 6.18.2252A (C) for definitions of interstate commerce.

5. 18 USC 2256(1).

Section 2256(8)(B) was amended in response to Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) to provide that:

such visual depiction is a digital image, computer image, or computer generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct.

The Committee expresses no opinion whether this provision will be found to have the same constitutional infirmity as its predecessor.

Section 2256(8)(C) can be instructed as follows:

The phrase "child pornography" means a visual depiction that has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.

If this subsection is used, the following definition of "identifiable minor" should be included:

The term "identifiable minor" as used in the definition of child pornography

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

18 USC 2256(9).

7. 18 USC 2256(5) and (8).

8. 18 USC 2256(2)(A). If the prosecution is brought under 18 USC 2256(8)(B), the definition of sexually explicit conduct should be taken from 18 USC 2256(2)(B).

Committee Comments

No 2000 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.2252A
"LASCIVIOUS" EXPLAINED

Whether a visual depiction of the genitals or pubic area constitutes a lascivious exhibition requires a consideration of the overall content of the material. You may consider such factors as (1) whether the focal point of the picture is on the minor’s genitals or pubic area; (2) whether the setting of the picture is sexually suggestive, that is, in a place or pose generally associated with sexual activity; (3) whether the minor is depicted in an unnatural pose or in inappropriate attire, considering the age of the minor; (4) whether the minor is fully or partially clothed, or nude; (5) whether the picture suggests sexual coyness or a willingness to engage in sexual activity; (6) whether the picture is intended or designed to elicit a sexual response in the viewer; (7) whether the picture portrays the minor as a sexual object; and (8) the caption(s) on the picture(s).

It is for you to decide the weight or lack of weight to be given to any of these factors. A picture need not involve all of these factors to constitute a lascivious exhibition of the genitals or pubic area.

Committee Comments

Title 18, United States Code, § 2256(2). The first six factors are derived from United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), aff’d sub. nom. United States v. Wiegand, 812 F.2d 1239, 1244 (9^th Cir. 1987) and are generally cited. See, e.g., United States v. Horn, 187 F.3d 781, 789 (8^th Cir. 1999); United States v. Carroll, 190 F.3d 290, 296 (5^th Cir. 1999); United States v. Amirault, 173 F.3d 28, 31 (1^st Cir. 1999). The seventh and eighth factors were added by the court in United States v. Arvin, 900 F.2d 1385 (9th Cir. 1990) (interpreting the definition of "lascivious" found in 18 USC 2256(2)(E) for purposes of § 2252).

The factors are "neither comprehensive nor necessarily applicable in every situation. . . [T]here may be other factors that are equally if not more important in determining whether a photograph contains a lascivious exhibition." United States v. Amirault, 173 F.3d at 32.

In United States v. Rayl, 270 F.3d 709, 714 (8th Cir. 2001), the court held that the question whether materials depict a "lascivious exhibition of the genitals" is for the finder of fact. However, the meaning of "lascivious exhibition of the genitals" is an issue of law. The district court therefore should, before submitting materials offered by the government to the jury, conduct a preliminary review of whether those materials depict sexually explicit conduct as a matter of law. Accord United States v. Horn, 187 F.3d at 789.

(For 2008 version see below).

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2008 Version

6.18.2252A(1)
"LASCIVIOUS" EXPLAINED

Whether a visual depiction of the genitals or pubic area constitutes a lascivious exhibition requires a consideration of the overall content of the material. You may consider such factors as (1) whether the focal point of the picture is on the minor’s genitals or pubic area; (2) whether the setting of the picture is sexually suggestive, that is, in a place or pose generally associated with sexual activity; (3) whether the minor is depicted in an unnatural pose or in inappropriate attire, considering the age of the minor; (4) whether the minor is fully or partially clothed, or nude; (5) whether the picture suggests sexual coyness or a willingness to engage in sexual activity; (6) whether the picture is intended or designed to elicit a sexual response in the viewer; (7) whether the picture portrays the minor as a sexual object; and (8) the caption(s) on the picture(s).

It is for you to decide the weight or lack of weight to be given to any of these factors. A picture need not involve all of these factors to constitute a lascivious exhibition of the genitals or pubic area.

Committee Comments

(For 2006 version see below)

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2006 Version

Whether a visual depiction of the genitals or pubic area constitutes a lascivious exhibition requires a consideration of the overall content of the material. You may consider such factors as (1) whether the focal point of the picture is on the minor’s genitals or pubic area; (2) whether the setting of the picture is sexually suggestive, that is, in a place or pose generally associated with sexual activity; (3) whether the minor is depicted in an unnatural pose or in inappropriate attire, considering the age of the minor; (4) whether the minor is fully or partially clothed, or nude; (5) whether the picture suggests sexual coyness or a willingness to engage in sexual activity; (6) whether the picture is intended or designed to elicit a sexual response in the viewer; (7) whether the picture portrays the minor as a sexual object; and (8) the caption(s) on the picture(s).

It is for you to decide the weight or lack of weight to be given to any of these factors. A picture need not involve all of these factors to constitute a lascivious exhibition of the genitals or pubic area.

Committee Comments

No 2000 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.2252B
"INTERSTATE COMMERCE" DEFINED

The phrase "interstate commerce" means commerce between any combination of states, territories, and possessions of the United States, including the District of Columbia.¹

[The phrase "foreign commerce," as used above, means commerce between any state, territory or possession of the United States and a foreign country.]¹

[The term "commerce" includes, among other things, travel, trade, transportation and communication.]¹

[Images transmitted or received over the Internet have moved in interstate or foreign commerce.² It is for you to determine, however, if [the material containing] the visual depiction [had been transmitted or received over the Internet] [was produced using materials that had been transmitted or received over the Internet]].³

Notes on Use

1. See 6.18.1956J(2); United States v. Hampton, 260 F.3d 832 (8^th Cir. 2001); United States v. Bausch, 140 F.3d 739 (8^th Cir. 1998).

2. See United States v. Smith, 47 M.J. 588 (1997) (relying in part on United States v. Carroll, 105 F.3d 740, 742 (1^st Cir. 1997); United States v. Thomas, 74 F.3d 701, 706-07 (6^th Cir. 1996); United States v. Runyan, 290 F.3d 223, 239 (5^th Cir. 2002). Each item must be independently linked to the Internet. United States v. Henriques, 234 F.3d 263, 266 (5^th Cir. 2000); United States v. Wilson, 182 F.3d 737, 744 (10^th Cir. 1999).

3. The last bracketed portion of this sentence is applicable only in prosecutions under § 2252A(a)(5)(B).

(For 2008 version see below).

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2008 Version

6.18.2252A(2)
"INTERSTATE COMMERCE" DEFINED

The phrase "interstate commerce" means commerce between any combination of states, territories, and possessions of the United States, including the District of Columbia.¹

[The phrase "foreign commerce," as used above, means commerce between any state, territory or possession of the United States and a foreign country.]¹

[The term "commerce" includes, among other things, travel, trade, transportation and communication.]¹

[Images transmitted or received over the Internet have moved in interstate or foreign commerce.² It is for you to determine, however, if [the material containing] the visual depiction [had been transmitted or received over the Internet] [was produced using materials that had been transmitted or received over the Internet]].³

Notes on Use

1. See 6.18.1956J(2); United States v. Hampton, 260 F.3d 832 (8^th Cir. 2001); United States v. Bausch, 140 F.3d 739 (8^th Cir. 1998).

3. The last bracketed portion of this sentence is applicable only in prosecutions under § 2252A(a)(5)(B).

(For 2006 version see below)

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2006 Version

The phrase "interstate commerce" means commerce between any combination of states, territories, and possessions of the United States, including the District of Columbia.¹

[The phrase "foreign commerce," as used above, means commerce between any state, territory or possession of the United States and a foreign country.]¹

[The term "commerce" includes, among other things, travel, trade, transportation and communication.]¹

[Images transmitted or received over the Internet have moved in interstate or foreign commerce.² It is for you to determine, however, if [the material containing] the visual depiction [had been transmitted or received over the Internet] [was produced using materials that had been transmitted or received over the Internet]].³

Notes on Use

1. See 6.18.1956J(2); United States v. Hampton, 260 F.3d 832 (8^th Cir. 2001); United States v. Bausch, 140 F.3d 739 (8^th Cir. 1998).

3. The last bracketed portion of this sentence is applicable only in prosecutions under § 2252A(a)(5)(B).

No 2000 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.2252C
"COMPUTER" DEFINED

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

Committee Comments

See 18 USC § 1030(e), 2252A(a)(5)(B) and 2256(6).

(For 2008 version see below).

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2008 Version

6.18.2252A(3)
"COMPUTER" DEFINED

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

Committee Comments

See 18 USC§ 1030(e), 2252A(a)(5)(B) and 2256(6).

(For 2006 version see below)

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2006 Version

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

Committee Comments

See 18 USC 1030(e), 2252A(a)(5)(B) and 2256(6).

No 2000 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.2312
INTERSTATE TRANSPORTATION OF STOLEN VEHICLE
(18 USC2312)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Interstate Transportation Of A Stolen Motor Vehicle (18 USC 2312)

The crime of [interstate] [foreign] transportation of a stolen motor vehicle, as charged in [Count of] the indictment, has three elements, which are:

One, the (describe vehicle) was stolen;

Two, after the vehicle was stolen, the defendant [moved] [caused it to be moved] across a [state line] [United States border];

Three, at the time he [moved the vehicle][caused the vehicle to be moved] across a [state line] [United States border], the defendant knew it was stolen.

Property has been "stolen" when it has been taken with the intent to permanently or temporarily deprive the owner of the rights and benefits of ownership.

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

Committee Comments

See United States v. Harris, 528 F.2d 1327, 1330 (8th Cir. 1975); United States v. Gilliss, 645 F.2d 1269, 1279-80 n.25 (8th Cir. 1981).

"Stolen" is defined in United States v. Turley, 352 U.S. 407, 410-17 (1957).

Where a person lawfully obtains possession of a motor vehicle and later forms an intent to convert it to his own use, and in furtherance of that intention transports it across state lines, there is a violation of section 2312. United States v. Miles, 472 F.2d 1145, 1146 (8th Cir. 1973); United States v. Bruton, 414 F.2d 905 (8th Cir. 1969). In such a case, the following paragraph should be added:

It is not necessary that the taking of the vehicle be unlawful. Even if possession of the vehicle is lawfully acquired, the vehicle will be deemed 'stolen' if the defendant thereafter forms the intent to deprive the owner of the rights and benefits of ownership, and converts the vehicle to his own use.

The taking need not be done with the intent to permanently deprive the owner of the vehicle. See United States v. Bruton, 414 F.2d at 908.

The defendant must know that the vehicle in question is stolen, but need not know that it is being transported across state lines. See United States v. Spoone, 741 F.2d 680, 686 (4th Cir. 1984); United States v. Martinez, 694 F.2d 71, 72 (5th Cir. 1982).

(For 2008 version see below).

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2008 Version

The crime of [interstate] [foreign] transportation of a stolen motor vehicle, as charged in [Count of] the indictment, has three elements, which are:

One, the (describe vehicle) was stolen;

Two, after the vehicle was stolen, the defendant [moved] [caused it to be moved] across a [state line] [United States border];

Three, at the time he [moved the vehicle][caused the vehicle to be moved] across a [state line] [United States border], the defendant knew it was stolen.

Property has been "stolen" when it has been taken with the intent to permanently or temporarily deprive the owner of the rights and benefits of ownership.

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

Committee Comments

See United States v. Harris, 528 F.2d 1327, 1330 (8th Cir. 1975); United States v. Gilliss, 645 F.2d 1269, 1279-80 n.25 (8th Cir. 1981).

"Stolen" is defined in United States v. Turley, 352 U.S. 407, 410-17 (1957).

It is not necessary that the taking of the vehicle be unlawful. Even if possession of the vehicle is lawfully acquired, the vehicle will be deemed 'stolen' if the defendant thereafter forms the intent to deprive the owner of the rights and benefits of ownership, and converts the vehicle to his own use.

The taking need not be done with the intent to permanently deprive the owner of the vehicle. See United States v. Bruton, 414 F.2d at 908.

(For 2006 version see below)

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

2006 Version

The crime of [interstate] [foreign] transportation of a stolen motor vehicle, as charged in [Count of] the indictment, has three elements, which are:

One, the (describe vehicle) was stolen;

Two, after the vehicle was stolen, the defendant [moved] [caused it to be moved] across a [state line] [United States border];

Three, at the time he [moved the vehicle][caused the vehicle to be moved] across a [state line] [United States border], the defendant knew it was stolen.

Property has been "stolen" when it has been taken with the intent to permanently or temporarily deprive the owner of the rights and benefits of ownership.

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

Committee Comments

See United States v. Harris, 528 F.2d 1327, 1330 (8th Cir. 1975); United States v. Gilliss, 645 F.2d 1269, 1279-80 n.25 (8th Cir. 1981).

"Stolen" is defined in United States v. Turley, 352 U.S. 407, 410-17 (1957).

It is not necessary that the taking of the vehicle be unlawful. Even if possession of the vehicle is lawfully acquired, the vehicle will be deemed 'stolen' if the defendant thereafter forms the intent to deprive the owner of the rights and benefits of ownership, and converts the vehicle to his own use.

The taking need not be done with the intent to permanently deprive the owner of the vehicle. See United States v. Bruton, 414 F.2d at 908.

For 2000 version see below

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2000 Version

The crime of [interstate] [foreign] transportation of a stolen motor vehicle, as charged in [Count of] the indictment, has three essential elements, which are:

One, the (describe vehicle) was stolen;

Two, after the vehicle was stolen, the defendant [moved] [caused it to be moved] across a [state line] [United States border];

Three, at the time he [moved the vehicle][caused the vehicle to be moved] across a [state line] [United States border], the defendant knew it was stolen.

Property has been "stolen" when it has been taken with the intent to permanently or temporarily deprive the owner of the rights and benefits of ownership.

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

Committee Comments

See United States v. Harris, 528 F.2d 1327, 1330 (8th Cir. 1975); United States v. Gilliss, 645 F.2d 1269, 1279-80 n.25 (8th Cir. 1981).

"Stolen" is defined in United States v. Turley, 352 U.S. 407, 410-17 (1957).

Where a person lawfully obtains possession of a motor vehicle and later forms an intent to convert it to his own use, and in furtherance of that intention transports it across state lines, there is a violation of section 2312. United States v. Miles, 472 F.2d 1145, 1146 (8th Cir.), cert. denied, 412 U.S. 907 (1973); United States v. Bruton, 414 F.2d 905 (8th Cir. 1969). In such a case, the following paragraph should be added:

It is not necessary that the taking of the vehicle be unlawful. Even if possession of the vehicle is lawfully acquired, the vehicle will be deemed 'stolen' if the defendant thereafter forms the intent to deprive the owner of the rights and benefits of ownership, and converts the vehicle to his own use.

The taking need not be done with the intent to permanently deprive the owner of the vehicle. See United States v. Bruton, 414 F.2d at 908.

The defendant must know that the vehicle in question is stolen, but need not know that it is being transported across state lines. See United States v. Spoone, 741 F.2d 680, 686 (4th Cir. 1984), cert. denied, 469 U.S. 1162 (1985); United States v. Martinez, 694 F.2d 71, 72 (5th Cir. 1982).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.2313
RECEIPT OR SALE OF A STOLEN MOTOR VEHICLE OR AIRCRAFT
(18 USC 2313)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Receipt Of A Stolen Motor Vehicle (18 USC 2313)

The crime of [receiving] [possessing] [concealing] [storing] [selling] [disposing of] a stolen [motor vehicle] [aircraft], as charged in [Count of] the indictment, has four elements, which are:

One, the (describe vehicle or aircraft) was stolen;

Two, after it was stolen, the [vehicle] [aircraft] was moved across a [state line] [United States border];

Three, after the [vehicle] [aircraft] had been stolen and moved across a [state line] [United States border], the defendant [received] [possessed] [concealed] [stored] [sold] [disposed of]¹it; and

Four, at the time the defendant [received] [concealed] [stored] [sold] [disposed of] the [vehicle] [aircraft], he knew it had been stolen.

Property has been "stolen" when it has been taken with the intent to permanently or temporarily deprive the owner of the rights and benefits of ownership.

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

Notes on Use

1. If acts constituting both housing of stolen vehicles and disposal of stolen vehicles are charged, further instructions will be necessary to assure jury unanimity on at least one theory. See United States v. Gipson, 553 F.2d 453 (5th Cir. 1977).

Committee Comments

See 2B Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 59.06 (5th ed. 2000); United States v. Brady, 425 F.2d 309, 311 (8th Cir. 1970); Seventh Circuit Federal Jury Instructions: Criminal at 359 (1999). BUT NOTE: Those referenced instructions are all based on 18 USC 2313 prior to being amended on October 25, 1984. This instruction 6.18.2313 reflects 18 USC 2313 as amended.

Section 2313 relates to the receipt or sale of stolen motor vehicles and aircraft. Section 2315 relates to the receipt or sale of stolen money, securities, or other property. The elements of the two offenses are virtually identical except that section 2315 requires that the stolen property had a value of at least $5,000, while section 2313 contains no such requirement. "Value" means market value. United States v. Williams, 657 F.2d 199, 202 (8th Cir. 1981). If the defendant is charged under section 2315, an additional element positing a minimum value of $5,000.00 must be included in this instruction.

This statute was amended as of October 25, 1984, to provide that federal criminal jurisdiction continues over a stolen motor vehicle once it crosses a state line even after it ceases to be part of the flow of interstate commerce. Thus it is no longer necessary to prove that a vehicle stolen after October 25, 1984 was still in interstate commerce at the time of receipt, possession, etc. A similar amendment was made to section 2315 as of November 10, 1986.

With respect to stolen vehicles taken across a state line prior to October 25, 1984, the question of whether property was moving in interstate commerce at the relevant time is ordinarily for the jury. United States v. Tobin, 576 F.2d 687, 691 (5th Cir. 1978). See also United States v. Hiscott, 586 F.2d 1271, 1274 (8th Cir. 1978); United States v. Briddle, 430 F.2d 1335, 1338-39 (8th Cir. 1970).

The defendant's knowledge that the property was stolen is an element of each offense covered by sections 2312-2315. United States v. Miller, 725 F.2d 462, 468 (8th Cir. 1984); United States v. Wilson, 523 F.2d 828, 829-30 (8th Cir. 1975). Such knowledge may be established by evidence of the defendant's unexplained possession of recently stolen property. Id.; United States v. Brotherton, 427 F.2d 1286, 1288 (8th Cir. 1970). An explanation of possession or receipt by the defendant does not automatically preclude the jury from weighing the inference created by possession. United States v. Burns, 597 F.2d 939, 943-44 n.7 (5th Cir. 1979). See Instruction 4.13, supra. Knowledge of the involvement of interstate commerce is not necessary for conviction. United States v. Wilson, 523 F.2d at 829 n.2.

"Stolen" is defined in United States v. Turley, 352 U.S. 407, 410-17 (1957).

"Possession" will not ordinarily need to be defined. "Where the proof of possession is overwhelming or where ordinary laymen's concepts of possession will suffice, no legal definition is necessary." Kramer v. United States, 408 F.2d 837, 840-41 (8th Cir. 1969) and cases cited therein. Kramer does recognize that in certain factual situations it might be more desirable to define the word "possession" in order to more precisely delineate the issues. 408 F.2d at 840 n.2. See Instruction 8.02, infra.

Likewise "conceal" is to be given its ordinary meaning by the jury, although the court may illustrate or expand on that meaning. See United States v. Folsom, 479 F.2d 1, 3 (8th Cir. 1973); United States v. Sherriff, 546 F.2d 604, 608 (5th Cir. 1977), reh. denied, 549 F.2d 204 (5th Cir. 1977). Concealing does require some overt act beyond mere possession. United States v. Powell, 420 F.2d 949, 950 (6th Cir. 1970). See also United States v. Mahanna, 461 F.2d 1110, 1117 (8th Cir. 1972).

(For 2008 version see below).

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2008 Version

The crime of [receiving] [possessing] [concealing] [storing] [selling] [disposing of] a stolen [motor vehicle] [aircraft], as charged in [Count of] the indictment, has four elements, which are:

One, the (describe vehicle or aircraft) was stolen;

Two, after it was stolen, the [vehicle] [aircraft] was moved across a [state line] [United States border];

Three, after the [vehicle] [aircraft] had been stolen and moved across a [state line] [United States border], the defendant [received] [possessed] [concealed] [stored] [sold] [disposed of]¹it; and

Four, at the time the defendant [received] [concealed] [stored] [sold] [disposed of] the [vehicle] [aircraft], he knew it had been stolen.

Property has been "stolen" when it has been taken with the intent to permanently or temporarily deprive the owner of the rights and benefits of ownership.

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

Notes on Use

Committee Comments

Section 2313 relates to the receipt or sale of stolen motor vehicles and aircraft. Section 2315relates to the receipt or sale of stolen money, securities, or other property. The elements of the two offenses are virtually identical except that section 2315 requires that the stolen property had a value of at least $5,000, while section 2313 contains no such requirement. "Value" means market value. United States v. Williams, 657 F.2d 199, 202 (8th Cir. 1981). If the defendant is charged under section 2315, an additional element positing a minimum value of $5,000.00 must be included in this instruction.

"Stolen" is defined in United States v. Turley, 352 U.S. 407, 410-17 (1957).

(For 2006 version see below)

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2006 Version

The crime of [receiving] [possessing] [concealing] [storing] [selling] [disposing of] a stolen [motor vehicle] [aircraft], as charged in [Count of] the indictment, has four elements, which are:

One, the (describe vehicle or aircraft) was stolen;

Two, after it was stolen, the [vehicle] [aircraft] was moved across a [state line] [United States border];

Three, after the [vehicle] [aircraft] had been stolen and moved across a [state line] [United States border], the defendant [received] [possessed] [concealed] [stored] [sold] [disposed of]¹it; and

Four, at the time the defendant [received] [concealed] [stored] [sold] [disposed of] the [vehicle] [aircraft], he knew it had been stolen.

Property has been "stolen" when it has been taken with the intent to permanently or temporarily deprive the owner of the rights and benefits of ownership.

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

Notes on Use

Committee Comments

"Stolen" is defined in United States v. Turley, 352 U.S. 407, 410-17 (1957).

For 2000 version see below

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2000 Version

The crime of [receiving] [possessing] [concealing] [storing] [selling] [disposing of] a stolen [motor vehicle] [aircraft], as charged in [Count of] the indictment, has four essential elements, which are:

One, the (describe vehicle or aircraft) was stolen;

Two, after it was stolen, the [vehicle] [aircraft] was moved across a [state line] [United States border];

Three, after the [vehicle] [aircraft] had been stolen and moved across a [state line] [United States border], the defendant [received] [possessed] [concealed] [stored] [sold] [disposed of]1 it; and

Four, at the time the defendant [received] [concealed] [stored] [sold] [disposed of] the [vehicle] [aircraft], he knew it had been stolen.

Property has been "stolen" when it has been taken with the intent to permanently or temporarily deprive the owner of the rights and benefits of ownership.

(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 § 50.06 (4th ed. 1990); United States v. Brady, 425 F.2d 309, 311 (8th Cir. 1970); Seventh Circuit Federal Jury Instructions: Criminal at 359 (1999). BUT NOTE: Those referenced instructions are all based on 18 USC 2313 prior to being amended on October 25, 1984. This instruction 6.18.2313 reflects 18 USC 2313 as amended. Section 2313 relates to the receipt or sale of stolen motor vehicles and aircraft.

Section 2315 relates to the receipt or sale of stolen money, securities, or other property. The elements of the two offenses are virtually identical except that section 2315 requires that the stolen property had a value of at least $5,000, while section 2313 contains no such requirement. "Value" means market value. United States v. Williams, 657 F.2d 199, 202 (8th Cir. 1981). If the defendant is charged under section 2315, an additional element positing a minimum value of $5,000.00 must be included in this instruction.

With respect to stolen vehicles taken across a state line prior to October 25, 1984, the question of whether property was moving in interstate commerce at the relevant time is ordinarily for the jury. United States v. Tobin, 576 F.2d 687, 691 (5th Cir.), cert. denied, 439 U.S. 1051 (1978). See also United States v. Hiscott, 586 F.2d 1271, 1274 (8th Cir. 1978); United States v. Briddle, 430 F.2d 1335, 1338-39 (8th Cir. 1970).

The defendant's knowledge that the property was stolen is an essential element of each offense covered by sections 2312-2315. United States v. Miller, 725 F.2d 462, 468 (8th Cir. 1984); United States v. Wilson, 523 F.2d 828, 829-30 (8th Cir. 1975), cert. denied, 434 U.S. 849 (1977). Such knowledge may be established by evidence of the defendant's unexplained possession of recently stolen property. Id.; United States v. Brotherton, 427 F.2d 1286, 1288 (8th Cir. 1970). An explanation of possession or receipt by defendant does not automatically preclude the jury from weighing the inference created by possession. United States v. Burns, 597 F.2d 939, 943-44 n.7 (5th Cir. 1979). See Instruction 4.13, supra. Knowledge of the involvement of interstate commerce is not necessary for conviction. United States v. Wilson, 523 F.2d at 829 n.2.

"Stolen" is defined in United States v. Turley, 352 U.S. 407, 410-17 (1957).

Likewise "conceal" is to be given its ordinary meaning by the jury, although the court may illustrate or expand on that meaning. See United States v. Folsom, 479 F.2d 1, 3 (8th Cir. 1973); United States v. Sherriff, 546 F.2d 604, 608 (5th Cir. 1977), reh. denied, 549 F.2d 204 (5th Cir. 1977). Concealing does require some overt act beyond mere possession. United States v. Powell, 420 F.2d 949, 950 (6th Cir. 1970). See also United States v. Mahanna, 461 F.2d 1110, 1117 (8th Cir. 1972).

Notes on Use

1. If acts constituting both housing of stolen vehicles and disposal of stolen vehicles are charged, further instructions will be necessary to assure jury unanimity on at least one theory. See United States v. Gipson, 553 F.2d 453 (5th Cir. 1977).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.2314
INTERSTATE TRANSPORTATION OF STOLEN PROPERTY
(18 USC 2314) (First Paragraph)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Interstate Transportation Of Stolen Property (18 USC 2314) (First Paragraph)

See FORECITE National™ Federal Models By Offense: Causing Interstate Travel In Execution Of A Scheme To Defraud (18 USC 2314) (Second Paragraph)

The crime of [interstate] [foreign] transportation of [stolen] [converted] [fraudulently taken] property,¹ as charged in [Count of] the indictment, has four elements, which are:

One, the (describe property) was [stolen] [converted] [taken by fraud];

Two, the (describe property) then had a value² of $5,000.00 or more;

Three, after the (describe property) was [stolen] [converted] [taken by fraud], the defendant [moved it] [caused it to be moved] across a [state line] [United States border]; and

Four, at the time the defendant [moved the (describe property)] [caused the (describe property) to be moved] across a [state line] [United States border], [he] [she] knew that it had been [stolen] [converted] [taken by fraud].

[Property has been "stolen" when it has been taken with the intent to permanently or temporarily deprive the owner of the rights and benefits of ownership.]

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

Notes on Use

1. The statute specifically applies to "goods, wares, merchandise, securities or money." Any of these terms may be substituted for the word "property" as is applicable. "Money" and "Securities" are defined in section 2311.

2. "Value" is defined in section 2311. If value is a disputed issue, a definition should be given to the jury. See Committee Comments, supra.

Committee Comments

See 2B Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 59.09 (5th ed. 2000). See generally Gay v. United States, 408 F.2d 923, 926-29 (8th Cir. 1969); Seventh Circuit Federal Jury Instructions: Criminal at 362 (1999).

See Committee Comments, Instructions 6.18.2312 and 6.18.2313, supra.

Knowledge that the property was stolen or taken by fraud is an element of this offense, but "specific intent" is not. United States v. Miller, 725 F.2d 462, 468 (8th Cir. 1984); United States v. Zarattini, 552 F.2d 753, 760 (7th Cir. 1977). Knowledge or foreseeability of interstate transportation is not necessary for conviction. United States v. Kibby, 848 F.2d 920, 923 (8th Cir. 1988); United States v. Ludwig, 523 F.2d 705, 707 (8th Cir. 1975).

This offense is not limited to the physical movement of tangible property from one state to another; it is a violation of Section 23144 to cause an interstate wire transfer of stolen funds. See United States v. Wright, 791 F.2d 133 (10th Cir. 1986).

"Stolen" is defined in United States v. Turley, 352 U.S. 407, 410-17 (1957).

Fraud includes false representation, dishonesty and deceit. "It may result from reckless representation even when not made with a deliberate intent to deceive." United States v. Grainger, 701 F.2d 308, 311 (4th Cir. 1983).

"Value" is defined in section 2311. Market value is ordinarily used to determine the value of stolen property. However any reasonable method may be used to ascribe a monetary value to goods which have no market value or the value of which depends on intangible components, including development and production costs, revenues, or price in a "thieves' market." See United States v. Stegora, 849 F.2d 291, 292 (8th Cir. 1988).

Separate transactions under $5,000 may be aggregated for the purpose of meeting the $5,000 limit of 18 USC 2314 provided they are substantially related and charged as a single offense. United States v. Lagerquist, 758 F.2d 1279 (8th Cir. 1985); Schaffer v. United States, 362 U.S. 511 (1960). In such a case, Element Two should be modified to include "total value."

(For 2008 version see below).

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

2008 Version

The crime of [interstate] [foreign] transportation of [stolen] [converted] [fraudulently taken] property,¹ as charged in [Count of] the indictment, has four elements, which are:

One, the (describe property) was [stolen] [converted] [taken by fraud];

Two, the (describe property) then had a value² of $5,000.00 or more;

Three, after the (describe property) was [stolen] [converted] [taken by fraud], the defendant [moved it] [caused it to be moved] across a [state line] [United States border]; and

Four, at the time the defendant [moved the (describe property)] [caused the (describe property) to be moved] across a [state line] [United States border], [he] [she] knew that it had been [stolen] [converted] [taken by fraud].

[Property has been "stolen" when it has been taken with the intent to permanently or temporarily deprive the owner of the rights and benefits of ownership.]

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

Notes on Use

2. "Value" is defined in section 2311. If value is a disputed issue, a definition should be given to the jury. See Committee Comments, supra.

Committee Comments

See Committee Comments, Instructions 6.18.2312 and 6.18.2313, supra.

This offense is not limited to the physical movement of tangible property from one state to another; it is a violation of Section 2314 to cause an interstate wire transfer of stolen funds. See United States v. Wright, 791 F.2d 133 (10th Cir. 1986).

"Stolen" is defined in United States v. Turley, 352 U.S. 407, 410-17 (1957).

(For 2006 version see below)

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

2006 Version

The crime of [interstate] [foreign] transportation of [stolen] [converted] [fraudulently taken] property,¹ as charged in [Count of] the indictment, has four elements, which are:

One, the (describe property) was [stolen] [converted] [taken by fraud];

Two, the (describe property) then had a value² of $5,000.00 or more;

Three, after the (describe property) was [stolen] [converted] [taken by fraud], the defendant [moved it] [caused it to be moved] across a [state line] [United States border]; and

Four, at the time the defendant [moved the (describe property)] [caused the (describe property) to be moved] across a [state line] [United States border], [he] [she] knew that it had been [stolen] [converted] [taken by fraud].

[Property has been "stolen" when it has been taken with the intent to permanently or temporarily deprive the owner of the rights and benefits of ownership.]

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

Notes on Use

2. "Value" is defined in section 2311. If value is a disputed issue, a definition should be given to the jury. See Committee Comments, supra.

Committee Comments

See Committee Comments, Instructions 6.18.2312 and 6.18.2313, supra.

"Stolen" is defined in United States v. Turley, 352 U.S. 407, 410-17 (1957).

For 2000 version see below

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

2000 Version

The crime of [interstate] [foreign] transportation of [stolen] [converted] [fraudulently taken] property,1 as charged in [Count of] the indictment, has four essential elements, which are:

One, the (describe property) was [stolen] [converted] [taken by fraud];

Two, the (describe property) then had a value2 of $5,000.00 or more;

Three, after the (describe property) was [stolen] [converted] [taken by fraud], the defendant [moved it] [caused it to be moved] across a [state line] [United States border]; and

Four, at the time defendant [moved the (describe property)] [caused the (describe property) to be moved] across a [state line] [United States border], [he] [she] knew that it had been [stolen] [converted] [taken by fraud].

[Property has been "stolen" when it has been taken with the intent to permanently or temporarily deprive the owner of the rights and benefits of ownership.]

(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 (4th ed. 1990). See generally Gay v. United States, 408 F.2d 923, 926-29 (8th Cir.), cert. denied, 396 U.S. 823 (1969); Seventh Circuit Federal Jury Instructions: Criminal at 362 (1999).

See Committee Comments, Instructions 6.18.2312 and 6.18.2313, supra.

Knowledge that the property was stolen or taken by fraud is an essential element of this offense, but "specific intent" is not. United States v. Miller, 725 F.2d 462, 468 (8th Cir. 1984); United States v. Zarattini, 552 F.2d 753, 760 (7th Cir.), cert. denied, 431 U.S. 942 (1977). Knowledge or foreseeability of interstate transportation is not necessary for conviction. United States v. Kibby, 848 F.2d 920, 923 (8th Cir. 1988); United States v. Ludwig, 523 F.2d 705, 707 (8th Cir. 1975), cert. denied, 423 U.S. 1076 (1976).

This offense is not limited to the physical movement of tangible property from one state to another; it is a violation of Section 2314 to cause an interstate wire transfer of stolen funds. See United States v. Wright, 791 F.2d 133 (10th Cir. 1986).

"Stolen" is defined in United States v. Turley, 352 U.S. 407, 410-17 (1957).

"Value" is defined in section 2311. Market value is ordinarily used to determine the value of stolen property. However any reasonable method may be used to ascribe a monetary value to goods which have no market value or the value of which depends on intangible components, including development and production costs, revenues, or price in a "thieves' market." See United States v. Stegora, 849 F.2d 291, 292 (8th Cir. 1988).

Separate transactions under $5,000 may be aggregated for the purpose of meeting the $5,000 limit of 18 USC 2314 provided they are substantially related and charged as a single offense. United States v. Lagerquist, 758 F.2d 1279 (8th Cir. 1985), cert. denied, 484 U.S. 955 (1987); Schaffer v. United States, 362 U.S. 511 (1960). In such a case, Element Two should be modified to include "total value."

Notes on Use

2. "Value" is defined in section 2311. If value is a disputed issue, a definition should be given to the jury. See Committee Comments, Instruction 6.18.2314, supra.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.2421
TRANSPORTATION FOR PROSTITUTION
(18 USC 2421)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Transportation For Prostitution (18 USC 2421)

The crime of [attempted] [interstate] [foreign] transportation of an individual to engage in [prostitution] [(any sexual activity for which a person can be charged with a criminal offense)]¹ as charged in [Count ____ of] the indictment has two elements, which are:

One, the defendant knowingly [transported] [attempted to transport] (name of person alleged in indictment) across a state line or across a national border; and

Two, the defendant [transported] [attempted to transport] (name of person alleged in indictment) with the intent that such person engage in [prostitution] [(describe sexual activity charged in the indictment)].

[Prostitution means (set out elements of crime of prostitution from jurisdiction in which act occurred or would have occurred).]²

[(Set out elements of applicable Federal or State law) [is] [are] [a crime] [crimes] under the laws of [the United States] [the State of (identify the state)].]³

[A person may be found guilty of an attempt if [he] [she] intended to (describe attempted act, i.e., transport Jane Doe across a state line with the intent that Jane Doe engage in prostitution) and voluntarily and intentionally carried out some act which was a substantial step⁴ toward that (describe attempted act).]⁵

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

Notes on Use

1. "Prostitution" or "any sexual activity for which a person can be charged with a criminal offense" should be defined in this instruction.

2. Use when the defendant is charged with travel or attempted travel to engage in prostitution.

3. Use when the defendant is charged with travel or attempted travel to engage in any sexual activity for which any person can be charged with a criminal offense.

4 An instruction defining "substantial step" may be given. See Instruction 8.01, Notes on Use, n.2, infra.

5. Use when the defendant is charged with an attempt. See generally, Instruction 8.01, infra.

(For 2008 version see below).

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

2008 Version

The crime of [attempted] [interstate] [foreign] transportation of an individual to engage in [prostitution] [(any sexual activity for which a person can be charged with a criminal offense)]¹ as charged in [Count ____ of] the indictment has two elements, which are:

One, the defendant knowingly [transported] [attempted to transport] (name of person alleged in indictment) across a state line or across a national border; and

Two, the defendant [transported] [attempted to transport] (name of person alleged in indictment) with the intent that such person engage in [prostitution] [(describe sexual activity charged in the indictment)].

[Prostitution means (set out elements of crime of prostitution from jurisdiction in which act occurred or would have occurred).]²

[(Set out elements of applicable Federal or State law) [is] [are] [a crime] [crimes] under the laws of [the United States] [the State of (identify the state)].]³

[A person may be found guilty of an attempt if [he] [she] intended to (describe attempted act, i.e., transport Jane Doe across a state line with the intent that Jane Doe engage in prostitution) and voluntarily and intentionally carried out some act which was a substantial step⁴ toward that (describe attempted act).]⁵

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

Notes on Use

1. "Prostitution" or "any sexual activity for which a person can be charged with a criminal offense" should be defined in this instruction.

2. Use when the defendant is charged with travel or attempted travel to engage in prostitution.

3. Use when the defendant is charged with travel or attempted travel to engage in any sexual activity for which any person can be charged with a criminal offense.

4 An instruction defining "substantial step" may be given. See Instruction 8.01, Notes on Use, n.2, infra.

5. Use when the defendant is charged with an attempt. See generally, Instruction 8.01, infra.

No 2006 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.2422A
PERSUADING OR COERCING TO TRAVEL TO ENGAGE IN PROSTITUTION
(18 USC 2422(a))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Persuading Or Coercing To Travel To Engage In Prostitution (18 USC 2422)

The crime of [persuading] [inducing] [enticing] [coercing] an individual to travel in [interstate] [foreign] commerce to engage in [prostitution] [(any sexual activity for which a person can be charged with a criminal offense)] as charged in [Count ______ of ] the indictment has three elements, which are:

[One, the defendant knowingly [persuaded] [induced] [enticed] [coerced] (name person alleged in indictment) to travel in [interstate] [foreign] commerce;]

[One, the defendant attempted to [persuade] [induce] [entice] [coerce] (name of person alleged in indictment) to travel in [interstate] [foreign] commerce;]¹

[Two, during such travel a [state line] [national boundary] was crossed; and]

[Two, had such travel occurred, a [state line] [national boundary] would have been crossed; and]¹

Three, the defendant [did so] [attempted to do so] with the intent that (name of person alleged in indictment) engage in [prostitution] [(any sexual activity for which a person can be charged with a criminal offense)].

[A person may be found guilty of an attempt if [he] [she] intended to (describe attempted act, i.e., persuade Jane Doe to travel in interstate commerce with the intent that Jane Doe engage in prostitution) and voluntarily and intentionally carried out some act which was a substantial step² toward that (describe attempted act).]³

[(Set out elements of applicable Federal or State law) [is] [are] [a crime] [crimes] under the laws of [the United States] [the State of (identify the state)].]⁴

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

Notes on Use

1. Use when the defendant is charged with an attempt.

2 An instruction defining "substantial step" may be given. See Instruction 8.01, Notes on Use, n.2, infra.

3. Use when the defendant is charged with an attempt. See generally, Instruction 8.01, infra.

4. Use when the defendant is charged with persuading or coercing an individual to engage in any activity for which any person can be charged with a criminal offense, or an attempt to do so.

(For 2008 version see below).

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

2008 Version

The crime of [persuading] [inducing] [enticing] [coercing] an individual to travel in [interstate] [foreign] commerce to engage in [prostitution] [(any sexual activity for which a person can be charged with a criminal offense)] as charged in [Count ______ of ] the indictment has three elements, which are:

[One, the defendant knowingly [persuaded] [induced] [enticed] [coerced] (name person alleged in indictment) to travel in [interstate] [foreign] commerce;]

[One, the defendant attempted to [persuade] [induce] [entice] [coerce] (name of person alleged in indictment) to travel in [interstate] [foreign] commerce;]¹

[Two, during such travel a [state line] [national boundary] was crossed; and]

[Two, had such travel occurred, a [state line] [national boundary] would have been crossed; and]¹

Three, the defendant [did so] [attempted to do so] with the intent that (name of person alleged in indictment) engage in [prostitution] [(any sexual activity for which a person can be charged with a criminal offense)].

[A person may be found guilty of an attempt if [he] [she] intended to (describe attempted act, i.e., persuade Jane Doe to travel in interstate commerce with the intent that Jane Doe engage in prostitution) and voluntarily and intentionally carried out some act which was a substantial step² toward that (describe attempted act).]³

[(Set out elements of applicable Federal or State law) [is] [are] [a crime] [crimes] under the laws of [the United States] [the State of (identify the state)].]⁴

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

Notes on Use

1. Use when the defendant is charged with an attempt.

2 An instruction defining "substantial step" may be given. See Instruction 8.01, Notes on Use, n.2, infra.

3. Use when the defendant is charged with an attempt. See generally, Instruction 8.01, infra.

4. Use when the defendant is charged with persuading or coercing an individual to engage in any activity for which any person can be charged with a criminal offense, or an attempt to do so.

No 2006 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.2422B
PERSUADING OR COERCING A MINOR TO ENGAGE IN SEXUAL ACTIVITY
(18 USC 2422(b))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Persuading Or Coercing To Travel To Engage In Prostitution (18 USC 2422)

The crime of [using the mail] [using any facility or means of [interstate] [foreign] commerce] to [persuade] [induce] [entice] [coerce] anyone under eighteen (18) years of age to engage in [prostitution] [(any sexual activity for which any person can be charged with a criminal offense)] as charged in [Count ____ of] the indictment has [ two]¹ [three]² elements, which are:

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

Two, the defendant believed that such individual was less than eighteen (18) years of age; [and]

[Three, that [if the sexual activity had occurred] [based upon the sexual activity that occurred], the defendant could have been charged with a criminal offense under the laws of [the United States] (identify the state)].³

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

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

[It is not necessary for the Government to prove that the individual was actually [persuaded] [induced] [enticed] [coerced] to engage in [prostitution] [(describe sexual activity charged in indictment)]; but it is necessary for the Government to prove that the defendant intended to engage in [prostitution] [(some form of unlawful sexual activity)] with the individual and knowingly and willfully took some action that was a substantial step toward bringing about or engaging in [prostitution] [(describe sexual activity charged in indictment)].]⁴

[Set out elements of applicable Federal or State law) [is] [are] [a crime] [crimes] under the laws of [the United States] [the State of (identify the state)].⁵

Notes on Use

1. Use when the defendant is charged with persuading or coercing a minor to engage in prostitution.

2. Use when the defendant is charged with persuading or coercing a minor to engage in any sexual activity for which any person can be charged with a criminal offense.

3. Use when the defendant is charged with persuading or coercing a minor to engage in any sexual activity for which any person can be charged with a criminal offense.

4. Use when the defendant is charged with an attempt.

5. Use when the defendant is charged with persuading or coercing a minor to engage in any sexual activity for which any person can be charged with a criminal offense.

Committee Comments

There is no requirement that the defendant complete a sex act with the intended victim to support a conviction under this section, even if the crime is not charged as an attempt. United States v. Bailey, 228 F.3d 637, 638-39 (6^th Cir. 2000).

The defendant need not know the age of the intended victim, so long as the defendant believes that the victim is under the age of eighteen (18). United States v. Helder, 452 F.3d 751, 756 (8^th Cir. 2006); United States v. Hicks, 457 F.3d 838, 841 (8^th Cir. 2006).

An actual minor victim is not required for an attempt conviction under section 2422(b); the "victim" may, in fact, be an undercover police officer. Helder, 452 F.3d at 753-56; Hicks, 457 F.3d at 839-41.

The Eighth Circuit has upheld attempt convictions under section 2422(b) where the means of interstate communication used was the internet. See, e.g., Helder, supra; Hicks, supra; United States v. Patten, 397 F.3d 1100 (8^th Cir. 2005).

(For 2008 version see below).

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

2008 Version

The crime of [using the mail] [using any facility or means of [interstate] [foreign] commerce] to [persuade] [induce] [entice] [coerce] anyone under eighteen (18) years of age to engage in [prostitution] [(any sexual activity for which any person can be charged with a criminal offense)] as charged in [Count ____ of] the indictment has [ two]¹ [three]² elements, which are:

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

Two, the defendant believed that such individual was less than eighteen (18) years of age; [and]

[Three, that [if the sexual activity had occurred] [based upon the sexual activity that occurred], the defendant could have been charged with a criminal offense under the laws of [the United States] (identify the state)].³

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

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

[It is not necessary for the Government to prove that the individual was actually [persuaded] [induced] [enticed] [coerced] to engage in [prostitution] [(describe sexual activity charged in indictment)]; but it is necessary for the Government to prove that the defendant intended to engage in [prostitution] [(some form of unlawful sexual activity)] with the individual and knowingly and willfully took some action that was a substantial step toward bringing about or engaging in [prostitution] [(describe sexual activity charged in indictment)].]⁴

[Set out elements of applicable Federal or State law) [is] [are] [a crime] [crimes] under the laws of [the United States] [the State of (identify the state)].⁵

Notes on Use

1. Use when the defendant is charged with persuading or coercing a minor to engage in prostitution.

2. Use when the defendant is charged with persuading or coercing a minor to engage in any sexual activity for which any person can be charged with a criminal offense.

3. Use when the defendant is charged with persuading or coercing a minor to engage in any sexual activity for which any person can be charged with a criminal offense.

4. Use when the defendant is charged with an attempt.

5. Use when the defendant is charged with persuading or coercing a minor to engage in any sexual activity for which any person can be charged with a criminal offense.

Committee Comments

No 2006 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.18.2423A
TRANSPORTATION OF MINOR TO ENGAGE IN CRIMINAL SEXUAL ACTIVITY
(18 USC 2423(a))¹

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Transportation Of Minor For Prostitution (18 USC 2423)

The crime of [interstate] [foreign] transportation of anyone under eighteen (18) years of age to engage in [prostitution] [(specify sexual activity for which a person can be charged with a criminal offense)] as charged in [Count ___ of] the indictment has [three]² [four]³ elements, which are:

One, the defendant knowingly [transported] [attempted to transport] (name of person alleged in indictment) across a state line or national border;

Two, the defendant [transported] [attempted to transport] (name of person alleged in indictment) with the intent such person engage in [prostitution] [(describe sexual activity charged in indictment)]; and

Three,⁴ [(name of person alleged in indictment) was under the age of eighteen (18) years]⁵ [the defendant believed such individual was under the age of eighteen (18) years of age]^{6,
7} [; and]

[Four, (describe sexual activity charged in indictment) is a crime under the law of the State of (identify state).] ⁸

[Prostitution means (set out elements of crime of prostitution from jurisdiction in which act occurred or would have occurred).]⁹

[(Set out elements of applicable Federal or State law) [is] [are] [a crime] [crimes] under the laws of [the United States] [the State of (identify state)].]¹⁰

[A person may be found guilty of an attempt if [he] [she] intended to (describe attempted act, i.e., transport Jane Doe across a state line with the intent that Jane Doe engage in prostitution) and voluntarily and intentionally carried out some act which was a substantial step¹¹ toward that (describe attempted act).]¹²

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

[It is not necessary for the Government to prove that the defendant knew that (name of person alleged in indictment) was, in fact, less than eighteen (18) years of age.]¹³

[It is not necessary for the Government to prove that the individual was, in fact, less than eighteen (18) years of age; but it is necessary for the Government to prove the defendant believed such individual to be under that age.]¹⁴

Notes on Use

1. Title 18 USC 2423(e) authorizes the charging of an attempt or conspiracy under this statute. If a conspiracy is charged, modify instruction accordingly.

2. Use when the defendant is charged with transporting a minor to engage in prostitution.

3. Use when the defendant is charged with transporting a minor to engage in any sexual activity for which a person can be charged with a criminal offense.

4. Use when the defendant is charged with transporting a minor to engage in prostitution.

5. Use when the defendant is charged with the actual transportation of the victim.

6. Use when the defendant is charged with the attempted transportation and the "victim" is an undercover officer.

7. When the defendant is charged with transporting a minor to engage in any sexual activity for which a person can be charged with a criminal offense, and mistake of age is a defense to such offense, instruction must be modified to set out elements of that offense.

8. Use when the defendant is charged with transporting a minor to engage in any sexual activity for which a person can be charged with a criminal offense.

9. Use when the defendant is charged with transporting a minor to engage in prostitution.

10. Use when the defendant is charged with transporting a minor to engage in any sexual activity for which a person can be charged with a criminal offense.

11. An instruction defining "substantial step" should be given. See Instruction 8.01, Notes on Use, n.2, infra.

12. Use when the defendant is charged with an attempt. See generally, Instruction 8.01, infra.

13. Use when the defendant is charged with the actual transportation of the victim and the charge does not involve a sexual offense to which mistake of age is a defense.

14. Use when the defendant is charged with the attempted transportation and the "victim" is an undercover officer.

Committee Comments

Although the matter has not been decided in the Eighth Circuit, every circuit to address the issue has determined that the Government need not prove the defendant’s knowledge of the victim’s minority, rather the victim’s minor status is a fact which the prosecution must prove and for which the defendant is responsible. See United States v. Jones, 471 F.3d 535, 538-40 (4^th Cir. 2006); United States v. Griffith, 284 F.3d 338, 349-51 (2^nd Cir. 2002); United States v. Taylor, 239 F.3d 994, 996-97 (9^th Cir. 2001); United States v. Scisum, 32 F.3d 1479, 1485-86 (10^th Cir. 1994); United States v. Hamilton, 456 F.3d 171, 173 (3^rd Cir. 1972). In Gilmour v. Rogerson, 117 F.3d 368 (8^th Cir. 1997), a habeas corpus proceeding, the Eighth Circuit held that a defendant charged with the Iowa offense of sexual exploitation of a minor was not entitled to a mistake-of-age defense based on the reasonable belief that the sexually exploited victim was, in fact, an adult.

The Eighth Circuit has held that a defendant may be convicted of violating 18 USC 2423(b) if he or she travels in interstate commerce for the purpose of engaging in criminal sexual conduct with a person believed to be a minor regardless of whether such person is actually a minor. United States v. Hicks, 457 F.3d. 838, 841 (8^th Cir. 2006).

(For 2008 version see below).

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

2008 Version

The crime of [interstate] [foreign] transportation of anyone under eighteen (18) years of age to engage in [prostitution] [(any sexual activity for which a person can be charged with a criminal offense)] as charged in [Count ___ of] the indictment has [three]² [four]³ elements, which are:

One, the defendant knowingly [transported] [attempted to transport] (name of person alleged in indictment) across a state line or national border; and

Two, the defendant [transported] [attempted to transport] the person with the intent such person engage in [prostitution] [(describe sexual activity charged in indictment)]; and

[Three, [if the sexual activity had occurred] [based upon the sexual activity that occurred] the defendant could have been charged with a criminal offense under the law of (identify state); and]⁴

[Three]⁵ [Four] the defendant believed such individual was under the age of eighteen (18) years of age.

[Prostitution means (set out elements of crime of prostitution from jurisdiction in which act occurred or would have occurred).]⁶

[(Set out elements of applicable Federal or State law) [is] [are] [a crime] [crimes] under the laws of [the United States] [the State of (identify the state).]⁷

[A person may be found guilty of an attempt if [he] [she] intended to (describe attempted act, i.e., transport Jane Doe across a state line with the intent that Jane Doe engage in prostitution) and voluntarily and intentionally carried out some act which was a substantial step⁸ toward that (describe attempted act).]⁹

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

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

Notes on Use

1. Title 18 USC 2423(e) authorizes the charging of an attempt or conspiracy under this statute. If a conspiracy is charged, modify instruction accordingly.

2. Use when the defendant is charged with transporting a minor to engage in prostitution.

3. Use when the defendant is charged with transporting a minor to engage in any sexual activity for which a person can be charged with a criminal offense.

4. Use when the defendant is charged with transporting a minor to engage in any sexual activity for which a person can be charged with a criminal offense.

5. Use when the defendant is charged with transporting a minor to engage in prostitution.

6. Use when the defendant is charged with transporting a minor to engage in prostitution.

7. Use when the defendant is charged with transporting a minor to engage in any sexual activity for which a person can be charged with a criminal offense.

8. An instruction defining "substantial step" may be given. See Instruction 8.01, Notes on Use, n.2, infra.

9. Use when the defendant is charged with an attempt. See generally, Instruction 8.01, infra.

Committee Comments

The Eighth Circuit has held that a defendant may be convicted of violating 18 USC 2423(b) if he or she travels in interstate commerce with the purpose of engaging in criminal sexual conduct with a person believed to be a minor regardless of whether such person is actually a minor. United States v. Hicks, 457 F.3d. 838, 841 (8^th Cir. 2006).

No 2006 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.21.841A
CONTROLLED SUBSTANCES - POSSESSION WITH INTENT TO DISTRIBUTE
(21 USC 841(a)(1))

FORECITE National™ Materials Related To This Instruction:

Federal Models By Offense: Drug Abuse Prevention And Control (Title 21 - Sections 841-864)

The crime of possession of (describe substance, e.g., cocaine) with intent to distribute, as charged in [Count _____ of] the indictment, has three elements, which are:

One, the defendant was in possession of (describe substance, e.g., cocaine);¹

Two, the defendant [knew that he was] [intended to be] in possession of [a controlled substance] [(describe substance, e.g., cocaine)];² and

Three, the defendant intended to distribute³ some or all⁴ of the (describe substance, e.g., cocaine) to another person.

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

Notes on Use

1. For jury instructions involving enhanced drug offenses under Apprendi v. New Jersey, see 6.21.841A1 - 6.21.846A1.

2. The defendant need not know what the controlled substance is if he knows he has possession of some controlled substance. United States v. Sheppard, 219 F.3d 766 (8^th Cir. 2000). The alternative language which best fits the case should be used.

3. In United States v. Shurn, 849 F.2d 1090 (8th Cir. 1988), the court approved the following instruction on "intent to distribute":

I instruct you that possession of a large quantity of heroin supports an inference of an intent to distribute.

Thus, in determining whether the defendant possessed heroin with the specific intent to distribute it, you should consider whether the defendant possessed a large quantity of heroin. If you believe that he did, then you may infer that he had the specific intent to distribute.

849 F.2d at 1095 n.6.

When such an instruction is used, care must be used that the instruction not be phrased in a manner which indicates the jury must make an inference. Likewise, "specific" should be omitted as modifying intent. The Committee recommends that such an instruction be rephrased as suggested in Instruction 4.13, supra.

"Distribute" may be defined if the meaning is unclear in the context of the case. The statute also makes it unlawful to manufacture, dispense or possess with intent to manufacture, distribute or dispense. If one of these alternatives has been charged, this element should be changed accordingly.

4. It is uncertain whether, in section 841(a)(1) possession with intent to distribute cases, drugs intended only for personal use are included in the drug quantity. In United States v. Williams, 247 F.3d 353, 357 (2d Cir. 2001), the court held that such amounts are not included. The Eighth Circuit has not ruled on the precise issue; however, in United States v. Fraser, 243 F.3d 473, 476 (8^th Cir. 2001), it concluded that in determining relevant conduct under the guidelines for a section 841(a)(1) offense, drugs possessed for solely personal use should not be included. The phrase "some or all" therefore should be used with care.

Committee Comments

See 2B Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 64.01-.18 (5th ed. 2000); United States v. Hudson, 717 F.2d 1211, 1212-13 (8th Cir. 1983); United States v. Brischetto, 538 F.2d 208, 210 (8th Cir. 1976).

Any fact (other than a prior conviction) that increases the maximum penalty for a crime must be charged in the indictment, submitted to the jury, and proven beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466 (2000); United States v. Aguayo-Delgado, 220 F.3d 926 (8^th Cir. 2000); United States v. Sheppard, 219 F.3d 766 (8^th Cir. 2000). Under the section 841(b) sentencing provisions, some of the facts that may raise the statutory maximum are the quantity of drugs involved in the offense, or whether death or serious bodily injury results from use of the drugs involved. For jury instructions involving such enhanced drug offenses, see 6.21.841A1 - 6.21.846A1. In Harris v. United States, 536 U.S. 545 (2002), the Supreme Court declined to extend Apprendi to facts increasing the statutory minimum sentence, reaffirming its earlier decision in McMillan v. Pennsylvania, 477 U.S. 79 (1986). Therefore, such facts need not be submitted to the jury.

The element of "possession" ordinarily does not need to be defined. Johnson v. United States, 506 F.2d 640, 643 (8th Cir. 1974). Where the government is relying on a joint possession or constructive possession theory, however, a definitional instruction may be required. See Instruction 8.02, infra; see also Ninth Cir. Crim. Jury Instr. 9.4.1 (1997); 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 16.05 (5th ed. 2000); United States v. Haynes, 653 F.2d 332, 333 (8th Cir. 1981); United States v. Weisser, 737 F.2d 729, 732 (8th Cir. 1984).

"Intent to distribute" typically is established through circumstantial evidence. United States v. Shurn, 849 F.2d 1090, 1093, 1095 (8th Cir. 1988) and cases cited therein. In particular, possession of a large quantity of a controlled substance can be sufficient evidence of an intent to distribute. United States v. Lopez, 42 F.3d 463, 467-68 (8th Cir. 1994). Other indicia of intent to distribute include "[drug] purity and presence of firearms, cash, packaging material, or other distribution paraphernalia." Id.

It is uncertain whether, in section 841(a)(1) possession with intent to distribute cases, drugs intended only for personal use are included in the drug quantity. In United States v. Williams, 247 F.3d 353, 357 (2d Cir. 2001), the court held that such amounts are not included. The Eighth Circuit has not ruled on the precise issue; however, in United States v. Fraser, 243 F.3d 473, 476 (8^th Cir. 2001), it concluded that in determining relevant conduct under the guidelines for a §841(a)(1) offense, drugs possessed for solely personal use should not be included. The phrase "some or all" therefore should be used with care.

In an appropriate case, a lesser-included offense instruction under 21 USC 844 must be given. See United States v. Brischetto, 538 F.2d 208 (8th Cir. 1976); see, e.g., United States v. Swiderski, 548 F.2d 445 (2d Cir. 1977) in which the court held that joint purchasers and possessors of a controlled substance who intend to share it between themselves may not be found guilty of distribution or possession with intent to distribute, but only of simple possession. See Instruction 3.10, supra, for a form of lesser-included offense instruction.

When distribution by a physician is charged, there must be a finding that the defendant dispensed the drug other than for a legitimate medical purpose and not in the usual course of medical practice. United States v. Green, 511 F.2d 1062, 1069-70 (7th Cir. 1975). In such a case, the defendant may be entitled to a "good faith" instruction. Green, 511 F.2d at 1071-72. See Instructions 9.05 and 9.08, infra.

The question whether something is a "controlled substance" under 21 USC 802(6) or a "narcotic drug" within the meaning of section 802(16) is a question of law. United States v. Porter, 544 F.2d 936, 940 (8th Cir. 1976).

(For 2008 version see below).

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

2008 Version

The crime of possession of (describe substance, e.g., cocaine) with intent to distribute, as charged in [Count _____ of] the indictment, has three elements, which are:

One, the defendant was in possession of (describe substance, e.g., cocaine);¹

Two, the defendant [knew that he was] [intended to be] in possession of [a controlled substance] [(describe substance, e.g., cocaine)];² and

Three, the defendant intended to distribute³ some or all⁴ of the (describe substance, e.g., cocaine) to another person.

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

Notes on Use

1. For jury instructions involving enhanced drug offenses under Apprendi v. New Jersey, see 6.21.841A1 - 6.21.846A1.

3. In United States v. Shurn, 849 F.2d 1090 (8th Cir. 1988), the court approved the following instruction on "intent to distribute":

I instruct you that possession of a large quantity of heroin supports an inference of an intent to distribute.

Thus, in determining whether the defendant possessed heroin with the specific intent to distribute it, you should consider whether the defendant possessed a large quantity of heroin. If you believe that he did, then you may infer that he had the specific intent to distribute.

849 F.2d at 1095 n.6.

Committee Comments

In an appropriate case, a lesser included offense instruction under 21 USC 844 must be given. See United States v. Brischetto, 538 F.2d 208 (8th Cir. 1976); see, e.g., United States v. Swiderski, 548 F.2d 445 (2d Cir. 1977) in which the court held that joint purchasers and possessors of a controlled substance who intend to share it between themselves may not be found guilty of distribution or possession with intent to distribute, but only of simple possession. See Instruction 3.10, supra, for a form of lesser included offense instruction.

(For 2006 version see below)

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

2006 Version

The crime of possession of (describe substance, e.g., cocaine) with intent to distribute, as charged in [Count _____ of] the indictment, has three elements, which are:

One, the defendant was in possession of (describe substance, e.g., cocaine);¹

Two, the defendant [knew that he was] [intended to be] in possession of [a controlled substance] [(describe substance, e.g., cocaine)];² and

Three, the defendant intended to distribute³ some or all⁴ of the (describe substance, e.g., cocaine) to another person.

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

Notes on Use

1. For jury instructions involving enhanced drug offenses under Apprendi v. New Jersey, see 6.21.841A1 - 6.21.846A1.

3. In United States v. Shurn, 849 F.2d 1090 (8th Cir. 1988), the court approved the following instruction on "intent to distribute":

I instruct you that possession of a large quantity of heroin supports an inference of an intent to distribute.

Thus, in determining whether the defendant possessed heroin with the specific intent to distribute it, you should consider whether the defendant possessed a large quantity of heroin. If you believe that he did, then you may infer that he had the specific intent to distribute.

849 F.2d at 1095 n.6.

4. It is uncertain whether, in section 841(a)(1) possession with intent to distribute cases, drugs intended only for personal use are included in the drug quantity. In United States v. Williams, 247 F.3d 353, 357 (2d Cir. 2001) and United States v. Rodriguez-Sanchez, 23 F.3d 1488, 1494-96 (9^th Cir. 1994), the courts held that such amounts are not included. The Eighth Circuit has not ruled on the precise issue; however, in United States v. Fraser, 243 F.3d 473, 476 (8^th Cir. 2001), it concluded that in determining relevant conduct under the guidelines for a section 841(a)(1) offense, drugs possessed for solely personal use should not be included. The phrase "some or all" therefore should be used with care.

Committee Comments

Any fact (other than a prior conviction) that increases the maximum penalty for a crime must be charged in the indictment, submitted to the jury, and proven beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466 (2000); United States v. Aguayo-Delgado, 220 F.3d 926 (8^th Cir. 2000); United States v. Sheppard, 219 F.3d 766 (8^th Cir. 2000). Under the section 841(b) sentencing provisions, some of the facts that may raise the statutory maximum are the quantity of drugs involved in the offense, or whether death or serious bodily injury results from use of the drugs involved. For jury instructions involving such enhanced drug offenses, see 6.21.841A1 - 6.21.846A1. In Harris v. United States, 536 U.S. 545 (2002), the Supreme Court declined to extend Apprendi to facts increasing the statutory minimum sentence, reaffirming its earlier decision in McMillan v. Pennsylvania, 477 U.S. 79 (1986). Therefore, such facts need not be submitted to the jury.

It is uncertain whether, in section 841(a)(1) possession with intent to distribute cases, drugs intended only for personal use are included in the drug quantity. In United States v. Williams, 247 F.3d 353, 357 (2d Cir. 2001) and United States v. Rodriguez-Sanchez, 23 F.3d 1488, 1494-96 (9^th Cir. 1994), the courts held that such amounts are not included. The Eighth Circuit has not ruled on the precise issue; however, in United States v. Fraser, 243 F.3d 473, 476 (8^th Cir. 2001), it concluded that in determining relevant conduct under the guidelines for a §841(a)(1) offense, drugs possessed for solely personal use should not be included. The phrase "some or all" therefore should be used with care.

For 2000 version see below

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

2000 Version

The crime of possession of (describe substance, e.g., cocaine) with intent to distribute, as charged in [Count _____ of] the indictment, has three essential elements, which are:

One, the defendant was in possession of (describe substance, e.g., cocaine);1

Two, the defendant [knew that he was] [intended to be] in possession of [a controlled substance] [(describe substance, e.g., cocaine)];2 and

Three, the defendant intended to distribute3 some or all of the (describe substance, e.g., cocaine) to another person.

(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 §§ 54.01-54.18 (4th ed. 1990); United States v. Hudson, 717 F.2d 1211, 1212-13 (8th Cir. 1983); United States v. Brischetto, 538 F.2d 208, 210 (8th Cir. 1976).

The element of "possession" ordinarily does not need to be defined. Johnson v. United States, 506 F.2d 640, 643 (8th Cir. 1974), cert. denied, 420 U.S. 978 (1975). Where the government is relying on a joint possession or constructive possession theory, however, a definitional instruction may be required. See Instruction 8.02, infra; see also Ninth Cir. Crim. Jury Instr. 9.4.1 (1997); 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 16.05 (4th ed. 1992); United States v. Haynes, 653 F.2d 332, 333 (8th Cir. 1981); United States v. Rojas, 537 F.2d 216, 220-21 (5th Cir. 1976), cert. denied, 429 U.S. 1061 (1977); United States v. Weisser, 737 F.2d 729, 732 (8th Cir. 1984), cert. denied, 469 U.S. 1158 (1985).

In an appropriate case, a lesser included offense instruction under 21 USC 844 must be given. See United States v. Brischetto, 538 F.2d 208 (8th Cir. 1976); see, e.g., United States v. Swiderski, 548 F.2d 445 (2d Cir. 1977) in which the court held that joint purchasers and possessors of a controlled substance who intend to share it between themselves may not be found guilty of distribution or possession with intent to distribute, but only of simple possession. See Instruction 3.10, supra, for a form of lesser included offense instruction.

When distribution by a physician is charged, there must be a finding that the defendant dispensed the drug other than for a legitimate medical purpose and not in the usual course of medical practice. United States v. Green, 511 F.2d 1062, 1069-70 (7th Cir.), cert. denied, 423 U.S. 1031 (1975). In such a case, the defendant may be entitled to a "good faith" instruction. Green, 511 F.2d at 1071-72. See Instructions 9.05 and 9.08, infra.

Notes on Use

1. The Anti-Drug Abuse Act of 1986 provides for progressively enhanced sentences for possession of certain quantities of controlled substances. This Circuit has held that the judge and not the jury should factually determine the quantity of a controlled substance in a particular case at the defendant's sentencing. This Circuit so held in a 2-1 decision as follows:

Our review of the language, structure and legislative history of 21 USC 841(b)(1)(A)(ii) and case law deciding the additional element of the offense/sentencing factor claims, . . . convinces us that Congress has merely deemed a particular fact relevant to sentencing and has dictated the enhancement available if the sentencing judge determines the offense so warrants.

* * * Having concluded that Congress intended that the quantity of cocaine was to be treated under Section 841(b)(1)(A)(ii) as a sentencing consideration, and not as an element of any offense, we need only mention that there is no constitutional right to jury sentencing, even where the sentence turns upon specific findings of fact.

United States v. Wood, 834 F.2d 1382, 1390 (8th Cir. 1987).

In a very similar context, in United States v. Rush, 840 F.2d 574 (8th Cir. en banc), cert. denied, 487 U.S. 1238 (1988), this Circuit determined that a defendant's prior record of convictions, which required that his sentence be enhanced under the Armed Career Criminal Act of 1984 should be determined by the district judge at sentencing, and not submitted to the jury. Four members of the Court joined in a dissenting opinion.

Four other circuits agree with this Circuit, and hold that the prior record should be determined by the Court. See United States v. Gregg, 803 F.2d 568 (10th Cir. 1986), cert. denied, 480 U.S. 920 (1987); United States v. Hawkins, 811 F.2d 210 (3d Cir.), cert. denied, 484 U.S. 833 (1987); United States v. Jackson, 824 F.2d 21 (D.C. Cir. 1987), cert. denied, 484 U.S. 1013 (1988); United States v. West, 826 F.2d 909 (9th Cir. 1987).

The Fifth Circuit has determined that the sentencing provisions of the Armed Career Criminal Act of 1984 create a new offense, and hold that the defendant's prior record therefore must be submitted to the jury for its determination of the defendant's record. United States v. Davis, 801 F.2d 754 (5th Cir. 1986).

Given the current state of law, the Committee makes no recommendation as to whether special interrogatories should be submitted to the jury on the quantity of a controlled substance, if enhanced punishment is sought by the Government. Because of the split in the circuits on the sentencing issue under the Armed Career Criminal Act, it appears that the Supreme Court will make the final determination in this matter. However, in Jones v. United States, 526 U.S. 227, 119 S. Ct. 1215 (1999), dealing with a carjacking offense under 18 USC 2119, the 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." If the quantity of drugs will affect the maximum punishment authorized, the safest approach would be to specify the quantity in the indictment and require the jury to find the quantity necessary to justify the enhanced punishment beyond a reasonable doubt.

2. The defendant need not know what the controlled substance is if he knows he has possession of some controlled substance. See, e.g., United States v. Gonzalez, 700 F.2d 196, 200-01 (5th Cir. 1983); United States v. Morales, 577 F.2d 769, 776 (2d Cir. 1978); United States v. Jewell, 532 F.2d 697, 698 (9th Cir.), cert. denied, 426 U.S. 951 (1976). The alternative language which best fits the case should be used.

3. In United States v. Shurn, 849 F.2d 1090 (8th Cir. 1988), the court approved the following instruction on "intent to distribute":

I instruct you that possession of a large quantity of heroin supports an inference of an intent to distribute.

Thus, in determining whether the defendant possessed heroin with the specific intent to distribute it, you should consider whether the defendant possessed a large quantity of heroin. If you believe that he did, then you may infer that he had the specific intent to distribute.

849 F.2d at 1095 n.6.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.21.841A.1
CONTROLLED SUBSTANCES - POSSESSION WITH INTENT TO DISTRIBUTE
(21 USC 841(a)(1)) Apprendi-affected Possession (Short Version)

The crime of possession of (describe substance (and amount), e.g., [a controlled substance] [name of controlled substance] [500 grams or more of a mixture or substance containing methamphetamine) with intent to distribute, as charged in [Count _____ of] the indictment, has four elements, which are:

One, the defendant possessed [a controlled substance] [(describe substance, e.g., a mixture or substance containing methamphetamine)];

Two, the defendant [knew that he] [intended to] possess[ed] [a controlled substance] [(describe substance, e.g., a mixture or substance containing methamphetamine)];

Three, the defendant intended to distribute¹ [the controlled substance] [(describe substance, e.g., some or all of the mixture or substance containing methamphetamine)]²; and

Four, (describe aggravating element,³ e.g., [the amount the defendant possessed with intent to distribute was 500 grams or more of a mixture or substance containing methamphetamine] [the amount involved in the offense was 500 grams or more of a mixture or substance containing methamphetamine], [or if that is not proved, that (describe lesser-included but still aggravated crime, e.g. [the amount the defendant possessed with intent to distribute was 50 grams or more but less than 500 grams of a mixture or substance containing methamphetamine] [the amount involved in the offense was 50 grams or more but less than 500 grams of a mixture or substance containing methamphetamine]]).

If you find these four elements unanimously and beyond a reasonable doubt, [and if you find unanimously and beyond a reasonable doubt that the defendant was not [entrapped] [as defined in Instruction No. ]], then you must find the defendant guilty of the crime of (describe crime). Record your determination on the Verdict Form which will be submitted to you with these instructions.

If you do not find the defendant guilty of this crime [under Count ], go on to consider whether the defendant possessed with intent to distribute some amount of (describe controlled substance). If you find the first three elements set forth above unanimously and beyond a reasonable doubt, [and if you find unanimously and beyond a reasonable doubt that the defendant was not [entrapped] [as defined in Instruction No. ]], you must find the defendant guilty of the crime of possession with intent to distribute (describe controlled substance, e.g., a mixture or substance containing methamphetamine). Otherwise, you must find the defendant not guilty. Record your determination on the Verdict Form.

(Instruction 3.09, supra, which describes the Government’s burden of proof, has already been incorporated in this instruction and should not be repeated.)

Notes on Use

1. In United States v. Shurn, 849 F.2d 1090 (8th Cir. 1988), the court approved the following instruction on "intent to distribute."

I instruct you that possession of a large quantity of heroin supports an inference of an intent to distribute.

Thus, in determining whether the defendant possessed heroin with the specific intent to distribute it, you should consider whether the defendant possessed a large quantity of heroin. If you believe that he did, then you may infer that he had the specific intent to distribute.

849 F.2d at 1095 n.6.

2. It is uncertain whether, in section 841(a)(1) possession with intent to distribute cases, drugs intended only for personal use are included in the drug quantity. In United States v. Williams, 247 F.3d 353, 357 (2d Cir. 2001), the court held that such amounts are not included. The Eighth Circuit has not ruled on the precise issue; however, in United States v. Fraser, 243 F.3d 473, 476 (8^th Cir. 2001), it concluded that in determining relevant conduct under the guidelines for a section 841(a)(1) offense, drugs possessed for solely personal use should not be included. The phrase "some or all" therefore should be used with care.

3. Any fact (other than a prior conviction) that increases the maximum penalty for a crime must be charged in the indictment, submitted to the jury, and proven beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466 (2000); United States v. Aguayo-Delgado, 220 F.3d 926 (8^th Cir. 2000); United States v. Sheppard, 219 F.3d 766 (8^th Cir. 2000). Under the section 841(b) sentencing provisions, some of the facts that may raise the statutory maximum are the quantity of drugs involved in the offense, whether death or serious bodily injury results from use of the drugs involved, or whether the defendant has a prior felony drug conviction. In United States v. Sheppard, 219 F.3d at 768-69, the panel suggested that the district court’s submission of drug quantity to the jury in a special interrogatory rather than as an element of the offense was harmless error. However, in United States v. Harris, 310 F.3d 1105 (8^th Cir. 2002), the Court, without mentioning Sheppard, explicitly held that it was not an Apprendi error to submit the issue of drug quantity to the jury by use of a special interrogatory. The Committee believes, therefore, that submission of drug quantity either as a formal element, as is done in 6.21.841A.1 (short) and 6.21.841A.1 (long) or by special interrogatory is permissible. See 6.21.841A.1(b) for a verdict form with special interrogatories.

In Apprendi, 530 U.S. at 488, the majority left open the possibility that it might revisit the issue of whether a defendant’s prior conviction(s) must be submitted to the jury and found beyond a reasonable doubt before an enhanced punishment based on prior convictions is appropriate. Unless and until the Court does so, prior convictions used to enhance a sentence need not be submitted to the jury and proven beyond a reasonable doubt. Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998); United States v. Peltier, 276 F.3d 1003, 1006 (8^th Cir. 2002); United States v. Abernathy, 277 F.3d 1048, 1050 (8^th Cir. 2002). In Harris v. United States, 536 U.S. 545 (2002), the Supreme Court declined to extend Apprendi to facts increasing the statutory minimum sentence, reaffirming its earlier decision in McMillan v. Pennsylvania, 477 U.S. 79 (1986). Therefore, such facts need not be submitted to the jury.

Suggested wording for the aggravating facts listed in the above paragraph are:

a) the crime involved (describe substance and amount) or more. [This alternative is to be used where the amount of drugs increasing the maximum sentence is not in dispute. Where the offense involves two or more controlled substances, and the indictment alleges quantities of each substance sufficient to raise the maximum sentence, an additional element should be submitted to the jury for a finding on each controlled substance.]

b) a death resulted from use of the (describe substance). [In United States v. McIntosh, 236 F.3d 968, 972 (8^th Cir. 2001), the Eighth Circuit held that the "death resulting" charge is a strict liability one - the court may not impose "a foreseeability or proximate cause requirement." Accord United States v. Soler, 275 F.3d 146 (1^st Cir. 2002)].

Committee Comments

See Committee Comments to 6.21.841A.

(For 2008 version see below).

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

2008 Version

The crime of possession of (describe substance (and amount), e.g., [a controlled substance] [name of controlled substance] [500 grams or more of a mixture or substance containing methamphetamine) with intent to distribute, as charged in [Count _____ of] the indictment, has four elements, which are:

One, the defendant possessed [a controlled substance] [describe substance, e.g., a mixture or substance containing methamphetamine];

Two, the defendant [knew that he] [intended to] possess[ed] [a controlled substance] [describe substance, e.g., a mixture or substance containing methamphetamine];

Three, the defendant intended to distribute¹ [the controlled substance] [describe substance, e.g., some or all of the mixture or substance containing methamphetamine]²; and

Four, (describe aggravating element,³ e.g., [the amount the defendant possessed with intent to distribute was 500 grams or more of a mixture or substance containing methamphetamine] [the amount involved in the offense was 500 grams or more of a mixture or substance containing methamphetamine], [or if that is not proved, that (describe lesser included but still aggravated crime, e.g. [the amount the defendant possessed with intent to distribute was 50 grams or more but less than 500 grams of a mixture or substance containing methamphetamine] [the amount involved in the offense was 50 grams or more but less than 500 grams of a mixture or substance containing methamphetamine]]).

If you find these four elements unanimously and beyond a reasonable doubt, [and if you find unanimously and beyond a reasonable doubt that the defendant was not [entrapped] [as defined in Instruction No. ]], then you must find the defendant guilty of the crime of (describe crime). Record your determination on the Verdict Form which will be submitted to you with these instructions.

If you do not find the defendant guilty of this crime [under Count ], go on to consider whether the defendant possessed with intent to distribute some amount of (describe controlled substance). If you find the first three elements set forth above unanimously and beyond a reasonable doubt, [and if you find unanimously and beyond a reasonable doubt that the defendant was not [entrapped] [as defined in Instruction No. ]], you must find the defendant guilty of the crime of possession with intent to distribute (describe controlled substance, e.g., a mixture or substance containing methamphetamine). Otherwise, you must find the defendant not guilty. Record your determination on the Verdict Form.

(Instruction 3.09, supra, which describes the Government’s burden of proof, has already been incorporated in this instruction and should not be repeated.)

Notes on Use

1. In United States v. Shurn, 849 F.2d 1090 (8th Cir. 1988), the court approved the following instruction on "intent to distribute."

I instruct you that possession of a large quantity of heroin supports an inference of an intent to distribute.

Thus, in determining whether the defendant possessed heroin with the specific intent to distribute it, you should consider whether the defendant possessed a large quantity of heroin. If you believe that he did, then you may infer that he had the specific intent to distribute.

849 F.2d at 1095 n.6.

Suggested wording for the aggravating facts listed in the above paragraph are:

a) the crime involved [describe substance and amount] or more. [This alternative is to be used where the amount of drugs increasing the maximum sentence is not in dispute. Where the offense involves two or more controlled substances, and the indictment alleges quantities of each substance sufficient to raise the maximum sentence, an additional element should be submitted to the jury for a finding on each controlled substance.]

b) a death resulted from use of the [describe substance]. [In United States v. McIntosh, 236 F.3d 968, 972 (8^th Cir. 2001), the Eighth Circuit held that the "death resulting" charge is a strict liability one - the court may not impose "a foreseeability or proximate cause requirement." Accord, United States v. Soler, 275 F.3d 146 (1^st Cir. 2002)].

Committee Comments

See Committee Comments to 6.21.841A.

(For 2006 version see below)

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

2006 Version

The crime of possession of (describe substance (and amount), e.g., [a controlled substance] [name of controlled substance] [500 grams or more of a mixture or substance containing methamphetamine) with intent to distribute, as charged in [Count _____ of] the indictment, has four elements, which are:

One, the defendant possessed [a controlled substance] [describe substance, e.g., a mixture or substance containing methamphetamine];

Two, the defendant [knew that he] [intended to] possess[ed] [a controlled substance] [describe substance, e.g., a mixture or substance containing methamphetamine];

Three, the defendant intended to distribute¹ [the controlled substance] [describe substance, e.g., some or all of the mixture or substance containing methamphetamine]²; and

Four, (describe aggravating element,³ e.g., [the amount the defendant possessed with intent to distribute was 500 grams or more of a mixture or substance containing methamphetamine] [the amount involved in the offense was 500 grams or more of a mixture or substance containing methamphetamine], [or if that is not proved, that (describe lesser included but still aggravated crime, e.g. [the amount the defendant possessed with intent to distribute was 50 grams or more but less than 500 grams of a mixture or substance containing methamphetamine] [the amount involved in the offense was 50 grams or more but less than 500 grams of a mixture or substance containing methamphetamine]]).

If you find these four elements unanimously and beyond a reasonable doubt, [and if you find unanimously and beyond a reasonable doubt that the defendant was not [entrapped] [as defined in Instruction No. ]], then you must find the defendant guilty of the crime of (describe crime). Record your determination on the Verdict Form which will be submitted to you with these instructions.

If you do not find the defendant guilty of this crime [under Count ], go on to consider whether the defendant possessed with intent to distribute some amount of (describe controlled substance). If you find the first three elements set forth above unanimously and beyond a reasonable doubt, [and if you find unanimously and beyond a reasonable doubt that the defendant was not [entrapped] [as defined in Instruction No. ]], you must find the defendant guilty of the crime of possession with intent to distribute (describe controlled substance, e.g., a mixture or substance containing methamphetamine). Otherwise, you must find the defendant not guilty. Record your determination on the Verdict Form.

(Instruction 3.09, supra, which describes the Government’s burden of proof, has already been incorporated in this instruction and should not be repeated.)

Notes on Use

1. In United States v. Shurn, 849 F.2d 1090 (8th Cir. 1988), the court approved the following instruction on "intent to distribute."

I instruct you that possession of a large quantity of heroin supports an inference of an intent to distribute.

Thus, in determining whether the defendant possessed heroin with the specific intent to distribute it, you should consider whether the defendant possessed a large quantity of heroin. If you believe that he did, then you may infer that he had the specific intent to distribute.

849 F.2d at 1095 n.6.

2. It is uncertain whether, in section 841(a)(1) possession with intent to distribute cases, drugs intended only for personal use are included in the drug quantity. In United States v. Williams, 247 F.3d 353, 357 (2d Cir. 2001) and United States v. Rodriguez-Sanchez, 23 F.3d 1488, 1494-96 (9^th Cir. 1994), the courts held that such amounts are not included. The Eighth Circuit has not ruled on the precise issue; however, in United States v. Fraser, 243 F.3d 473, 476 (8^th Cir. 2001), it concluded that in determining relevant conduct under the guidelines for a section 841(a)(1) offense, drugs possessed for solely personal use should not be included. The phrase "some or all" therefore should be used with care.

Suggested wording for the aggravating facts listed in the above paragraph are:

a) the crime involved [describe substance and amount] or more. [This alternative is to be used where the amount of drugs increasing the maximum sentence is not in dispute. Where the offense involves two or more controlled substances, and the indictment alleges quantities of each substance sufficient to raise the maximum sentence, an additional element should be submitted to the jury for a finding on each controlled substance.]

b) a death resulted from use of the [describe substance]. [In United States v. McIntosh, 236 F.3d 968, 972 (8^th Cir. 2001), the Eighth Circuit held that the "death resulting" charge is a strict liability one - the court may not impose "a foreseeability or proximate cause requirement." Accord, United States v. Soler, 275 F.3d 146 (1^st Cir. 2002)].

Committee Comments

See Committee Comments to 6.21.841A.

No 2000 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.21.841A.1
CONTROLLED SUBSTANCES - POSSESSION WITH INTENT TO DISTRIBUTE
(21 USC 841(a)(1)) Apprendi-affected Possession (Long Version)

The crime of possession of (describe substance (and amount), e.g., [a controlled substance] [name of controlled substance] [500 grams or more of a mixture or substance containing methamphetamine) with intent to distribute, as charged in [Count _____ of] the indictment, has four elements, which are:

One, the defendant possessed [a controlled substance] (describe substance, e.g., a mixture or substance containing methamphetamine);

Two, the defendant [knew that he] [intended to] possess[ed] [a controlled substance] [(describe substance, e.g., a mixture or substance containing methamphetamine)];

Three, the defendant intended to distribute¹ [the controlled substance] [(describe substance, e.g., some or all of the mixture or substance containing methamphetamine)]²; and

Four, (describe aggravating element,³ e.g. [the amount the defendant possessed with intent to distribute was 500 grams or more of a mixture or substance containing methamphetamine] [the amount involved in the offense was 500 grams or more of a mixture or substance containing methamphetamine]).

If you find these four elements unanimously and beyond a reasonable doubt, [and if you find unanimously and beyond a reasonable doubt that the defendant was not [entrapped] [as defined in Instruction No. ]], then you must find the defendant guilty of the crime of (describe crime). Record your determination on the Verdict Form which will be submitted to you with these instructions.

[If you do not find the defendant guilty of this crime [under Count ], go on to consider whether (describe lesser aggravating element, e.g. [the amount the defendant possessed with intent to distribute was 50 grams or more but less than 500 grams of a mixture or substance containing methamphetamine] [the crime involved 50 grams or more but less than 500 grams of a mixture or substance containing methamphetamine].

If you find unanimously and beyond a reasonable doubt:

The first three elements set forth above; and

Fourth, that (describe lesser aggravating element, e.g. [the defendant possessed with intent to distribute 50 grams or more but less than 500 grams of a mixture or substance containing methamphetamine] [the crime involved 50 grams or more but less than 500 grams of a mixture or substance containing methamphetamine]

[and if you find unanimously and beyond a reasonable doubt that the defendant was not [entrapped] [as defined in Instruction No. ]], then you must find the defendant guilty of (describe crime). Record your determination on the Verdict Form.]

If you do not find the defendant guilty of this crime [under Count ], go on to consider whether the defendant possessed with intent to distribute some amount of (describe controlled substance).

If you find the first three elements set forth above unanimously and beyond a reasonable doubt, [and if you find unanimously and beyond a reasonable doubt that the defendant was not [entrapped] [as defined in Instruction No. ]] you must find the defendant guilty of the crime of (describe crime). Otherwise, you must find the defendant not guilty. Record your determination on the Verdict Form.

(Instruction 3.09, supra, which describes the Government’s burden of proof, has already been incorporated in this instruction and should not be repeated.)

Notes on Use

1. In United States v. Shurn, 849 F.2d 1090 (8th Cir. 1988), the court approved the following instruction on "intent to distribute."

I instruct you that possession of a large quantity of heroin supports an inference of an intent to distribute.

Thus, in determining whether the defendant possessed heroin with the specific intent to distribute it, you should consider whether the defendant possessed a large quantity of heroin. If you believe that he did, then you may infer that he had the specific intent to distribute.

849 F.2d at 1095 n.6.

3. Any fact (other than a prior conviction) that increases the maximum penalty for a crime must be charged in the indictment, submitted to the jury, and proven beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466 (2000); United States v. Aguayo-Delgado, 220 F.3d 926 (8^th Cir. 2000); United States v. Sheppard, 219 F.3d 766 (8^th Cir. 2000). Under the section 841(b) sentencing provisions, some of the facts that may raise the statutory maximum are the quantity of drugs involved in the offense, whether death or serious bodily injury results from use of the drugs involved, or whether the defendant has a prior felony drug conviction. In United States v. Sheppard, 219 F.3d at 768-69, the panel suggested that the district court’s submission of drug quantity to the jury in a special interrogatory rather than as an element of the offense was harmless error. However, in United States v. Harris, 310 F.3d 1105, 1110 (8^th Cir. 2002), the Court, without mentioning Sheppard, explicitly held that it was not an Apprendi error to submit the issue of drug quantity to the jury by use of a special interrogatory. The Committee believes, therefore, that submission of drug quantity either as a formal element, as is done in 6.21.841A.1 (short) and 6.21.841A.1 (long) or by special interrogatory is permissible. See 6.21.841A.1(b) for a verdict form with special interrogatories.

Suggested wording for the aggravating facts listed in the above paragraph are:

a) the crime involved (describe substance and amount) or more. [This alternative is to be used where the amount of drugs increasing the maximum sentence is not in dispute. Where the offense involves two or more controlled substances, and the indictment alleges quantities of each substance sufficient to raise the maximum sentence, an additional element should be submitted to the jury for a finding on each controlled substance.]

b) a death resulted from use of the (describe substance). [In United States v. McIntosh, 236 F.3d 968, 972 (8^th Cir. 2001), the Eighth Circuit held that the "death resulting" charge is a strict liability one - the court may not impose "a foreseeability or proximate cause requirement." Accord United States v. Soler, 275 F.3d 146 (1^st Cir. 2002)].

Committee Comments

See Committee Comments to 6.21.841A.

(For 2008 version see below).

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

2008 Version

The crime of possession of (describe substance (and amount), e.g., [a controlled substance] [name of controlled substance] [500 grams or more of a mixture or substance containing methamphetamine) with intent to distribute, as charged in [Count _____ of] the indictment, has four elements, which are:

One, the defendant possessed [a controlled substance] [describe substance, e.g., a mixture or substance containing methamphetamine];

Two, the defendant [knew that he] [intended to] possess[ed] [a controlled substance] [describe substance, e.g., a mixture or substance containing methamphetamine];

Three, the defendant intended to distribute¹ [the controlled substance] [describe substance, e.g., some or all of the mixture or substance containing methamphetamine]²; and

Four, (describe aggravating element,³ e.g. [the amount the defendant possessed with intent to distribute was 500 grams or more of a mixture or substance containing methamphetamine] [the amount involved in the offense was 500 grams or more of a mixture or substance containing methamphetamine]).

If you find these four elements unanimously and beyond a reasonable doubt, [and if you find unanimously and beyond a reasonable doubt that the defendant was not [entrapped] [as defined in Instruction No. ]], then you must find the defendant guilty of the crime of (describe crime). Record your determination on the Verdict Form which will be submitted to you with these instructions.

[If you do not find the defendant guilty of this crime [under Count ], go on to consider whether (describe lesser aggravating element, e.g. [the amount the defendant possessed with intent to distribute was 50 grams or more but less than 500 grams of a mixture or substance containing methamphetamine] [the crime involved 50 grams or more but less than 500 grams of a mixture or substance containing methamphetamine].

If you find unanimously and beyond a reasonable doubt:

The first three elements set forth above; and

Fourth, that (describe lesser aggravating element, e.g. [the defendant possessed with intent to distribute 50 grams or more but less than 500 grams of a mixture or substance containing methamphetamine] [the crime involved 50 grams or more but less than 500 grams of a mixture or substance containing methamphetamine]

[and if you find unanimously and beyond a reasonable doubt that the defendant was not [entrapped] [as defined in Instruction No. ]], then you must find the defendant guilty of (describe crime). Record your determination on the Verdict Form.]

If you do not find the defendant guilty of this crime [under Count ], go on to consider whether the defendant possessed with intent to distribute some amount of (describe controlled substance).

If you find the first three elements set forth above unanimously and beyond a reasonable doubt, [and if you find unanimously and beyond a reasonable doubt that the defendant was not [entrapped] [as defined in Instruction No. ]] you must find the defendant guilty of the crime of (describe crime). Otherwise, you must find the defendant not guilty. Record your determination on the Verdict Form.

(Instruction 3.09, supra, which describes the Government’s burden of proof, has already been incorporated in this instruction and should not be repeated.)

Notes on Use

1. In United States v. Shurn, 849 F.2d 1090 (8th Cir. 1988), the court approved the following instruction on "intent to distribute."

I instruct you that possession of a large quantity of heroin supports an inference of an intent to distribute.

Thus, in determining whether the defendant possessed heroin with the specific intent to distribute it, you should consider whether the defendant possessed a large quantity of heroin. If you believe that he did, then you may infer that he had the specific intent to distribute.

849 F.2d at 1095 n.6.

3. Any fact (other than a prior conviction) that increases the maximum penalty for a crime must be charged in the indictment, submitted to the jury, and proven beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466 (2000); United States v. Aguayo-Delgado, 220 F.3d 926 (8^th Cir. 2000); United States v. Sheppard, 219 F.3d 766 (8^th Cir. 2000). Under the section 841(b) sentencing provisions, some of the facts that may raise the statutory maximum are the quantity of drugs involved in the offense, whether death or serious bodily injury results from use of the drugs involved, or whether the defendant has a prior felony drug conviction. In United States v. Sheppard, 219 F.3d at 768-69, the panel suggested that the district court’s submission of drug quantity to the jury in a special interrogatory rather than as an element of the offense was harmless error. However, in United States v. Harris, 310 F.3d 1105, 1110 (8^th Cir. 2002), the Court, without mentioning Sheppard, explicitly held that it was not an Apprendi error to submit the issue of drug quantity to the jury by use of a special interrogatory. The Committee believes, therefore, that submission of drug quantity either as a formal element, as is done in 6.21.841A.1 (short) and 6.21.841A.1 (long) or by special interrogatory is permissible. See 6.21.841A.1(b) for a verdict form with special interrogatories.

Suggested wording for the aggravating facts listed in the above paragraph are:

a) the crime involved [describe substance and amount] or more. [This alternative is to be used where the amount of drugs increasing the maximum sentence is not in dispute. Where the offense involves two or more controlled substances, and the indictment alleges quantities of each substance sufficient to raise the maximum sentence, an additional element should be submitted to the jury for a finding on each controlled substance.]

b) a death resulted from use of the [describe substance] [In United States v. McIntosh, 236 F.3d 968, 972 (8^th Cir. 2001), the Eighth Circuit held that the "death resulting" charge is a strict liability one - the court may not impose "a foreseeability or proximate cause requirement." Accord, United States v. Soler, 275 F.3d 146 (1^st Cir. 2002)].

Committee Comments

See Committee Comments to 6.21.841A.

(For 2006 version see below)

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

2006 Version

The crime of possession of (describe substance (and amount), e.g., [a controlled substance] [name of controlled substance] [500 grams or more of a mixture or substance containing methamphetamine) with intent to distribute, as charged in [Count _____ of] the indictment, has four elements, which are:

One, the defendant possessed [a controlled substance] [describe substance, e.g., a mixture or substance containing methamphetamine];

Two, the defendant [knew that he] [intended to] possess[ed] [a controlled substance] [describe substance, e.g., a mixture or substance containing methamphetamine];

Three, the defendant intended to distribute¹ [the controlled substance] [describe substance, e.g., some or all of the mixture or substance containing methamphetamine]²; and

Four, (describe aggravating element,³ e.g. [the amount the defendant possessed with intent to distribute was 500 grams or more of a mixture or substance containing methamphetamine] [the amount involved in the offense was 500 grams or more of a mixture or substance containing methamphetamine]).

If you find these four elements unanimously and beyond a reasonable doubt, [and if you find unanimously and beyond a reasonable doubt that the defendant was not [entrapped] [as defined in Instruction No. ]], then you must find the defendant guilty of the crime of (describe crime). Record your determination on the Verdict Form which will be submitted to you with these instructions.

[If you do not find the defendant guilty of this crime [under Count ], go on to consider whether (describe lesser aggravating element, e.g. [the amount the defendant possessed with intent to distribute was 50 grams or more but less than 500 grams of a mixture or substance containing methamphetamine] [the crime involved 50 grams or more but less than 500 grams of a mixture or substance containing methamphetamine].

If you find unanimously and beyond a reasonable doubt:

The first three elements set forth above; and

Fourth, that (describe lesser aggravating element, e.g. [the defendant possessed with intent to distribute 50 grams or more but less than 500 grams of a mixture or substance containing methamphetamine] [the crime involved 50 grams or more but less than 500 grams of a mixture or substance containing methamphetamine]

[and if you find unanimously and beyond a reasonable doubt that the defendant was not [entrapped] [as defined in Instruction No. ]], then you must find the defendant guilty of (describe crime). Record your determination on the Verdict Form.]

If you do not find the defendant guilty of this crime [under Count ], go on to consider whether the defendant possessed with intent to distribute some amount of (describe controlled substance).

If you find the first three elements set forth above unanimously and beyond a reasonable doubt, [and if you find unanimously and beyond a reasonable doubt that the defendant was not [entrapped] [as defined in Instruction No. ]] you must find the defendant guilty of the crime of (describe crime). Otherwise, you must find the defendant not guilty. Record your determination on the Verdict Form.

(Instruction 3.09, supra, which describes the Government’s burden of proof, has already been incorporated in this instruction and should not be repeated.)

Notes on Use

1. In United States v. Shurn, 849 F.2d 1090 (8th Cir. 1988), the court approved the following instruction on "intent to distribute."

I instruct you that possession of a large quantity of heroin supports an inference of an intent to distribute.

Thus, in determining whether the defendant possessed heroin with the specific intent to distribute it, you should consider whether the defendant possessed a large quantity of heroin. If you believe that he did, then you may infer that he had the specific intent to distribute.

849 F.2d at 1095 n.6.

2. It is uncertain whether, in section 841(a)(1) possession with intent to distribute cases, drugs intended only for personal use are included in the drug quantity. In United States v. Williams, 247 F.3d 353, 357 (2d Cir. 2001) and United States v. Rodriguez-Sanchez, 23 F.3d 1488, 1494-96 (9^th Cir. 1994), the courts held that such amounts are not included. The Eighth Circuit has not ruled on the precise issue; however, in United States v. Fraser, 243 F.3d 473, 476 (8^th Cir. 2001), it concluded that in determining relevant conduct under the guidelines for a section 841(a)(1) offense, drugs possessed for solely personal use should not be included. The phrase "some or all" therefore should be used with care.

3. Any fact (other than a prior conviction) that increases the maximum penalty for a crime must be charged in the indictment, submitted to the jury, and proven beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466 (2000); United States v. Aguayo-Delgado, 220 F.3d 926 (8^th Cir. 2000); United States v. Sheppard, 219 F.3d 766 (8^th Cir. 2000). Under the section 841(b) sentencing provisions, some of the facts that may raise the statutory maximum are the quantity of drugs involved in the offense, whether death or serious bodily injury results from use of the drugs involved, or whether the defendant has a prior felony drug conviction. In United States v. Sheppard, 219 F.3d at 768-69, the panel suggested that the district court’s submission of drug quantity to the jury in a special interrogatory rather than as an element of the offense was harmless error. However, in United States v. Harris, 310 F.3d 1105, 1110 (8^th Cir. 2002), the Court, without mentioning Sheppard, explicitly held that it was not an Apprendi error to submit the issue of drug quantity to the jury by use of a special interrogatory. The Committee believes, therefore, that submission of drug quantity either as a formal element, as is done in 6.21.841A.1 (short) and 6.21.841A.1 (long) or by special interrogatory is permissible. See 6.21.841A.1(b) for a verdict form with special interrogatories.

Suggested wording for the aggravating facts listed in the above paragraph are:

a) the crime involved [describe substance and amount] or more. [This alternative is to be used where the amount of drugs increasing the maximum sentence is not in dispute. Where the offense involves two or more controlled substances, and the indictment alleges quantities of each substance sufficient to raise the maximum sentence, an additional element should be submitted to the jury for a finding on each controlled substance.]

b) a death resulted from use of the [describe substance] [In United States v. McIntosh, 236 F.3d 968, 972 (8^th Cir. 2001), the Eighth Circuit held that the "death resulting" charge is a strict liability one - the court may not impose "a foreseeability or proximate cause requirement." Accord, United States v. Soler, 275 F.3d 146 (1^st Cir. 2002)].

Committee Comments

See Committee Comments to 6.21.841A.

No 2000 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.21.841A.1(a)
VERDICT FORM; WITH LESSER INCLUDED OFFENSE

VERDICT

We, the jury, find Defendant (name) _______________ [guilty/not guilty]of the crime of (insert brief description, e.g., possession with intent to distribute 500 grams or more of a mixture or substance containing methamphetamine) [as charged in Count _____ of the indictment] [under Instruction No. _____].

____________________________________
Foreperson

_______________
(Date)

If you unanimously find Defendant (name) guilty of the above crime, have your foreperson write "guilty" in the above blank space, sign and date this verdict form. Do not consider the following verdict form.

If you unanimously find the Defendant (name) not guilty of the above charge, have your foreperson write "not guilty" in the above blank space. You then must consider whether the defendant is guilty of (specify lesser-included offense) on the following verdict form.

If you are unable to reach a unanimous decision on the above charge, leave the space blank and decide whether the defendant is guilty of (specify lesser-included offense, e.g., possession with intent to distribute 50 grams or more of a mixture or substance containing methamphetamine) as follows:

[LESSER-INCLUDED OFFENSE]

[We, the jury, find Defendant (name) _______________ [guilty/not guilty] of the crime of (insert brief description, e.g., possession with intent to distribute 50 grams or more of a mixture or substance containing methamphetamine) [as charged in Count _____ of the indictment] [under Instruction No. _____].

___________________________________
Foreperson

_____________
(Date)

If you unanimously find Defendant (name) guilty of the above crime, have your foreperson write "guilty" in the above blank space, sign and date this verdict form. Do not consider the following verdict form.

If you unanimously find Defendant (name) not guilty of the above charge, have your foreperson write "not guilty" in the above blank space. You then must consider whether the defendant is guilty of (specify lesser-included offense) on the following verdict form.

If you are unable to reach a unanimous decision on the above charge, leave the space blank and decide whether the defendant is guilty of (specify lesser-included offense) as follows:]

LESSER-INCLUDED OFFENSE

We, the jury, find Defendant (name) _______________ [guilty/not guilty] of the crime of (insert brief description, e.g., possession with intent to distribute a mixture or substance containing methamphetamine)) [as charged in Count _____ of the indictment] [under Instruction No. __ ].

____________________________________
Foreperson

_______________
(Date)

(For 2008 version see below).

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

2008 Version

We, the jury, find Defendant (name) _______________[guilty/not guilty] of the crime of (insert brief description, e.g., possession with intent to distribute 500 grams or more of a mixture or substance containing methamphetamine) [as charged in Count _____ of the indictment] [under Instruction No. _____].

____________________________________
Foreperson

_______________
(Date)

If you unanimously find Defendant (name) guilty of the above crime, have your foreperson write "guilty" in the above blank space, sign and date this verdict form. Do not consider the following verdict form.

If you unanimously find the Defendant (name) not guilty of the above charge, have your foreperson write "not guilty" in the above blank space. You then must consider whether the defendant is guilty of (specify lesser included offense) on the following verdict form.

If you are unable to reach a unanimous decision on the above charge, leave the space blank and decide whether the defendant is guilty of (specify lesser included offense, e.g., possession with intent to distribute 50 grams or more of a mixture or substance containing methamphetamine) as follows:

[LESSER INCLUDED OFFENSE]

[We, the jury, find Defendant (name) _______________ [guilty/not guilty] of the crime of (insert brief description, e.g., possession with intent to distribute 50 grams or more of a mixture or substance containing methamphetamine) [as charged in Count _____ of the indictment] [under Instruction No. _____].

___________________________________
Foreperson

_____________
(Date)

If you unanimously find Defendant (name) guilty of the above crime, have your foreperson write "guilty" in the above blank space, sign and date this verdict form. Do not consider the following verdict form.

If you unanimously find Defendant (name) not guilty of the above charge, have your foreperson write "not guilty" in the above blank space. You then must consider whether the defendant is guilty of (specify lesser included offense) on the following verdict form.

If you are unable to reach a unanimous decision on the above charge, leave the space blank and decide whether the defendant is guilty of (specify lesser included offense) as follows:]

LESSER INCLUDED OFFENSE

We, the jury, find Defendant (name) _______________ [guilty/not guilty] of the crime of (insert brief description, e.g., possession with intent to distribute a mixture or substance containing methamphetamine)) [as charged in Count _____ of the indictment] [under Instruction No. __ ].

____________________________________
Foreperson

_______________
(Date)

(For 2006 version see below)

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

2006 Version

VERDICT

We, the jury, find Defendant (name) _______________ [guilty/not guilty]of the crime of (insert brief description, e.g., possession with intent to distribute 500 grams or more of a mixture or substance containing methamphetamine) [as charged in Count _____ of the indictment] [under Instruction No. _____].

____________________________________
Foreperson

_______________
(Date)

If you unanimously find Defendant (name) guilty of the above crime, have your foreperson write "guilty" in the above blank space, sign and date this verdict form. Do not consider the following verdict form.

If you unanimously find the Defendant (name) not guilty of the above charge, have your foreperson write "not guilty" in the above blank space. You then must consider whether the defendant is guilty of (specify lesser included offense) on the following verdict form.

If you are unable to reach a unanimous decision on the above charge, leave the space blank and decide whether the defendant is guilty of (specify lesser included offense, e.g., possession with intent to distribute 50 grams or more of a mixture or substance containing methamphetamine) as follows:

[LESSER INCLUDED OFFENSE]

[We, the jury, find Defendant (name) _______________ [guilty/not guilty] of the crime of (insert brief description, e.g., possession with intent to distribute 50 grams or more of a mixture or substance containing methamphetamine) [as charged in Count _____ of the indictment] [under Instruction No. _____].

___________________________________
Foreperson

_____________
(Date)

If you unanimously find Defendant (name) guilty of the above crime, have your foreperson write "guilty" in the above blank space, sign and date this verdict form. Do not consider the following verdict form.

If you unanimously find Defendant (name) not guilty of the above charge, have your foreperson write "not guilty" in the above blank space. You then must consider whether the defendant is guilty of (specify lesser included offense) on the following verdict form.

If you are unable to reach a unanimous decision on the above charge, leave the space blank and decide whether the defendant is guilty of (specify lesser included offense) as follows:]

LESSER INCLUDED OFFENSE

We, the jury, find Defendant (name) _______________ [guilty/not guilty] of the crime of (insert brief description, e.g., possession with intent to distribute a mixture or substance containing methamphetamine)) [as charged in Count _____ of the indictment] [under Instruction No. __ ].

____________________________________
Foreperson

_______________
(Date)

No 2000 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.21.841A.1(b)
SPECIAL VERDICT FORM
(INTERROGATORIES TO FOLLOW FINDING OF GUILT)

VERDICT

We, the jury, find Defendant (name) __________________ (guilty/not guilty) of possession of a controlled substance with intent to distribute [as charged in Count _____ of the indictment] [under Instruction No. _____ ].

If you find the defendant "guilty," you must answer the following:

The quantity of (describe substance, e.g. [a mixture or substance containing a detectable amount of] [name controlled substance]) the defendant possessed with intent to distribute was:

a. _____ (describe substance and the highest applicable quantity range, e.g. 5 kilograms or more of a mixture or substance containing a detectable amount of cocaine);

b. _____ (describe substance and next lower quantity range, e.g. 500 grams or more but less than 5 kilograms of a mixture or substance containing a detectable amount of cocaine.)

c. _____ (describe substance and lowest quantity range, e.g., less than 500 grams of a mixture or substance containing cocaine).

Check the drug quantity which the jury unanimously agrees was involved in the offense. If you are unable to agree, check [b][c](the entry for the lowest drug quantity).

____________________________________
Foreperson

____________________
(Date)

(For 2008 version see below).

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

2008 Version

We, the jury, find Defendant (name) __________________ (guilty/not guilty) of possession of a controlled substance with intent to distribute [as charged in Count _____ of the indictment] [under Instruction No. _____ ].

If you find the defendant "guilty," you must answer the following:

The quantity of (describe substance, e.g. [a mixture or substance containing a detectable amount of] [name controlled substance]) the defendant possessed with intent to distribute was:

a. _____ (describe substance and the highest applicable quantity range, e.g. 5 kilograms or more of a mixture or substance containing a detectable amount of cocaine);

b. _____ (describe substance and next lower quantity range, e.g. 500 grams or more but less than 5 kilograms of a mixture or substance containing a detectable amount of cocaine.)

c. _____ (describe substance and lowest quantity range, e.g., less than 500 grams of a mixture or substance containing cocaine).

Check the drug quantity which the jury unanimously agrees was involved in the offense. If you are unable to agree, check [b][c](the entry for the lowest drug quantity).

____________________________________
Foreperson

____________________
(Date)

(For 2006 version see below)

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

2006 Version

VERDICT

We, the jury, find Defendant (name) __________________ (guilty/not guilty) of possession of a controlled substance with intent to distribute [as charged in Count _____ of the indictment] [under Instruction No. _____ ].

If you find the defendant "guilty," you must answer the following:

The quantity of (describe substance, e.g. [a mixture or substance containing a detectable amount of] [name controlled substance]) the defendant possessed with intent to distribute was:

a. _____ (describe substance and the highest applicable quantity range, e.g. 5 kilograms or more of a mixture or substance containing a detectable amount of cocaine);

b. _____ (describe substance and next lower quantity range, e.g. 500 grams or more but less than 5 kilograms of a mixture or substance containing a detectable amount of cocaine.)

c. _____ (describe substance and lowest quantity range, e.g., less than 500 grams of a mixture or substance containing cocaine).

Check the drug quantity which the jury unanimously agrees was involved in the offense. If you are unable to agree, check [b][c](the entry for the lowest drug quantity).

____________________________________
Foreperson

____________________
(Date)

No 2000 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.21.841B
CONTROLLED SUBSTANCES - DISTRIBUTION
(21 USC 841(a)(1))

FORECITE National™ Materials Related To This Instruction:

Federal Models By Offense: Drug Abuse Prevention And Control (Title 21 - Sections 841-864)

The crime of distributing (describe substance, e.g.,heroin), as charged in [Count _____] of the indictment, has two elements, which are:

One, the defendant intentionally transferred¹ (describe substance, e.g., heroin)² to (name of transferee, e.g., Special Agent Jones); and

Two, at the time of the transfer, the defendant knew that it was [a controlled substance] [(describe substance, e.g., heroin)].³

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

Notes on Use

1. The statute uses the term "distribute." The Committee is of the opinion that in many cases "transfer" may be more understandable. "Distribute," of course, may be used in the instruction.

2. For jury instructions involving enhanced drug offenses under Apprendi v. New Jersey, see 6.21.841A1 - 6.21.846A1.

3. The defendant need not know what the controlled substance is if he knows he has possession of some controlled substance. United States v. Sheppard, 219 F.3d 766 (8^th Cir. 2000). The alternative language which best fits the case should be used.

Committee Comments

See Ninth Cir. Crim. Jury Instr. 9.15 (formerly 9.43 (1997)); see also United States v. Jardan, 552 F.2d 216, 219 (8th Cir. 1977) (government must show that transfer was intentional).

See Committee Comments, Instruction 6.21.841A, supra, particularly the discussion of Apprendi v. New Jersey.

(For 2008 version see below).

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

2008 Version

The crime of distributing (describe substance, e.g.,heroin), as charged in [Count _____] of the indictment, has two elements, which are:

One, the defendant intentionally transferred¹ (describe substance, e.g., heroin)² to (name of transferee, e.g., Special Agent Jones); and

Two, at the time of the transfer, the defendant knew that it was [a controlled substance] [(describe substance, e.g., heroin)].³

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

Notes on Use

1. The statute uses the term "distribute." The Committee is of the opinion that in many cases "transfer" may be more understandable. "Distribute," of course, may be used in the instruction.

2. For jury instructions involving enhanced drug offenses under Apprendi v. New Jersey, see 6.21.841A1 - 6.21.846A1.

Committee Comments

See Ninth Cir. Crim. Jury Instr. 9.15 (formerly 9.43 (1997)); see also United States v. Jardan, 552 F.2d 216, 219 (8th Cir. 1977) (government must show that transfer was intentional).

See Committee Comments, Instruction 6.21.841A, supra, particularly the discussion of Apprendi v. New Jersey.

(For 2006 version see below)

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

2006 Version

The crime of distributing (describe substance, e.g.,heroin), as charged in [Count _____] of the indictment, has two elements, which are:

One, the defendant intentionally transferred¹ (describe substance, e.g., heroin)² to (name of transferee, e.g., Special Agent Jones); and

Two, at the time of the transfer, the defendant knew that it was [a controlled substance] [(describe substance, e.g., heroin)].³

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

Notes on Use

1. The statute uses the term "distribute." The Committee is of the opinion that in many cases "transfer" may be more understandable. "Distribute," of course, may be used in the instruction.

2. For jury instructions involving enhanced drug offenses under Apprendi v. New Jersey, see 6.21.841A1 - 6.21.846A1.

Committee Comments

See Ninth Cir. Crim. Jury Instr. 9.43 (1997) 9.15 (2000); see also United States v. Jardan, 552 F.2d 216, 219 (8th Cir. 1977) (government must show that transfer was intentional).

See Committee Comments, Instruction 6.21.841A, supra, particularly the discussion of Apprendi v. New Jersey.

For 2000 version see below

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

2000 Version

The crime of distributing (describe substance, e.g., heroin), as charged in [Count _____] of the indictment, has two essential elements, which are:

One, the defendant intentionally transferred1 (describe substance, e.g., heroin)2 to (name of transferee, e.g., Special Agent Jones); and

Two, at the time of the transfer, the defendant knew that it was [a controlled substance] [(describe substance, e.g., heroin)].3

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

Committee Comments

See Ninth Cir. Crim. Jury Instr. 9.43 (1997); see also United States v. Jardan, 552 F.2d 216, 219 (8th Cir.), cert. denied, 433 U.S. 912 (1977) (government must show that transfer was intentional).

See Committee Comments, Instruction 6.21.841A, supra.

Notes on Use

1. The statute uses the term "distribute." The Committee is of the opinion that in many cases "transfer" may be more understandable. "Distribute," of course, may be used in the instruction.

2. The Anti-Drug Abuse Act of 1986 provides for progressively enhanced sentences for possession of certain quantities of controlled substances. This Circuit has held that the judge and not the jury should factually determine the quantity of a controlled substance in a particular case at the defendant's sentencing. This Circuit so held in a 2-1 decision as follows:

Our review of the language, structure and legislative history of 21 USC 841(b)(1)(A)(ii) and case law deciding the additional element of the offense/sentencing factor claims, . . . convinces us that Congress has merely deemed a particular fact relevant to sentencing and has dictated the enhancement available if the sentencing judge determines the offense so warrants . . . . Having concluded that Congress intended that the quantity of cocaine was to be treated under section 841 (b)(1)(A)(ii) as a sentencing consideration, and not as an element of any offense, we need only mention that there is no constitutional right to jury sentencing, even where the sentence turns upon specific findings of fact.

United States v. Wood, 834 F.2d 1382, 1390 (8th Cir. 1987).

In a very similar context, in United States v. Rush, 840 F.2d 574 (8th Cir. en banc), cert. denied, 487 U.S. 1238 (1988), this Circuit determined that a defendant's prior record of convictions, which required that his sentence be enhanced under the Armed Career Criminal Act of 1984, should be determined by the district judge at sentencing, and not submitted to the jury. Four members of the Court joined in a dissenting opinion.

Four other circuits agree with this Circuit, and hold that the prior record should be determined by the court. See United States v. Gregg, 803 F.2d 568 (10th Cir. 1986), cert. denied, 480 U.S. 920 (1987); United States v. Hawkins, 811 F.2d 210 (3d Cir.), cert. denied, 484 U.S. 833 (1987); United States v. Jackson, 824 F.2d 21 (D.C. Cir. 1987), cert. denied, 484 U.S. 1013 (1988); United States v. West, 826 F.2d 909 (9th Cir. 1987).

Two circuits have determined that the sentencing provisions of the Armed Career Criminal Act of 1984 create a new offense, and hold that the defendant's prior record therefore must be submitted to the jury for its determination of the defendant's record. See United States v. Brewer, 841 F.2d 667 (6th Cir. 1988); United States v. Davis, 801 F.2d 754 (5th Cir. 1986).

3. The defendant need not know what the controlled substance is if he knows he has possession of some controlled substance. See, e.g., United States v. Gonzalez, 700 F.2d 196, 200-01 (5th Cir. 1983); United States v. Morales, 577 F.2d 769, 776 (2d Cir. 1978); United States v. Jewell, 532 F.2d 697, 698 (9th Cir.), cert. denied, 426 U.S. 951 (1976). The alternative language which best fits the case should be used.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.21.843
CONTROLLED SUBSTANCES - USE OF A COMMUNICATIONS FACILITY
(21 USC 843(b))

FORECITE National™ Materials Related To This Instruction:

Federal Models By Offense: Unlawful Use Of Communications Facility (21 USC 843(b)).

The crime of use of a communication facility to [commit] [facilitate the commission of] another controlled substance offense has two elements, which are:

One, the defendant knowingly used a "communication facility"; and

Two, the defendant did so with the intent to [commit] [facilitate the commission of] the offense of (describe the offense, e.g., attempted possession of cocaine with intent to distribute).

The term "communication facility" includes (specify means alleged, e.g., mail, telephone, wire, radio, and all other means of communication).¹

[To "facilitate" the commission of an offense means to make easier or less difficult or to assist or aid.]² [It is sufficient if a defendant's use of the (specify communication facility, e.g., telephone) facilitates either the defendant's own or another person's commission of the offense.]

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

Notes on Use

1. Title 21 USC 843(b) defines "communication facility" as "any and all public and private instrumentalities used or useful in the transmission of writing, signs, signals, pictures, or sounds of all kinds . . . ." Ordinarily, it should not be necessary to distinguish between public or private facilities or set forth the complete definition.

2. Ordinarily it should not be necessary to define facilitate. If necessary, the definition provided should suffice. See United States v. Adler, 879 F.2d 491, 495 (9th Cir. 1988); United States v. Phillips, 664 F.2d 971, 1032 (5th Cir. Unit B 1981), cert. denied, sub nom. Meinster v. United States, 457 U.S. 1136 (1982); Myers v. United States, 457 U.S. 1136 (1982); and Platshorn v. United States, 459 U.S. 906 (1982).

Committee Comments

See Fifth Circuit Pattern Jury Instructions: Criminal § 2.88 (1997); Ninth Cir. Crim. Jury Instr. 9.25 (formerly 9.4.5 (1997)).

(For 2008 version see below).

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

2008 Version

The crime of use of a communication facility to [commit] [facilitate the commission of] another controlled substance offense has two elements, which are:

One, the defendant knowingly used a "communication facility"; and

Two, the defendant did so with the intent to [commit] [facilitate the commission of] the offense of (describe the offense, e.g., attempted possession of cocaine with intent to distribute).

The term "communication facility" includes (specify means alleged, e.g., mail, telephone, wire, radio, and all other means of communication).¹

[To "facilitate" the commission of an offense means to make easier or less difficult or to assist or aid.]² [It is sufficient if a defendant's use of the (specify communication facility, e.g., telephone) facilitates either the defendant's own or another person's commission of the offense.]

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

Notes on Use

Committee Comments

See Fifth Circuit Pattern Jury Instructions: Criminal § 2.88 (1997); Ninth Cir. Crim. Jury Instr. 9.25 (formerly 9.4.5 (1997)).

(For 2006 version see below)

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

2006 Version

The crime of use of a communication facility to [commit] [facilitate the commission of] another controlled substance offense has two elements, which are:

One, the defendant knowingly used a "communication facility"; and

Two, the defendant did so with the intent to [commit] [facilitate the commission of] the offense of (describe the offense, e.g., attempted possession of cocaine with intent to distribute).

The term "communication facility" includes (specify means alleged, e.g., mail, telephone, wire, radio, and all other means of communication).¹

[To "facilitate" the commission of an offense means to make easier or less difficult or to assist or aid.]² [It is sufficient if a defendant's use of the (specify communication facility, e.g., telephone) facilitates either the defendant's own or another person's commission of the offense.]

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

Notes on Use

Committee Comments

See Fifth Circuit Pattern Jury Instructions: Criminal § 2.88 (1997); Ninth Cir. Crim. Jury Instr. 9.4.5 (1997) 9.25 (2000).

For 2000 version see below

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

2000 Version

The crime of use of a communication facility to [commit] [facilitate the commission of] another controlled substance offense has two essential elements, which are:

One, the defendant knowingly used a "communication facility"; and

Two, the defendant did so with the intent to [commit] [facilitate the commission of] the offense of (describe the offense, e.g., attempted possession of cocaine with intent to distribute).

The term "communication facility" includes (specify means alleged, e.g., mail, telephone, wire, radio, and all other means of communication).1

[To "facilitate" the commission of an offense means to make easier or less difficult or to assist or aid.]2 [It is sufficient if a defendant's use of the (specify communication facility, e.g., telephone) facilitates either the defendant's own or another person's commission of the offense.]

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

Committee Comments

See Fifth Circuit Pattern Jury Instructions: Criminal § 2.88 (1997); Ninth Cir. Crim. Jury Instr. 9.4.5 (1997).

Notes on Use

1. 21 USC 843(b) defines "communication facility" as "any and all public and private instrumentalities used or useful in the transmission of writing, signs, signals, pictures, or sounds of all kinds . . . ." Ordinarily, it should not be necessary to distinguish between public or private facilities or set forth the complete definition.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.21.846A CONSPIRACY
(21 USC 846)

FORECITE National™ Materials Related To This Instruction:

Federal Models By Offense: Controlled Substances -- Conspiracy (21 USC 846 And/or 963)

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

One, on or before (insert date), two [or more] persons reached an agreement or came to an understanding to (insert offense, e.g., distribute cocaine);

Two, the defendant voluntarily and intentionally joined in the agreement or understanding, either at the time it was first reached or at some later time while it was still in effect; and

Three, at the time the defendant joined in the agreement or understanding, [he] [she] knew the purpose of the agreement or understanding.

For you to find [a] defendant guilty of this crime, the Government must prove all of these elements beyond a reasonable doubt [as to that defendant]; otherwise, you must find [that] defendant not guilty.

Committee Comments

See Committee Comments and Notes on Use, Instructions 5.06A-I, supra. This instruction omits the overt act element of Instruction 5.06A of this Manual. Section 846 does not require proof of an overt act. United States v. Shabani, 513 U.S. 10 (1994).

In cases where the indictment conjunctively alleges multiple objects of a conspiracy, e.g., a conspiracy to distribute cocaine and marijuana, the Eighth Circuit has approved instructions advising the jury that they may convict upon proof that there was a conspiracy to distribute one or both of the controlled substances. United States v. Davila, 964 F.2d 778, 783 (8th Cir. 1992); United States v. Lueth, 807 F.2d 719, 732-34 (8th Cir. 1986). If the evidence is not clear as to which substance was involved in a conspiracy, the Eighth Circuit has recommended instructing the jury to specify which controlled substance(s) the conspiracy involved because of disparate sentencing ranges for different controlled substances. United States v. Owens, 904 F.2d 411 (8th Cir. 1990); cf. United States v. Page-Bey, 960 F.2d 724, 727-28 (8th Cir. 1992), and United States v. Watts, 950 F.2d 508, 514-15 (8th Cir. 1991) (distinguishing Owens). See Committee Comments to Instruction 11.03, infra.

(For 2008 version see below).

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

2008 Version

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

One, on or before (insert date), two [or more] persons reached an agreement or came to an understanding to (insert offense, e.g., distribute cocaine);

Two, the defendant voluntarily and intentionally joined in the agreement or understanding, either at the time it was first reached or at some later time while it was still in effect; and

Three, at the time the defendant joined in the agreement or understanding, [he] [she] knew the purpose of the agreement or understanding.

For you to find [a] defendant guilty of this crime, the Government must prove all of these elements beyond a reasonable doubt [as to that defendant]; otherwise, you must find [that] defendant not guilty.

Committee Comments

(For 2006 version see below)

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

2006 Version

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

One, on or before (insert date), two [or more] persons reached an agreement or came to an understanding to (insert offense, e.g., distribute cocaine);

Two, the defendant voluntarily and intentionally joined in the agreement or understanding, either at the time it was first reached or at some later time while it was still in effect; and

Three, at the time the defendant joined in the agreement or understanding, [he] [she] knew the purpose of the agreement or understanding.

For you to find [a] defendant guilty of this crime, the Government must prove all of these elements beyond a reasonable doubt [as to that defendant]; otherwise, you must find [that] defendant not guilty.

Committee Comments

For 2000 version see below

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

2000 Version

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

One, on or before (insert date), two [or more] persons reached an agreement or came to an understanding to (insert offense, e.g., distribute cocaine);

Two, the defendant voluntarily and intentionally joined in the agreement or understanding, either at the time it was first reached or at some later time while it was still in effect; and

Three, at the time the defendant joined in the agreement or understanding, [he] [she] knew the purpose of the agreement or understanding.

For you to find [a] defendant guilty of this crime, the Government must prove all of these essential elements beyond a reasonable doubt [as to that defendant]; otherwise, you must find [that] defendant not guilty.

Committee Comments

The penalty for conspiracy under 21 USC 846 is the same as for the substantive offense committed. Thus, the quantity of the drugs involved may affect the maximum punishment authorized for the offense. In Jones v. United States, 526 U.S. 227, 119 S. Ct. 1215 (1999), dealing with a carjacking offense under 18 USC 2119, the 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." If the quantity of drugs will affect the maximum punishment authorized, the safest approach would be to specify the quantity in the indictment and require the jury to find the quantity necessary to justify the enhanced punishment beyond a reasonable doubt.

In cases where the indictment conjunctively alleges multiple objects of a conspiracy, e.g., a conspiracy to distribute cocaine and marijuana, the Eighth Circuit has approved instructions advising the jury that they may convict upon proof that there was a conspiracy to distribute one or both of the controlled substances. United States v. Davila, 964 F.2d 778, 783 (8th Cir. 1992); United States v. Lueth, 807 F.2d 719, 732-34 (8th Cir. 1986); see also United States v. Clark, 67 F.3d 1154, 1163 (5th Cir. 1995). If the evidence is not clear as to which substance was involved in a conspiracy, the Eighth Circuit has recommended instructing the jury to specify which controlled substance(s) the conspiracy involved because of disparate sentencing ranges for different controlled substances. United States v. Owens, 904 F.2d 411 (8th Cir. 1990); cf. United States v. Page-Bey, 960 F.2d 724, 727-28 (8th Cir. 1992), and United States v. Watts, 950 F.2d 508, 514-15 (8th Cir. 1991) (distinguishing Owens). See Committee Comments to Instruction 11.03.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.21.846A.1 CONSPIRACY
(21 USC 846) Apprendi-affected Conspiracy

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

One, on or about [insert date, e.g., between January 1, 1998, and October 1, 2000], two [or more] persons reached an agreement or came to an understanding to (describe offense, e.g., distribute a mixture or substance containing methamphetamine [and a mixture or substance containing cocaine]¹);

Two, the defendant voluntarily and intentionally joined in the agreement or understanding, either at the time it was first reached or at some later time while it was still in effect;

Three, at the time the defendant joined in the agreement or understanding, [he] [she] knew the purpose of the agreement or understanding; and

Four, describe aggravating element,² e.g [the agreement or understanding involved 500 grams or more of a mixture or substance containing methamphetamine³ [and 5 kilograms or more of a mixture or substance containing cocaine]]⁴).

If you find these four elements unanimously and beyond a reasonable doubt, [and if you find unanimously and beyond a reasonable doubt that the defendant was not [entrapped] [as defined in Instruction No. ]], then you must find the defendant guilty of the crime of conspiracy (describe offense, e.g. [to distribute 500 grams or more of a mixture or substance containing methamphetamine [and 5 kilograms or more of a mixture or substance containing cocaine]]). Record your determination on the Verdict Form which will be submitted to you with these instructions.

[If you do not find the defendant guilty of this crime [under Count ], go on to consider whether the defendant conspired (describe lesser offense, e.g. [to distribute 50 grams or more of a mixture or substance containing methamphetamine [and any amount of cocaine]]).

If you find unanimously and beyond a reasonable doubt:

The first three elements set forth above; and

Fourth, you find that (describe lesser offense, e.g. [the agreement or understanding involved 50 grams or more of a mixture or substance containing methamphetamine [and any amount of cocaine]]),

[and if you find unanimously and beyond a reasonable doubt that the defendant was not [entrapped] [as defined in Instruction No. ]], then you must find the defendant guilty of the crime of conspiracy to distribute (describe substance and amount, e.g., 50 grams or more of a mixture or substance containing methamphetamine [and any amount of cocaine]). Record your determination on the Verdict Form.]

If you do not find the defendant guilty of this crime [under Count ], go on to consider whether the defendant conspired to distribute (describe substance, e.g., some amount of methamphetamine and cocaine). If you find the first three elements unanimously and beyond a reasonable doubt, [and if you find unanimously and beyond a reasonable doubt that the defendant was not [entrapped] [as defined in Instruction No. ]], you must find the defendant guilty of the crime of conspiracy to distribute (describe substance, e.g., methamphetamine and cocaine). Otherwise, you must find the defendant not guilty. Record your determination on the Verdict Form.

[The quantity of controlled substances involved in the agreement or understanding includes the controlled substances the defendant possessed for personal use⁵or distributed or agreed to distribute. The quantity also includes the controlled substances fellow conspirators distributed or agreed to distribute, if you find that those distributions or agreements to distribute were a necessary or natural consequence of the agreement or understanding and were reasonably foreseeable by the defendant.]⁶

Notes on Use

1. In cases where the indictment conjunctively alleges multiple objects of a conspiracy, e.g., a conspiracy to distribute cocaine and marijuana, the Eighth Circuit has approved instructions advising the jury that they may convict upon proof that there was a conspiracy to distribute one or both of the controlled substances. United States v. Davila, 964 F.2d 778, 783 (8th Cir. 1992); United States v. Lueth, 807 F.2d 719, 732-34 (8th Cir. 1986).

2. In Apprendi, 530 U.S. at 488, the majority left open the possibility that it might revisit the issue of whether a defendant’s prior conviction(s) must be submitted to the jury and found beyond a reasonable doubt before an enhanced punishment based on prior convictions is appropriate. Unless and until the Court does so, prior convictions used to enhance a sentence need not be submitted to the jury and proven beyond a reasonable doubt. Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998); United States v. Peltier, 276 F.3d 1003, 1006 (8^th Cir. 2002); United States v. Abernathy, 277 F.3d 1048, 1050 (8^th Cir. 2002).

3. Under the section 841(b) sentencing provisions, some of the facts that may raise the statutory maximum are the quantity of drugs involved in the offense, whether death or serious bodily injury results from use of the drugs involved, or whether the defendant has a prior felony drug conviction .

Suggested wording for the aggravating facts listed in the above paragraph are:

a) the crime involved (describe substance and amount) or more. [This alternative is to be used where the amount of drugs increasing the maximum sentence is not in dispute. Where the offense involves two or more controlled substances, and the indictment alleges quantities of each substance sufficient to raise the maximum sentence, an additional element should be submitted to the jury for a finding on each controlled substance.]

b) a death resulted from use of the (describe substance). [In United States v. McIntosh, 236 F.3d 968, 972 (8^th Cir. 2001), the Eighth Circuit held that the "death resulting" charge is a strict liability one - the court may not impose "a foreseeability or proximate cause requirement." Accord United States v. Soler, 275 F.3d 146 (1^st Cir. 2002)].

4. Where the conspiracy involves two or more controlled substances, and the indictment alleges quantities of each substance sufficient to raise the maximum sentence, the jury should make a finding on each controlled substance. See the last sentence of 5.06F.

5. The amount of drugs attributable to a defendant in a conspiracy includes drugs purchased for personal use. United States v. Jimenez-Villasenor, 270 F.3d 554, 562 (8^th Cir. 2001).

6. Whether Apprendi and sections 841(b) and 846 require a jury finding of reasonable foreseeability for each coconspirator has not yet been decided. In United States v. Jones, 965 F.2d 1507 (8^th Cir. 1992), the court, without explicitly stating the basis for its decision, determined that before a district court may impose a mandatory minimum upon a defendant based upon the activities of other defendants, it must find that those activities were in furtherance of the conspiracy and were known to the defendant or reasonably foreseeable to him. Id., at 1517. Other circuits have explicitly stated that section 846 requires such a foreseeability determination, and that the foreseeability determination is governed by the relevant conduct provisions of the Sentencing Guidelines. See, e.g., United States v. Martinez, 987 F.2d 920, 924-26 (2d Cir. 1993); United States v. Irwin, 2 F.3d 72, 77 (4^th Cir. 1993); United States v. Swiney, 203 F.3d 397, 405-06 (6^th Cir. 2000). Although these decisions occurred in the context of guideline sentencing by the court, because they are based on statutory construction of sections 846 and 841(b), they arguably establish foreseeability as an element of the offense. However, the Eighth Circuit in United States v. McIntosh, 236 F.3d 968, 974 (8^th Cir. 2001), indicated that the issue is in doubt, noting that "[i]f the government seeks to enhance a conspiracy defendant’s sentence . . . based solely on conduct of a coconspirator, a foreseeability analysis may be required in determining whether Congress intended, under § 846, that the defendant be held accountable for the conduct of a coconspirator" (emphasis in the original).

The Committee believes that until the issue is decided, the district court should instruct the jury on foreseeability, unless the defendant agrees to an Apprendi waiver.

Committee Comments

The penalty for conspiracy under 21 USC 846 is the same as for the substantive offense committed. Thus, the quantity of the drugs involved or other facts may affect the maximum punishment authorized for the offense. Any fact (other than a prior conviction) that increases the maximum penalty for a crime must be charged in the indictment, submitted to the jury as an element of the offense, and proven beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466 (2000); United States v. Aguayo-Delgado, 220 F.3d 926 (8^th Cir. 2000); United States v. Sheppard, 219 F.3d 766 (8^th Cir. 2000). Under the section 841(b) sentencing provisions, some of the facts that may raise the statutory maximum are the quantity of drugs involved in the offense, or whether death or serious bodily injury results from use of the drugs involved . See Notes 2 and 3, supra. In Harris v. United States, 536 U.S. 545 (2002), the Supreme Court declined to extend Apprendi to facts increasing the statutory minimum sentence, reaffirming its earlier decision in McMillan v. Pennsylvania, 477 U.S. 79 (1986). Therefore, such facts need not be submitted to the jury.

In United States v. Sheppard, 219 F.3d 766 (8^th Cir. 2000), the panel suggested that the district court’s submission of drug quantity to the jury in a special interrogatory rather than treating it as an element of the offense was harmless error. However, in United States v. Harris, 310 F.3d 1105 (8^th Cir. 2002), the Court, without mentioning Sheppard, explicitly held that it was not an Apprendi error to submit the issue of drug quantity to the jury by use of a special interrogatory. The Committee believes, therefore, that submission of drug quantity either as a formal element, as is done in 6.21.841A.1 (short) and 6.21.841A.1 (long) or by special interrogatory is permissible. See 11.03 for a verdict form with special interrogatories.

The verdict forms provided for 6.21.841A.1(a) and (b) offenses may be modified for use in conspiracy cases.

(For 2008 version see below).

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

2008 Version

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

One, on or about [insert date, e.g., between January 1, 1998, and October 1, 2000], two [or more] persons reached an agreement or came to an understanding to (describe offense, e.g., distribute a mixture or substance containing methamphetamine [and a mixture or substance containing cocaine]¹);

Two, the defendant voluntarily and intentionally joined in the agreement or understanding, either at the time it was first reached or at some later time while it was still in effect;

Three, at the time the defendant joined in the agreement or understanding, [he] [she] knew the purpose of the agreement or understanding; and

Four, describe aggravating element,² e.g [the agreement or understanding involved 500 grams or more of a mixture or substance containing methamphetamine³ [and 5 kilograms or more of a mixture or substance containing cocaine]]⁴).

If you find these four elements unanimously and beyond a reasonable doubt, [and if you find unanimously and beyond a reasonable doubt that the defendant was not [entrapped] [as defined in Instruction No. ]], then you must find the defendant guilty of the crime of conspiracy (describe offense, e.g. [to distribute 500 grams or more of a mixture or substance containing methamphetamine [and 5 kilograms or more of a mixture or substance containing cocaine]]). Record your determination on the Verdict Form which will be submitted to you with these instructions.

[If you do not find the defendant guilty of this crime [under Count ], go on to consider whether the defendant conspired (describe lesser offense, e.g. [to distribute 50 grams or more of a mixture or substance containing methamphetamine [and any amount of cocaine]]).

If you find unanimously and beyond a reasonable doubt:

The first three elements set forth above; and

Fourth, you find that (describe lesser offense, e.g. [the agreement or understanding involved 50 grams or more of a mixture or substance containing methamphetamine [and any amount of cocaine]]),

[and if you find unanimously and beyond a reasonable doubt that the defendant was not [entrapped] [as defined in Instruction No. ]], then you must find the defendant guilty of the crime of conspiracy to distribute (describe substance and amount, e.g., 50 grams or more of a mixture or substance containing methamphetamine [and any amount of cocaine]). Record your determination on the Verdict Form.]

If you do not find the defendant guilty of this crime [under Count ], go on to consider whether the defendant conspired to distribute (describe substance, e.g., some amount of methamphetamine and cocaine). If you find the first three elements unanimously and beyond a reasonable doubt, [and if you find unanimously and beyond a reasonable doubt that the defendant was not [entrapped] [as defined in Instruction No. ]], you must find the defendant guilty of the crime of conspiracy to distribute (describe substance, e.g., methamphetamine and cocaine). Otherwise, you must find the defendant not guilty. Record your determination on the Verdict Form.

[The quantity of controlled substances involved in the agreement or understanding includes the controlled substances the defendant possessed for personal use⁵or distributed or agreed to distribute. The quantity also includes the controlled substances fellow conspirators distributed or agreed to distribute, if you find that those distributions or agreements to distribute were a necessary or natural consequence of the agreement or understanding and were reasonably foreseeable by the defendant.]⁶

Notes on Use

Suggested wording for the aggravating facts listed in the above paragraph are:

a) the crime involved [describe substance and amount] or more. [This alternative is to be used where the amount of drugs increasing the maximum sentence is not in dispute. Where the offense involves two or more controlled substances, and the indictment alleges quantities of each substance sufficient to raise the maximum sentence, an additional element should be submitted to the jury for a finding on each controlled substance.]

b) a death resulted from use of the [describe substance]. [In United States v. McIntosh, 236 F.3d 968, 972 (8^th Cir. 2001), the Eighth Circuit held that the "death resulting" charge is a strict liability one - the court may not impose "a foreseeability or proximate cause requirement." Accord, United States v. Soler, 275 F.3d 146 (1^st Cir. 2002)].

5. The amount of drugs attributable to a defendant in a conspiracy includes drugs purchased for personal use. United States v. Jimenez-Villasenor, 270 F.3d 554, 562 (8^th Cir. 2001).

The Committee believes that until the issue is decided, the district court should instruct the jury on foreseeability, unless the defendant agrees to an Apprendi waiver.

Committee Comments

The verdict forms provided for 6.21.841A.1(a) and (b) offenses may be modified for use in conspiracy cases.

(For 2006 version see below)

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

2006 Version

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

One, on or about [insert date, e.g., between January 1, 1998, and October 1, 2000], two [or more] persons reached an agreement or came to an understanding to (describe offense, e.g., distribute a mixture or substance containing methamphetamine [and a mixture or substance containing cocaine]¹);

Two, the defendant voluntarily and intentionally joined in the agreement or understanding, either at the time it was first reached or at some later time while it was still in effect;

Three, at the time the defendant joined in the agreement or understanding, [he] [she] knew the purpose of the agreement or understanding; and

Four, describe aggravating element,² e.g [the agreement or understanding involved 500 grams or more of a mixture or substance containing methamphetamine³ [and 5 kilograms or more of a mixture or substance containing cocaine]]⁴).

If you find these four elements unanimously and beyond a reasonable doubt, [and if you find unanimously and beyond a reasonable doubt that the defendant was not [entrapped] [as defined in Instruction No. ]], then you must find the defendant guilty of the crime of conspiracy (describe offense, e.g. [to distribute 500 grams or more of a mixture or substance containing methamphetamine [and 5 kilograms or more of a mixture or substance containing cocaine]]). Record your determination on the Verdict Form which will be submitted to you with these instructions.

[If you do not find the defendant guilty of this crime [under Count ], go on to consider whether the defendant conspired (describe lesser offense, e.g. [to distribute 50 grams or more of a mixture or substance containing methamphetamine [and any amount of cocaine]]).

If you find unanimously and beyond a reasonable doubt:

The first three elements set forth above; and

Fourth, you find that (describe lesser offense, e.g. [the agreement or understanding involved 50 grams or more of a mixture or substance containing methamphetamine [and any amount of cocaine]]),

[and if you find unanimously and beyond a reasonable doubt that the defendant was not [entrapped] [as defined in Instruction No. ]], then you must find the defendant guilty of the crime of conspiracy to distribute (describe substance and amount, e.g., 50 grams or more of a mixture or substance containing methamphetamine [and any amount of cocaine]). Record your determination on the Verdict Form.]

If you do not find the defendant guilty of this crime [under Count ], go on to consider whether the defendant conspired to distribute (describe substance, e.g., some amount of methamphetamine and cocaine). If you find the first three elements unanimously and beyond a reasonable doubt, [and if you find unanimously and beyond a reasonable doubt that the defendant was not [entrapped] [as defined in Instruction No. ]], you must find the defendant guilty of the crime of conspiracy to distribute (describe substance, e.g., methamphetamine and cocaine). Otherwise, you must find the defendant not guilty. Record your determination on the Verdict Form.

[The quantity of controlled substances involved in the agreement or understanding includes the controlled substances the defendant possessed for personal use⁵or distributed or agreed to distribute. The quantity also includes the controlled substances fellow conspirators distributed or agreed to distribute, if you find that those distributions or agreements to distribute were a necessary or natural consequence of the agreement or understanding and were reasonably foreseeable by the defendant.]⁶

Notes on Use

Suggested wording for the aggravating facts listed in the above paragraph are:

a) the crime involved [describe substance and amount] or more. [This alternative is to be used where the amount of drugs increasing the maximum sentence is not in dispute. Where the offense involves two or more controlled substances, and the indictment alleges quantities of each substance sufficient to raise the maximum sentence, an additional element should be submitted to the jury for a finding on each controlled substance.]

b) a death resulted from use of the [describe substance]. [In United States v. McIntosh, 236 F.3d 968, 972 (8^th Cir. 2001), the Eighth Circuit held that the "death resulting" charge is a strict liability one - the court may not impose "a foreseeability or proximate cause requirement." Accord, United States v. Soler, 275 F.3d 146 (1^st Cir. 2002)].

5. The amount of drugs attributable to a defendant in a conspiracy includes drugs purchased for personal use. United States v. Jimenez-Villasenor, 270 F.3d 554, 562 (8^th Cir. 2001).

The Committee believes that until the issue is decided, the district court should instruct the jury on foreseeability, unless the defendant agrees to an Apprendi waiver.

Committee Comments

The verdict forms provided for 6.21.841A.1(a) and (b) offenses may be modified for use in conspiracy cases.

No 2000 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.21.846B ATTEMPT
(21 USC 846)

FORECITE National™ Materials Related To This Instruction:

Federal Models By Offense: Controlled Substances -- Conspiracy (21 USC 846 And/or 963)

The crime of attempting to (describe conduct, e.g., distribute methamphetamine), as charged in [Count ____ of] the indictment, has three elements, which are:

One, the defendant intended to (describe conduct, e.g., distribute methamphetamine to another person);

Two, the defendant knew the material he then intended to distribute was [a controlled substance] [(describe substance, e.g., methamphetamine)]; and

Three, the defendant voluntarily and intentionally carried out some act which was a substantial step toward (describe conduct, e.g., distribution of methamphetamine to another person).

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

Committee Comments

See Instructions 6.21.841A, 6.21.841A.1, and 6.21.841B, supra, and Instruction 8.01, infra; see also 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 21.01-.04 (5th ed. 2000).

(For 2008 version see below).

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

2008 Version

The crime of attempting to (describe conduct, e.g., distribute methamphetamine), as charged in [Count ____ of] the indictment, has three elements, which are:

One, the defendant intended to (describe conduct, e.g., distribute methamphetamine to another person);

Two, the defendant knew the material he then intended to distribute was [a controlled substance] [(describe substance, e.g., methamphetamine)]; and

Three, the defendant voluntarily and intentionally carried out some act which was a substantial step toward (describe conduct, e.g., distribution of methamphetamine to another person).

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

Committee Comments

(For 2006 version see below)

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

2006 Version

The crime of attempting to (describe conduct, e.g., distribute methamphetamine), as charged in [Count ____ of] the indictment, has three elements, which are:

One, the defendant intended to (describe conduct, e.g., distribute methamphetamine to another person);

Two, the defendant knew the material he then intended to distribute was [a controlled substance] [(describe substance, e.g., methamphetamine)]; and

Three, the defendant voluntarily and intentionally carried out some act which was a substantial step toward (describe conduct, e.g., distribution of methamphetamine to another person).

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

Committee Comments

For 2000 version see below

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

2000 Version

The crime of attempting to (describe conduct, e.g., distribute methamphetamine), as charged in [Count ____ of] the indictment, has three essential elements, which are:

One, defendant intended to (describe conduct, e.g., distribute methamphetamine to another person);

Two, defendant knew the material he then intended to distribute was [a controlled substance] [(describe substance, e.g., methamphetamine)]; and

Three, defendant voluntarily and intentionally carried out some act which was a substantial step toward (describe conduct, e.g., distribution of methamphetamine to another person).

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

Committee Comments

See Instructions 6.21.841A and 6.21.841B, supra, and Instruction 8.01, infra; see also 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal §§ 21.01-21.03 (4th ed. 1990). The penalty for an attempt under 21 USC 846 is the same as for the substantive offense committed. Thus, the quantity of the drugs involved may affect the maximum punishment authorized for the offense. In Jones v. United States, 526 U.S. 227, 119 S. Ct. 1215 (1999), dealing with a carjacking offense under 18 USC 2119, the 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." If the quantity of drugs will affect the maximum punishment authorized, the safest approach would be to specify the quantity in the indictment and require the jury to find the quantity necessary to justify the enhanced punishment beyond a reasonable doubt.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.21.848A
CONTROLLED SUBSTANCES - CONTINUING CRIMINAL ENTERPRISE
(21 USC 848(c))

FORECITE National™ Materials Related To This Instruction:

Federal Models By Offense: Controlled Substances--Continuing Criminal Enterprise (21 USC 848(c))

The crime of a continuing criminal enterprise as charged in Count _____ of the indictment has five elements, which are:

One, the defendant committed the offense of (describe offense);

Two, the offense was part of a continuing series of three or more related¹ felony violations of the federal controlled substance laws;

Three, such offenses were undertaken by the defendant in concert with five or more other persons;

Four, the defendant acted as organizer, supervisor or manager of those five or more other persons;² and

Five, the defendant obtained a substantial amount of money or other property from the series of violations.

To act "in concert" means to act pursuant to a common design or plan. The defendant must have organized, supervised or managed, either personally or through others, five or more persons with whom [he] [she] was acting in concert while [he] [she] committed the series of offenses. However, it is not necessary that the defendant have managed all five at once or that the five other persons have acted together at any time or in the same place.

Furthermore, it is not necessary that the defendant have been the only person who organized, managed or supervised the five or more other persons or that [he] [she] have exercised the same amount of control over each of the five or that [he] [she] have had the highest rank of authority.

[All money or property which passed through the defendant's hands as a result of illegal drug dealings and not just profit may be considered by you in determining whether the amount was substantial.]³

[An organizer is a person who puts together a number of people engaged in separate activities and arranges them in these activities in one operation or enterprise.] [A supervisor is a person who manages or directs or oversees the activities of others.]⁴

The [indictment charges] [Government contends] that the [violations charged in Counts _____ and _____] [the defendant's previous conviction[s] for (list convictions)] are part of the series of three or more violations. [You must unanimously agree on which three violations constitute the series of three or more violations in order to find that element No. Two has been proved.]⁵

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

Notes on Use

1. If the court wants to define "continuing series of violations," the following may be appropriate:

At least three violations of the federal controlled substances laws that were connected together as a series of related or ongoing activities as distinguished from isolated and disconnected acts.

2. The jury is not required to unanimously agree on the identities of the five persons. United States v. Jelinek, 57 F.3d 655 (8th Cir. 1995); United States v. Rockelman, 49 F.3d 418, 421 (8th Cir. 1995). Even though unanimity is not required, problems can arise if more than five persons are alleged to be supervised or managed by the defendant and, on appeal, it is determined that some of those persons were not properly included. See United States v. Jerome, 924 F.2d 170, 172-73 (9th Cir. 1991) (Kozenski, J., concurring) (conviction reversed where jury had "confusing array of persons presented" and insufficient instructions regarding who could properly be counted). This problem can be addressed by use of a special interrogatory. United States v. Jelinek.

3. Use if "income" needs to be so clarified under the issues raised at trial.

4. Ordinarily these terms do not need definition, but these definitions are provided should a particular need for them arise.

5. This instruction should be given on request where more than three violations have been alleged. If one or more of the violations is not a prior conviction or a charged offense, the instruction should be modified to describe that violation. The Eighth Circuit has indicated that it is preferable to list the felonies comprising the criminal enterprise in the CCE count of the indictment, although failure to do so would not necessarily be error. United States v. Becton, 751 F.2d 250, 257 (8th Cir. 1984).

Committee Comments

See Ninth Cir. Crim. Jury Instr. 9.26 (formerly 9.4.12 (1997)); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 76.1 (1997); United States v. Lewis, 759 F.2d 1316, 1331 (8th Cir. 1985); United States v. Possick, 849 F.2d 332, 335 (8th Cir. 1988).

The statute is written in disjunctive language, and the Government need prove only that the defendant was an organizer, or a supervisor, or held some management role, not all three. United States v. Possick, 849 F.2d at 335. The terms "organizer," "supervisor" and "manager" are given their plain meaning. Id., 849 F.2d at 335. They should be applied in the ordinary sense as understood by the public or the business community. United States v. Butler, 885 F.2d 195 (4th Cir. 1989). Accordingly, these terms do not require specific definition. United States v. Hernandez-Escarsega, 886 F.2d 1560 (9th Cir. 1989).

As summarized in Possick, a defendant need not be the "king pin" or ultimate authority in the organization, but need only occupy some managerial position, United States v. Maull, 806 F.2d 1340, 1343 (8th Cir. 1986); United States v. Becton, 751 F.2d 250, 255 (8th Cir. 1984), or perform a "central role." United States v. Lewis, 759 F.2d at 1331. The Government need not establish that the defendant managed five people at once, that the five acted in concert with each other, that the defendant exercised the same kind of control over each of the five, or even that the defendant had personal contact with each of the five. See, e.g., Maull, 806 F.2d at 1343; United States v. Jones, 801 F.2d 304, 308 (8th Cir. 1986); Becton, 751 F.2d at 254-55. In essence, the management element is established by demonstrating that the defendant exerted some type of influence over another individual as exemplified by that individual's compliance with the defendant's directions, instructions, or terms. See United States v. Grubbs, 829 F.2d 18, 19-20 (8th Cir. 1987) (per curiam); United States v. Lueth, 807 F.2d 719, 732 (8th Cir. 1986); Jones, 801 F.2d at 310. The control need not be exclusive or absolute. United States v. Possick, 849 F.2d at 336-37. Moreover, it is irrelevant that others may have superior control as long as the defendant occupies some managerial position. United States v. Becton, 751 F.2d at 255.

The "supervisor" element can be met by showing that the defendant put "together a number of people engaged in separate activities and arrange[s] them in their activities in one essentially orderly operation or enterprise." United States v. Roley, 893 F.2d 992, 994 (8th Cir. 1990) (citations omitted). "[A] person can organize persons without being able to control their actions." Id.

The five or more subordinates need not have worked in concert with each other. United States v. Maull, 806 F.2d at 1343; United States v. Jones, 801 F.2d at 308; United States v. Becton, 751 F.2d at 254-55. The defendant need not act in concert with five or more persons at the same time or in the same state or district. United States v. Maull, 806 F.2d at 1344. See also United States v. Fry, 413 F. Supp. 1269 (E.D. Mich. 1976), aff'd, 559 F.2d 1221 (6th Cir. 1977). Moreover, it is not necessary that the defendant know the name of each individual. Possick, 849 F.2d at 337; see also Roley, 893 F.2d at 995.

The income received by the defendant must have been substantial. "Substantial" means "of real worth and importance -- of considerable value; valuable." United States v. Collier, 358 F. Supp. 1351, 1355 (E.D. Mich. 1973), aff'd, 493 F.2d 327 (6th Cir. 1974). In United States v. Jeffers, 532 F.2d 1101, 1116-17 (7th Cir. 1976), aff'd. in part, vacated, in part, on other grounds, 432 U.S. 137 (1977), the court upheld an instruction stating that substantial income "does not necessarily mean net income . . . [but] could mean gross receipts or gross income." In United States v. Thomas, 632 F.2d 837, 847 (10th Cir. 1980), a jury instruction emphasizing cash flow rather than net income was upheld. See also United States v. Bolts, 558 F.2d 316, 320 (5th Cir. 1977).

A "continuing series" of violations has been defined as three or more violations. United States v. Samuelson, 697 F.2d 255, 259 n.2 (8th Cir. 1983). But see United States v. Baker, 905 F.2d 1100, 1104 (7th Cir. 1990) ("continuing series" requirement is met by two substantive offenses). These violations must be "related," United States v. Jones, 801 F.2d 304, 307 (8th Cir. 1986), in the sense that they are "driven by a single impulse and operated by unintermittent force." Maull, 806 F.2d at 1342-43. Proof of a violation of the drug laws may count as a "violation" even though not the basis for a separate substantive count. United States v. Michel, 588 F.2d 986, 1000 n.15 (5th Cir. 1979), and cases cited therein. Current charges and previous convictions may constitute the requisite violations. Garrett v. United States, 471 U.S. 773 (1985). Although most circuits allow a section 846 conspiracy to count as one of the required three offenses, one circuit has refused to do so. See Baker, 905 F.2d at 1103 (citing seven circuits which do and the basis for its disagreement).

If more than three violations are charged, the jury must unanimously agree on which three acts constitute the continuing series of violations. United States v. Echeverri, 854 F.2d 638, 642-43 (3d Cir. 1988).

CCE is a separate offense from the predicate offenses and prosecution of one defendant for both the predicate offense and CCE does not violate the Double Jeopardy Clause. Garrett v. United States, 471 U.S. at 792-93. The Double Jeopardy Clause likewise does not bar cumulative punishment for CCE and the predicate substantive offenses. Id., 473 U.S. at 793-95. However, where the predicate offense is a conspiracy under section 846, cumulative penalties are not allowed because the dangers posed by CCE and a conspiracy are similar. Id.; Jeffers v. United States, 432 U.S. 137 (1977) (plurality opinion); United States v. Maull, 806 F.2d 1340 (8th Cir. 1986); United States v. Duke, 940 F.2d 1113 (8th Cir. 1991)

Appellate courts are divided as to whether accomplice liability applies to CCE offenses. See this discussion in Instruction 5.01, supra.

(For 2008 version see below).

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

2008 Version

The crime of a continuing criminal enterprise as charged in Count _____ of the indictment has five elements, which are:

One, the defendant committed the offense of (describe offense);

Two, the offense was part of a continuing series of three or more related¹ felony violations of the federal controlled substance laws;

Three, such offenses were undertaken by the defendant in concert with five or more other persons;

Four, the defendant acted as organizer, supervisor or manager of those five or more other persons;² and

Five, the defendant obtained a substantial amount of money or other property from the series of violations.

To act "in concert" means to act pursuant to a common design or plan. The defendant must have organized, supervised or managed, either personally or through others, five or more persons with whom [he] [she] was acting in concert while [he] [she] committed the series of offenses. However, it is not necessary that the defendant have managed all five at once or that the five other persons have acted together at any time or in the same place.

Furthermore, it is not necessary that the defendant have been the only person who organized, managed or supervised the five or more other persons or that [he] [she] have exercised the same amount of control over each of the five or that [he] [she] have had the highest rank of authority.

[All money or property which passed through the defendant's hands as a result of illegal drug dealings and not just profit may be considered by you in determining whether the amount was substantial.]³

[An organizer is a person who puts together a number of people engaged in separate activities and arranges them in these activities in one operation or enterprise.] [A supervisor is a person who manages or directs or oversees the activities of others.]⁴

The [indictment charges] [Government contends] that the [violations charged in Counts _____ and _____] [the defendant's previous conviction[s] for (list convictions)] are part of the series of three or more violations. [You must unanimously agree on which three violations constitute the series of three or more violations in order to find that element No. Two has been proved.]⁵

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

Notes on Use

1. If the court wants to define "continuing series of violations," the following may be appropriate:

At least three violations of the federal controlled substances laws that were connected together as a series of related or ongoing activities as distinguished from isolated and disconnected acts.

3. Use if "income" needs to be so clarified under the issues raised at trial.

4. Ordinarily these terms do not need definition, but these definitions are provided should a particular need for them arise.

Committee Comments

The "supervisor" element can be met by showing that the defendant put "together a number of people engaged in separate activities and arrange[s] them in their activities in one essentially orderly operation or enterprise." United States v. Roley, 893 F.2d 992, 994 (8th Cir. 1990) [citations omitted]. "[A] person can organize persons without being able to control their actions." Id.

Appellate courts are divided as to whether accomplice liability applies to CCE offenses. See this discussion in Instruction 5.01, supra.

(For 2006 version see below)

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

2006 Version

The crime of a continuing criminal enterprise as charged in Count _____ of the indictment has five elements, which are:

One, the defendant committed the offense of (describe offense);

Two, the offense was part of a continuing series of three or more related¹ felony violations of the federal controlled substance laws;

Three, such offenses were undertaken by the defendant in concert with five or more other persons;

Four, the defendant acted as organizer, supervisor or manager of those five or more other persons;² and

Five, the defendant obtained a substantial amount of money or other property from the series of violations.

To act "in concert" means to act pursuant to a common design or plan. The defendant must have organized, supervised or managed, either personally or through others, five or more persons with whom [he] [she] was acting in concert while [he] [she] committed the series of offenses. However, it is not necessary that the defendant have managed all five at once or that the five other persons have acted together at any time or in the same place.

Furthermore, it is not necessary that the defendant have been the only person who organized, managed or supervised the five or more other persons or that [he] [she] have exercised the same amount of control over each of the five or that [he] [she] have had the highest rank of authority.

[All money or property which passed through the defendant's hands as a result of illegal drug dealings and not just profit may be considered by you in determining whether the amount was substantial.]³

[An organizer is a person who puts together a number of people engaged in separate activities and arranges them in these activities in one operation or enterprise.] [A supervisor is a person who manages or directs or oversees the activities of others.]⁴

The [indictment charges] [Government contends] that the [violations charged in Counts _____ and _____] [the defendant's previous conviction[s] for (list convictions)] are part of the series of three or more violations. [You must unanimously agree on which three violations constitute the series of three or more violations in order to find that element No. Two has been proved.]⁵

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

Notes on Use

1. If the court wants to define "continuing series of violations," the following may be appropriate:

At least three violations of the federal controlled substances laws that were connected together as a series of related or ongoing activities as distinguished from isolated and disconnected acts.

3. Use if "income" needs to be so clarified under the issues raised at trial.

4. Ordinarily these terms do not need definition, but these definitions are provided should a particular need for them arise.

Committee Comments

See Ninth Cir. Crim. Jury Instr. 9.4.12 (1997) 9.26 (2000); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 76.1 (1997); United States v. Lewis, 759 F.2d 1316, 1331 (8th Cir. 1985); United States v. Possick, 849 F.2d 332, 335 (8th Cir. 1988).

The "supervisor" element can be met by showing that the defendant put "together a number of people engaged in separate activities and arrange[s] them in their activities in one essentially orderly operation or enterprise." United States v. Roley, 893 F.2d 992, 994 (8th Cir. 1990) [citations omitted]. "[A] person can organize persons without being able to control their actions." Id.

Appellate courts are divided as to whether accomplice liability applies to CCE offenses. See this discussion in Instruction 5.01, supra.

For 2000 version see below

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

2000 Version

The crime of a continuing criminal enterprise as charged in Count _____ of the indictment has five essential elements, which are:

One, the defendant committed the offense of (describe offense);

Two, the offense was part of a continuing series of three or more related1 felony violations of the federal controlled substance laws;

Three, such offenses were undertaken by the defendant in concert with five or more other persons;

Four, the defendant acted as organizer, supervisor or manager of those five or more other persons;2 and

Five, the defendant obtained a substantial amount of money or other property from the series of violations.

To act "in concert" means to act pursuant to a common design or plan. The defendant must have organized, supervised or managed, either personally or through others, five or more persons with whom [he] [she] was acting in concert while [he] [she] committed the series of offenses. However, it is not necessary that the defendant have managed all five at once or that the five other persons have acted together at any time or in the same place.

Furthermore, it is not necessary that the defendant have been the only person who organized, managed or supervised the five or more other persons or that [he] [she] have exercised the same amount of control over each of the five or that [he] [she] have had the highest rank of authority.

[All money or property which passed through defendant's hands as a result of illegal drug dealings and not just profit may be considered by you in determining whether the amount was substantial.]3

[An organizer is a person who puts together a number of people engaged in separate activities and arranges them in these activities in one operation or enterprise.] [A supervisor is a person who manages or directs or oversees the activities of others.]4

The [indictment charges] [Government contends] that the [violations charged in Counts _____ and _____] [defendant's previous conviction[s] for (list convictions)] are part of the series of three or more violations. [You must unanimously agree on which three violations constitute the series of three or more violations in order to find that essential element No. Two has been proved.]5

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

Committee Comments

See Ninth Cir. Crim. Jury Instr. 9.4.12 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 76.1 (1997); United States v. Lewis, 759 F.2d 1316, 1331 (8th Cir.), cert. denied, 474 U.S. 994 (1985); United States v. Possick, 849 F.2d 332, 335 (8th Cir. 1988).

As summarized in Possick, a defendant need not be the "king pin" or ultimate authority in the organization, but need only occupy some managerial position, United States v. Maull, 806 F.2d 1340, 1343 (8th Cir. 1986), cert. denied, 480 U.S. 907 (1987); United States v. Becton, 751 F.2d 250, 255 (8th Cir. 1984), cert. denied, 472 U.S. 1018 (1985), or perform a "central role." United States v. Lewis, 759 F.2d at 1331. The Government need not establish that the defendant managed five people at once, that the five acted in concert with each other, that the defendant exercised the same kind of control over each of the five, or even that the defendant had personal contact with each of the five. See, e.g., Maull, 806 F.2d at 1343; United States v. Jones, 801 F.2d 304, 308 (8th Cir. 1986); Becton, 751 F.2d at 254- 55. In essence, the management element is established by demonstrating that the defendant exerted some type of influence over another individual as exemplified by that individual's compliance with the defendant's directions, instructions, or terms. See United States v. Grubbs, 829 F.2d 18, 19-20 (8th Cir. 1987) (per curiam); United States v. Lueth, 807 F.2d 719, 732 (8th Cir. 1986); Jones, 801 F.2d at 310. The control need not be exclusive or absolute. United States v. Possick, 849 F.2d at 336-37. Moreover, it is irrelevant that others may have superior control as long as defendant occupies some managerial position. United States v. Becton, 751 F.2d at 255.

The "supervisor" element can be met by showing that the defendant put "together a number of people engaged in separate activities and arrange[s] them in their activities in one essentially orderly operation or enterprise." United States v. Roley, 893 F.2d 992, 994 (8th Cir. 1990) [citations omitted]. "[A] person can organize persons without being able to control their actions." Id.

The five or more subordinates need not have worked in concert with each other. United States v. Maull, 806 F.2d at 1343; United States v. Jones, 801 F.2d at 308; United States v. Becton, 751 F.2d at 254-55. The defendant need not act in concert with five or more persons at the same time or in the same state or district. United States v. Maull, 806 F.2d at 1344. See also United States v. Fry, 413 F. Supp. 1269 (E.D. Mich. 1976), aff'd, 559 F.2d 1221 (6th Cir. 1977). Moreover, it is not necessary that the defendant know the name of each individual. Possick, 849 F.2d at 337; see also Roley, 893 F.2d at 995.

The income received by defendant must have been substantial. "Substantial" means "of real worth and importance -- of considerable value; valuable." United States v. Collier, 358 F. Supp. 1351, 1355 (E.D. Mich. 1973), aff'd, 493 F.2d 327 (6th Cir.), cert. denied, 419 U.S. 831 (1974). In United States v. Jeffers, 532 F.2d 1101, 1116-17 (7th Cir. 1976), aff'd. in part, vacated, in part, on other grounds, 432 U.S. 137 (1977), the court upheld an instruction stating that substantial income "does not necessarily mean net income . . . [but] could mean gross receipts or gross income." In United States v. Thomas, 632 F.2d 837, 847 (10th Cir.), cert. denied, 449 U.S. 960 (1980), a jury instruction emphasizing cash flow rather than net income was upheld. See also United States v. Bolts, 558 F.2d 316, 320 (5th Cir.), cert. denied, 434 U.S. 930 (1977).

A "continuing series" of violations has been defined as three or more violations. United States v. Samuelson, 697 F.2d 255, 259 n.2 (8th Cir. 1983), cert. denied, 465 U.S. 1038 (1984). But see United States v. Baker, 905 F.2d 1100, 1104 (7th Cir.) ("continuing series" requirement is met by two substantive offenses), cert. denied, 498 U.S. 876 (1990). These violations must be "related," United States v. Jones, 801 F.2d 304, 307 (8th Cir. 1986), in the sense that they are "driven by a single impulse and operated by unintermittent force." Maull, 806 F.2d at 1342-43. Proof of a violation of the drug laws may count as a "violation" even though not the basis for a separate substantive count. United States v. Michel, 588 F.2d 986, 1000 n.15 (5th Cir.), cert. denied, 444 U.S. 825 (1979), and cases cited therein. Current charges and previous convictions may constitute the requisite violations. Garrett v. United States, 471 U.S. 773 (1985). Although most circuits allow a section 846 conspiracy to count as one of the required three offenses, one circuit has refused to do so. See Baker, 905 F.2d at 1103 (citing seven circuits which do and the basis for its disagreement).

Appellate courts are divided as to whether accomplice liability applies to CCE offenses. See this discussion in Instruction 5.01, supra.

Notes on Use

1. If the court wants to define "continuing series of violations," the following may be appropriate:

At least three violations of the federal controlled substances laws that were connected together as a series of related or ongoing activities as distinguished from isolated and disconnected acts.

3. Use if "income" needs to be so clarified under the issues raised at trial.

4. Ordinarily these terms do not need definition, but these definitions are provided should a particular need for them arise.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.21.848B
FELONY VIOLATIONS OF FEDERAL NARCOTIC LAWS
(21 USC 848(c)(1))

FORECITE National™ Materials Related To This Instruction:

Federal Models By Offense: Felony Violations Of Federal Narcotic Laws (21 USC 848(c)(1))

Offenses which are felony violations of the federal narcotic laws may be any or all of the following offenses:

[Conspiracy to distribute cocaine] [Conspiracy to possess cocaine with the intent to distribute] [Possession of cocaine with intent to distribute] [Distribution of cocaine] [Unlawful use of a communication facility in furtherance of a narcotics felony].¹

(Follow with elements instruction for each offense alleged to have constituted one of the requisite felony violations or, if the violation was the subject of a separate count, a reference to the elements instruction for that count.)

Notes on Use

1. List only those offenses which are alleged to have been part of the series of violations and which are supported by the evidence. If an offense not on this list, but covered by 21 USC 848, has been charged, it should be included. See additional discussion in Note 4, Instruction 6.21.848A, supra.

Committee Comments

See 21 USC 848. Any felony offense found in 21 USC 841-846 is covered. The instruction covers those most commonly used.

(For 2008 version see below).

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

2008 Version

Offenses which are felony violations of the federal narcotic laws may be any or all of the following offenses:

[Conspiracy to distribute cocaine] [Conspiracy to possess cocaine with the intent to distribute] [Possession of cocaine with intent to distribute] [Distribution of cocaine] [Unlawful use of a communication facility in furtherance of a narcotics felony].¹

(Follow with elements instruction for each offense alleged to have constituted one of the requisite felony violations or, if the violation was the subject of a separate count, a reference to the elements instruction for that count.)

Notes on Use

Committee Comments

See 21 USC 848. Any felony offense found in 21 USC 841-846 is covered. The instruction covers those most commonly used.

(For 2006 version see below)

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

2006 Version

Offenses which are felony violations of the federal narcotic laws may be any or all of the following offenses:

[Conspiracy to distribute cocaine] [Conspiracy to possess cocaine with the intent to distribute] [Possession of cocaine with intent to distribute] [Distribution of cocaine] [Unlawful use of a communication facility in furtherance of a narcotics felony].¹

(Follow with elements instruction for each offense alleged to have constituted one of the requisite felony violations or, if the violation was the subject of a separate count, a reference to the elements instruction for that count.)

Notes on Use

Committee Comments

See 21 USC 848. Any felony offense found in 21 USC 841-846 is covered. The instruction covers those most commonly used.

For 2000 version see below

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

2000 Version

Offenses which are felony violations of the federal narcotic laws may be any or all of the following offenses:

[Conspiracy to distribute cocaine] [Conspiracy to possess cocaine with the intent to distribute] [Possession of cocaine with intent to distribute] [Distribution of cocaine] [Unlawful use of a communication facility in furtherance of a narcotics felony].1

(Follow with essential elements instruction for each offense alleged to have constituted one of the requisite felony violations or, if the violation was the subject of a separate count, a reference to the essential elements instruction for that count.)

Committee Comments

See 21 USC 848. Any felony offense found in 21 USC 841-846 is covered. The instruction covers those most commonly used.

Notes on Use

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.21.853
CRIMINAL FORFEITURE OF PROPERTY
(21 USC 853)

FORECITE National™ Materials Related To This Instruction:

Federal Models By Offense: Forfeiture (21 USC 853)

Members of the jury, you have reached a verdict that the [defendant is] [defendants are] guilty of (insert charges), as charged in Count(s) (insert count numbers or titles). You now have one more task to perform.¹ I must ask you to render a special verdict concerning property the United States has alleged is subject to forfeiture by (name(s) of the defendant(s) convicted) to the United States. Forfeiture means the defendant loses any ownership or interest [he, she] has or claims to have in the property, as a part of the penalty for engaging in criminal activity. [You need not concern yourself with any other person's interest in the property. I will take care of any such claims. Your only concern is with defendant (name)'s interest in the property.]

The United States alleges that certain properties should be forfeited because they [were derived from proceeds of the defendant's drug offense(s)] [were used or intended to be used by the defendant to facilitate the commission of the drug offense(s).] The Count(s) (insert count numbers or titles) alleging property to be forfeited to the United States and [the particular property alleged to be related to a particular count] [the property alleged to be related to the count] [is, are] as follows:²

(List each count for which there has been a conviction and the specific property alleged to be related to it and subject to forfeiture by the defendant or by a particular defendant.)

You must determine what property, if any, is subject to forfeiture. Property is subject to forfeiture if the United States has proved, by the greater weight of the evidence [either]³ that:

[One, the property constituted or was derived from any proceeds the [particular] defendant obtained, directly or indirectly, as a result of the offense(s) of which [he, she] has been found guilty,] [or]

[Two, the property was used or was intended to be used, in any manner or part, to commit or to facilitate the commission of an offense of which the defendant has been found guilty.]

[Property "derived" from the proceeds of drug violations includes any property obtained (directly or indirectly) using money or any other source of wealth gained as a result of having participated in drug violations.⁴ Property which "facilitates" the commission of drug violations includes property which makes the commission of the violations easier or is used to assist in the commission of the violation.⁵]

[You may, but are not required to, find that property is subject to forfeiture if the United States has proved by the greater weight of the evidence that:

a. such property was acquired by the defendant during the period the defendant was committing the offense(s) of which [he, she] has been found guilty or within a reasonable time after the commission of [that offense, those offenses], and

b. there was no likely source for such property other than the offense(s) for which the defendant has been found guilty.]

To prove something by the greater weight of the evidence is to prove that it is more likely true than not true. The decision is made by considering all of the evidence on the subject and deciding which evidence you believe. Each party is entitled to the benefit of all evidence received, regardless of who offered the evidence. Greater weight of the evidence is a lesser standard than proof beyond a reasonable doubt.

[Property subject to forfeiture may include (specify property which the United States claims is subject to forfeiture), whether or not the property has been seized by the United States.]

All of my previous instructions [regarding (identify the applicable instructions by title or number, e.g., Credibility of Witnesses and Duty to Deliberate),] apply with respect to this special verdict.

A Special Verdict Form has been prepared for your use. With respect to each property, you are asked to determine unanimously whether it is to be forfeited to the United States.

You may answer by simply putting an "X" or a check mark in the space provided next to the words "yes" or "no." The foreperson must then sign and date the special verdict form.

SPECIAL VERDICT FORM ⁶

We, the Jury, return the following Special Verdict as to the defendant's interest in each of the properties alleged in Count(s) (insert count number(s)) to be subject to forfeiture of the United States:

1. (Insert dollar amount in United States currency, real property or other tangible or intangible personal property as alleged in indictment);

We, the jury, unanimously find this property is subject to forfeiture.

YES ______________

NO _______________

[Continue with these questions based upon the specific assets of the indictment.]

This _____ day of ____________________, 20_____.

___________________________________
Foreperson

Notes on Use

1. The Committee recommends that the guilt phase of the trial be partially bifurcated from the forfeiture phase; verdicts should first be accepted as to the guilt or innocence of individual defendants, and the jury should then be separately instructed as to forfeiture. In United States v. Sandini, 816 F.2d 869 (3d Cir. 1987), the court required that the guilt and forfeiture proceedings be bifurcated and that a defendant be given the opportunity to testify at the forfeiture hearing if he so requests. The court held that requiring the defendant to testify at his criminal trial about the forfeiture aspects of the case, or not testify at all, presented the defendant with a constitutionally impermissible "Hobson's choice."

Other courts have favored (but have not required) partially bifurcated proceedings. These courts have recommended separate arguments and instructions on forfeiture, but leave the issue of testimony in the forfeiture phase to the discretion of the trial court. United States v. Cauble, 706 F.2d 1322 (5th Cir. 1983); United States v. Jenkins, 904 F.2d 549 (10th Cir. 1990); United States v. Feldman, 853 F.2d 648 (9th Cir. 1988); United States v. Elgersma, 971 F.2d 690 (11th Cir. 1992) (en banc).

The Committee recommends the approach of the above courts. After guilty verdicts are received, the court may allow arguments and instruct the jury on forfeiture. Whether or not further testimony is allowed in the forfeiture phase will be left to the sound discretion of the trial court to be determined on a case-by-case basis.

2. If the property is held in the name of or owned by third parties, the following instruction may be given:

[You will have noted that certain property is held in the name of a person or business entity other than the defendant's. You should simply disregard any such title or formal claim of ownership of such property if you find that such property either constituted or was derived from any proceeds the defendant obtained, directly or indirectly, as the result of his criminal activity or was used, or intended to be used, in any manner or part to commit or to facilitate the commission of such criminal activity.

The defendant's interest in any such property becomes vested in the United States at the moment the property was acquired by way of the illegal acts prohibited in the statute. Any interest that another person may claim to have in such property will be taken into account later by this court in imposing a sentence and in disposing of the property. This is not for your consideration as jurors. Stated differently, your sole task is to decide whether this property, regardless in whose name it is now held, was derived from or was intended to facilitate the defendant's drug violations.]

3. The following two subsections of 21 USC 853 are relevant to the proper burden of proof in a criminal forfeiture matter.

Property Subject to Criminal Forfeiture

(a) Any person convicted of a violation of this subchapter or subchapter II of this chapter punishable by imprisonment for more than one year shall forfeit to the United States, irrespective of any provision of State law--

(1) any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation;

(2) any of the person's property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation; and

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

Rebuttable Presumption

(d) There is a rebuttable presumption at trial that any property of a person convicted of a felony under this subchapter or subchapter II of this chapter is subject to forfeiture under this section if the United States establishes by the greater weight of the evidence that--

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

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

The Committee recommends following the clear pronouncement of the Eighth Circuit in United States v. Bieri, that the greater weight of the evidence is the proper burden of proof.

4. United States v. Milicia, 769 F. Supp. 877 (E.D. Pa. 1991).

5. United States v. Premises Known as 3639--2nd St., N.E., 869 F.2d 1093, 1096 (8th Cir. 1989); United States v. Schifferli, 895 F.2d 987, 990 (4th Cir. 1990).

6. Rule 31(e), Federal Rules of Criminal Procedure, requires that "special verdicts" be used in all criminal forfeiture matters.

Committee Comments

See 21 USC 853(a) through (d).

Two recent Supreme Court decisions deal with certain types of innocent owners of forfeitable property and with the "proportionality" of forfeitures under the excessive fine clause of the Eighth Amendment of the U.S. Constitution. See United States v. 92 Buena Vista Avenue, Rumson, N.J., 507 U.S. 111 (1993); Austin v. United States, 509 U.S. 602 (1993). Although these cases should be carefully considered because they will have an effect on post-trial hearings involving innocent owners (21 USC 853 n.(1)-n.(7), and on post-trial hearings and findings to determine the proportionality of a particular forfeiture, the Committee believes they should not have an effect on any of the jury instructions in this section.

(For 2008 version see below).

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

2008 Version

Members of the jury, you have reached a verdict that the [defendant is, defendants are] guilty of (insert charges), as charged in Count(s) (insert count numbers or titles). You now have one more task to perform.¹ I must ask you to render a special verdict concerning property the United States has alleged is subject to forfeiture by (name(s) of the defendant(s) convicted) to the United States. Forfeiture means the defendant loses any ownership or interest [he, she] has or claims to have in the property, as a part of the penalty for engaging in criminal activity. [You need not concern yourself with any other person's interest in the property. I will take care of any such claims. Your only concern is with defendant (name)'s interest in the property.]

The United States alleges that certain properties should be forfeited because they [were derived from proceeds of the defendant's drug offense(s)] [were used or intended to be used by the defendant to facilitate the commission of the drug offense(s).] The Count(s) (insert count numbers or titles) alleging property to be forfeited to the United States and [the particular property alleged to be related to a particular count] [the property alleged to be related to the count] [is, are] as follows:²

(List each count for which there has been a conviction and the specific property alleged to be related to it and subject to forfeiture by the defendant or by a particular defendant.)

You must determine what property, if any, is subject to forfeiture. Property is subject to forfeiture if the United States has proved, by the greater weight of the evidence [either]³ that:

[One, the property constituted or was derived from any proceeds the [particular] defendant obtained, directly or indirectly, as a result of the offense(s) of which [he, she] has been found guilty,] [or]

[Two, the property was used or was intended to be used, in any manner or part, to commit or to facilitate the commission of an offense of which the defendant has been found guilty.]

[Property "derived" from the proceeds of drug violations includes any property obtained (directly or indirectly) using money or any other source of wealth gained as a result of having participated in drug violations.⁴ Property which "facilitates" the commission of drug violations includes property which makes the commission of the violations easier or is used to assist in the commission of the violation.⁵]

[You may, but are not required to, find that property is subject to forfeiture if the United States has proved by the greater weight of the evidence that:

a. such property was acquired by the defendant during the period the defendant was committing the offense(s) of which [he, she] has been found guilty or within a reasonable time after the commission of [that offense, those offenses], and

b. there was no likely source for such property other than the offense(s) for which the defendant has been found guilty.]

To prove something by the greater weight of the evidence is to prove that it is more likely true than not true. The decision is made by considering all of the evidence on the subject and deciding which evidence you believe. Each party is entitled to the benefit of all evidence received, regardless of who offered the evidence. Greater weight of the evidence is a lesser standard than proof beyond a reasonable doubt.

[Property subject to forfeiture may include (specify property which the United States claims is subject to forfeiture), whether or not the property has been seized by the United States.]

All of my previous instructions [regarding (identify the applicable instructions by title or number, e.g., Credibility of Witnesses and Duty to Deliberate),] apply with respect to this special verdict.

A Special Verdict Form has been prepared for your use. With respect to each property, you are asked to determine unanimously whether it is to be forfeited to the United States.

You may answer by simply putting an "X" or a check mark in the space provided next to the words "yes" or "no." The foreperson must then sign and date the special verdict form.

SPECIAL VERDICT FORM ⁶

We, the Jury, return the following Special Verdict as to the defendant's interest in each of the properties alleged in Count(s) (insert count number(s)) to be subject to forfeiture of the United States:

1. (Insert dollar amount in United States currency, real property or other tangible or intangible personal property as alleged in indictment);

We, the jury, unanimously find this property is subject to forfeiture.

YES ______________

NO _______________

[Continue with these questions based upon the specific assets of the indictment.]

This _____ day of ____________________, 20_____.

___________________________________
Foreperson

Notes on Use

2. If the property is held in the name of or owned by third parties, the following instruction may be given:

[You will have noted that certain property is held in the name of a person or business entity other than the defendant's. You should simply disregard any such title or formal claim of ownership of such property if you find that such property either constituted or was derived from any proceeds the defendant obtained, directly or indirectly, as the result of his criminal activity or was used, or intended to be used, in any manner or part to commit or to facilitate the commission of such criminal activity.

The defendant's interest in any such property becomes vested in the United States at the moment the property was acquired by way of the illegal acts prohibited in the statute. Any interest that another person may claim to have in such property will be taken into account later by this court in imposing a sentence and in disposing of the property. This is not for your consideration as jurors. Stated differently, your sole task is to decide whether this property, regardless in whose name it is now held, was derived from or was intended to facilitate the defendant's drug violations.]

3. The following two subsections of 21 USC 853 are relevant to the proper burden of proof in a criminal forfeiture matter.

Property Subject to Criminal Forfeiture

(1) any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation;

(2) any of the person's property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation; and

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

Rebuttable Presumption

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

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

The Committee recommends following the clear pronouncement of the Eighth Circuit in United States v. Bieri, that the greater weight of the evidence is the proper burden of proof.

4. United States v. Milicia, 769 F. Supp. 877 (E.D. Pa. 1991).

5. United States v. Premises Known as 3639--2nd St., N.E., 869 F.2d 1093, 1096 (8th Cir. 1989); United States v. Schifferli, 895 F.2d 987, 990 (4th Cir. 1990).

6. Rule 31(e), Federal Rules of Criminal Procedure, requires that "special verdicts" be used in all criminal forfeiture matters.

Committee Comments

See 21 USC 853(a) through (d).

(For 2006 version see below)

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

2006 Version

Members of the jury, you have reached a verdict that the [defendant is, defendants are] guilty of (insert charges), as charged in Count(s) (insert count numbers or titles). You now have one more task to perform.¹ I must ask you to render a special verdict concerning property the United States has alleged is subject to forfeiture by (name(s) of the defendant(s) convicted) to the United States. Forfeiture means the defendant loses any ownership or interest [he, she] has or claims to have in the property, as a part of the penalty for engaging in criminal activity. [You need not concern yourself with any other person's interest in the property. I will take care of any such claims. Your only concern is with defendant (name)'s interest in the property.]

The United States alleges that certain properties should be forfeited because they [were derived from proceeds of the defendant's drug offense(s)] [were used or intended to be used by the defendant to facilitate the commission of the drug offense(s).] The Count(s) (insert count numbers or titles) alleging property to be forfeited to the United States and [the particular property alleged to be related to a particular count] [the property alleged to be related to the count] [is, are] as follows:²

(List each count for which there has been a conviction and the specific property alleged to be related to it and subject to forfeiture by the defendant or by a particular defendant.)

You must determine what property, if any, is subject to forfeiture. Property is subject to forfeiture if the United States has proved, by the greater weight of the evidence [either]³ that:

[One, the property constituted or was derived from any proceeds the [particular] defendant obtained, directly or indirectly, as a result of the offense(s) of which [he, she] has been found guilty,] [or]

[Two, the property was used or was intended to be used, in any manner or part, to commit or to facilitate the commission of an offense of which the defendant has been found guilty.]

[Property "derived" from the proceeds of drug violations includes any property obtained (directly or indirectly) using money or any other source of wealth gained as a result of having participated in drug violations.⁴ Property which "facilitates" the commission of drug violations includes property which makes the commission of the violations easier or is used to assist in the commission of the violation.⁵]

[You may, but are not required to, find that property is subject to forfeiture if the United States has proved by the greater weight of the evidence that:

a. such property was acquired by the defendant during the period the defendant was committing the offense(s) of which [he, she] has been found guilty or within a reasonable time after the commission of [that offense, those offenses], and

b. there was no likely source for such property other than the offense(s) for which the defendant has been found guilty.]

To prove something by the greater weight of the evidence is to prove that it is more likely true than not true. The decision is made by considering all of the evidence on the subject and deciding which evidence you believe. Each party is entitled to the benefit of all evidence received, regardless of who offered the evidence. Greater weight of the evidence is a lesser standard than proof beyond a reasonable doubt.

[Property subject to forfeiture may include (specify property which the United States claims is subject to forfeiture), whether or not the property has been seized by the United States.]

All of my previous instructions [regarding (identify the applicable instructions by title or number, e.g., Credibility of Witnesses and Duty to Deliberate),] apply with respect to this special verdict.

A Special Verdict Form has been prepared for your use. With respect to each property, you are asked to determine unanimously whether it is to be forfeited to the United States.

You may answer by simply putting an "X" or a check mark in the space provided next to the words "yes" or "no." The foreperson must then sign and date the special verdict form.

SPECIAL VERDICT FORM ⁶

We, the Jury, return the following Special Verdict as to the defendant's interest in each of the properties alleged in Count(s) (insert count number(s)) to be subject to forfeiture of the United States:

1. (Insert dollar amount in United States currency, real property or other tangible or intangible personal property as alleged in indictment);

We, the jury, unanimously find this property is subject to forfeiture.

YES ______________

NO _______________

[Continue with these questions based upon the specific assets of the indictment.]

This _____ day of ____________________, 20_____.

___________________________________
Foreperson

Notes on Use

2. If the property is held in the name of or owned by third parties, the following instruction may be given:

[You will have noted that certain property is held in the name of a person or business entity other than the defendant's. You should simply disregard any such title or formal claim of ownership of such property if you find that such property either constituted or was derived from any proceeds the defendant obtained, directly or indirectly, as the result of his criminal activity or was used, or intended to be used, in any manner or part to commit or to facilitate the commission of such criminal activity.

The defendant's interest in any such property becomes vested in the United States at the moment the property was acquired by way of the illegal acts prohibited in the statute. Any interest that another person may claim to have in such property will be taken into account later by this court in imposing a sentence and in disposing of the property. This is not for your consideration as jurors. Stated differently, your sole task is to decide whether this property, regardless in whose name it is now held, was derived from or was intended to facilitate the defendant's drug violations.]

3. The following two subsections of 21 USC 853 are relevant to the proper burden of proof in a criminal forfeiture matter.

Property Subject to Criminal Forfeiture

(1) any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation;

(2) any of the person's property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation; and

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

Rebuttable Presumption

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

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

Six circuit courts of appeal including the Eighth Circuit have found that forfeiture is merely part of the punishment for a crime in addition to any sentence that the defendant receives. Five of these circuits including the Eighth Circuit have definitively held that the proper burden of proof in a forfeiture matter is the preponderance of the evidence. United States v. Bieri, 21 F.3d 819 (8th Cir. 1994); United States v. Smith, 966 F.2d 1045 (6th Cir. 1992); United States v. Herrero, 893 F.2d 1512 (7th Cir. 1990); United States v. Hernandez-Escarsega, 886 F.2d 1560 (9th Cir. 1989); United States v. Sandini, 816 F.2d 869 (3d Cir. 1987). A sixth court has held that the burden is preponderance in matters involving "proceeds" of drug transactions. United States v. Elgersma, 971 F.2d 690 (11th Cir. 1992) (en banc). Other jurisdictions adhere to the reasonable doubt standard. United States v. Monsanto, 852 F.2d 1400, 1412 n.1 (2d Cir. 1988); United States v. Nichols, 841 F.2d 1485, 1500 (10th Cir. 1988); United States v. Dunn, 802 F.2d 646, 647 (2d Cir. 1986); United States v. Cauble, 706 F.2d 1322, 1347-48 (5th Cir 1983); United States v. Pryba, 674 F. Supp. 1518, 1520-21, aff'd, 900 F.2d 748 (4th Cir. 1990). The Supreme Court has not directly addressed this issue.

The Committee recommends following the clear pronouncement of the Eighth Circuit in United States v. Bieri, that the greater weight of the evidence is the proper burden of proof.

4. United States v. Milicia, 769 F. Supp. 877 (E.D. Pa. 1991).

5. United States v. Premises Known as 3639--2nd St., N.E., 869 F.2d 1093, 1096 (8th Cir. 1989); United States v. Schifferli, 895 F.2d 987, 990 (4th Cir. 1990).

6. Rule 31(e), Federal Rules of Criminal Procedure, requires that "special verdicts" be used in all criminal forfeiture matters.

Committee Comments

See 21 USC 853(a) through (d).

For 2000 version see below

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2000 Version

Members of the jury, you have reached a verdict that the [defendant is, defendants are] guilty of (insert charges), as charged in Count(s) (insert count numbers or titles). You now have one more task to perform.1 I must ask you to render a special verdict concerning property the United States has alleged is subject to forfeiture by (name(s) of defendant(s) convicted) to the United States. Forfeiture means the defendant loses any ownership or interest [he, she] has or claims to have in the property, as a part of the penalty for engaging in criminal activity. [You need not concern yourself with any other person's interest in the property. I will take care of any such claims. Your only concern is with defendant (name)'s interest in the property.]

The United States alleges that certain properties should be forfeited because they [were derived from proceeds of the defendant's drug offense(s)] [were used or intended to be used by the defendant to facilitate the commission of the drug offense(s).] The Count(s) (insert count numbers or titles) alleging property to be forfeited to the United States and [the particular property alleged to be related to a particular count] [the property alleged to be related to the count] [is, are] as follows:2

(List each count for which there has been a conviction and the specific property alleged to be related to it and subject to forfeiture by the defendant or by a particular defendant.) You must determine what property, if any, is subject to forfeiture. Property is subject to forfeiture if the United States has proved, by a preponderance of the evidence [either]3 that:

[One, the property constituted or was derived from any proceeds the [particular] defendant obtained, directly or indirectly, as a result of the offense(s) of which [he, she] has been found guilty,] [or]

[Two, the property was used or was intended to be used, in any manner or part, to commit or to facilitate the commission of an offense of which the defendant has been found guilty.]

[Property "derived" from the proceeds of drug violations includes any property obtained (directly or indirectly) using money or any other source of wealth gained as a result of having participated in drug violations.4 Property which "facilitates" the commission of drug violations includes property which makes the commission of the violations easier or is used to assist in the commission of the violation.5]

[You may, but are not required to, find that property is subject to forfeiture if the United States has proved by a preponderance of the evidence that:

a. such property was acquired by the defendant during the period the defendant was committing the offense(s) of which [he, she] has been found guilty or within a reasonable time after the commission of [that offense, those offenses], and

b. there was no likely source for such property other than the offense(s) for which the defendant has been found guilty.]

To prove something by the preponderance of the evidence is to prove that it is more likely true than not true. The decision is made by considering all of the evidence on the subject and deciding which evidence you believe. Each party is entitled to the benefit of all evidence received, regardless of who offered the evidence. Preponderance of the evidence is a lesser standard than proof beyond a reasonable doubt.

[Property subject to forfeiture may include (specify property which the United States claims is subject to forfeiture), whether or not the property has been seized by the United States.]

All of my previous instructions [regarding (identify the applicable instructions by title or number, e.g., Credibility of Witnesses and Duty to Deliberate),] apply with respect to this special verdict.

A Special Verdict Form has been prepared for your use. With respect to each property, you are asked to determine unanimously whether it is to be forfeited to the United States.

You may answer by simply putting an "X" or a check mark in the space provided next to the words "yes" or "no." The foreperson must then sign and date the special verdict form.

SPECIAL VERDICT FORM 6

We, the Jury, return the following Special Verdict as to the defendant's interest in each of the properties alleged in Count(s) (insert count number(s)) to be subject to forfeiture of the United States:

1. (Insert dollar amount in United States currency, real property or other tangible or intangible personal property as alleged in indictment);

We, the jury, unanimously find this property is subject to forfeiture.

YES ______________ NO _______________

[Continue with these questions based upon the specific assets of the indictment.]

This _____ day of ____________________, 19_____. ___________________________________ Foreperson

Committee Comments

See 21 USC 853(a) through (d).

Two recent Supreme Court decisions deal with certain types of innocent owners of forfeitable property and with the "proportionality" of forfeitures under the excessive fine clause of the Eighth Amendment of the U.S. Constitution. See United States v. 92 Buena Vista Avenue, Rumson, N.J., 507 U.S. 111 (1993); Austin v. United States, 509 U.S. 602 (1993). Although these cases should be carefully considered because they will have an effect on post-trial hearings involving innocent owners (21 USC 853 n.(1)-n.(7), and on post-trial hearings and findings to determine the proportionality of a particular forfeiture, the Committee believes they should not have an effect on any of the jury instructions in this section.

Notes on Use

Other courts have favored (but have not required) partially bifurcated proceedings. These courts have recommended separate arguments and instructions on forfeiture, but leave the issue of testimony in the forfeiture phase to the discretion of the trial court. United States v. Cauble, 706 F.2d 1322 (5th Cir. 1983), cert. denied, 465 U.S. 1005 (1984); United States v. Jenkins, 904 F.2d 549 (10th Cir. 1990); United States v. Feldman, 853 F.2d 648 (9th Cir. 1988), cert. denied, 489 U.S. 1030 (1989); United States v. Elgersma, 971 F.2d 690 (11th Cir. 1992) (en banc).

2. If the property is held in the name of or owned by third parties, the following instruction may be given:

[You will have noted that certain property is held in the name of a person or business entity other than the defendant's. You should simply disregard any such title or formal claim of ownership of such property if you find that such property either constituted or was derived from any proceeds the defendant obtained, directly or indirectly, as the result of his criminal activity or was used, or intended to be used, in any manner or part to commit or to facilitate the commission of such criminal activity.

The defendant's interest in any such property becomes vested in the United States at the moment the property was acquired by way of the illegal acts prohibited in the statute. Any interest that another person may claim to have in such property will be taken into account later by this court in imposing a sentence and in disposing of the property. This is not for your consideration as jurors. Stated differently, your sole task is to decide whether this property, regardless in whose name it is now held, was derived from or was intended to facilitate the defendant's drug violations.]

3. The following two subsections of 21 USC 853 are relevant to the proper burden of proof in a criminal forfeiture matter.

Property Subject to Criminal Forfeiture

(a) Any person convicted of a violation of this subchapter or subchapter II of this chapter punishable by imprisonment for more than one year shall forfeit to the United States, irrespective of any provision of State law--

(1) any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation;

(2) any of the person's property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation; and

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

Rebuttable Presumption

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

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

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

Six circuit courts of appeal including the Eighth Circuit have found that forfeiture is merely part of the punishment for a crime in addition to any sentence that the defendant receives. Five of these circuits including the Eighth Circuit have definitively held that the proper burden of proof in a forfeiture matter is preponderance of the evidence. United States v. Bieri, 21 F.3d 819 (8th Cir. 1994); United States v. Smith, 966 F.2d 1045 (6th Cir. 1992); United States v. Herrero, 893 F.2d 1512 (7th Cir.), cert. denied, 496 U.S. 927 (1990); United States v. Hernandez-Escarsega, 886 F.2d 1560 (9th Cir. 1989), cert. denied, 497 U.S. 1003 (1990); United States v. Sandini, 816 F.2d 869 (3d Cir. 1987). A sixth court has held that the burden is preponderance in matters involving "proceeds" of drug transactions. United States v. Elgersma, 971 F.2d 690 (11th Cir. 1992) (en banc). Other jurisdictions adhere to the reasonable doubt standard. United States v. Monsanto, 852 F.2d 1400, 1412 n.1 (2d Cir. 1988); United States v. Nichols, 841 F.2d 1485, 1500 (10th Cir. 1988); United States v. Dunn, 802 F.2d 646, 647 (2d Cir. 1986), cert. denied, 480 U.S. 931 (1987); United States v. Cauble, 706 F.2d 1322, 1347- 48 (5th Cir 1983), cert. denied, 465 U.S. 1005 (1984); United States v. Pryba, 674 F. Supp. 1518, 1520-21, aff'd, 900 F.2d 748 (4th Cir.), cert. denied, 498 U.S. 924 (1990). The Supreme Court has not directly addressed this issue.

The Committee recommends following the clear pronouncement of the Eighth Circuit in United States v. Bieri, supra, that preponderance of the evidence is the proper burden of proof.

4. United States v. Milicia, 769 F. Supp. 877 (E.D. Pa. 1991).

5. United States v. Premises Known as 3639--2nd St., N.E., 869 F.2d 1093, 1096 (8th Cir. 1989); United States v. Schifferli, 895 F.2d 987, 990 (4th Cir. 1990).

6. Rule 31(e), Federal Rules of Criminal Procedure, requires that "special verdicts" be used in all criminal forfeiture matters.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.21.856A ESTABLISHMENT OF MANUFACTURING OPERATIONS
(Maintaining Any Place For Manufacturing) (21 USC 856(a)(1))

The crime of maintaining a place for the purpose of [manufacturing] [distributing] [using]¹ a controlled substance, as charged in [Count __ of] the indictment has two elements, which are:

One, the defendant knowingly [opened] [maintained]² a[n] (describe place as charged in the indictment); and

Two, the defendant did so for the purpose of³ [manufacturing] [distributing] [using] a controlled substance (describe controlled substance⁴ as charged in the indictment).

A defendant [opens] [maintains] a place for the purpose of [manufacturing] [distributing] [using] (describe controlled substance as charged in indictment) if the defendant maintains the place for the specific purpose of [manufacturing] [ distributing] [using] the controlled substance. The specific purpose need not be the sole purpose for which the place is used, but must be one of the primary or principal uses to which the place is used.⁵

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

Notes on Use

1. See 21 USC 856(a)(1).

2. See 21 USC 856(a)(1). The committee recommends that if the place is a residence, the jury be instructed that in order for the defendant to have maintained the residence, the defendant must have a substantial connection to the home. See United States v. Verners, 53 F.3d 291, 296 (10^th Cir. 1995).

3. The purpose element applies to the person charged with maintaining the place for illegal activity. It is not sufficient that others possess the requisite purpose. United States v. Chen, 913 F.3d at 189-90.

4. If the controlled substance cannot be precisely identified, the phrase "a controlled substance" may be used.

5. United States v. Verners, 53 F.3d at 296; United States v. Lancaster, 968 F.2d 1250, 1253 (D.C. Cir. 1992); United States v. Roberts, 913 F.2d 211, 220 (5^th Cir. 1990), cert denied sub nom, Preston v. United States, 500 U.S. 955 (1991).

Committee Comments

See United States v. Chen, 913 F.2d 183, 186 (5^th Cir. 1990); United States v. Verners, 53 F.3d 291, 295 (10^th Cir. 1995); United States v. Clavis, 956 F.2d 1079, 1090, modified on other grounds, 977 F.2d 538 (11^th Cir. 1992).

As part of the comprehensive drug legislation passed in October 1986, Congress enacted section 856 to strengthen federal efforts to "outlaw operation of houses or buildings, so-called ‘crack houses,’ where ‘crack,’ cocaine and other drugs are manufactured and used." H.R. 5484, 99^th Cong., 2^nd Sess., 132 Cong. Rec. S13779 (9/26/86). The drug-house statute is aimed, like the drug-kingpin statute, at persons who occupy a supervisory, managerial or entrepreneurial role in a drug enterprise, or who knowingly allow such an enterprise to use their premises to conduct its affairs. United States v. Thomas, 956 F.2d 165, 166 (7^th Cir. 1992). The Eleventh Circuit has held that the statute contemplates continuity in pursuit of the alleged objective: manufacturing, distributing or using controlled substances. As such, it found that an isolated instance of drug use or distribution or manufacturing is not sufficient to constitute a violation of the statute. United States v. Clavis, 956 F.2d at 1090.

Proof of "dominion or control" is not necessary to establish "maintenance." United States v. Basinger, 60 F.3d 1400, 1405 (9^th Cir. 1995); United States v. Clavis, 956 F.2d at 1091. However, proof of a defendant’s "dominion and control" over a place may be sufficient to show that the defendant was maintaining a place. See United States v. Howell, 31 F.3d 740, 741 (8^th Cir. 1994) (evidence that the defendant had sprayed and cultivated field provided circumstantial evidence of constructive possession and control to sufficiently support a finding that the defendant maintained a place for the growing of marijuana). Acts evidencing maintenance include control, duration, acquisition of the site, renting or furnishing the site, repairing the site, supervising, protecting, supplying food to those at the site, and continuity. United States v. Clavis, 956 F.2d at 1091. See also United States v. Cabbell, 35 F.3d 1255, 1261 (8^th Cir. 1994), citing with approval, United States v. Clavis, 956 F.2d at 1091. The Tenth Circuit has held that where the "place" in question is a residence, the defendant must have a "substantial connection" to the home and must be more than a "casual visitor" in order to satisfy the element. United States v. Verners, 53 F.3d at 295; United States v. Williams, 923 F.2d 1397, 1403 (10^th Cir. 1990). When a defendant lives in the house, the element may be satisfied. United States v. Onick, 889 F.2d 1425, 1431 (5^th Cir. 1989).

The offense has two mental elements, knowledge and purpose. See United States v. Clavis, 956 F.2d 1079, 1090 (11^th Cir. 1992). The purpose element in subsection (a)(1) applies to the person who is charged with opening or maintaining the place for illegal activity. Therefore, it is not sufficient that other individuals, rather than the defendant, possessed the requisite purpose. Id.; United States v. Banks, 987 F.2d 463, 466 (7^th Cir. 1993); United States v. Chen, 913 F.2d at 189-90. The Seventh Circuit, drawing upon a business analogy, defined the term "for the purpose of" as whether the defendant acted as a supervisor, manager or entrepreneur in the drug enterprise, as opposed to someone who merely facilitated the crime. United States v. Banks, 987 F.2d at 466-67. Evidence that a place is being used to run a drug enterprise may include investment in the tools of trade, e.g., scales, laboratory equipment, guns and ammunition; packaging materials, financial records, profits, and the presence of multiple employees or customers. United States v. Verners, 53 F.3d at 296.

While the defendant must have the specific purpose, it need not be the sole purpose for which the place is opened or maintained. United States v. Verners, 53 F.3d at 296. The Fifth Circuit held in United States v. Roberts, 913 F.2d 211, 220 (5^th Cir. 1990), cert. denied sub nom, Preston v. United States, 500 U.S. 955 (1991), that a finding that the statute limited convictions to a sole purpose requirement would eviscerate the statute. On the other hand, the manufacturing, distributing or using of drugs must be more than a mere collateral purpose of the residence. A casual drug user does not violate the law because he does not maintain his house for the purpose of using drugs but rather for the purpose of residence; the consumption of drugs is merely incidental to that purpose. United States v. Verners, 53 F.3d at 296; United States v. Lancaster, 968 F.2d 1250, 1253 (D.C. Cir. 1992). The manufacturing, distribution or use of drugs must be one of the primary or principal uses to which the place is put. Id.

The Fifth Circuit has held that a deliberate ignorance instruction is inappropriate and cannot be given as to a section 856(a)(1) violation, for one cannot be deliberately ignorant and still have the purpose of engaging in illegal drug activities. The instruction was inappropriate for an offense which requires a specific purpose by the defendant. United States v. Chen, 913 F.2d at 190.

(For 2008 version see below).

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

2008 Version

The crime of maintaining a place for the purpose of [manufacturing] [distributing] [using]¹ a controlled substance, as charged in [Count __ of] the indictment has two elements, which are:

One, the defendant knowingly [opened] [maintained]² a[n] (describe place as charged in the indictment); and

Two, the defendant did so for the purpose of³ [manufacturing] [distributing] [using] a controlled substance (describe controlled substance⁴ as charged in the indictment).

A defendant [opens] [maintains] a place for the purpose of [manufacturing] [distributing] [using] (describe controlled substance as charged in indictment) if the defendant maintains the place for the specific purpose of [manufacturing] [ distributing] [using] the controlled substance. The specific purpose need not be the sole purpose for which the place is used, but must be one of the primary or principal uses to which the place is used.⁵

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

Notes on Use

1. See 21 USC 856(a)(1).

4. If the controlled substance cannot be precisely identified, the phrase "a controlled substance" may be used.

Committee Comments

(For 2006 version see below)

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

2006 Version

The crime of maintaining a place for the purpose of [manufacturing] [distributing] [using]¹ a controlled substance, as charged in [Count __ of] the indictment has two elements, which are:

One, the defendant knowingly [opened] [maintained]² a[n] (describe place as charged in the indictment); and

Two, the defendant did so for the purpose of³ [manufacturing] [distributing] [using] a controlled substance (describe controlled substance⁴ as charged in the indictment).

A defendant [opens] [maintains] a place for the purpose of [manufacturing] [distributing] [using] (describe controlled substance as charged in indictment) if the defendant maintains the place for the specific purpose of [manufacturing] [ distributing] [using] the controlled substance. The specific purpose need not be the sole purpose for which the place is used, but must be one of the primary or principal uses to which the place is used.⁵

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

Notes on Use

1. See 21 USC 856(a)(1).

4. If the controlled substance cannot be precisely identified, the phrase "a controlled substance" may be used.

Committee Comments

No 2000 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.21.856B ESTABLISHMENT OF MANUFACTURING OPERATIONS
(Managing or Controlling a Manufacturing Place For Compensation (21 USC 856 (a)(2))

The crime of [managing] [controlling]¹ an establishment of manufacturing operations, as charged in [Count __ of] the indictment has three elements, which are:

One, the defendant [managed] [controlled] (describe location as charged in indictment);

Two, the defendant did so as [owner] [lessee] [agent] [employee] [ mortgagee]; and

Three, the defendant knowingly and intentionally [ rented] [leased] [made available for use with or without compensation] (describe location as charged in indictment) for the purpose of² unlawfully [manufacturing] [storing] [distributing] [ using] (describe controlled substance as charged in indictment).

A defendant [managed ] [controlled] (describe location as charged in indictment) for the purpose of unlawfully [manufacturing] [storing] [distributing] [using] (describe controlled substance as charged in indictment) if a significant purpose for the location is the [manufacturing] [storing] [ distributing] [using] of a controlled substance. [[Manufacturing] [Storing] [Distributing] [Using] need not be the sole or primary purpose for which the place is used.]³

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

Notes on Use

1. See 21 USC 856(a)(2).

2. The purpose element may be satisfied if the individuals using the location are engaged in the illegal activity. See United States v. Banks, 987 F.2d 463, 466 (7^th Cir. 1993); United States v. Chen, 913 F.2d 183, 189-90 (5^th Cir. 1990).

3. United States v. Meshack, 225 F.3d 556, 571 (5^th Cir. 2000). See also United States v. Roberts, 913 F.2d 211, 220 (5^th Cir. 1990), cert denied sub nom, Preston v. United States, 500 U.S. 955 (1991). Unlike subsection (a)(1), the specific requirement in subsection (a)(2) may be satisfied if the person or persons renting, leasing or using the property possesses the requisite purpose.

Committee Comments

See Fifth Circuit Instruction 2.91; United States v. Chen, 913 F.2d 183, 186-87 (5^th Cir. 1990).

The drug-house statute is aimed, like the drug-kingpin statute, at persons who occupy a supervisory, managerial or entrepreneurial role in a drug enterprise, or who knowingly allow such an enterprise to use their premises to conduct its affairs. United States v. Thomas, 956 F.2d 165, 166 (7^th Cir. 1992). The Eleventh Circuit has held that the statute contemplates continuity in pursuit of the alleged objective: manufacturing, distributing or using controlled substances. As such, it found that an isolated instance of drug use or distribution or manufacturing is not sufficient to constitute a violation of the statute. United States v. Clavis, 956 F.2d at 1090.

Subsection (a)(2) does not require the person who makes the place available to others for drug activity to possess the purpose of engaging in illegal activity. The purpose in issue is that of the person renting or otherwise using the place. United States v. Banks, 987 F.2d 463, 466 (7^th Cir. 1993); United States v. Chen, 913 F.2d at 189-90. The defendant may be liable if he manages or controls a building that others use for an illicit purpose, and he either knows of the illegal activity or remains deliberately ignorant of it. Therefore, under subsection (a)(2), a deliberate ignorance instruction may be submitted if supported by the evidence. Id.

The Fifth Circuit held in United States v. Roberts, 913 F.2d 211, 220 (5^th Cir. 1990), cert. denied sub nom, Preston v. United States, 500 U.S. 955 (1991), that a finding that the statute limited convictions to a sole purpose requirement would eviscerate the statute.

(For 2008 version see below).

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

2008 Version

The crime of [managing] [controlling]¹ an establishment of manufacturing operations, as charged in [Count __ of] the indictment has three elements, which are:

One, the defendant [managed] [controlled] (describe location as charged in indictment);

Two, the defendant did so as [owner] [lessee] [agent] [employee] [ mortgagee]; and

Three, the defendant knowingly and intentionally [ rented] [leased] [made available for use with or without compensation] (describe location as charged in indictment) for the purpose of² unlawfully [manufacturing] [storing] [distributing] [ using] (describe controlled substance as charged in indictment).

A defendant [managed ] [controlled] (describe location as charged in indictment) for the purpose of unlawfully [manufacturing] [storing] [distributing] [using] (describe controlled substance as charged in indictment) if a significant purpose for the location is the [manufacturing] [storing] [ distributing] [using] of a controlled substance. [[Manufacturing] [Storing] [Distributing] [Using] need not be the sole or primary purpose for which the place is used.]³

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

Notes on Use

1. See 21 USC 856(a)(2).

Committee Comments

See Fifth Circuit Instruction 2.91; United States v. Chen, 913 F.2d 183, 186-87 (5^th Cir. 1990).

(For 2006 version see below)

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

2006 Version

The crime of [managing] [controlling]¹ an establishment of manufacturing operations, as charged in [Count __ of] the indictment has three elements, which are:

One, the defendant [managed] [controlled] (describe location as charged in indictment);

Two, the defendant did so as [owner] [lessee] [agent] [employee] [ mortgagee]; and

Three, the defendant knowingly and intentionally [ rented] [leased] [made available for use with or without compensation] (describe location as charged in indictment) for the purpose of² unlawfully [manufacturing] [storing] [distributing] [ using] (describe controlled substance as charged in indictment).

A defendant [managed ] [controlled] (describe location as charged in indictment) for the purpose of unlawfully [manufacturing] [storing] [distributing] [using] (describe controlled substance as charged in indictment) if a significant purpose for the location is the [manufacturing] [storing] [ distributing] [using] of a controlled substance. [[Manufacturing] [Storing] [Distributing] [Using] need not be the sole or primary purpose for which the place is used.]³

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

Notes on Use

1. See 21 USC 856(a)(2).

Committee Comments

See Fifth Circuit Instruction 2.91; United States v. Chen, 913 F.2d 183, 186-87 (5^th Cir. 1990).

No 2000 Version

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.26.5861
FIREARMS--POSSESSION OF UNREGISTERED FIREARMS
(26 USC 5861(d))

FORECITE National™ Materials Related To This Instruction:

Federal Models By Offense: Firearms–Possession Of Unregistered Firearms (26 USC 5861(d))

The crime of [possession¹ of] [receiving] an unregistered firearm, as charged in Count _____ of the Indictment, has four elements, which are:

One, the defendant knew² [he] [she] had the firearm in [his] [her] possession;

Two, the defendant knew² the firearm was [use definitions from 26 USC 5845(a),³ e.g., a shotgun having a barrel or barrels less than 18 inches in length, etc.]⁴;

Three, the firearm [was capable of operating as designed] [could readily be put in operating condition];⁵ and

Four, the firearm was not registered to the defendant in the National Firearms Registration and Transfer Record.⁶

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

Notes on Use

1. The element of possession in firearms cases under section 5861(d) is satisfied if the defendant has knowledge of presence and control. Ownership is not controlling on the issue of guilt. Zrust, 835 F.2d at 193. See Instruction 8.02, infra, for an instruction on actual or constructive possession.

2. Title 26, USC 5861 requires proof that a defendant knew of the characteristics of the weapon that made it a "firearm." Staples v. United States, 511 U.S. 600, 619 (1994). The holding in Staples is a "narrow one." Id. It focuses on concern that Congress did not intend to make outlaws of gun owners who were "wholly ignorant of the offending characteristics of their weapons." Id. Post-Staples, the Eighth Circuit has held that where the characteristics of the weapon itself render it "quasi-suspect," the government need only prove that the defendant possessed the weapon and observed its characteristics. United States v. Barr, 32 F.3d 1320, 1324 (8th Cir. 1994). Barr involved a sawed-off shotgun with readily visible modifications to both the barrel and the stock.

3. "Firearm" may require definition for the jury. The eight categories of firearms are defined in 26 USC 5845(a). In light of the decisions in United States v. Kurt, 988 F.2d 73, 75-76 (9th Cir. 1993); United States v. Dalton, 960 F.2d 121 (10th Cir. 1992), and United States v. Rock Island Armory, Inc., 773 F. Supp. 117 (C.D. Ill. 1991), machine gun possession arguably should be charged under 18 USC 922(o) rather than 26 USC 5861(d). However, the most recent court of appeals to consider the issue explicitly rejected the argument that 18 USC 922(o) did not implicitly repeal and make unconstitutional 26 USC § 5845 & 5861. United States v. Ardoin, 19 F.3d 177, 180 (5th Cir. 1994) (expressly rejecting Dalton and Rock Island Armory and adopting the analysis of the Fourth Circuit in United States v. Jones, 976 F.2d 176 (4th Cir. 1992)).

4. Further definition may be required as set forth in 26 USC 5845(b)-(h)

5. The Government must prove that the firearm can be operated or readily assembled to operating condition. United States v. Priest, 594 F.2d 1383 (10th Cir. 1979). United States v. Seven Miscellaneous Firearms, 503 F. Supp. 565 (D.D.C. 1980) (forfeiture case). This third element of the pattern instruction will not be required in cases involving destructive devices as it is not necessary that the device function as intended. United States v. Ragusa, 664 F.2d at 700.

6. Whether the firearm should have been registered is a jury question. Bryan v. United States, 373 F.2d 403, 407 (5th Cir. 1967). The capability of the weapon to be registered is not an element of the crime. United States v. Kurt, 988 F.2d at 76.

Committee Comments

See generally Staples v. United States, 511 U.S. 600 (1994); United States v. Barr, 32 F.3d 1320 (8th Cir. 1994); United States v. Matra, 841 F.2d 837 (8th Cir. 1988), and United States v. Zrust, 835 F.2d 192 (8th Cir. 1987). See West "Internal Revenue" Key # 5265 or Westlaw 220k5265. See also Federal Judicial Center, Pattern Criminal Jury. Instructions § 113 (1988); Ninth Cir. Crim. Jury Instr. 9.31, 9.32 (formerly 9.5.1, 9.5.2 (1997)); West "Internal Revenue" Key ## 5265 and 2410 or Westlaw 220k5265k2410; Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 80.l (1997); Seventh Circuit Federal Jury Instructions: Criminal at 405 (1999); and 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 39 (5th ed. 2000).

Destructive devices are considered firearms within the meaning of the statute. 26 USC 5845(a).

Items deemed destructive devices have been as diverse as ten sticks of dynamite, a length of slow fuse and a blasting cap combined with an alarm clock and a 6-volt battery, United States v. Harflinger, 436 F.2d 928 (8th Cir. 1970), and six trash bags each holding a 5-gallon container of gasoline connected by overlapping paper towels with a trigger consisting of matchbooks fashioned to cigarettes adjacent to a bottle of flammable liquid. United States v. Ragusa, 664 F.2d 696, 697-98 (8th Cir. 1981).

The individual components must be designed or intended for use as a destructive device to meet the requirements of 26 USC 5845(f)(3). See United States v. Hamrick, 43 F.3d 877 (4th Cir. 1995) (citing additional examples of destructive devices and affirming by an equally divided court that an improvised, dysfunctional incendiary letter bomb was a destructive device supporting an enhanced penalty under 18 USC 924(c) as well as being a destructive device under 26 USC § 5845(f) & 5861).

When the individual components are commercial explosives, proof of the intended use of the components to assemble a destructive device is required in the Eighth Circuit. Langel v. United States, 451 F.2d 957, 962 (8th Cir. 1971). Accord United States v. Morningstar, 456 F.2d 278 (4th Cir. 1972); United States v. Greer, 588 F.2d 1151 (6th Cir. 1979); Burchfield v. United States, 544 F.2d 922, 924 (7th Cir. 1976); United States v. Oba, 448 F.2d 892, 894 (9th Cir. 1972). In a later Ninth Circuit case, United States v. Fredman, 833 F.2d 837 (9th Cir. 1987), the court reversed a conviction as the Government failed to prove beyond a reasonable doubt that the components were intended for use as a weapon. The same result was reached by the First Circuit when the Government failed to prove the dynamite was intended for use as a bomb. United States v. Curtis, 520 F.2d 1300 (1st Cir. 1975).

The Second Circuit does not require proof of the intended use of the components. In United States v. Posnjak, 457 F.2d 1110 (2d Cir. 1972), the court held that commercial dynamite with unattached fuse and caps was not a destructive device regardless of the intent of the transferor.

(For 2008 version see below).

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

2008 Version

The crime of [possession¹ of] [receiving] an unregistered firearm, as charged in Count _____ of the Indictment, has four elements, which are:

One, the defendant knew² [he] [she] had the firearm in [his] [her] possession;

Two, the defendant knew² the firearm was [use definitions from 26 USC 5845(a),³ e.g., a shotgun having a barrel or barrels less than 18 inches in length, etc.]⁴;

Three, the firearm [was capable of operating as designed] [could readily be put in operating condition];⁵ and

Four, the firearm was not registered to the defendant in the National Firearms Registration and Transfer Record.⁶

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

Notes on Use

3. "Firearm" may require definition for the jury. The eight categories of firearms are defined in 26 USC 5845(a). In light of the decisions in United States v. Kurt, 988 F.2d 73, 75-76 (9th Cir. 1993); United States v. Dalton, 960 F.2d 121 (10th Cir. 1992), and United States v. Rock Island Armory, Inc., 773 F. Supp. 117 (C.D. Ill. 1991), machine gun possession arguably should be charged under 18 USC 922(o) rather than 26 USC 5861(d). However, the most recent court of appeals to consider the issue explicitly rejected the argument that 18 USC 922(o) did not implicitly repeal and make unconstitutional 26 USC§ 5845 & 5861. United States v. Ardoin, 19 F.3d 177, 180 (5th Cir. 1994) (expressly rejecting Dalton and Rock Island Armory and adopting the analysis of the Fourth Circuit in United States v. Jones, 976 F.2d 176 (4th Cir. 1992)).

4. Further definition may be required as set forth in 26 USC 5845(b)-(h)

Committee Comments

Destructive devices are considered firearms within the meaning of the statute. 26 USC 5845(a).

(For 2006 version see below)

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

2006 Version

The crime of [possession¹ of] [receiving] an unregistered firearm, as charged in Count _____ of the Indictment, has four elements, which are:

One, the defendant knew² [he] [she] had the firearm in [his] [her] possession;

Two, the defendant knew² the firearm was [use definitions from 26 USC 5845(a),³ e.g., a shotgun having a barrel or barrels less than 18 inches in length, etc.]⁴;

Three, the firearm [was capable of operating as designed] [could readily be put in operating condition];⁵ and

Four, the firearm was not registered to the defendant in the National Firearms Registration and Transfer Record.⁶

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

Notes on Use

3. "Firearm" may require definition for the jury. The eight categories of firearms are defined in 26 USC 5845(a). In light of the decisions in United States v. Kurt, 988 F.2d 73, 75-76 (9th Cir. 1993); United States v. Dalton, 960 F.2d 121 (10th Cir. 1992), and United States v. Rock Island Armory, Inc., 773 F. Supp. 117 (C.D. Ill. 1991), machine gun possession arguably should be charged under 18 USC 922(o) rather than 26 USC 5861(d). However, the most recent court of appeals to consider the issue explicitly rejected the argument that 18 USC 922(o) did not implicitly repeal and make unconstitutional 26 USC§ 5845 & 5861. United States v. Ardoin, 19 F.3d 177, 180 (5th Cir. 1994) (expressly rejecting Dalton and Rock Island Armory and adopting the analysis of the Fourth Circuit in United States v. Jones, 976 F.2d 176 (4th Cir. 1992)).

4. Further definition may be required as set forth in 26 USC 5845(b)-(h)

Committee Comments

See generally Staples v. United States, 511 U.S. 600 (1994); United States v. Barr, 32 F.3d 1320 (8th Cir. 1994); United States v. Matra, 841 F.2d 837 (8th Cir. 1988), and United States v. Zrust, 835 F.2d 192 (8th Cir. 1987). See West "Internal Revenue" Key # 5265 or Westlaw 220k5265. See also Federal Judicial Center, Pattern Criminal Jury. Instructions § 113 (1988); Ninth Cir. Crim. Jury Instr. 9.5.1, 9.5.2 (1997) 9.31, 9.32 (2000); West "Internal Revenue" Key ## 5265 and 2410 or Westlaw 220k5265k2410; Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 80.l (1997); Seventh Circuit Federal Jury Instructions: Criminal at 405 (1999); and 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 39 (5th ed. 2000).

Destructive devices are considered firearms within the meaning of the statute. 26 USC 5845(a).

For 2000 version see below

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

2000 Version

The crime of [possession1 of] [receiving] an unregistered firearm, as charged in Count _____ of the Indictment, has four essential elements, which are:

One, the defendant knew2 [he] [she] had the firearm in [his] [her] possession;

Two, the defendant knew2 the firearm was [use definitions from 26 USC 5845(a),3 e.g., a shotgun having a barrel or barrels less than 18 inches in length, etc.]4;

Three, the firearm [was capable of operating as designed] [could readily be put in operating condition];5 and

Four, the firearm was not registered to defendant in the National Firearms Registration and Transfer Record.6

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

Committee Comments

See generally Staples v. United States, 511 U.S. 600, 114 S. Ct. 1793 (1994); United States v. Barr, 32 F.3d 1320 (8th Cir. 1994); United States v. Matra, 841 F.2d 837 (8th Cir. 1988), and United States v. Zrust, 835 F.2d 192 (8th Cir. 1987). See West "Internal Revenue" Key # 5265 or Westlaw 220k5265. See also Federal Judicial Center, Pattern Criminal Jury. Instructions § 113 (1988); Ninth Cir. Crim. Jury Instr. 9.5.1, 9.5.2 (1997); West "Internal Revenue" Key ## 5265 and 2410 or Westlaw 220k5265k2410; Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 80.l (1997); Seventh Circuit Federal Jury Instructions: Criminal at 405 (1999); and 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 59 (4th ed. 1990).

Destructive devices are considered firearms within the meaning of the statute. 26 USC 5845(a).

When the individual components are commercial explosives, proof of the intended use of the components to assemble a destructive device is required in the Eighth Circuit. Langel v. United States, 451 F.2d 957, 962 (8th Cir. 1971). Accord United States v. Morningstar, 456 F.2d 278 (4th Cir.), cert. denied, 409 U.S. 896 (1972); United States v. Greer, 588 F.2d 1151 (6th Cir.), cert. denied, 440 U.S. 983 (1979); Burchfield v. United States, 544 F.2d 922, 924 (7th Cir. 1976); United States v. Oba, 448 F.2d 892, 894 (9th Cir.), cert. denied, 405 U.S. 935 (1972). In a later Ninth Circuit case, United States v. Fredman, 833 F.2d 837 (9th Cir. 1987), the court reversed a conviction as the Government failed to prove beyond a reasonable doubt that the components were intended for use as a weapon. The same result was reached by the First Circuit when the Government failed to prove the dynamite was intended for use as a bomb. United States v. Curtis, 520 F.2d 1300 (1st Cir. 1975).

Notes on Use

2. Title 26, USC 5861 requires proof that a defendant knew of the characteristics of the weapon that made it a "firearm." Staples v. United States, 511 U.S. 600, ___, 114 S. Ct. 1793, 1804 (1994). The holding in Staples is a "narrow one." Id. It focuses on concern that Congress did not intend to make outlaws of gun owners who were "wholly ignorant of the offending characteristics of their weapons." Id. Post-Staples, the Eighth Circuit has held that where the characteristics of the weapon itself render it "quasi-suspect," the government need only prove that the defendant possessed the weapon and observed its characteristics. United States v. Barr, 32 F.3d 1320, 1324 (8th Cir. 1994). Barr involved a sawed-off shotgun with readily visible modifications to both the barrel and the stock.

3. "Firearm" may require definition for the jury. The eight categories of firearms are defined in 26 USC 5845(a). In light of the decisions in United States v. Kurt, 988 F.2d 73, 75-76 (9th Cir. 1993); United States v. Dalton, 960 F.2d 121 (10th Cir. 1992), and United States v. Rock Island Armory, Inc., 773 F. Supp. 117 (C.D. Ill. 1991), machine gun possession arguably should be charged under 18 USC 922(o) rather than 26 USC 5861(d). However, the most recent court of appeals to consider the issue explicitly rejected the argument that 18 USC 922(o) did not implicitly repeal and make unconstitutional 26 USC§ 5845 & 5861. United States v. Ardoin, 19 F.3d 177, 180 (5th Cir.) (expressly rejecting Dalton and Rock Island Armory and adopting the analysis of the Fourth Circuit in United States v. Jones, 976 F.2d 176 (4th Cir. 1992), cert. denied, 508 U.S. 914 (1993)), cert. denied, 513 U.S. 933 (1994).

4. Further definition may be required as set forth in 26 USC 5845(b)-(h)

5. The Government must prove that the firearm can be operated or readily assembled to operating condition. United States v. Priest, 594 F.2d 1383 (10th Cir.), cert. denied, 444 U.S. 847 (1979). United States v. Seven Miscellaneous Firearms, 503 F. Supp. 565 (D.D.C. 1980) (forfeiture case). This third element of the pattern instruction will not be required in cases involving destructive devices as it is not necessary that the device function as intended. United States v. Ragusa, 664 F.2d at 700.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.26.7201
TAX EVASION (26 USC 7201)

FORECITE National™ Materials Related To This Instruction:

Federal Models By Offense: Income Tax Evasion (26 USC 7201)

The crime of tax evasion as charged in [Count[s] of] the indictment has three elements, which are:

One, the defendant owed substantial income tax in addition to that which [he] [she] reported on his return;

Two, the defendant attempted to evade¹ and defeat that additional tax; and

Three, the defendant acted willfully.

To "attempt to evade or defeat" a tax involves two things: first, an intent to evade or defeat the tax; and second, some act willfully done in furtherance of such intent. So, the word "attempt" contemplates that the defendant knew and understood that, during the calendar year charged, [he] [she] had some income which was taxable, and which he was required by law to report; but that [he] [she] nevertheless attempted to evade or defeat all or a substantial portion of the tax on that income, by willfully failing to report all [his] [her] known income which [he] [she] knew [he] [she] was required by law to state in [his] [her] return for such year; or in some other way or manner.

To "evade and defeat" a tax means to escape paying a tax by means other than lawful avoidance.

Various schemes, subterfuges, and devices may be resorted to, in an attempt to evade or defeat a tax. [The one alleged in the indictment is that of filing false and fraudulent returns with the intent to evade or defeat the tax.]² The statute makes it a crime willfully to attempt, in any way or manner, to evade or defeat any income tax imposed by law.³

An attempt to evade an income tax for one year is a separate offense from the attempt to evade the tax for a different year.⁴

Even though the indictment alleges a specific amount of tax due for each of the calendar years, the proof need not show the precise amount of the additional tax due.⁵ The Government is only required to establish, beyond a reasonable doubt, that the defendant attempted to evade a substantial income tax, whether greater or less than the amount charged in the indictment.⁶

[The fact that an individual's name⁷is signed to a return means that, unless and until outweighed by evidence in the case which leads you to a different or contrary conclusion, you may find that a filed tax return was in fact signed by the person whose name appears to be signed to it. If you find proof beyond a reasonable doubt that the defendant had signed [his] [her] tax return, that is evidence from which you may, but are not required to, find or infer that the defendant had knowledge of the contents of the return.⁸]

To act "willfully" means to voluntarily and intentionally violate a known legal duty.⁹

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

Notes on Use

1. "Evade" should be defined to clarify that it means more than lawful avoidance of a tax, Distinctive Theatres of Columbus v. Looker, 165 F. Supp. 410, 411 (S.D. Ohio 1958), and to avoid confusion with the requirement of willfulness, United States v. Bishop, 412 U.S. 346, 360 n.8 (1973).

2. Insert the method charged in the indictment. If more than one method has been charged, the jury may be instructed that it need find only one matter false, however its finding as to which matter must be unanimous. There must be sufficient evidence to support each method charged in the instructions. United States v. Kneen, 879 F.2d 345 (8th Cir. 1989).

3. Sansone v. United States, 380 U.S. 343, 351 (1965); 2B Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 67.03 (5th ed. 2000).

4. United States v. Smith, 335 F.2d 898, 900-01 (7th Cir. 1964).

5. See United States v. Calderon, 348 U.S. 160, 167 (1954); Swallow v. United States, 307 F.2d 81, 83 (10th Cir. 1962).

6. See United States v. Johnson, 319 U.S. 503, 517-18 (1943); United States v. Gardner, 611 F.2d 770, 775-76 (9th Cir. 1980).

7. Section 6064, United States Code, Title 26 refers to individuals. Corporate and partnership returns are covered by sections 6062 and 6063 of Title 26. The appropriate language should be used. See also Instruction 4.13, supra.

8. Volume 2B Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 67.22 (5th ed. 2000); United States v. Wainwright, 413 F.2d 796, 802 n.3 (10th Cir. 1969); United States v. Brink, 648 F.2d 1140 (8th Cir. 1981); United States v. Cashio, 420 F.2d 1132, 1135 (5th Cir. 1969).

This instruction should only be used when a signed return is involved. Evasion may be accomplished without the filing or signing of a return.

9. See United States v. Pomponio, 429 U.S. 10, 12 (1976); United States v. Jerde, 841 F.2d 818, 821 (8th Cir. 1988) and Instruction 7.02 of this Manual.

Committee Comments

See 2B Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 67.03, 67.04, 67.08, 67.22, 67.24 (5th ed. 2000); Sansone v. United States, 380 U.S. 343, 351 (1965); United States v. Johnson, 319 U.S. 503, 517-18 (1943); United States v. Frederickson, 846 F.2d 517 (8th Cir. 1988).

Various schemes or devises may constitute tax evasion. Most commonly, the filing of a false and fraudulent return understating income is sufficient to satisfy the requirement of an attempt to evade. Sansone v. United States, 380 U.S. at 351; United States v. Schafer, 580 F.2d 774 (5th Cir. 1978).

Whether the tax evaded was "substantial" is a jury question. Canaday v. United States, 354 F.2d 849, 851 n.2 (8th Cir. 1966). That case defined "substantial" as follows:

The word "substantial,", as applicable here, is necessarily a relative term and not susceptible of an exact meaning. This concept is implicit in United States v. Nunan, 236 F.2d 576, 585 (2d Cir. 1956), where the court, in pertinent part, stated:

* * * The showing by the government must warrant a finding that the amount of the tax evaded is substantial. (Citing cases.) But this is not measured in terms of gross or net income nor by any particular percentage of the tax shown to be due and payable. All the attendant circumstances must be taken into consideration. * * * But a few thousand dollars of omissions of taxable income may in a given case warrant criminal prosecution, depending on the circumstances of the particular case. Otherwise the rich and powerful could evade the income tax with impunity.

345 F.2d at 851-52. Generally "substantial" is not defined in the jury instructions.

While a defendant must intend to evade or defeat the tax, this need not be his sole motive. For example, the defendant may also desire to suppress information as to acts which are unrelated to tax evasion, including other criminal acts. Spies v. United States, 317 U.S. 492 (1943).

The Supreme Court has recognized certain facts and circumstances as indicating an intent to evade taxes:

By way of illustration and not by way of limitation, we would think affirmative willful attempt may be inferred from conduct such as keeping a double set of books, making false entries or alterations, or false invoices or documents, or alterations, or false invoices or documents, destruction of books or records, concealment of assets or covering up sources of income, handling of one's affairs to avoid making the records usual in transactions of the kind, and any conduct, the likely effect of which would be to mislead or to conceal. If the tax evasion motive plays any part in such conduct, the offense may be made out even though the conduct may also serve other purposes such as the concealment of other crimes.

Spies v. United States, 317 U.S. at 499. "Willfulness" may also be shown by a consistent pattern of under-reporting, United States v. DiBenedetto, 542 F.2d 490 (8th Cir. 1976).

Taxable income includes illegally acquired funds as well as legally acquired funds. James v. United States, 366 U.S. 213 (1961) (embezzled funds taxable); United States v. Fogg, 652 F.2d 551, 555-56 (5th Cir.), reh. denied, 660 F.2d 499 (5th Cir. 1981) (commercial bribes and kickbacks taxable); Hartman v. United States, 245 F.2d 349, 352-53 (8th Cir. 1957); United States v. Meyer, 808 F.2d 1304 (8th Cir. 1987) (diverted corporate funds taxable). In a proper case, where there is evidence of illegal income, the jury may be so instructed. See 2B Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 67.21 (5th ed. 2000). United States v. Renfro, 600 F.2d 55 (6th Cir. 1979).

Gifts are not taxable items of income. If the defendant contends that certain payments are gifts, the jury may be instructed as follows:

It is for you, the jury, to decide whether certain funds are taxable or nontaxable to the defendant. In determining whether a payment of money or property to the defendant is a nontaxable gift, you should look to the intent of the parties at the time the payment was made, particularly the intent of the person making the payment. Such payments are gifts if they proceed from a detached and disinterested generosity, out of affection, respect, admiration, charity, or like impulses. In making this determination, however, you must look at all the facts and circumstances in this case. The characterization given to a certain payment by either the defendant or the person making the payment is not conclusive. Rather you, the members of the jury, must make an objective inquiry as to whether a certain payment is a gift. In this instruction a "payment" includes any form of payment whether it be in cash, goods, or services, made directly to the defendant or on his behalf. You should look at the terms and substance of any request made by the defendant for the payment.

United States v. Terrell, 754 F.2d 1139, 1149 n.3 (5th Cir. 1985); Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, 285-86 (1960). In United States v. Shelton, 588 F.2d 1242 (9th Cir. 1978), it was held proper to instruct the jury that whether the item was a gift was dependable on the transferor's intent.

Other nontaxable items such as loans, insurance proceeds, inheritances, etc. may also be identified and defined in the instructions as appropriate to the case.

Good faith is a theory of defense in tax evasion. Where the defendant has presented evidence of good faith, he is entitled to a jury instruction. See Instruction 9.08, infra. See also United States v. Kouba, 822 F.2d 768, 771 (8th Cir. 1987); United States v. Meyer, 808 F.2d 1304 (8th Cir. 1987). Advice of counsel is a form of a good faith theory of defense. See Instruction 9.08 infra.

In United States v. Parshall, 757 F.2d 211 (8th Cir. 1985) the court held it was not error to instruct the jury that "disagreement with the law or governmental policies does not constitute good faith misunderstanding of the requirements of the law."

One method of tax evasion, known as a Spies evasion, consists of failure to file a return coupled with an affirmative act of evasion. See United States v. Goodyear, 649 F.2d 226 (4th Cir. 1981). If this type of evasion is charged, the jury may be instructed on failure to file in violation of Section 7203 as a lesser-included offense.

(For 2008 version see below).

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

2008 Version

The crime of tax evasion as charged in [Count[s] of] the indictment has three elements, which are:

One, the defendant owed substantial income tax in addition to that which [he] [she] reported on his return;

Two, the defendant attempted to evade¹ and defeat that additional tax; and

Three, the defendant acted willfully.

To "attempt to evade or defeat" a tax involves two things: first, an intent to evade or defeat the tax; and second, some act willfully done in furtherance of such intent. So, the word "attempt" contemplates that the defendant knew and understood that, during the calendar year charged, [he] [she] had some income which was taxable, and which he was required by law to report; but that [he] [she] nevertheless attempted to evade or defeat all or a substantial portion of the tax on that income, by willfully failing to report all [his] [her] known income which [he] [she] knew [he] [she] was required by law to state in [his] [her] return for such year; or in some other way or manner.

To "evade and defeat" a tax means to escape paying a tax by means other than lawful avoidance.

Various schemes, subterfuges, and devices may be resorted to, in an attempt to evade or defeat a tax. [The one alleged in the indictment is that of filing false and fraudulent returns with the intent to evade or defeat the tax.]² The statute makes it a crime willfully to attempt, in any way or manner, to evade or defeat any income tax imposed by law.³

An attempt to evade an income tax for one year is a separate offense from the attempt to evade the tax for a different year.⁴

Even though the indictment alleges a specific amount of tax due for each of the calendar years, the proof need not show the precise amount of the additional tax due.⁵ The Government is only required to establish, beyond a reasonable doubt, that the defendant attempted to evade a substantial income tax, whether greater or less than the amount charged in the indictment.⁶

[The fact that an individual's name⁷is signed to a return means that, unless and until outweighed by evidence in the case which leads you to a different or contrary conclusion, you may find that a filed tax return was in fact signed by the person whose name appears to be signed to it. If you find proof beyond a reasonable doubt that the defendant had signed [his] [her] tax return, that is evidence from which you may, but are not required to, find or infer that the defendant had knowledge of the contents of the return.⁸]

To act "willfully" means to voluntarily and intentionally violate a known legal duty.⁹

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

Notes on Use

3. Sansone v. United States, 380 U.S. 343, 351 (1965); 2B Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 67.03 (5th ed. 2000).

4. United States v. Smith, 335 F.2d 898, 900-01 (7th Cir. 1964).

5. See United States v. Calderon, 348 U.S. 160, 167 (1954); Swallow v. United States, 307 F.2d 81, 83 (10th Cir. 1962).

6. See United States v. Johnson, 319 U.S. 503, 517-18 (1943); United States v. Gardner, 611 F.2d 770, 775-76 (9th Cir. 1980).

This instruction should only be used when a signed return is involved. Evasion may be accomplished without the filing or signing of a return.

9. See United States v. Pomponio, 429 U.S. 10, 12 (1976); United States v. Jerde, 841 F.2d 818, 821 (8th Cir. 1988) and Instruction 7.02 of this Manual.

Committee Comments

Whether the tax evaded was "substantial" is a jury question. Canaday v. United States, 354 F.2d 849, 851 n.2 (8th Cir. 1966). That case defined "substantial" as follows:

The word "substantial,", as applicable here, is necessarily a relative term and not susceptible of an exact meaning. This concept is implicit in United States v. Nunan, 236 F.2d 576, 585 (2d Cir. 1956), where the court, in pertinent part, stated:

* * * The showing by the government must warrant a finding that the amount of the tax evaded is substantial. (Citing cases.) But this is not measured in terms of gross or net income nor by any particular percentage of the tax shown to be due and payable. All the attendant circumstances must be taken into consideration. * * * But a few thousand dollars of omissions of taxable income may in a given case warrant criminal prosecution, depending on the circumstances of the particular case. Otherwise the rich and powerful could evade the income tax with impunity.

345 F.2d at 851-52. Generally "substantial" is not defined in the jury instructions.

The Supreme Court has recognized certain facts and circumstances as indicating an intent to evade taxes:

By way of illustration and not by way of limitation, we would think affirmative willful attempt may be inferred from conduct such as keeping a double set of books, making false entries or alterations, or false invoices or documents, or alterations, or false invoices or documents, destruction of books or records, concealment of assets or covering up sources of income, handling of one's affairs to avoid making the records usual in transactions of the kind, and any conduct, the likely effect of which would be to mislead or to conceal. If the tax evasion motive plays any part in such conduct, the offense may be made out even though the conduct may also serve other purposes such as the concealment of other crimes.

Spies v. United States, 317 U.S. at 499. "Willfulness" may also be shown by a consistent pattern of under-reporting, United States v. DiBenedetto, 542 F.2d 490 (8th Cir. 1976).

Taxable income includes illegally acquired funds as well as legally acquired funds. James v. United States, 366 U.S. 213 (1961) [embezzled funds taxable]; United States v. Fogg, 652 F.2d 551, 555-56 (5th Cir.), reh. denied, 660 F.2d 499 (5th Cir. 1981) [commercial bribes and kickbacks taxable]; Hartman v. United States, 245 F.2d 349, 352-53 (8th Cir. 1957); United States v. Meyer, 808 F.2d 1304 (8th Cir. 1987) [diverted corporate funds taxable]. In a proper case, where there is evidence of illegal income, the jury may be so instructed. See 2B Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 67.21 (5th ed. 2000). United States v. Renfro, 600 F.2d 55 (6th Cir. 1979).

Gifts are not taxable items of income. If the defendant contends that certain payments are gifts, the jury may be instructed as follows:

It is for you, the jury, to decide whether certain funds are taxable or nontaxable to the defendant. In determining whether a payment of money or property to the defendant is a nontaxable gift, you should look to the intent of the parties at the time the payment was made, particularly the intent of the person making the payment. Such payments are gifts if they proceed from a detached and disinterested generosity, out of affection, respect, admiration, charity, or like impulses. In making this determination, however, you must look at all the facts and circumstances in this case. The characterization given to a certain payment by either the defendant or the person making the payment is not conclusive. Rather you, the members of the jury, must make an objective inquiry as to whether a certain payment is a gift. In this instruction a "payment" includes any form of payment whether it be in cash, goods, or services, made directly to the defendant or on his behalf. You should look at the terms and substance of any request made by the defendant for the payment.

Other nontaxable items such as loans, insurance proceeds, inheritances, etc. may also be identified and defined in the instructions as appropriate to the case.

(For 2006 version see below)

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

2006 Version

The crime of tax evasion as charged in [Count[s] of] the indictment has three elements, which are:

One, the defendant owed substantial income tax in addition to that which [he] [she] reported on his return;

Two, the defendant attempted to evade¹ and defeat that additional tax; and

Three, the defendant acted willfully.

To "attempt to evade or defeat" a tax involves two things: first, an intent to evade or defeat the tax; and second, some act willfully done in furtherance of such intent. So, the word "attempt" contemplates that the defendant knew and understood that, during the calendar year charged, [he] [she] had some income which was taxable, and which he was required by law to report; but that [he] [she] nevertheless attempted to evade or defeat all or a substantial portion of the tax on that income, by willfully failing to report all [his] [her] known income which [he] [she] knew [he] [she] was required by law to state in [his] [her] return for such year; or in some other way or manner.

To "evade and defeat" a tax means to escape paying a tax by means other than lawful avoidance.

Various schemes, subterfuges, and devices may be resorted to, in an attempt to evade or defeat a tax. [The one alleged in the indictment is that of filing false and fraudulent returns with the intent to evade or defeat the tax.]² The statute makes it a crime willfully to attempt, in any way or manner, to evade or defeat any income tax imposed by law.³

An attempt to evade an income tax for one year is a separate offense from the attempt to evade the tax for a different year.⁴

Even though the indictment alleges a specific amount of tax due for each of the calendar years, the proof need not show the precise amount of the additional tax due.⁵ The Government is only required to establish, beyond a reasonable doubt, that the defendant attempted to evade a substantial income tax, whether greater or less than the amount charged in the indictment.⁶

[The fact that an individual's name⁷is signed to a return means that, unless and until outweighed by evidence in the case which leads you to a different or contrary conclusion, you may find that a filed tax return was in fact signed by the person whose name appears to be signed to it. If you find proof beyond a reasonable doubt that the defendant had signed [his] [her] tax return, that is evidence from which you may, but are not required to, find or infer that the defendant had knowledge of the contents of the return.⁸]

To act "willfully" means to voluntarily and intentionally violate a known legal duty.⁹

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

Notes on Use

3. Sansone v. United States, 380 U.S. 343, 351 (1965); 2B Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 67.03 (5th ed. 2000).

4. United States v. Smith, 335 F.2d 898, 900-01 (7th Cir. 1964).

5. See United States v. Calderon, 348 U.S. 160, 167 (1954); Swallow v. United States, 307 F.2d 81, 83 (10th Cir. 1962).

6. See United States v. Johnson, 319 U.S. 503, 517-18 (1943); United States v. Gardner, 611 F.2d 770, 775-76 (9th Cir. 1980).

This instruction should only be used when a signed return is involved. Evasion may be accomplished without the filing or signing of a return.

9. See United States v. Pomponio, 429 U.S. 10, 12 (1976); United States v. Jerde, 841 F.2d 818, 821 (8th Cir. 1988) and Instruction 7.02 of this Manual.

Committee Comments

Whether the tax evaded was "substantial" is a jury question. Canaday v. United States, 354 F.2d 849, 851 n.2 (8th Cir. 1966). That case defined "substantial" as follows:

The word "substantial,", as applicable here, is necessarily a relative term and not susceptible of an exact meaning. This concept is implicit in United States v. Nunan, 236 F.2d 576, 585 (2d Cir. 1956), where the court, in pertinent part, stated:

* * * The showing by the government must warrant a finding that the amount of the tax evaded is substantial. (Citing cases.) But this is not measured in terms of gross or net income nor by any particular percentage of the tax shown to be due and payable. All the attendant circumstances must be taken into consideration. * * * But a few thousand dollars of omissions of taxable income may in a given case warrant criminal prosecution, depending on the circumstances of the particular case. Otherwise the rich and powerful could evade the income tax with impunity.

345 F.2d at 851-52. Generally "substantial" is not defined in the jury instructions.

The Supreme Court has recognized certain facts and circumstances as indicating an intent to evade taxes:

By way of illustration and not by way of limitation, we would think affirmative willful attempt may be inferred from conduct such as keeping a double set of books, making false entries or alterations, or false invoices or documents, or alterations, or false invoices or documents, destruction of books or records, concealment of assets or covering up sources of income, handling of one's affairs to avoid making the records usual in transactions of the kind, and any conduct, the likely effect of which would be to mislead or to conceal. If the tax evasion motive plays any part in such conduct, the offense may be made out even though the conduct may also serve other purposes such as the concealment of other crimes.

Spies v. United States, 317 U.S. at 499. "Willfulness" may also be shown by a consistent pattern of under-reporting, United States v. DiBenedetto, 542 F.2d 490 (8th Cir. 1976).

Gifts are not taxable items of income. If the defendant contends that certain payments are gifts, the jury may be instructed as follows:

It is for you, the jury, to decide whether certain funds are taxable or nontaxable to the defendant. In determining whether a payment of money or property to the defendant is a nontaxable gift, you should look to the intent of the parties at the time the payment was made, particularly the intent of the person making the payment. Such payments are gifts if they proceed from a detached and disinterested generosity, out of affection, respect, admiration, charity, or like impulses. In making this determination, however, you must look at all the facts and circumstances in this case. The characterization given to a certain payment by either the defendant or the person making the payment is not conclusive. Rather you, the members of the jury, must make an objective inquiry as to whether a certain payment is a gift. In this instruction a "payment" includes any form of payment whether it be in cash, goods, or services, made directly to the defendant or on his behalf. You should look at the terms and substance of any request made by the defendant for the payment.

Other nontaxable items such as loans, insurance proceeds, inheritances, etc. may also be identified and defined in the instructions as appropriate to the case.

For 2000 version see below

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

2000 Version

The crime of tax evasion as charged in [Count[s] of] the indictment has three essential elements, which are:

One, the defendant owed substantial income tax in addition to that which [he] [she] reported on his return;

Two, the defendant attempted to evade1 and defeat that additional tax; and

Three, the defendant acted willfully.

To "attempt to evade or defeat" a tax involves two things: first, an intent to evade or defeat the tax; and second, some act willfully done in furtherance of such intent. So, the word "attempt" contemplates that the defendant knew and understood that, during the calendar year charged, [he] [she] had some income which was taxable, and which he was required by law to report; but that [he] [she] nevertheless attempted to evade or defeat all or a substantial portion of the tax on that income, by willfully failing to report all [his] [her] known income which [he] [she] knew [he] [she] was required by law to state in [his] [her] return for such year; or in some other way or manner.

To "evade and defeat" a tax means to escape paying a tax by means other than lawful avoidance.

Various schemes, subterfuges, and devices may be resorted to, in an attempt to evade or defeat a tax. [The one alleged in the indictment is that of filing false and fraudulent returns with the intent to evade or defeat the tax.]2 The statute makes it a crime willfully to attempt, in any way or manner, to evade or defeat any income tax imposed by law.3

An attempt to evade an income tax for one year is a separate offense from the attempt to evade the tax for a different year.4

Even though the indictment alleges a specific amount of tax due for each of the calendar years, the proof need not show the precise amount of the additional tax due.5 The Government is only required to establish, beyond a reasonable doubt, that the defendant attempted to evade a substantial income tax, whether greater or less than the amount charged in the indictment.6

[The fact that an individual's name7 is signed to a return means that, unless and until outweighed by evidence in the case which leads you to a different or contrary conclusion, you may find that a filed tax return was in fact signed by the person whose name appears to be signed to it. If you find proof beyond a reasonable doubt that the defendant had signed [his] [her] tax return, that is evidence from which you may, but are not required to, find or infer that the defendant had knowledge of the contents of the return.8]

To act "willfully" means to voluntarily and intentionally violate a known legal duty.9

(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 §§ 56.03, 56.04, 56.08, 56.24 (4th ed. 1990); Sansone v. United States, 380 U.S. 343, 351 (1965); United States v. Johnson, 319 U.S. 503, 517-18 (1943); United States v. Frederickson, 846 F.2d 517 (8th Cir. 1988).

Whether the tax evaded was "substantial" is a jury question. Canaday v. United States, 354 F.2d 849, 851 n.2 (8th Cir. 1966). That case defined "substantial" as follows:

The word "substantial,", as applicable here, is necessarily a relative term and not susceptible of an exact meaning. This concept is implicit in United States v. Nunan, 236 F.2d 576, 585 (2d Cir. 1956), cert. denied, 353 U.S. 912 (1957), where the court, in pertinent part, stated:

* * * The showing by the government must warrant a finding that the amount of the tax evaded is substantial. (Citing cases.) But this is not measured in terms of gross or net income nor by any particular percentage of the tax shown to be due and payable. All the attendant circumstances must be taken into consideration. * * * But a few thousand dollars of omissions of taxable income may in a given case warrant criminal prosecution, depending on the circumstances of the particular case. Otherwise the rich and powerful could evade the income tax with impunity.

345 F.2d at 851-52. Generally "substantial" is not defined in the jury instructions.

The Supreme Court has recognized certain facts and circumstances as indicating an intent to evade taxes:

By way of illustration and not by way of limitation, we would think affirmative willful attempt may be inferred from conduct such as keeping a double set of books, making false entries or alterations, or false invoices or documents, or alterations, or false invoices or documents, destruction of books or records, concealment of assets or covering up sources of income, handling of one's affairs to avoid making the records usual in transactions of the kind, and any conduct, the likely effect of which would be to mislead or to conceal. If the tax evasion motive plays any part in such conduct, the offense may be made out even though the conduct may also serve other purposes such as the concealment of other crimes.

Spies v. United States, 317 U.S. at 499. "Willfulness" may also be shown by a consistent pattern of under-reporting, United States v. DiBenedetto, 542 F.2d 490 (8th Cir. 1976).

Taxable income includes illegally acquired funds as well as legally acquired funds. James v. United States, 366 U.S. 213 (1961) [embezzled funds taxable]; United States v. Fogg, 652 F.2d 551, 555-56 (5th Cir.), reh. denied, 660 F.2d 449 (5th Cir. 1981), cert. denied, 456 U.S. 905 (1982) [commercial bribes and kickbacks taxable]; Hartman v. United States, 245 F.2d 349, 352-53 (8th Cir. 1957); United States v. Meyer, 808 F.2d 1304 (8th Cir. 1987) [diverted corporate funds taxable]. In a proper case, where there is evidence of illegal income, the jury may be so instructed. See 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 56.21 (4th ed. 1990). United States v. Renfro, 600 F.2d 55 (6th Cir.), cert. denied, 444 U.S. 941 (1979).

Gifts are not taxable items of income. If the defendant contends that certain payments are gifts, the jury may be instructed as follows:

It is for you, the jury, to decide whether certain funds are taxable or nontaxable to the defendant. In determining whether a payment of money or property to the defendant is a nontaxable gift, you should look to the intent of the parties at the time the payment was made, particularly the intent of the person making the payment. Such payments are gifts if they proceed from a detached and disinterested generosity, out of affection, respect, admiration, charity, or like impulses. In making this determination, however, you must look at all the facts and circumstances in this case. The characterization given to a certain payment by either the defendant or the person making the payment is not conclusive. Rather you, the members of the jury, must make an objective inquiry as to whether a certain payment is a gift. In this instruction a "payment" includes any form of payment whether it be in cash, goods, or services, made directly to defendant or on his behalf. You should look at the terms and substance of any request made by the defendant for the payment.

United States v. Terrell, 754 F.2d 1139, 1149 n.3 (5th Cir.), cert. denied, 472 U.S. 1029 (1985); Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, 285-86 (1960). In United States v. Shelton, 588 F.2d 1242 (9th Cir. 1978), cert. denied, 442 U.S. 909 (1979) it was held proper to instruct the jury that whether the item was a gift was dependable on the transferor's intent.

Other nontaxable items such as loans, insurance proceeds, inheritances, etc. may also be identified and defined in the instructions as appropriate to the case.

Good faith is a theory of defense in tax evasion. Where defendant has presented evidence of good faith, he is entitled to a jury instruction. See Instruction 9.08, infra. See also United States v. Kouba, 822 F.2d 768, 771 (8th Cir. 1987); United States v. Meyer, 808 F.2d 1304 (8th Cir. 1987). Advice of counsel is a form of a good faith theory of defense. See Instruction 9.08 infra.

One method of tax evasion, known as a Spies evasion, consists of failure to file a return coupled with an affirmative act of evasion. See United States v. Goodyear, 649 F.2d 226 (4th Cir. 1981). If this type of evasion is charged, the jury may be instructed on failure to file in violation of Section 7203 as a lesser included offense.

Notes on Use

3. Sansone v. United States, 380 U.S. 343, 351 (1965); 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 35.03 (4th ed. 1990).

4. United States v. Smith, 335 F.2d 898, 900-01 (7th Cir. 1964), cert. denied, 379 U.S. 989 (1965).

5. See United States v. Calderon, 348 U.S. 160, 167 (1954); Swallow v. United States, 307 F.2d 81, 83 (10th Cir. 1962); cert. denied, 371 U.S. 950 (1963).

6. See United States v. Johnson, 319 U.S. 503, 517-18 (1943); United States v. Gardner, 611 F.2d 770, 775-76 (9th Cir. 1980).

8. Volume 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 56.22 (4th ed. 1990); United States v. Wainwright, 413 F.2d 796, 802 n.3 (10th Cir. 1969), cert. denied, 396 U.S. 1009 (1970); United States v. Brink, 648 F.2d 1140 (8th Cir.), cert. denied, 454 U.S. 1031 (1981); United States v. Cashio, 420 F.2d 1132, 1135 (5th Cir. 1969), cert. denied, 397 U.S. 1007 (1970).

This instruction should only be used when a signed return is involved. Evasion may be accomplished without the filing or signing of a return.

9. See United States v. Pomponio, 429 U.S. 10, 12 (1976); United States v. Jerde, 841 F.2d 818, 821 (8th Cir. 1988) and Instruction 7.02 of this Manual.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.26.7203
FAILURE TO FILE TAX RETURN (26 USC 7203)

FORECITE National™ Materials Related To This Instruction:

Federal Models By Offense: Failure To File A Tax Return (26 USC 7203)

The crime of failure to file a tax return as charged in [Count(s) of] the indictment has three elements, which are:

One, the defendant was required to file a federal income tax return for (insert taxable year(s) charged);

Two, the defendant knew that [he] [she] was required to file such a tax return; and

Three, the defendant willfully failed to file the required tax return on or before (insert time required by law).

To act "willfully" means to voluntarily and intentionally violate a known legal duty.¹

[A single person [under] [over] sixty-five years old was required to file a federal income tax return for the year(s) (insert years charged), if [he] [she] had gross income in excess of (insert amount)].²

[A married individual was required to file a federal income tax return for the year(s) (insert years charged), if [he] [she] had a separate gross income in excess of (insert amount)³and a total gross income, when combined with that of [his] [her] spouse, in excess of (insert amount)⁴ where [either] [both] [is] [are] [over] [under] sixty-five years old.]

Gross income includes the following: [Compensation for services, including fees, commissions and similar items] [Gross income derived from business] [Gains derived from dealings in property] [Interest] [Rents] [Royalties] [Dividends] [Alimony and separate maintenance payments] [Annuities] [Income from life insurance and endowment contracts] [Pensions] [Income from discharge of indebtedness] [Distributive share of partnership gross income] [Income in respect of a decedent] [Income from an interest in an estate or trust].⁵

The fact that a person may be entitled to deductions from income in sufficient amount so that no tax is due does not affect that person's obligation to file.

The Government is not required to show that a tax was due and owing or that the defendant intended to evade or defeat the payment of taxes, only that [he] [she] willfully failed to file a return.

If you find beyond a reasonable doubt that the defendant had the required gross income in (insert year, e.g., 1985), then, the defendant was required to file a tax return on or before (insert date, e.g., April 15, 1986).⁶

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

Notes on Use

1. See United States v. Pomponio, 429 U.S. 10, 12 (1976); United States v. Jerde, 841 F.2d 818, 821 (8th Cir. 1988) and Instruction 7.02, infra.

2., 3., 4. Where more than one year is charged and the gross income amount requiring a return be filed differs in amount, it will be necessary to set forth the appropriate gross income for each of the years in issue. Note also that gross income requirement may vary from year to year depending on the amount allowed as an exemption, the age of the defendant, and, in the case of a married defendant, the age of the spouse. 26 USC 6012.

5. The instruction should be simplified by eliminating sources of income not shown by the evidence.

6. A return made on the basis of the calendar year must be made on or before the 15th day of April, following the close of the calendar year. When April 15 falls on a Saturday, Sunday, or legal holiday, returns are due on the first day following April 15 which is not a Saturday, Sunday, or legal holiday. 26 USC 6072, 6081, 7503.

Returns made on the basis of a fiscal year are generally required to be filed on or before the 15th day of the fourth month following the close of the fiscal year. 26 USC 6072(a). Calendar year corporate returns are due on or before the 15th day of March following the close of the calendar year; fiscal year corporate returns are due on or before the 15th day of the third month following the close of the fiscal year. 26 USC 6072(b).

Note that the statutory due dates should be adjusted so as to account for any extensions of time for filing a return.

Committee Comments

See 2B Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 67.11, 67.12, 67.20 (5th ed. 2000); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 82 (1997).

See also Committee Comments, Instruction 6.26.7201, supra.

For a discussion of instructions asserting a good faith defense in tax cases, see Committee Comments, Instruction 9.08, infra.

If a defendant in a failure to file case is allowed to introduce legal and other materials in support of his good faith defense, the following limiting instruction may be appropriate:

The defendant has introduced evidence of advice he heard given by speakers at meetings, tape recorded lectures, essays, pamphlets, court opinions, and other material that he testified he relied on in concluding that he was not a person required to file income tax returns for the years _____ and _____. This evidence has been admitted solely for the purpose of aiding you in determining whether or not the defendant's failure to timely file tax returns for _____ and _____ was knowing and willful and you should not consider it for any other purpose. You are not to consider this evidence as containing any law that you are to apply in reaching your verdicts, because all of the law applicable to this case is set forth in these instructions.

United States v. Miller, 634 F.2d 1134, 1135 (8th Cir. 1980).

If the issue arises, the jury may be properly instructed that the government need not prove bad purpose or evil motive. United States v. Jerde, 841 F.2d 818 (8th Cir. 1988).

(For 2008 version see below).

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

2008 Version

The crime of failure to file a tax return as charged in [Count(s) of] the indictment has three elements, which are:

One, the defendant was required to file a federal income tax return for (insert taxable year(s) charged);

Two, the defendant knew that [he] [she] was required to file such a tax return; and

Three, the defendant willfully failed to file the required tax return on or before (insert time required by law).

To act "willfully" means to voluntarily and intentionally violate a known legal duty.¹

[A single person [under] [over] sixty-five years old was required to file a federal income tax return for the year(s) (insert years charged), if [he] [she] had gross income in excess of (insert amount)].²

[A married individual was required to file a federal income tax return for the year(s) (insert years charged), if [he] [she] had a separate gross income in excess of (insert amount)³and a total gross income, when combined with that of [his] [her] spouse, in excess of (insert amount)⁴ where [either] [both] [is] [are] [over] [under] sixty-five years old.]

Gross income includes the following: [Compensation for services, including fees, commissions and similar items] [Gross income derived from business] [Gains derived from dealings in property] [Interest] [Rents] [Royalties] [Dividends] [Alimony and separate maintenance payments] [Annuities] [Income from life insurance and endowment contracts] [Pensions] [Income from discharge of indebtedness] [Distributive share of partnership gross income] [Income in respect of a decedent] [Income from an interest in an estate or trust].⁵

The fact that a person may be entitled to deductions from income in sufficient amount so that no tax is due does not affect that person's obligation to file.

The Government is not required to show that a tax was due and owing or that the defendant intended to evade or defeat the payment of taxes, only that [he] [she] willfully failed to file a return.

If you find beyond a reasonable doubt that the defendant had the required gross income in (insert year, e.g., 1985), then, the defendant was required to file a tax return on or before (insert date, e.g., April 15, 1986).⁶

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

Notes on Use

1. See United States v. Pomponio, 429 U.S. 10, 12 (1976); United States v. Jerde, 841 F.2d 818, 821 (8th Cir. 1988) and Instruction 7.02, infra.

5. The instruction should be simplified by eliminating sources of income not shown by the evidence.

Note that the statutory due dates should be adjusted so as to account for any extensions of time for filing a return.

Committee Comments

See also Committee Comments, Instruction 6.26.7201, supra.

For a discussion of instructions asserting a good faith defense in tax cases, see Committee Comments, Instruction 9.08, infra.

If a defendant in a failure to file case is allowed to introduce legal and other materials in support of his good faith defense, the following limiting instruction may be appropriate:

The defendant has introduced evidence of advice he heard given by speakers at meetings, tape recorded lectures, essays, pamphlets, court opinions, and other material that he testified he relied on in concluding that he was not a person required to file income tax returns for the years _____ and _____. This evidence has been admitted solely for the purpose of aiding you in determining whether or not the defendant's failure to timely file tax returns for _____ and _____ was knowing and willful and you should not consider it for any other purpose. You are not to consider this evidence as containing any law that you are to apply in reaching your verdicts, because all of the law applicable to this case is set forth in these instructions.

United States v. Miller, 634 F.2d 1134, 1135 (8th Cir. 1980).

If the issue arises, the jury may be properly instructed that the government need not prove bad purpose or evil motive. United States v. Jerde, 841 F.2d 818 (8th Cir. 1988).

(For 2006 version see below)

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

2006 Version

The crime of failure to file a tax return as charged in [Count(s) of] the indictment has three elements, which are:

One, the defendant was required to file a federal income tax return for (insert taxable year(s) charged);

Two, the defendant knew that [he] [she] was required to file such a tax return; and

Three, the defendant willfully failed to file the required tax return on or before (insert time required by law).

To act "willfully" means to voluntarily and intentionally violate a known legal duty.¹

[A single person [under] [over] sixty-five years old was required to file a federal income tax return for the year(s) (insert years charged), if [he] [she] had gross income in excess of (insert amount)].²

[A married individual was required to file a federal income tax return for the year(s) (insert years charged), if [he] [she] had a separate gross income in excess of (insert amount)³and a total gross income, when combined with that of [his] [her] spouse, in excess of (insert amount)⁴ where [either] [both] [is] [are] [over] [under] sixty-five years old.]

Gross income includes the following: [Compensation for services, including fees, commissions and similar items] [Gross income derived from business] [Gains derived from dealings in property] [Interest] [Rents] [Royalties] [Dividends] [Alimony and separate maintenance payments] [Annuities] [Income from life insurance and endowment contracts] [Pensions] [Income from discharge of indebtedness] [Distributive share of partnership gross income] [Income in respect of a decedent] [Income from an interest in an estate or trust].⁵

The fact that a person may be entitled to deductions from income in sufficient amount so that no tax is due does not affect that person's obligation to file.

The Government is not required to show that a tax was due and owing or that the defendant intended to evade or defeat the payment of taxes, only that [he] [she] willfully failed to file a return.

If you find beyond a reasonable doubt that the defendant had the required gross income in (insert year, e.g., 1985), then, the defendant was required to file a tax return on or before (insert date, e.g., April 15, 1986).⁶

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

Notes on Use

1. See United States v. Pomponio, 429 U.S. 10, 12 (1976); United States v. Jerde, 841 F.2d 818, 821 (8th Cir. 1988) and Instruction 7.02, infra.

5. The instruction should be simplified by eliminating sources of income not shown by the evidence.

Note that the statutory due dates should be adjusted so as to account for any extensions of time for filing a return.

Committee Comments

See also Committee Comments, Instruction 6.26.7201, supra.

For a discussion of instructions asserting a good faith defense in tax cases, see Committee Comments, Instruction 9.08, infra.

If a defendant in a failure to file case is allowed to introduce legal and other materials in support of his good faith defense, the following limiting instruction may be appropriate:

The defendant has introduced evidence of advice he heard given by speakers at meetings, tape recorded lectures, essays, pamphlets, court opinions, and other material that he testified he relied on in concluding that he was not a person required to file income tax returns for the years _____ and _____. This evidence has been admitted solely for the purpose of aiding you in determining whether or not the defendant's failure to timely file tax returns for _____ and _____ was knowing and willful and you should not consider it for any other purpose. You are not to consider this evidence as containing any law that you are to apply in reaching your verdicts, because all of the law applicable to this case is set forth in these instructions.

United States v. Miller, 634 F.2d 1134, 1135 (8th Cir. 1980).

If the issue arises, the jury may be properly instructed that the government need not prove bad purpose or evil motive. United States v. Jerde, 841 F.2d 818 (8th Cir. 1988).

For 2000 version see below

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

2000 Version

The crime of failure to file a tax return as charged in [Count(s) of] the indictment has three essential elements, which are:

One, the defendant was required to file a federal income tax return for (insert taxable year(s) charged);

Two, the defendant knew that [he] [she] was required to file such a tax return; and

Three, the defendant willfully failed to file the required tax return on or before (insert time required by law).

To act "willfully" means to voluntarily and intentionally violate a known legal duty.1

[A single person [under] [over] sixty-five years old was required to file a federal income tax return for the year(s) (insert years charged), if [he] [she] had gross income in excess of (insert amount)].2

[A married individual was required to file a federal income tax return for the year(s) (insert years charged), if [he] [she] had a separate gross income in excess of (insert amount)3 and a total gross income, when combined with that of [his] [her] spouse, in excess of (insert amount)4 where [either] [both] [is] [are] [over] [under] sixty-five years old.]

Gross income includes the following: [Compensation for services, including fees, commissions and similar items] [Gross income derived from business] [Gains derived from dealings in property] [Interest] [Rents] [Royalties] [Dividends] [Alimony and separate maintenance payments] [Annuities] [Income from life insurance and endowment contracts] [Pensions] [Income from discharge of indebtedness] [Distributive share of partnership gross income] [Income in respect of a decedent] [Income from an interest in an estate or trust].5

The fact that a person may be entitled to deductions from income in sufficient amount so that no tax is due does not affect that person's obligation to file.

The Government is not required to show that a tax was due and owing or that the defendant intended to evade or defeat the payment of taxes, only that [he] [she] willfully failed to file a return.

If you find beyond a reasonable doubt that the defendant had the required gross income in (insert year, e.g., 1985), then, the defendant was required to file a tax return on or before (insert date, e.g., April 15, 1986).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 §§ 56.11, 56.12 (4th ed. 1990); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 82 (1997).

See also Committee Comments, Instruction 6.26.7201, supra.

For a discussion of instructions asserting a good faith defense in tax cases, see Committee Comments, Instruction 9.08, infra.

If a defendant in a failure to file case is allowed to introduce legal and other materials in support of his good faith defense, the following limiting instruction may be appropriate:

The defendant has introduced evidence of advice he heard given by speakers at meetings, tape recorded lectures, essays, pamphlets, court opinions, and other material that he testified he relied on in concluding that he was not a person required to file income tax returns for the years _____ and _____. This evidence has been admitted solely for the purpose of aiding you in determining whether or not the defendant's failure to timely file tax returns for _____ and _____ was knowing and willful and you should not consider it for any other purpose. You are not to consider this evidence as containing any law that you are to apply in reaching your verdicts, because all of the law applicable to this case is set forth in these instructions.

United States v. Miller, 634 F.2d 1134, 1135 (8th Cir. 1980), cert. denied, 451 U.S. 942 (1981).

If the issue arises, the jury may be properly instructed that the government need not prove bad purpose or evil motive. United States v. Jerde, 841 F.2d 818 (8th Cir. 1988).

Notes on Use

1. See United States v. Pomponio, 429 U.S. 10, 12 (1976); United States v. Jerde, 841 F.2d 818, 821 (8th Cir. 1988) and Instruction 7.02 of this Manual, infra.

5. The instruction should be simplified by eliminating sources of income not shown by the evidence.

Note that the statutory due dates should be adjusted so as to account for any extensions of time for filing a return.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.26.7206
FALSE INCOME TAX RETURN (26 USC 7206(1))

FORECITE National™ Materials Related To This Instruction:

Federal Models By Offense: False Statements On Income Tax Return (26 USC 7206(1))

The crime of willfully making and subscribing to a false (describe document, e.g., income tax return) as charged in [Count[s] _____ of] the indictment, has five elements, which are:

One, the defendant made and signed (describe document, e.g., an individual income tax return, Form 1040,)¹ for the year in question, that was false as to (describe material matters, e.g., income);²

Two, the return contained a written declaration that it was signed under the penalties of perjury;

Three, the defendant did not believe the return to be true and correct as to (describe material matter, e.g., income);³

Four, the defendant acted willfully; and

Five, the false matter in the (describe document, e.g., income tax return) was material.⁴

The tax return in question must be false as to (describe material matter, e.g., income)⁵ that is (e.g., that the defendant must have received income in addition to that reported on [his] [her] return, regardless of the amount).⁶ However, the Government is not required to prove that the defendant owed an additional tax for the years in issue. Whether the Government has or has not suffered a monetary loss as a result of the alleged return is not an element of this offense.⁷

The fact that an individual's name⁸ is signed to a return means that, unless and until outweighed by evidence in the case which leads you to a different or contrary conclusion, you may find that a filed tax return was in fact signed by the person whose name appears to be signed to it. If you find proof beyond a reasonable doubt that the defendant had signed [his] [her] tax return, that is evidence from which you may, but are not required to, find or infer that the defendant had knowledge of the contents of the return.⁹

To act "willfully" means to voluntarily and intentionally violate a known legal duty.¹⁰

[False matter in a (describe document, e.g., income tax return) is "material" if the matter was capable of influencing the Internal Revenue Service.]

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

Notes on Use

1. Insert description of return filed. This statute also applies to statements and other documents. If one of these is charged, the instruction should be changed accordingly.

2. Insert material matter charged as false. More than one material matter may be charged. If that has been done, the jury may be instructed that it need only find one matter false. See Silverstein v. United States, 377 F.2d 269, 270 n.3 (1st Cir. 1967). Such a finding must be unanimous as to that matter. United States v. Duncan, 850 F.2d 1104, 1110-13 (6th Cir. 1988).

3. Insert material matter charged as false. More than one material matter may be charged. If that has been done, the jury may be instructed that it need only find one matter false. See Silverstein v. United States, 377 F.2d 269, 270 n.3 (1st Cir. 1967). Such a finding must be unanimous as to that matter. United States v. Duncan, 850 F.2d 1104, 1110-13 (6th Cir. 1988).

4. The Committee has added materiality as an element for the jury in light of United States v. Gaudin, 515 U.S. 506 (1995).

5. Insert material matter charged as false. More than one material matter may be charged. If that has been done, the jury may be instructed that it need only find one matter false. See Silverstein v. United States, 377 F.2d 269, 270 n.3 (1st Cir. 1967). Such a finding must be unanimous as to that matter. United States v. Duncan, 850 F.2d 1104, 1110-13 (6th Cir. 1988).

6. Insert definition or explanation of material matter charged as false. (If the amount of income is false, the amount of understatement is irrelevant. United States v. Hedman, 630 F.2d 1184, 1196 (7th Cir. 1980).)

7. United States v. Ballard, 535 F.2d 400, 404 (8th Cir. 1976); United States v. Miller, 545 F.2d 1204, 1211 n.8 (9th Cir. 1976).

8. Section 6064, United States Code, Title 26 refers to individuals. Corporate and partnership returns are covered by sections 6062 and 6063 of Title 26. The appropriate language should be used. See also Instruction 4.13, supra.

9. See 2B Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 67.22 (5th ed. 2000); United States v. Wainwright, 413 F.2d 796, 802 n.3 (10th Cir. 1969); United States v. Brink, 648 F.2d 1140 (8th Cir. 1981); United States v. Cashio, 420 F.2d 1132, 1135 (5th Cir. 1969). See also Committee Comments, Instruction 4.13, supra, regarding specific inferences.

10. See United States v. Pomponio, 429 U.S. 10, 12 (1976); United States v. Jerde, 841 F.2d 818, 821 (8th Cir. 1988) and Instruction 7.02, infra.

Committee Comments

See United States v. Bishop, 412 U.S. 346, 350, 359 (1973); United States v. Engle, 458 F.2d 1017, 1020 (8th Cir. 1972); and United States v. Oggoian, 678 F.2d 671, 673 (7th Cir. 1982).

To prove a violation of this statute, the government must establish the following elements: (l) that the defendant made and subscribed a return that was false as to a material matter; (2) the return contained a written declaration that it was made under the penalties of perjury; (3) that the defendant did not believe the return to be true and correct as to every material matter; and (4) that the defendant acted willfully. United States v. Bishop, 412 U.S. 346 (1972); see also United States v. Engle, 458 F.2d 1017, 1020 (8th Cir. 1972).

Both "making," i.e., filing, and "signing" must be charged. The gist of the offense is the false statements in the return. The signing and filing of the return provides the jurisdictional element. United States v. Duncan, 850 F.2d 1104, 1111-12 (6th Cir. 1988). See also United States v. Shortt Accountancy Corp., 785 F.2d 1448, 1453-54 (9th Cir. 1986).

In this circuit materiality has been a question of law for the court, rather than a question of fact for the jury. United States v. Holecek, 739 F.2d 331, 337 (8th Cir. 1984). Presumably, materiality is now a question of fact for the jury to decide under United States v. Gaudin, 515 U.S. 506 (1995). The test of materiality in a false return case is "whether a particular item must be reported in order that the taxpayer estimate and compute his tax correctly." United States v. Warden, 545 F.2d 32, 37 (7th Cir. 1976) (quoting United States v. Null, 415 F.2d 1178, 1181 (4th Cir. 1969)).

Matters held to be material include false statements relating to gross income, United States v. Engle, 458 F.2d at 1019-20; United States v. Hedman, 630 F.2d 1184, 1196 (7th Cir. 1980); personal deductions, United States v. Warden, 545 F.2d 32, 37 (7th Cir. 1976); and business loss deductions, United States v. Bliss, 735 F.2d 294, 301 (8th Cir. 1984).

Under the statute the taxpayer is the one who "makes" a return even if he has hired an accountant to prepare the return. United States v. Badwan, 624 F.2d 1228, 1232 (4th Cir. 1980). If this is an issue, the jury may be so instructed.

There is a rebuttable statutory presumption that if an individual's name is signed on a return, then the return was actually signed by that person. 26 USC 6064. This presumption applies in criminal cases. United States v. Cashio, 420 F.2d 1132, 1135 (5th Cir. 1969). See also Committee Comments, Instruction 4.13, supra, regarding statutory presumptions. Sections 6062 and 6063 of Title 26 cover signatures to corporate and partnership returns.

The defendant's conduct must have been willful. The term "willfully" as used in the criminal sections of the Internal Revenue Code is a "voluntary, intentional violation of a known legal duty." United States v. Pomponio, 429 U.S. 10, 12 (1976). The Court went on to state that a willful act is defined as one done "voluntarily and intentionally with specific intent to do something which the law forbids."

Willfulness is a question of fact that is to be determined by a consideration of all the facts and circumstances shown by the evidence. Id.; United States v. Miller, 634 F.2d 1134, 1135 (8th Cir. 1980). An intent to evade income taxes is not an element of section 7206(l). United States v. Engle, 458 F.2d at 1019.

Various circumstances may indicate willfulness. For example, a defendant's pattern of under reporting large amounts of income may give rise to an inference of willfulness. United States v. Vannelli, 595 F.2d 402 (8th Cir. 1979); United States v. DiBenedetto, 542 F.2d 490, 493 (8th Cir. 1976). Willfulness may also be inferred from the repeated omission of certain items of income. United States v. Tager, 479 F.2d 120, 122 (10th Cir. 1973). Failure to supply an accountant or return preparer with accurate and complete information has also been held to be indicative of willfulness. United States v. Samara, 643 F.2d 701, 703 (10th Cir. 1981); United States v. Garavaglia, 566 F.2d 1056 (6th Cir. 1977). Extensive use of currency and cashier's checks may also be indicative of willfulness. Smith v. United States, 348 U.S. 147, 159 (1954); United States v. Holovachka, 314 F.2d 345, 358 (7th Cir. 1963); Schuermann v. United States, 174 F.2d 397, 398 (8th Cir. 1949).

Good faith is a theory of defense in false return cases. Where the defendant has presented evidence of good faith, he is entitled to a jury instruction. See Instruction 9.08, infra; United States v. Kouba, 822 F.2d 768, 771 (8th Cir. 1987). Advice of counsel is a form of a good faith theory of defense. See Instruction 9.08, infra.

(For 2008 version see below).

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

2008 Version

The crime of willfully making and subscribing to a false (describe document, e.g., income tax return) as charged in [Count[s] _____ of] the indictment, has five elements, which are:

One, the defendant made and signed (describe document, e.g., an individual income tax return, Form 1040,)¹ for the year in question, that was false as to [describe material matters, e.g., income);²

Two, the return contained a written declaration that it was signed under the penalties of perjury;

Three, the defendant did not believe the return to be true and correct as to [describe material matter, e.g., income];³

Four, the defendant acted willfully; and

Five, the false matter in the (describe document, e.g., income tax return) was material.⁴

The tax return in question must be false as to (describe material matter, e.g., income)⁵ that is (e.g., that the defendant must have received income in addition to that reported on [his] [her] return, regardless of the amount).⁶ However, the Government is not required to prove that the defendant owed an additional tax for the years in issue. Whether the Government has or has not suffered a monetary loss as a result of the alleged return is not an element of this offense.⁷

The fact that an individual's name⁸ is signed to a return means that, unless and until outweighed by evidence in the case which leads you to a different or contrary conclusion, you may find that a filed tax return was in fact signed by the person whose name appears to be signed to it. If you find proof beyond a reasonable doubt that the defendant had signed [his] [her] tax return, that is evidence from which you may, but are not required to, find or infer that the defendant had knowledge of the contents of the return.⁹

To act "willfully" means to voluntarily and intentionally violate a known legal duty.¹⁰

[False matter in a (describe document, e.g., income tax return) is "material" if the matter was capable of influencing the Internal Revenue Service.]

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

Notes on Use

1. Insert description of return filed. This statute also applies to statements and other documents. If one of these is charged, the instruction should be changed accordingly.

4. The Committee has added materiality as an element for the jury in light of United States v. Gaudin, 515 U.S. 506 (1995).

6. Insert definition or explanation of material matter charged as false. [If the amount of income is false, the amount of understatement is irrelevant. United States v. Hedman, 630 F.2d 1184, 1196 (7th Cir. 1980).]

7. United States v. Ballard, 535 F.2d 400, 404 (8th Cir. 1976); United States v. Miller, 545 F.2d 1204, 1211 n.8 (9th Cir. 1976).

10. See United States v. Pomponio, 429 U.S. 10, 12 (1976); United States v. Jerde, 841 F.2d 818, 821 (8th Cir. 1988) and Instruction 7.02, infra.

Committee Comments

See United States v. Bishop, 412 U.S. 346, 350, 359 (1973); United States v. Engle, 458 F.2d 1017, 1020 (8th Cir. 1972); and United States v. Oggoian, 678 F.2d 671, 673 (7th Cir. 1982).

(For 2006 version see below)

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

2006 Version

The crime of willfully making and subscribing to a false (describe document, e.g., income tax return) as charged in [Count[s] _____ of] the indictment, has five elements, which are:

One, the defendant made and signed (describe document, e.g., an individual income tax return, Form 1040,)¹ for the year in question, that was false as to [describe material matters, e.g., income);²

Two, the return contained a written declaration that it was signed under the penalties of perjury;

Three, the defendant did not believe the return to be true and correct as to [describe material matter, e.g., income];³

Four, the defendant acted willfully; and

Five, the false matter in the (describe document, e.g., income tax return) was material.⁴

The tax return in question must be false as to (describe material matter, e.g., income)⁵ that is (e.g., that the defendant must have received income in addition to that reported on [his] [her] return, regardless of the amount).⁶ However, the Government is not required to prove that the defendant owed an additional tax for the years in issue. Whether the Government has or has not suffered a monetary loss as a result of the alleged return is not an element of this offense.⁷

The fact that an individual's name⁸ is signed to a return means that, unless and until outweighed by evidence in the case which leads you to a different or contrary conclusion, you may find that a filed tax return was in fact signed by the person whose name appears to be signed to it. If you find proof beyond a reasonable doubt that the defendant had signed [his] [her] tax return, that is evidence from which you may, but are not required to, find or infer that the defendant had knowledge of the contents of the return.⁹

To act "willfully" means to voluntarily and intentionally violate a known legal duty.¹⁰

[False matter in a (describe document, e.g., income tax return) is "material" if the matter was capable of influencing the Internal Revenue Service.]

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

Notes on Use

1. Insert description of return filed. This statute also applies to statements and other documents. If one of these is charged, the instruction should be changed accordingly.

4. The Committee has added materiality as an element for the jury in light of United States v. Gaudin, 515 U.S. 506 (1995).

7. United States v. Ballard, 535 F.2d 400, 404 (8th Cir. 1976); United States v. Miller, 545 F.2d 1204, 1211 n.8 (9th Cir. 1976).

10. See United States v. Pomponio, 429 U.S. 10, 12 (1976); United States v. Jerde, 841 F.2d 818, 821 (8th Cir. 1988) and Instruction 7.02, infra.

Committee Comments

See United States v. Bishop, 412 U.S. 346, 350, 359 (1973); United States v. Engle, 458 F.2d 1017, 1020 (8th Cir. 1972); and United States v. Oggoian, 678 F.2d 671, 673 (7th Cir. 1982).

For 2000 version see below

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

2000 Version

The crime of willfully making and subscribing to a false (describe document, e.g., income tax return) as charged in [Count[s] _____ of] the indictment, has five essential elements, which are:

One, the defendant made and signed (describe document, e.g., an individual income tax return, Form 1040,)1 for the year in question, that was false as to [describe material matters, e.g., income);2

Two, the return contained a written declaration that it was signed under the penalties of perjury;

Three, the defendant did not believe the return to be true and correct as to [describe material matter, e.g., income];3

Four, the defendant acted willfully; and

Five, the false matter in the (describe document, e.g., income tax return) was material.4

The tax return in question must be false as to (describe material matter, e.g., income)5 that is (e.g., that the defendant must have received income in addition to that reported on [his] [her] return, regardless of the amount).6 However, the Government is not required to prove that the defendant owed an additional tax for the years in issue. Whether the Government has or has not suffered a monetary loss as a result of the alleged return is not an element of this offense.7

The fact that an individual's name8 is signed to a return means that, unless and until outweighed by evidence in the case which leads you to a different or contrary conclusion, you may find that a filed tax return was in fact signed by the person whose name appears to be signed to it. If you find proof beyond a reasonable doubt that the defendant had signed [his] [her] tax return, that is evidence from which you may, but are not required to, find or infer that the defendant had knowledge of the contents of the return.9

To act "willfully" means to voluntarily and intentionally violate a known legal duty.10

[False matter in a (describe document, e.g., income tax return) is "material" if the matter was capable of influencing the Internal Revenue Service.]

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

Committee Comments

See United States v. Bishop, 412 U.S. 346, 350, 359 (1973); United States v. Engle, 458 F.2d 1017, 1020 (8th Cir.), cert. denied, 409 U.S. 875 (1972); and United States v. Oggoian, 678 F.2d 671, 673 (7th Cir.), cert. denied, 459 U.S. 1018 (1982).

To prove a violation of this statute, the government must establish the following elements: (l) that the defendant made and subscribed a return that was false as to a material matter; (2) the return contained a written declaration that it was made under the penalties of perjury; (3) that the defendant did not believe the return to be true and correct as to every material matter; and (4) that the defendant acted willfully. United States v. Bishop, 412 U.S. 346 (1972); see also United States v. Engle, 458 F.2d 1017, 1020 (8th Cir.), cert. denied, 409 U.S. 875 (1972).

In this circuit materiality has been a question of law for the court, rather than a question of fact for the jury. United States v. Holecek, 739 F.2d 331, 337 (8th Cir. 1984), cert. denied, 469 U.S. 1218 (1985). 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). The test of materiality in a false return case is "whether a particular item must be reported in order that the taxpayer estimate and compute his tax correctly." United States v. Warden, 545 F.2d 32, 37 (7th Cir. 1976) (quoting United States v. Null, 415 F.2d 1178, 1181 (4th Cir. 1969)).

Matters held to be material include false statements relating to gross income, United States v. Engle, 458 F.2d at 1019-20; United States v. Hedman, 630 F.2d 1184, 1196 (7th Cir. 1980), cert. denied, 450 U.S. 965 (1981); personal deductions, United States v. Warden, 545 F.2d 32, 37 (7th Cir. 1976); and business loss deductions, United States v. Bliss, 735 F.2d 294, 301 (8th Cir. 1984).

Under the statute the taxpayer is the one who "makes" a return even if he has hired an accountant to prepare the return. United States v. Badwan, 624 F.2d 1228, 1232 (4th Cir. 1980), cert. denied, 449 U.S. 1124 (1981). If this is an issue, the jury may be so instructed.

There is a rebuttable statutory presumption that if an individual's name is signed on a return, then the return was actually signed by that person. 26 USC 6064. This presumption applies in criminal cases. United States v. Cashio, 420 F.2d 1132, 1135 (5th Cir. 1969), cert. denied, 397 U.S. 1007 (1970). See also Committee Comments, Instruction 4.13, supra, regarding statutory presumptions. Sections 6062 and 6063 of Title 26 cover signatures to corporate and partnership returns.

Willfulness is a question of fact that is to be determined by a consideration of all the facts and circumstances shown by the evidence. Id.; United States v. Miller, 634 F.2d 1134, 1135 (8th Cir. 1980), cert. denied, 451 U.S. 942 (1981). An intent to evade income taxes is not an element of section 7206(l). United States v. Engle, 458 F.2d at 1019.

Various circumstances may indicate willfulness. For example, a defendant's pattern of under reporting large amounts of income may give rise to an inference of willfulness. United States v. Vannelli, 595 F.2d 402 (8th Cir. 1979); United States v. DiBenedetto, 542 F.2d 490, 493 (8th Cir. 1976). Willfulness may also be inferred from the repeated omission of certain items of income. United States v. Tager, 479 F.2d 120, 122 (10th Cir. 1973), cert. denied, 414 U.S. 1162 (1974). Failure to supply an accountant or return preparer with accurate and complete information has also been held to be indicative of willfulness. United States v. Samara, 643 F.2d 701, 703 (10th Cir.), cert. denied, 454 U.S. 829 (1981); United States v. Garavaglia, 566 F.2d 1056 (6th Cir. 1977). Extensive use of currency and cashier's checks may also be indicative of willfulness. Smith v. United States, 348 U.S. 147, 159 (1954); United States v. Holovachka, 314 F.2d 345, 358 (7th Cir.), cert. denied, 374 U.S. 809 (1963); Schuermann v. United States, 174 F.2d 397, 398 (8th Cir.), cert. denied, 338 U.S. 831 (1949).

Good faith is a theory of defense in false return cases. Where defendant has presented evidence of good faith, he is entitled to a jury instruction. See Instruction 9.08, infra; United States v. Kouba, 822 F.2d 768, 771 (8th Cir. 1987). Advice of counsel is a form of a good faith theory of defense. See Instruction 9.08, infra.

Notes on Use

1. Insert description of return filed. This statute also applies to statements and other documents. If one of these is charged, the instruction should be changed accordingly.

2. Insert material matter charged as false. More than one material matter may be charged. If that has been done, the jury may be instructed that it need only find one matter false. See Silverstein v. United States, 377 F.2d 269, 270 n.3 (1st Cir. 1967). Such a finding must be unanimous as to that matter. United States v. Duncan, 850 F.2d 1104, 1110-13 (6th Cir. 1988).

3. Insert material matter charged as false. More than one material matter may be charged. If that has been done, the jury may be instructed that it need only find one matter false. See Silverstein v. United States, 377 F.2d 269, 270 n.3 (1st Cir. 1967). Such a finding must be unanimous as to that matter. United States v. Duncan, 850 F.2d 1104, 1110-13 (6th Cir. 1988).

4. The Committee has added materiality as an element for the jury in light of United States v. Gaudin, 515 U.S. 506 115 S. Ct. 2310 (1995).

5. Insert material matter charged as false. More than one material matter may be charged. If that has been done, the jury may be instructed that it need only find one matter false. See Silverstein v. United States, 377 F.2d 269, 270 n.3 (1st Cir. 1967). Such a finding must be unanimous as to that matter. United States v. Duncan, 850 F.2d 1104, 1110-13 (6th Cir. 1988).

7. United States v. Ballard, 535 F.2d 400, 404 (8th Cir.), cert. denied, 429 U.S. 918 (1976); United States v. Miller, 545 F.2d 1204, 1211 n.8 (9th Cir. 1976), cert. denied, 430 U.S. 930 (1977).

9. See 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 56.22 (4th ed. 1990); United States v. Wainwright, 413 F.2d 796, 802 n.3 (10th Cir. 1969), cert. denied, 396 U.S. 1009 (1970); United States v. Brink, 648 F.2d 1140 (8th Cir.), cert. denied, 454 U.S. 1031 (1981); United States v. Cashio, 420 F.2d 1132, 1135 (5th Cir. 1969), cert. denied, 397 U.S. 1007 (1970). See also Committee Comments, Instruction 4.13, supra, regarding specific inferences.

10. See United States v. Pomponio, 429 U.S. 10, 12 (1976); United States v. Jerde, 841 F.2d 818, 821 (8th Cir. 1988) and Instruction 7.02, supra.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

6.42.1320
SOLICITING OR RECEIVING KICKBACKS IN CONNECTION WITH MEDICARE OR
FEDERAL HEALTH CARE PROGRAM PAYMENTS
(42 USC 1320a-7b(b)(1)(A))

The crime of [soliciting] [receiving] kickbacks in connection with [Medicare] [(Federal health care program)]¹ payments, as charged in [Count of] the indictment, has [three] [four] elements, which are:

One, the defendant knowingly and willfully [solicited ] [received] (specify the remuneration alleged);²

Two, the (specify the remuneration alleged) was [solicited] [paid] primarily in order to [induce] [and] [or] [in exchange for] the referral of a patient insured by [Medicare] [(Federal health care program)];² and

Three, the patient’s services were covered, in whole or in part, by [Medicare] [(Federal health care program)]; [and]

[Four, [Medicare] [(Federal health care program)] is a Federal health care program.]³

[A defendant acts willfully if he knew his conduct was wrongful or unlawful.]⁴

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

Notes on Use

1. The statute applies to any Federal health care program, which should be referenced by name.

2. Elements One and Two may be modified depending on whether the charge is under 42 USC 1320a-7b(1)(a) or (B) or 7b(2)(A) or (B). Section 1320a-7b(1)(A), which prohibits patient referrals for items or services for which payment may be made, in whole or in part, under a Federal health care program, is the statute addressed by the instruction as written. Section 1320a-7b(1)(B) prohibits soliciting or receiving remuneration (including any kickback, bribe, or rebate) directly or indirectly, overtly or covertly, in cash or in kind, in return for purchasing, leasing, ordering, or arranging for or recommending purchasing, leasing, or ordering any good, facility, service, or item for which payment may be made, in whole or in part, under a Federal health care program. Section 1320a-7b(2)(A) or (B) prohibits offering or paying "any remuneration (including kickback, bribe, or rebate), directly or indirectly, overtly or covertly, in cash or in kind, to any person to induce" referrals or purchases, leases, or orders for any good, facility, service, or item, for which payment is made, in whole or in part, under a Federal health care program.

3. The statute requires that the referral be for services or items for which payment may be made "in whole or in part under a Federal health care program." Either the court or the jury may make the finding that the program is a Federal health care program.

4. See United States v. Jain, 93 F.3d 436, 439-41 (8^th Cir. 1996). A mens rea instruction more rigorous than the traditional rule was held appropriate based on the fact that "the literal language of the statute might otherwise encompass some types of innocent conduct." Id.. at 440. "[T]he elements ‘knowingly and willfully’ were added to the statute in 1980 to reflect congressional concern ‘that criminal penalties may be imposed under current law to an individual whose conduct, while improper, was inadvertent.’" Id. at 440. Because "[o]nly conduct that is inevitably nefarious, that is, ‘obviously "evil" or inherently "bad,"’ warrants the traditional presumption that anyone consciously engaging in it has fair warning of a criminal violation, (citing Ratzlaf v. United States, 510 U.S. 135, 146-48 (1994)), the 8^th Circuit "agree[d] with the district court’s decision to instruct the jury that the government must meet a heightened mens rea burden." Id. at 440.

The specific instruction adopted in Ratzlaf and the criminal tax cases was held inappropriate in Medicare anti-kickback cases based on the plain language of the statute and respect for the traditional principle that ignorance of the law is no defense. The court stated, "[A] heightened mens rea standard should only require proof that [the defendant] knew that his conduct was wrongful, rather than proof that he knew it violated ‘a known legal duty. Therefore, the district court’s definition of ‘willfully’ correctly construed the 1980 amendment to § 1320a-7b." Id. at 441.

(For 2008 version see below).

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2008 Version

The crime of [soliciting] [receiving] kickbacks in connection with [Medicare] [(Federal health care program)]¹ payments, as charged in [Count of] the indictment, has [three] [four] elements, which are:

One, the defendant knowingly and willfully [solicited ] [received] (specify the remuneration alleged);²

Two, the (specify the remuneration alleged) was [solicited] [paid] primarily in order to [induce] [and] [or] [in exchange for] the referral of a patient insured by [Medicare] [(Federal health care program)];² and

Three, the patient’s services were covered, in whole or in part, by [Medicare] [(Federal health care program)]; [and]

[Four, [Medicare] [(Federal health care program)] is a Federal health care program.]³

[A defendant acts willfully if he knew his conduct was wrongful or unlawful.]⁴

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

Notes on Use

1. The statute applies to any Federal health care program, which should be referenced by name.

4. See United States v. Jain, 93 F.3d 436, 439-41 (8^th Cir. 1996). A mens rea instruction more rigorous than the traditional rule was held appropriate based on the fact that "the literal language of the statute might otherwise encompass some types of innocent conduct." Id.. at 440. "[T]he elements ‘knowingly and willfully’ were added to the statute in 1980 to reflect congressional concern ‘that criminal penalties may be imposed under current law to an individual whose conduct, while improper, was inadvertent.’" Id. at 440. Because "[o]nly conduct that is inevitably nefarious, that is, ‘obviously "evil" or inherently "bad,"’ warrants the traditional presumption that anyone consciously engaging in it has fair warning of a criminal violation, [citing Ratzlaf v. United States, 510 U.S. 135, 146-48 (1994)], the 8^th Circuit "agree[d] with the district court’s decision to instruct the jury that the government must meet a heightened mens rea burden." Id. at 440.

No 2006 Version