8TH CIRCUIT CHAPTER 9

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

9. Final Instructions: Defenses And Theories Of Defense

        9.00     Introductory Comment
        9.01     Entrapment
        9.02     Coercion Or Duress
        9.03     Insanity (18 USC 20)
        9.04     Self Defense - Defense Of Third Person
        9.05     Theory Of Defense
        9.06     Intoxication; Drug Use
        9.07     Alibi
        9.08     Good Faith (Income Tax and Fraud Cases)

8TH CIRCUIT MODEL INSTRUCTIONS 2009

9.00
FINAL INSTRUCTIONS: DEFENSES AND THEORIES OF DEFENSE
Introductory Comment

The instructions in this section cover matters raised by the defense. Instructions 9.01-9.04 cover matters which are commonly referred to as "affirmative defenses." It should be noted that the defendant must carry the burden of proof only as to the defenses of coercion (Instruction 9.02), insanity (Instruction 9.03) and withdrawal from conspiracy (Instruction 5.06H). As to the defenses dealt with in Instructions 9.01 and 9.04, a defendant has only the burden of introducing sufficient evidence to raise the issue; once that has occurred, the Government has the burden of disproving the defense beyond a reasonable doubt.

When any affirmative defense covered by Instruction 9.01 (entrapment) or 9.04 (self defense, etc.) is in issue, a requirement that the Government disprove the defense, phrased in the negative, should be added to the verdict directing (elements) instruction, as provided for in the final paragraph of Instruction 3.09, supra, followed separately by the appropriate definition instruction from this Section 9. When the affirmative defense of coercion or duress (9.02), or insanity (9.03) is in issue, the final paragraph of the elements instruction should be modified as provided for in Note 3, Instruction 3.09, supra, and followed separately by Instruction 9.02 or 9.03. See United States v. Norton, 846 F.2d 521, 524-25 (8th Cir. 1988), holding that the affirmative defense should be included in the verdict directing (elements) instruction.

In some situations a defendant may be entitled to a "theory of defense" instruction, which is a different concept from an "affirmative defense." An "affirmative defense" introduces an additional element into the case which must be proved by the defendant, in the case of insanity, coercion or withdrawal from conspiracy, or disproved by the Government, in the case of entrapment or self-defense. A "theory of defense," on the other hand, is a denial of one of the original elements of the offense. Since a theory of defense instruction would necessarily be drafted in terms of the particular facts and issues of each case, no attempt has been made to draft a general model instruction. Cases covering theory of defense instructions are discussed in Committee Comments, Instruction 9.05, to give guidance in drafting such an instruction. Specific theory of defense instructions which may be requested in certain circumstances are covered in Instructions 9.06, Intoxication; 9.07, Alibi; and 9.08, Good Faith.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

9.01 ENTRAPMENT¹

FORECITE National™ Materials Related To This Instruction:

257.3 Entrapment

One of the issues in this case is whether the defendant was entrapped. If the defendant was entrapped, [he] [she] must be found not guilty. The Government has the burden of proving beyond a reasonable doubt that the defendant was not entrapped.

If the defendant before contact with (describe law enforcement officer or agents by name and capacity)² did not have any intent or disposition to commit the crime charged and was induced or persuaded by (officer or agent)² to commit that crime, then [he] [she] was entrapped. On the other hand, if the defendant before contact with (officer or agent)² did have an intent or disposition to commit the crime charged, then [he] [she] was not entrapped, even though (officer or agent) provided a favorable opportunity to commit the crime or made committing the crime easier or even participated in acts essential to the crime.

Notes on Use

1. When this instruction is submitted, the government's burden of proof that the defendant was not entrapped must be included in the elements instruction. See Instruction 3.09, supra. This instruction should immediately follow.

2. The Committee recommends that the law enforcement officer or agent who had contact with the defendant or who is shown by evidence to be responsible for inducing the defendant to commit a criminal act, designing the criminal act, etc., be identified by name and that his capacity as government agent, informant, etc., be described. If "agency," rather than the conduct of an admitted agent, is an issue, a supplement to this instruction may be required.

Committee Comments

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 19.04 (5th ed. 2000); Fifth Circuit Pattern Jury Instructions: Criminal § 1.28 (1997); Seventh Circuit Federal Jury Instructions: Criminal § 6.04 (1999); Ninth Cir. Crim. Jury Instr. 6.2 (formerly 6.2.1 (1997)); Eleventh Circuit Pattern Jury Instructions: Criminal (Special) § 12.1 (1997). See generally West Key # "Criminal Law" 37(1-8), 330, 569, 739.1(1), 772(6), 814(8), 815(5), 822(8), 823(6).

This instruction has been revised to conform to Jacobson v. United States, 503 U.S. 540, 547 n.1 (1992), which clarified the issue of "timing." Jacobson held that the government must prove that the defendant was disposed to commit the criminal act prior to first being approached by government agents. Id., n.2; United States v. Loftus, 992 F.2d 793 (8th Cir. 1993).

For general discussions of the law of entrapment, see United States v. Norton, 846 F.2d 521 (8th Cir. 1988), and United States v. Dion, 762 F.2d 674 (8th Cir. 1985). "The purpose behind the entrapment defense is to prevent law enforcement officers from manufacturing crime." United States v. Hinton, 908 F.2d 355, 358 (8th Cir. 1990). The focus of the entrapment defense, however, is on the intent or predisposition of the defendant to commit the crime, rather than upon the conduct of the government's agents. Hampton v. United States, 425 U.S. 484, 488 (1976). Even after Jacobson, a defendant's ready response to an opportunity to commit an offense may show (1) that there was no "inducement," as well as (2) that the defendant was independently predisposed to commit the offense. See, e.g., United States v. LaChapelle, 969 F.2d 632 (8th Cir. 1992).

"Entrapment is an affirmative defense which consists of two elements: government action to induce or otherwise cause the defendant to commit the crime, and the defendant's lack of predisposition to commit the crime." United States v. Pfeffer, 901 F.2d 654, 656 (8th Cir. 1990) (citing United States v. Foster, 815 F.2d 1200, 1201 (8th Cir. 1987)). A defendant is entitled to an entrapment instruction when there is "sufficient evidence from which a reasonable jury could find entrapment." United States v. Felix, 867 F.2d 1068, 1074 (8th Cir. 1989) (quoting Mathews v. United States, 485 U.S. 58, 61 (1988)); see also United States v. Kutrip, 670 F.2d 870, 877 (8th Cir. 1982). Cf. United States v. Osborne, 935 F.2d 32, 38 (4th Cir. 1991) (seldom, if ever, appropriate to decide prior to trial that the defendant is not entitled to an entrapment instruction). (For a list of evidentiary factors that may assist in determining whether an entrapment instruction is appropriate, see United States v. Dion, 762 F.2d at 687-88.) The government is not required to prove predisposition unless there is evidence of government inducement to commit the offense. To show inducement, there must be evidence of government conduct creating "a substantial risk that an undisposed person . . . would commit the offense." United States v. Loftus, 992 F.2d at 798; United States v. Stanton, 973 F.2d 608, 609 (8th Cir. 1992).

When entrapment is an issue to be resolved, it is ordinarily for the jury. United States v. Hinton, 908 F.2d at 357; United States v. Pfeffer, 901 F.2d at 656; United States v. Williams, 873 F.2d 1102, 1104 (8th Cir. 1989). A finding of entrapment as a matter of law, followed by judgment of acquittal, is appropriate when the evidence clearly shows (1) that the government induced the defendant to engage in the criminal conduct, and (2) that the defendant lacked the necessary predisposition to perform the criminal conduct. United States v. Crump, 934 F.2d 947, 956 (8th Cir. 1991); United States v. Hinton, 908 F.2d at 357; see also United States v. Pfeffer, 901 F.2d at 656. The court of appeals stated in Crump, 934 F.2d at 956, that the government's failure to establish the defendant's predisposition will result in reversal of a conviction only when the evidence clearly indicates:

"[t]hat a government agent originated the criminal design; that the agent implanted in the mind of an innocent person the disposition to commit the offense; and that the defendant then committed the criminal act at the urging of the government." United States v. Beissel, 901 F.2d 1467, 1469 (8th Cir. 1990) (quoting United States v. Resnick, 745 F.2d 1179, 1186 (8th Cir. 1984)).

"The issue of whether an informant should be considered a government agent is generally an issue of fact for the jury." United States v. York, 830 F.2d 885, 889 (8th Cir. 1987) (citing United States v. Hoppe, 645 F.2d 630, 633 (8th Cir. 1981)). The entrapment defense does not extend to inducement by private citizens unless they are acting as agents of the government. United States v. Leroux, 738 F.2d 943, 947 (8th Cir. 1984). For a discussion of issues associated with activities of "private agents," standing to raise the entrapment defense, and "indirect entrapment," see United States v. Neal, 990 F.2d 355 (8th Cir. 1993); Marcus, The Entrapment Defense, §§ 802 and 803 (1989).

Mathews v. United States, 485 U.S. 58 (1988) holds that a defendant who denies the commission of the crime may nevertheless assert and have the jury instructed on the inconsistent defense of entrapment. However, for the defendant to be entitled to an instruction under these circumstances, there must be sufficient evidence from which a jury could find entrapment. United States v. Felix, 867 F.2d at 1074 n.11.

"Outrageous government conduct" in procuring the commission of an offense which would amount to a violation of due process, is frequently discussed, but infrequently (if ever) established. See Gunderson v. Schlueter, 904 F.2d 407, 410 n.8 (8th Cir, 1990); United States v. Ford, 918 F.2d 1343, 1349 (8th Cir. 1990), and United States v. Musslyn, 865 F.2d 945 (8th Cir. 1989). A claim of "outrageous conduct" is addressed to the court; no jury submission on the issue is required. United States v. Dougherty, 810 F.2d 763, 770 (8th Cir. 1987); United States v. Quinn, 543 F.2d 640 (8th Cir. 1976). The Eighth Circuit has acknowledged that "sentencing entrapment" may arise where outrageous official conduct has overcome the predisposition of a defendant to commit only low-quantity, low-value (thus lower offense level) crimes by inducing such a person to commit greater crimes subject to greater punishment under the Sentencing Guidelines. United States v. Nelson, 988 F.2d 798, 809 (8th Cir. 1993); United States v. Stein, 973 F.2d 600, 602 (8th Cir. 1992). These cases only recognize the possibility of "sentencing entrapment;" the opinions did not find it to exist. As a sentencing issue, "sentencing entrapment" would not be submitted to the jury.

A related issue may arise when the Government agent engages in the conduct which forms the only basis for federal jurisdiction. See United States v. Coates, 949 F.2d 104 (4th Cir. 1991). Such issues are usually for the court and not a matter for jury instructions.

"Entrapment by estoppel" is a defense based on advice from a government official that certain conduct is legal. The defendant has the burden to establish that he was misled by the statements of a government official into believing his conduct was lawful. United States v. Austin, 915 F.2d 363 (8th Cir. 1990). The issue of "entrapment by estoppel" is a jury issue; however, Model Instruction 9.01 does not describe the defense. Cf., the proposed (but not approved) instruction, in United States v. LaChapelle, 969 F.2d at 637.

(For 2008 version see below).

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2008 Version

One of the issues in this case is whether the defendant was entrapped. If the defendant was entrapped, [he] [she] must be found not guilty. The Government has the burden of proving beyond a reasonable doubt that the defendant was not entrapped.

If the defendant before contact with (describe law enforcement officer or agents by name and capacity)² did not have any intent or disposition to commit the crime charged and was induced or persuaded by (officer or agent)² to commit that crime, then [he] [she] was entrapped. On the other hand, if the defendant before contact with (officer or agent)² did have an intent or disposition to commit the crime charged, then [he] [she] was not entrapped, even though (officer or agent) provided a favorable opportunity to commit the crime or made committing the crime easier or even participated in acts essential to the crime.

Notes on Use

Committee Comments

"Entrapment is an affirmative defense which consists of two elements: government action to induce or otherwise cause the defendant to commit the crime, and the defendant's lack of predisposition to commit the crime." United States v. Pfeffer, 901 F.2d 654, 656 (8th Cir. 1990) (citing United States v. Foster, 815 F.2d 1200, 1201 (8th Cir. 1987)). A defendant is entitled to an entrapment instruction when there is "sufficient evidence from which a reasonable jury could find entrapment." United States v. Felix, 867 F.2d 1068, 1074 (8th Cir. 1989) (quoting Mathews v. United States, 485 U.S. 58, 61 (1988)); see also United States v. Kutrip, 670 F.2d 870, 877 (8th Cir. 1982). Cf., United States v. Osborne, 935 F.2d 32, 38 (4th Cir. 1991) (seldom, if ever, appropriate to decide prior to trial that the defendant is not entitled to an entrapment instruction). (For a list of evidentiary factors that may assist in determining whether an entrapment instruction is appropriate, see United States v. Dion, 762 F.2d at 687-88.) The government is not required to prove predisposition unless there is evidence of government inducement to commit the offense. To show inducement, there must be evidence of government conduct creating a substantial risk that an undisposed person would commit the offense. United States v. Loftus, 992 F.2d at 798; United States v. Stanton, 973 F.2d 608, 609 (8th Cir. 1992).

"[t]hat a government agent originated the criminal design; that the agent implanted in the mind of an innocent person the disposition to commit the offense; and that the defendant then committed the criminal act at the urging of the government." United States v. Beissel, 901 F.2d 1467, 1469 (8th Cir. 1990) (quoting United States v. Resnick, 745 F.2d 1179, 1186 (8th Cir. 1984)).

"Outrageous government conduct" in procuring the commission of an offense which would amount to a violation of due process, is frequently discussed, but infrequently (if ever) established. See Gunderson v. Schlueter, 904 F.2d 407, 410 n.8 (8th Cir, 1990); United States v. Ford, 918 F.2d 1343, 1349 (8th Cir. 1990), and United States v. Musslyn, 865 F.2d 945 (8th Cir. 1989). A claim of "outrageous conduct" is addressed to the court; no jury submission on the issue is required. United States v. Dougherty, 810 F.2d 763, 770 (8th Cir. 1987); United States v. Quinn, 543 F.2d 640 (8th Cir. 1976). The Eighth Circuit has acknowledged that "sentencing entrapment" may arise where outrageous official conduct has overcome the predisposition of a defendant to commit only low-quantity, low-value [thus lower offense level] crimes by inducing such a person to commit greater crimes subject to greater punishment under the Sentencing Guidelines. United States v. Nelson, 988 F.2d 798, 809 (8th Cir. 1993); United States v. Stein, 973 F.2d 600, 602 (8th Cir. 1992). These cases only recognize the possibility of "sentencing entrapment;" the opinions did not find it to exist. As a sentencing issue, "sentencing entrapment" would not be submitted to the jury.

(For 2006 version see below)

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2006 Version

One of the issues in this case is whether the defendant was entrapped. If the defendant was entrapped, [he] [she] must be found not guilty. The Government has the burden of proving beyond a reasonable doubt that the defendant was not entrapped.

If the defendant before contact with (describe law enforcement officer or agents by name and capacity)2 did not have any intent or disposition to commit the crime charged and was induced or persuaded by (officer or agent)2 to commit that crime, then [he] [she] was entrapped. On the other hand, if the defendant before contact with (officer or agent)2 did have an intent or disposition to commit the crime charged, then [he] [she] was not entrapped, even though (officer or agent) provided a favorable opportunity to commit the crime or made committing the crime easier or even participated in acts essential to the crime.

Notes on Use

Committee Comments

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 19.04 (5th ed. 2000); Fifth Circuit Pattern Jury Instructions: Criminal § 1.28 (1997); Seventh Circuit Federal Jury Instructions: Criminal § 6.04 (1999); Ninth Cir. Crim. Jury Instr. 6.2 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Special) § 12.1 (1997). See generally West Key # "Criminal Law" 37(1-8), 330, 569, 739.1(1), 772(6), 814(8), 815(5), 822(8), 823(6).

"Entrapment is an affirmative defense which consists of two elements: government action to induce or otherwise cause the defendant to commit the crime, and the defendant's lack of predisposition to commit the crime." United States v. Pfeffer, 901 F.2d 654, 656 (8th Cir. 1990) (citing United States v. Foster, 815 F.2d 1200, 1201 (8th Cir. 1987)). A defendant is entitled to an entrapment instruction when there is "sufficient evidence from which a reasonable jury could find entrapment." United States v. Felix, 867 F.2d 1068, 1074 (8th Cir. 1989) (quoting Mathews v. United States, 485 U.S. 58, 61 (1988)); see also United States v. Kutrip, 670 F.2d 870, 877 (8th Cir. 1982). Cf., United States v. Osborne, 935 F.2d 32, 38 (4th Cir. 1991) (seldom, if ever, appropriate to decide prior to trial that the defendant is not entitled to an entrapment instruction). (For a list of evidentiary factors that may assist in determining whether an entrapment instruction is appropriate, see United States v. Dion, 762 F.2d at 687-88.) The government is not required to prove predisposition unless there is evidence of government inducement to commit the offense. To show inducement, there must be evidence of government conduct creating a substantial risk that an undisposed person would commit the offense. United States v. Loftus, 992 F.2d at 798; United States v. Stanton, 973 F.2d 608, 609 (8th Cir. 1992).

"[t]hat a government agent originated the criminal design; that the agent implanted in the mind of an innocent person the disposition to commit the offense; and that the defendant then committed the criminal act at the urging of the government." United States v. Beissel, 901 F.2d 1467, 1469 (8th Cir. 1990) (quoting United States v. Resnick, 745 F.2d 1179, 1186 (8th Cir. 1984)).

"Outrageous government conduct" in procuring the commission of an offense which would amount to a violation of due process, is frequently discussed, but infrequently (if ever) established. See Gunderson v. Schlueter, 904 F.2d 407, 410 n.8 (8th Cir, 1990); United States v. Ford, 918 F.2d 1343, 1349 (8th Cir. 1990), and United States v. Musslyn, 865 F.2d 945 (8th Cir. 1989). A claim of "outrageous conduct" is addressed to the court; no jury submission on the issue is required. United States v. Dougherty, 810 F.2d 763, 770 (8th Cir. 1987); United States v. Quinn, 543 F.2d 640 (8th Cir. 1976). The Eighth Circuit has acknowledged that "sentencing entrapment" may arise where outrageous official conduct has overcome the predisposition of a defendant to commit only low-quantity, low-value [thus lower offense level] crimes by inducing such a person to commit greater crimes subject to greater punishment under the Sentencing Guidelines. United States v. Nelson, 988 F.2d 798, 809 (8th Cir. 1993); United States v. Stein, 973 F.2d 600, 602 (8th Cir. 1992). These cases only recognize the possibility of "sentencing entrapment;" the opinions did not find it to exist. As a sentencing issue, "sentencing entrapment" would not be submitted to the jury.

For 2000 version see below

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2000 Version

9.01 ENTRAPMENT1

One of the issues in this case is whether the defendant was entrapped. If the defendant was entrapped, [he] [she] must be found not guilty. The Government has the burden of proving beyond a reasonable doubt that the defendant was not entrapped.

If the defendant before contact with (describe law enforcement officer or agents by name and capacity)2 did not have any intent or disposition to commit the crime charged and was induced or persuaded by (officer or agent)2 to commit that crime, then [he] [she] was entrapped. On the other hand, if the defendant before contact with (officer or agent)2 did have an intent or disposition to commit the crime charged, then [he] [she] was not entrapped, even though (officer or agent) provided a favorable opportunity to commit the crime or made committing the crime easier or even participated in acts essential to the crime.

Committee Comments

See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 19.04 (4th ed. 1992); Fifth Circuit Pattern Jury Instructions: Criminal § 1.28 (1997); Seventh Circuit Federal Jury Instructions: Criminal § 6.04 (1999); Ninth Cir. Crim. Jury Instr. 6.2.1 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Special) § 12.1 (1997). See generally West Key # "Criminal Law" 37(1-8), 330, 569, 739.1(1), 772(6), 814(8), 815(5), 822(8), 823(6).

"Entrapment is an affirmative defense which consists of two elements: government action to induce or otherwise cause the defendant to commit the crime, and the defendant's lack of predisposition to commit the crime." United States v. Pfeffer, 901 F.2d 654, 656 (8th Cir. 1990) (citing United States v. Foster, 815 F.2d 1200, 1201 (8th Cir. 1987)). A defendant is entitled to an entrapment instruction when there is "sufficient evidence from which a reasonable jury could find entrapment." United States v. Felix, 867 F.2d 1068, 1074 (8th Cir. 1989) (quoting Mathews v. United States, 485 U.S. 58, 61 (1988)); see also United States v. Kutrip, 670 F.2d 870, 877 (8th Cir. 1982). Cf., United States v. Osborne, 935 F.2d 32, 38 (4th Cir. 1991) (seldom, if ever, appropriate to decide prior to trial that defendant is not entitled to an entrapment instruction). (For a list of evidentiary factors that may assist in determining whether an entrapment instruction is appropriate, see United States v. Dion, 762 F.2d at 687-88.) The government is not required to prove predisposition unless there is evidence of government inducement to commit the offense. To show inducement, there must be evidence of government conduct creating a substantial risk that an undisposed person would commit the offense. United States v. Loftus, 992 F.2d at 798; United States v. Stanton, 973 F.2d 608, 609 (8th Cir. 1992).

"[t]hat a government agent originated the criminal design; that the agent implanted in the mind of an innocent person the disposition to commit the offense; and that the defendant then committed the criminal act at the urging of the government." United States v. Beissel, 901 F.2d 1467, 1469 (8th Cir. 1990) (quoting United States v. Resnick, 745 F.2d 1179, 1186 (8th Cir. 1984)).

"Outrageous government conduct" in procuring the commission of an offense which would amount to a violation of due process, is frequently discussed, but infrequently (if ever) established. See Gunderson v. Schlueter, 904 F.2d 407, 410 n.8 (8th Cir, 1990); United States v. Ford, 918 F.2d 1343, 1349 (8th Cir. 1990), and United States v. Musslyn, 865 F.2d 945 (8th Cir. 1989). A claim of "outrageous conduct" is addressed to the court; no jury submission on the issue is required. United States v. Dougherty, 810 F.2d 763, 770 (8th Cir. 1987); United States v. Quinn, 543 F.2d 640 (8th Cir. 1976). The Eighth Circuit has acknowledged that "sentencing entrapment" may arise where outrageous official conduct has overcome the predisposition of a defendant to commit only low-quantity, low-value [thus lower offense level] crimes by inducing such a person to commit greater crimes subject to greater punishment under the Sentencing Guidelines. United States v. Nelson, 988 F.2d 798, 809 (8th Cir. 1993); United States v. Stein, 973 F.2d 600, 602 (8th Cir. 1992). These cases only recognize the possibility of "sentencing entrapment;" the opinions did not find it to exist. As a sentencing issue, "sentencing entrapment" would not be submitted to the jury.

Notes on Use

1. When this instruction is submitted, the government's burden of proof that defendant was not entrapped must be included in the elements instruction. See Instruction 3.09, supra. This instruction should immediately follow.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

9.02 COERCION OR DURESS¹

FORECITE National™ Materials Related To This Instruction:

254.1 Duress/Coercion

If the defendant [committed] [participated in] the crime of (describe offense) only because [he] [she] reasonably feared that immediate, serious bodily harm would be inflicted upon [him] [her] [another person], if [he] [she] did not [commit] [participate in] the crime, and if the defendant had no reasonable opportunity to avoid that harm, then [he] [she] was coerced.

Notes on Use

1. When this instruction is submitted, the jury must be advised that the defendant has the burden of proof on it. See Instruction 3.09, Note 3, supra. This instruction should immediately follow.

Committee Comments

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 19.02 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions § 56 (1988); Seventh Circuit Federal Jury Instructions: Criminal § 6.08 (1999); Ninth Cir. Crim. Jury Instr. 6.5 (formerly 6.4.1 (1997)); Eleventh Circuit Pattern Jury Instructions: Criminal (Special) § 15 (1997). See generally West Key # "Criminal Law" 38, 330, 356, 569, 739(l), 772(6), 814(8), 815(5), 822(8), 823(6).

Coercion and duress are used interchangeably. United States v. Michelson, 559 F.2d 567 n.3 (9th Cir. 1977). In United States v. Bailey, 444 U.S. 394, 409 (1980), the Court distinguished duress from necessity:

Common law historically distinguished between the defenses of duress and necessity. Duress was said to excuse criminal conduct where the actor was under an unlawful threat of imminent death or serious bodily injury, which threat caused the actor to engage in conduct violating the literal terms of the criminal law. While the defense of duress covered the situation where the coercion had its source in the actions of other human beings, the defense of necessity, or choice of evils, traditionally covered the situation where physical forces beyond the actor's control rendered illegal conduct the lesser of two evils. (Emphasis added.)

Duress and coercion are treated as synonymous in Ninth Cir. Crim. Jury Instr. 6.5 (formerly 6.4.1 (1997)). Duress, coercion and compulsion are treated as synonymous in 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 19.02 (5th ed. 2000). Coercion and intimidation are treated as synonymous in Eleventh Circuit Pattern Jury Instructions: Criminal (Special) § 15 (1997).

The definition of coercion is set forth in United States v. May, 727 F.2d 764, 765 (8th Cir. 1984) (quoting Shannon v. United States, 76 F.2d 490, 493 (10th Cir. 1935)):

Coercion which will excuse the commission of a criminal act must be immediate and of such nature as to induce a well-grounded apprehension of death or serious bodily injury if the act is not done. One who has full opportunity to avoid the act without danger of that kind cannot invoke the doctrine of coercion and is not entitled to an instruction submitting that question to the jury.

See also United States v. Blankenship, 67 F.3d 673, 677-78 (8th Cir. 1995); United States v. Campbell, 609 F.2d 922, 924 (8th Cir. 1979; United States v. Saettele, 585 F.2d 307, 309 (8th Cir. 1978).

The defendant has the initial burden of introducing facts sufficient to trigger consideration of the coercion defense and must prove it by a preponderance of the evidence. Dixon v. United States, 548 U.S. 1 (2006).

This defense cannot be invoked if the defendant had a full opportunity to avoid the criminal act without danger of immediate death or serious bodily injury. United States v. Saettele, 585 F.2d at 309 n.2; United States v. Logan, 49 F.3d 352 (8th Cir. 1995). Similarly, the defense must fail if there was a reasonable, legal alternative which would not violate the law and which would also avoid the threatened harm. United States v. Uthe, 686 F.2d 636, 637 (8th Cir. 1982).

In escape from custody situations, in order to be entitled to a duress instruction an escapee must offer evidence "justifying his continued absence from custody as well as his initial departure, and . . . an indispensable element of such offer is testimony of a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity has lost its coercive force." United States v. Bailey, 444 U.S. 394, 412-13 n.9 (1980). The defendant must have submitted himself to proper authorities after obtaining safety.

Coercion typically is not a defense to murder. See R.I. Recreation Center v. Aetna Casualty & Surety Co., 177 F.2d 603, 605 (1st Cir. 1949).

As with the use of defensive force, the defense of coercion or duress can exist not only when the defendant is personally threatened with the harm, but also when the harm threatened is to a third person. See LaFave & Scott, Criminal Law, 374-75, 385-88 (1972).

(For 2008 version see below).

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2008 Version

If the defendant [committed] [participated in] the crime of (describe offense) only because [he] [she] reasonably feared that immediate, serious bodily harm would be inflicted upon [him] [her] [another person], if [he] [she] did not [commit] [participate in] the crime, and if the defendant had no reasonable opportunity to avoid that harm, then [he] [she] was coerced.

Notes on Use

1. When this instruction is submitted, the jury must be advised that the defendant has the burden of proof on it. See Instruction 3.09, Note 3, supra. This instruction should immediately follow.

Committee Comments

Common law historically distinguished between the defenses of duress and necessity. Duress was said to excuse criminal conduct where the actor was under an unlawful threat of imminent death or serious bodily injury, which threat caused the actor to engage in conduct violating the literal terms of the criminal law. While the defense of duress covered the situation where the coercion had its source in the actions of other human beings, the defense of necessity, or choice of evils, traditionally covered the situation where physical forces beyond the actor's control rendered illegal conduct the lesser of two evils. (Emphasis added.)

The definition of coercion is set forth in United States v. May, 727 F.2d 764, 765 (8th Cir. 1984) (quoting Shannon v. United States, 76 F.2d 490, 493 (10th Cir. 1935)):

Coercion which will excuse the commission of a criminal act must be immediate and of such nature as to induce a well-grounded apprehension of death or serious bodily injury if the act is not done. One who has full opportunity to avoid the act without danger of that kind cannot invoke the doctrine of coercion and is not entitled to an instruction submitting that question to the jury.

Coercion typically is not a defense to murder. See R.I. Recreation Center v. Aetna Casualty & Surety Co., 177 F.2d 603, 605 (1st Cir. 1949).

(For 2006 version see below)

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

2006 Version

If the defendant [committed] [participated in] the crime of (describe offense) only because [he] [she] reasonably feared that immediate, serious bodily harm would be inflicted upon [him] [her] [another person], if [he] [she] did not [commit] [participate in] the crime, and if the defendant had no reasonable opportunity to avoid that harm, then [he] [she] was coerced.

Notes on Use

1. When this instruction is submitted, the jury must be advised that the defendant has the burden of proof on it. See Instruction 3.09, Note 3, supra. This instruction should immediately follow.

Committee Comments

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 19.02 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions § 56 (1988); Seventh Circuit Federal Jury Instructions: Criminal § 6.08 (1999); Ninth Cir. Crim. Jury Instr. 6.5 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Special) § 15 (1997). See generally West Key # "Criminal Law" 38, 330, 356, 569, 739(l), 772(6), 814(8), 815(5), 822(8), 823(6).

Common law historically distinguished between the defenses of duress and necessity. Duress was said to excuse criminal conduct where the actor was under an unlawful threat of imminent death or serious bodily injury, which threat caused the actor to engage in conduct violating the literal terms of the criminal law. While the defense of duress covered the situation where the coercion had its source in the actions of other human beings, the defense of necessity, or choice of evils, traditionally covered the situation where physical forces beyond the actor's control rendered illegal conduct the lesser of two evils. (Emphasis added.)

Duress and coercion are treated as synonymous in Ninth Cir. Crim. Jury Instr. 6.5 (1997). Duress, coercion and compulsion are treated as synonymous in 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 19.02 (5th ed. 2000). Coercion and intimidation are treated as synonymous in Eleventh Circuit Pattern Jury Instructions: Criminal (Special) § 15(1997).

The definition of coercion is set forth in United States v. May, 727 F.2d 764, 765 (8th Cir. 1984) (quoting Shannon v. United States, 76 F.2d 490, 493 (10th Cir. 1935)):

Coercion which will excuse the commission of a criminal act must be immediate and of such nature as to induce a well-grounded apprehension of death or serious bodily injury if the act is not done. One who has full opportunity to avoid the act without danger of that kind cannot invoke the doctrine of coercion and is not entitled to an instruction submitting that question to the jury.

Coercion typically is not a defense to murder. See R.I. Recreation Center v. Aetna Casualty & Surety Co., 177 F.2d 603, 605 (1st Cir. 1949).

For 2000 version see below

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2000 Version

9.02 COERCION OR DURESS1

If the defendant [committed] [participated in] the crime of (describe offense) only because [he] [she] reasonably feared that immediate, serious bodily harm would be inflicted upon [him] [her] [another person], if [he] [she] did not [commit] [participate in] the crime, and if the defendant had no reasonable opportunity to avoid that harm, then [he] [she] was coerced.

Committee Comments

See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 19.02 (4th ed. 1992); Federal Judicial Center, Pattern Criminal Jury Instructions § 56 (1988); Seventh Circuit Federal Jury Instructions: Criminal § 6.08 (1999); Ninth Cir. Crim. Jury Instr. 6.4.1 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Special) § 15 (1997). See generally West Key # "Criminal Law" 38, 330, 356, 569, 739(l), 772(6), 814(8), 815(5), 822(8), 823(6).

Common law historically distinguished between the defenses of duress and necessity. Duress was said to excuse criminal conduct where the actor was under an unlawful threat of imminent death or serious bodily injury, which threat caused the actor to engage in conduct violating the literal terms of the criminal law. While the defense of duress covered the situation where the coercion had its source in the actions of other human beings, the defense of necessity, or choice of evils, traditionally covered the situation where physical forces beyond the actor's control rendered illegal conduct the lesser of two evils. (Emphasis added.) Duress and coercion are treated as synonymous in Ninth Cir. Crim. Jury Instr. 6.4.1 (1997).

Duress, coercion and compulsion are treated as synonymous in 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 19.02 (4th ed. 1992). Coercion and intimidation are treated as synonymous in Eleventh Circuit Pattern Jury Instructions: Criminal (Special) § 15 (1997).

The definition of coercion is set forth in United States v. May, 727 F.2d 764, 765 (8th Cir. 1984) (quoting Shannon v. United States, 76 F.2d 490, 493 (10th Cir. 1935)):

Coercion which will excuse the commission of a criminal act must be immediate and of such nature as to induce a well-grounded apprehension of death or serious bodily injury if the act is not done. One who has full opportunity to avoid the act without danger of that kind cannot invoke the doctrine of coercion and is not entitled to an instruction submitting that question to the jury.

See also United States v. Blankenship, 67 F.3d 673, 677-78 (8th Cir. 1995); United States v. Campbell, 609 F.2d 922, 924 (8th Cir. 1979), cert. denied, 445 U.S. 918 (1980); United States v. Saettele, 585 F.2d 307, 309 (8th Cir. 1978), cert. denied, 440 U.S. 910 (1979).

The defendant has the initial burden of introducing facts "sufficient to trigger consideration of the coercion defense." United States v. Campbell, 609 F.2d at 924. Once the accused offers evidence supporting a coercion defense, the prosecution must rebut the issues of coercion beyond a reasonable doubt. Id. at 925.

In escape from custody situations, in order to be entitled to a duress instruction an escapee must offer evidence "justifying his continued absence from custody as well as his initial departure, and . . . an indispensable element of such offer is testimony of a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity has lost its coercive force." United States v. Bailey, 444 U.S. 394, 412-13 n.9 (1980). Defendant must have submitted himself to proper authorities after obtaining safety.

Coercion typically is not a defense to murder. See R.I. Recreation Center v. Aetna Casualty & Surety Co., 177 F.2d 603, 605 (1st Cir. 1949).

As with the use of defensive force, the defense of coercion or duress can exist not only when the defendant is personally threatened with the harm, but also when the harm threatened is to a third person. See LaFave & Scott, Criminal Law, 374-75, 385-88 (1972).

Notes on Use

1. When this instruction is submitted, the government's burden of proof that defendant was not coerced must be included in the elements instruction. See Instruction 3.09, supra. This instruction should immediately follow.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

9.03 INSANITY
(18 USC 20)

FORECITE National™ Materials Related To This Instruction:

256.4 Insanity

A defendant was insane if, at the time of the alleged criminal conduct, as a result of a severe mental disease or defect, [he] [she] was unable to appreciate the nature and quality or the wrongfulness of [his] [her] acts.¹

Notes on Use

1. This instruction should be used with and follow the burden of proof instruction contained in Note 3, Instruction 3.09, supra.

Committee Comments

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 19.03 (5th ed. 2000); Seventh Circuit Federal Jury Instructions: Criminal § 6.02 (1999); Ninth Cir. Crim. Jury Instr. 6.4 (formerly 6.3 (1997)). See generally West Key # "Criminal Law" 47-57, 331, 354, 474, 570(1-3), 723(22), 740, 773, 778(7), 782(14), 814(10), 815(5), 822(9), 823(7).

The present instruction has been drafted to conform to the relevant provisions of the Comprehensive Crime Control Act of 1984, Public Law 98-473, §§ 401 et seq., 18 USC 20. As regards the defense of insanity, the Act has four features of particular importance here:

(a) The burden of proof with respect to the defense is placed upon the defendant. See section 402(b). This reverses the situation which existed in the past. See, e.g., United States v. Gilliss, 645 F.2d 1269, 1280 (8th Cir. 1981).

(b) The quantum of proof necessary to sustain the defense is "clear and convincing" evidence. See section 402(b); United States v. Amos, 803 F.2d 419, 420-22 (8th Cir. 1986).

(c) The substantive test for insanity is changed, at least as concerns the law previously adopted in the Eighth Circuit. See, e.g., United States v. Frazier, 458 F.2d 911, 917 (8th Cir. 1972); United States v. Lewellyn, 723 F.2d 615 (8th Cir. 1983). In essence, the statute has now eliminated the "irresistible impulse" alternative. See section 402(a). The language employed in the present instruction is a verbatim recitation of that employed by the statute.

(d) If the jury accepts the defense, the necessary finding is "not guilty by reason of insanity," rather than simply "not guilty." See section 403(a) (amendment of 18 USC 4242(b)). Thus, in a case where the defense is raised, the jury will have a choice between three verdicts: (a) guilty; (b) not guilty; and (c) not guilty by reason of insanity.

Additionally, although not relevant for instructional purposes, the Committee notes the amendment to FRE 704, which will prohibit an expert witness from stating "an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto." See section 406. But see United States v. Bartlett, 856 F.2d 1071 (8th Cir. 1988) (Insanity Defense Reform Act allows defense to present expert evidence that a mental disease or defect, including diminished responsibility, at the time of the alleged crime rendered the defendant incapable of forming the requisite intent. The case suggests that the instructions specifically or as a whole should permit the defendant to argue this as a theory of defense. See Instruction 9.05, infra.)

A bracketed instruction which appears in earlier printings of this edition, advising the jury that a defendant found not guilty by reason of insanity will be committed, has been removed since the decision on which it was based has been vacated. United States v. Neavill, 868 F.2d 1000 (8th Cir.), vacated, 877 F.2d 1394 (8th Cir. en banc 1989).

(For 2008 version see below).

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

2008 Version

A defendant was insane if, at the time of the alleged criminal conduct, as a result of a severe mental disease or defect, [he] [she] was unable to appreciate the nature and quality or the wrongfulness of [his] [her] acts.¹

Notes on Use

1. This instruction should be used with and follow the burden of proof instruction contained in Note 3, Instruction 3.09, supra.

Committee Comments

(a) The burden of proof with respect to the defense is placed upon the defendant. See section 402(b). This reverses the situation which existed in the past. See, e.g., United States v. Gilliss, 645 F.2d 1269, 1280 (8th Cir. 1981).

(b) The quantum of proof necessary to sustain the defense is "clear and convincing" evidence. See section 402(b); United States v. Amos, 803 F.2d 419, 420-22 (8th Cir. 1986).

(c) The substantive test for insanity is changed, at least as concerns the law previously adopted in the Eighth Circuit. See, e.g., United States v. Frazier, 458 F.2d 911, 917 (8th Cir. 1972); United States v. Lewellyn, 723 F.2d 615 (8th Cir. 1983). In essence, the statute has now eliminated the "irresistible impulse" alternative. See section 402(a). The language employed in the present instruction is a verbatim recitation of that employed by the statute.

(d) If the jury accepts the defense, the necessary finding is "not guilty by reason of insanity," rather than simply "not guilty." See section 403(a) (amendment of 18 USC 4242(b)). Thus, in a case where the defense is raised, the jury will have a choice between three verdicts: (a) guilty; (b) not guilty; and (c) not guilty by reason of insanity.

(For 2006 version see below)

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

2006 Version

A defendant was insane if, at the time of the alleged criminal conduct, as a result of a severe mental disease or defect, [he] [she] was unable to appreciate the nature and quality or the wrongfulness of [his] [her] acts.1

Notes on Use

1. This instruction should be used with and follow the burden of proof instruction contained in Note 3, Instruction 3.09, supra.

Committee Comments

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 19.03 (5th ed. 2000); Seventh Circuit Federal Jury Instructions: Criminal § 6.02 (1999); Ninth Cir. Crim. Jury Instr. 6.4 (1997). See generally West Key # "Criminal Law" 47-57, 331, 354, 474, 570(1-3), 723(22), 740, 773, 778(7), 782(14), 814(10), 815(5), 822(9), 823(7).

(a) The burden of proof with respect to the defense is placed upon the defendant. See section 402(b). This reverses the situation which existed in the past. See, e.g., United States v. Gilliss, 645 F.2d 1269, 1280 (8th Cir. 1981).

(b) The quantum of proof necessary to sustain the defense is "clear and convincing" evidence. See section 402(b); United States v. Amos, 803 F.2d 419, 420-22 (8th Cir. 1986).

(c) The substantive test for insanity is changed, at least as concerns the law previously adopted in the Eighth Circuit. See, e.g., United States v. Frazier, 458 F.2d 911, 917 (8th Cir. 1972); United States v. Lewellyn, 723 F.2d 615 (8th Cir. 1983). In essence, the statute has now eliminated the "irresistible impulse" alternative. See section 402(a). The language employed in the present instruction is a verbatim recitation of that employed by the statute.

(d) If the jury accepts the defense, the necessary finding is "not guilty by reason of insanity," rather than simply "not guilty." See section 403(a) (amendment of 18 USC 4242(b)). Thus, in a case where the defense is raised, the jury will have a choice between three verdicts: (a) guilty; (b) not guilty; and (c) not guilty by reason of insanity.

For 2000 version see below

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

2000 Version

9.03 INSANITY (18 USC 20)

A defendant was insane if, at the time of the alleged criminal conduct, as a result of a severe mental disease or defect, [he] [she] was unable to appreciate the nature and quality or the wrongfulness of [his] [her] acts.1

Committee Comments

See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 19.03 (4th ed. 1992); Seventh Circuit Federal Jury Instructions: Criminal § 6.02 (1999); Ninth Cir. Crim. Jury Instr. 6.3 (1997). See generally West Key # "Criminal Law" 47-57, 331, 354, 474, 570(1-3), 723(22), 740, 773, 778(7), 782(14), 814(10), 815(5), 822(9), 823(7).

(a) The burden of proof with respect to the defense is placed upon the defendant. See section 402(b). This reverses the situation which existed in the past. See, e.g., United States v. Gilliss, 645 F.2d 1269, 1280 (8th Cir. 1981).

(b) The quantum of proof necessary to sustain the defense is "clear and convincing" evidence. See section 402(b); United States v. Amos, 803 F.2d 419, 420-22 (8th Cir. 1986).

(c) The substantive test for insanity is changed, at least as concerns the law previously adopted in the Eighth Circuit. See, e.g., United States v. Frazier, 458 F.2d 911, 917 (8th Cir. 1972); United States v. Lewellyn, 723 F.2d 615 (8th Cir. 1983). In essence, the statute has now eliminated the "irresistible impulse" alternative. See section 402(a). The language employed in the present instruction is a verbatim recitation of that employed by the statute.

(d) If the jury accepts the defense, the necessary finding is "not guilty by reason of insanity," rather than simply "not guilty." See section 403(a) (amendment of 18 USC 4242(b)). Thus, in a case where the defense is raised, the jury will have a choice between three verdicts: (a) guilty; (b) not guilty; and (c) not guilty by reason of insanity.

Additionally, although not relevant for instructional purposes, the Committee notes the amendment to FRE 704, which will prohibit an expert witness from stating "an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto." See section 406. But see United States v. Bartlett, 856 F.2d 1071 (8th Cir. 1988) (Insanity Defense Reform Act allows defense to present expert evidence that a mental disease or defect, including diminished responsibility, at the time of the alleged crime rendered defendant incapable of forming the requisite intent. The case suggests that the instructions specifically or as a whole should permit defendant to argue this as a theory of defense. See Instruction 9.05, infra.)

Notes on Use

1. This instruction should be used with and follow the burden of proof instruction contained in Note on Use 3 to Instruction 3.09, supra.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

9.04 SELF DEFENSE - DEFENSE OF THIRD PERSON¹

FORECITE National™ Materials Related To This Instruction:

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

If a person reasonably believes that force is necessary to protect [himself] [herself] [another person] from what [he] [she] reasonably believes to be unlawful physical harm about to be inflicted by another and uses such force, then [he] [she] acted in [self defense] [defense of ].

[However, self defense which involves using force likely to cause death or great bodily harm is justified only if the person reasonably believes that such force is necessary to protect [himself] [herself] [the third person] from what [he] [she] reasonably believes to be a substantial risk of death or great bodily harm.]²

Notes on Use

1. When this instruction is submitted, the government's burden of proof that the defendant was not acting in self defense must be included in the elements instruction. See Instruction 3.09, supra. This instruction should immediately follow.

2. Use only if an issue in the case.

Committee Comments

See United States v. Walker, 817 F.2d 461, 463 (8th Cir. 1987); 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 45.19 (5th ed. 2000); Seventh Circuit Federal Jury Instructions: Criminal § 6.01 (1999); Ninth Cir. Crim. Jury Instr. 6.7 (formerly 6.5 (1997)). See generally West Key # "Criminal Law" 38, 330, 356, 739(l), 763(23), 772(6), 814(8), 815(5), 822(8), 823(6).

A defendant asserting self defense is admitting the commission of the offense charged, but is offering a justification for his actions. The defendant may also raise other, inconsistent defenses. United States v. Fay, 668 F.2d 375, 378 (8th Cir. 1981).

Although a defendant asserting self defense is not required to have retreated before resorting to force, United States v. Peterson, 483 F.2d 1222, 1236 (D.C. Cir. 1973), the availability of retreat may be a factor for the jury to consider in evaluating whether unreasonable force was used. United States v. Goodface, 835 F.2d 1233, 1235-36 (8th Cir. 1987); United States v. Loman, 551 F.2d 164, 168 (7th Cir. 1977). An aggressor need not have been armed in order for a defendant to raise a self defense issue, although whether an aggressor was armed may be relevant in determining the degree of force a defendant was entitled to use. United States v. Fay, 668 F.2d at 378.

The right to use self defense is not necessarily restricted to "pure" assault situations. For example, one would presumably be entitled to use self defense to prevent himself from being kidnaped. Even though kidnaping certainly would, in a general, theoretical sense, involve "unlawful physical harm," the instruction might well need to be modified in that situation to state more accurately the harm being defended against.

(For 2008 version see below).

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

2008 Version

If a person reasonably believes that force is necessary to protect [himself] [herself] [another person] from what [he] [she] reasonably believes to be unlawful physical harm about to be inflicted by another and uses such force, then [he] [she] acted in [self defense] [defense of ].

[However, self defense which involves using force likely to cause death or great bodily harm is justified only if the person reasonably believes that such force is necessary to protect [himself] [herself] [the third person] from what [he] [she] reasonably believes to be a substantial risk of death or great bodily harm.]²

Notes on Use

2. Use only if an issue in the case.

Committee Comments

The right to use self defense is not necessarily restricted to "pure" assault situations. For example, one would presumably be entitled to use self defense to prevent himself from being kidnapped. Even though kidnapping certainly would, in a general, theoretical sense, involve "unlawful physical harm," the instruction might well need to be modified in that situation to state more accurately the harm being defended against.

(For 2006 version see below)

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

2006 Version

If a person reasonably believes that force is necessary to protect [himself] [herself] [another person] from what [he] [she] reasonably believes to be unlawful physical harm about to be inflicted by another and uses such force, then [he] [she] acted in [self defense] [defense of ].

[However, self defense which involves using force likely to cause death or great bodily harm is justified only if the person reasonably believes that such force is necessary to protect [himself] [herself] [the third person] from what [he] [she] reasonably believes to be a substantial risk of death or great bodily harm.]2

Notes on Use

2. Use only if an issue in the case.

Committee Comments

See United States v. Walker, 817 F.2d 461, 463 (8th Cir. 1987); 2A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 45.19 (5th ed. 2000); Seventh Circuit Federal Jury Instructions: Criminal § 6.01 (1999); Ninth Cir. Crim. Jury Instr. 6.7 (1997). See generally West Key # "Criminal Law" 38, 330, 356, 739(l), 763(23), 772(6), 814(8), 815(5), 822(8), 823(6).

The right to use self defense is not necessarily restricted to "pure" assault situations. For example, one would presumably be entitled to use self defense to prevent himself from being kidnapped. Even though kidnapping certainly would, in a general, theoretical sense, involve "unlawful physical harm," the instruction might well need to be modified in that situation to state more accurately the harm being defended against.

For 2000 version see below

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

2000 Version

9.04 SELF DEFENSE; DEFENSE OF THIRD PERSON1

If a person reasonably believes that force is necessary to protect [himself] [herself] [another person] from what [he] [she] reasonably believes to be unlawful physical harm about to be inflicted by another and uses such force, then [he] [she] acted in [self defense] [defense of ].

[However, self defense which involves using force likely to cause death or great bodily harm is justified only if the person reasonably believes that such force is necessary to protect [himself] [herself] [the third person] from what [he] [she] reasonably believes to be a substantial risk of death or great bodily harm.]2

Committee Comments

See United States v. Walker, 817 F.2d 461, 463 (8th Cir.), cert. denied, 484 U.S. 863 (1987); 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal §§ 38A.11-38A.15 (4th ed. 1990); Seventh Circuit Federal Jury Instructions: Criminal § 6.01 (1999); Ninth Cir. Crim. Jury Instr. 6.5 (1997). See generally West Key # "Criminal Law" 38, 330, 356, 739(l), 763(23), 772(6), 814(8), 815(5), 822(8), 823(6).

Although a defendant asserting self defense is not required to have retreated before resorting to force, United States v. Peterson, 483 F.2d 1222, 1236 (D.C. Cir.), cert. denied, 414 U.S. 1007 (1973), the availability of retreat may be a factor for the jury to consider in evaluating whether unreasonable force was used. United States v. Goodface, 835 F.2d 1233, 1235-36 (8th Cir. 1987); United States v. Loman, 551 F.2d 164, 168 (7th Cir.), cert. denied, 433 U.S. 912 (1977). An aggressor need not have been armed in order for a defendant to raise a self defense issue, although whether an aggressor was armed may be relevant in determining the degree of force a defendant was entitled to use. United States v. Fay, 668 F.2d at 378.

The right to use self defense is not necessarily restricted to "pure" assault situations. For example, one would presumably be entitled to use self defense to prevent himself from being kidnapped. Even though kidnapping certainly would, in a general, theoretical sense, involve "unlawful physical harm," the instruction might well need to be modified in that situation to state more accurately the harm being defended against.

Notes on Use

1. When this instruction is submitted, the government's burden of proof that defendant was not acting in self defense must be included in the elements instruction. See Instruction 3.09, supra. This instruction should immediately follow.

2. Use only if an issue in the case.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

9.05 THEORY OF DEFENSE

FORECITE National™ Materials Related To This Instruction:

250.1 Grounds For Instruction On Defense Theory

(No model instruction provided) ¹

Notes on Use

1. As stated in the Introductory Comment, Section 9.00, supra, no general model instruction is provided because each such instruction must be drafted in accord with the particular issues of the case. Some particular instructions follow in Instructions 9.06, 9.07 and 9.08, infra.

Committee Comments

See generally West "Criminal Law" Key # 770(2), 770(3), 772(6), 805(1), 811(1), 829(1), 1038.3.

See also Introductory Comment, Section 9.00, supra.

A criminal defendant is entitled to have the jury instructed on a defense theory if a timely submission is made of an instruction that correctly states the law and is supported by the evidence. United States v. Mercer, 853 F.2d 630, 633 (8th Cir. 1988); United States v. Jerde, 841 F.2d 818, 820 (8th Cir. 1988); United States v. Montgomery, 819 F.2d 847, 851 (8th Cir. 1987); United States v. Johnson, 767 F.2d 1259, 1267 (8th Cir. 1985); United States v. Lisko, 747 F.2d 1234, 1237-38 (8th Cir. 1984); United States v. Brake, 596 F.2d 337, 339 (8th Cir. 1979); United States v. Brown, 540 F.2d 364, 380 (8th Cir. 1976).

It has been held reversible error not to give a properly requested instruction, which is supported by the evidence, contains a correct statement of law and is not otherwise covered in the instructions. United States v. Manning, 618 F.2d 45, 47-48 (8th Cir. 1980) (failure to instruct that mere presence or proximity to an unregistered weapon is an insufficient basis for conviction); United States v. Prieskorn, 658 F.2d 631, 636 (8th Cir. 1981) (failure to instruct that the relationship between buyer and seller of drugs does not alone establish a conspiracy, but note Judge Henley's dissent, p.637); United States v. Vole, 435 F.2d 774, 776-77 (7th Cir. 1970) (failure to give a requested instruction that the defendant was framed).

It is equally axiomatic, however, that a defendant is not entitled to a particularly worded instruction setting out his position where the instructions given by the trial judge correctly cover the substance of the requested instruction. United States v. Brake, 596 F.2d at 339; United States v. Lisko, 747 F.2d at 1237-38. See also United States v. Mercer, 853 F.2d at 633, holding that the defendant's proposed instruction (which had been required by the Fifth Circuit in United States v. Lewis, 592 F.2d 1282, 1285 (5th Cir. 1979)) was cumulative and hence failure to give it was not error. Even if the tendered instruction is proper and in form suitable for use by the court, the court retains discretion in framing the instruction. United States v. Brown, 540 F.2d at 380-81.

Moreover, instructions that do not meet all of the above criteria may be properly refused. Thus instructions that do not contain a proper statement of the law are properly refused. United States v. Johnson, 767 F.2d 1259, 1266-69 (8th Cir. 1985) (proposed instruction did not properly state the law as to when property can "lose" its "stolen" character); United States v. Montgomery, 819 F.2d 847, 851-52 (8th Cir. 1987) (proposed instruction did not properly cover the elements of constructive possession). United States v. McQuarry, 726 F.2d 401, 402 (8th Cir. 1984) (proposed instruction that failure to flee was evidence of innocence was not the law). See also United States v. Clark, 701 F.2d 68, 70 (8th Cir. 1983).

The trial court can properly refuse an instruction which merely rephrases the jury's obligation to find all of the elements beyond a reasonable doubt. United States v. Rabbitt, 583 F.2d 1014, 1024 (8th Cir. 1978); United States v. Shigemura, 682 F.2d 699, 703-05 (8th Cir. 1982).

Instructions not based on the evidence can be properly refused. United States v. Montgomery, 819 F.2d at 851-52 (no evidence at trial that witness made the statements on which proffered instruction was based); United States v. Peltier, 585 F.2d 314, 328-29 (8th Cir. 1978) (no evidence at trial that government induced witnesses to testify falsely). There must be some evidence to support the defense, even if it is "weak, inconsistent or dubious." United States v. Casperson, 773 F.2d 216, 223 n.12 (8th Cir. 1985). However a defense need not be submitted to a jury unless it can be said that a reasonable person "might conclude" the evidence supports the defendant's position. United States v. Kabat, 797 F.2d 580, 590-91 (8th Cir. 1986).

It is further essential that the instructions be in a form suitable for use by the court. United States v. Nance, 502 F.2d 615, 619 (8th Cir. 1974). There must be an appropriate statement of law for the jury to apply to the facts. Instructions which depart from this have been uniformly rejected. Thus instructions which are merely argumentative may be properly refused. United States v. Meyer, 808 F.2d 1304, 1307 (8th Cir. 1987); United States v. Finestone, 816 F.2d 583, 590 (11th Cir. 1987); United States v. Bolts, 558 F.2d 316, 323 (5th Cir. 1977).

Instructions which are long and verbose and contain detailed descriptions of the purported evidence and inferences drawn therefrom by defense counsel have been properly refused. United States v. Lisko, 747 F.2d at 1237-38; United States v. Nance, 502 F.2d at 619-22. A narrative recitation of the defendant's version of the facts is likewise unacceptable:

"A trial judge may refuse an instruction if its language gives undue emphasis to defendant's version of the facts rather than being (a statement of appropriate principles of [the] law for the jury to apply to the facts," (United States v. Nevitt, 563 F.2d 406, 409 (9th Cir. 1977)) or if it would tend to influence the jury towards accepting the defendant's version of the facts. United States v. Hall, 552 F.2d 273, 275 (9th Cir. 1977).

United States v. Davis, 597 F.2d 1237, 1240 (9th Cir. 1979). Likewise the court may refuse an instruction which only comments on evidence favorable to the defendant without presenting a legally cognizable defense. United States v. Silverman, 745 F.2d 1386, 1399-1400 (11th Cir. 1984).

It has also been held that certain obvious concepts cannot be elevated to a "theory of defense." United States v. Peltier, 585 F.2d at 328 (if government induced witnesses to testify falsely, this is affirmative evidence of weakness of government's case--rejected); Laughlin v. United States, 474 F.2d 444, 455 (D.C. Cir. 1972) (if the jury believes defense testimony denying guilt, it should acquit--rejected). Peltier quoted Laughlin as follows:

What is required before the theory of the case rule comes into play is a more involved theory involving 'law' or fact, or both, that is not so obvious to any jury.

585 F.2d at 328.

There is no duty to give a theory of defense instruction that has not been requested, United States v. Hamilton, 420 F.2d 1096, 1098-99 (7th Cir. 1970), and failure to give an instruction without a request is ordinarily not plain error. United States v. Peltier, 585 F.2d at 329-30.

(For 2008 version see below).

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2008 Version

[No model instruction provided] ¹

Notes on Use

Committee Comments

See generally West "Criminal Law" Key # 770(2), 770(3), 772(6), 805(1), 811(1), 829(1), 1038.3.

See also Introductory Comment, Section 9.00, supra.

It has been held reversible error not to give a properly requested instruction, which is supported by the evidence, contains a correct statement of law and is not otherwise covered in the instructions. United States v. Manning, 618 F.2d 45, 47-48 (8th Cir. 1980) [failure to instruct that mere presence or proximity to an unregistered weapon is an insufficient basis for conviction]; United States v. Prieskorn, 658 F.2d 631, 636 (8th Cir. 1981) [failure to instruct that the relationship between buyer and seller of drugs does not alone establish a conspiracy, but note Judge Henley's dissent, p.637]; United States v. Vole, 435 F.2d 774, 776-77 (7th Cir. 1970) [failure to give a requested instruction that the defendant was framed].

Moreover, instructions that do not meet all of the above criteria may be properly refused. Thus instructions that do not contain a proper statement of the law are properly refused. United States v. Johnson, 767 F.2d 1259, 1266-69 (8th Cir. 1985) [proposed instruction did not properly state the law as to when property can "lose" its "stolen" character]; United States v. Montgomery, 819 F.2d 847, 851-52 (8th Cir. 1987) [proposed instruction did not properly cover the elements of constructive possession]. United States v. McQuarry, 726 F.2d 401, 402 (8th Cir. 1984) [proposed instruction that failure to flee was evidence of innocence was not the law]. See also United States v. Clark, 701 F.2d 68, 70 (8th Cir. 1983).

Instructions not based on the evidence can be properly refused. United States v. Montgomery, 819 F.2d at 851-52 [no evidence at trial that witness made the statements on which proffered instruction was based]; United States v. Peltier, 585 F.2d 314, 328-29 (8th Cir. 1978) [no evidence at trial that government induced witnesses to testify falsely]. There must be some evidence to support the defense, even if it is "weak, inconsistent or dubious." United States v. Casperson, 773 F.2d 216, 223 n.12 (8th Cir. 1985). However a defense need not be submitted to a jury unless it can be said that a reasonable person "might conclude" the evidence supports the defendant's position. United States v. Kabat, 797 F.2d 580, 590-91 (8th Cir. 1986).

"A trial judge may refuse an instruction if its language gives undue emphasis to defendant's version of the facts rather than being (a statement of appropriate principles of [the] law for the jury to apply to the facts," (United States v. Nevitt, 563 F.2d 406, 409 (9th Cir. 1977)) or if it would tend to influence the jury towards accepting the defendant's version of the facts. United States v. Hall, 552 F.2d 273, 275 (9th Cir. 1977).

It has also been held that certain obvious concepts cannot be elevated to a "theory of defense." United States v. Peltier, 585 F.2d at 328 [if government induced witnesses to testify falsely, this is affirmative evidence of weakness of government's case--rejected]; Laughlin v. United States, 474 F.2d 444, 455 (D.C. Cir. 1972) [if the jury believes defense testimony denying guilt, it should acquit--rejected]. Peltier quoted Laughlin as follows:

What is required before the theory of the case rule comes into play is a more involved theory involving 'law' or fact, or both, that is not so obvious to any jury.

585 F.2d at 328.

(For 2006 version see below)

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2006 Version

[No model instruction provided] 1

Notes on Use

Committee Comments

See generally West "Criminal Law" Key # 770(2), 770(3), 772(6), 805(1), 811(1), 829(1), 1038.3.

See also Introductory Comment, Section 9.00, supra.

It has been held reversible error not to give a properly requested instruction, which is supported by the evidence, contains a correct statement of law and is not otherwise covered in the instructions. United States v. Manning, 618 F.2d 45, 47-48 (8th Cir. 1980) [failure to instruct that mere presence or proximity to an unregistered weapon is an insufficient basis for conviction]; United States v. Prieskorn, 658 F.2d 631, 636 (8th Cir. 1981) [failure to instruct that the relationship between buyer and seller of drugs does not alone establish a conspiracy, but note Judge Henley's dissent, p.637]; United States v. Vole, 435 F.2d 774, 776-77 (7th Cir. 1970) [failure to give a requested instruction that the defendant was framed].

Moreover, instructions that do not meet all of the above criteria may be properly refused. Thus instructions that do not contain a proper statement of the law are properly refused. United States v. Johnson, 767 F.2d 1259, 1266-69 (8th Cir. 1985) [proposed instruction did not properly state the law as to when property can "lose" its "stolen" character]; United States v. Montgomery, 819 F.2d 847, 851-52 (8th Cir. 1987) [proposed instruction did not properly cover the elements of constructive possession]. United States v. McQuarry, 726 F.2d 401, 402 (8th Cir. 1984) [proposed instruction that failure to flee was evidence of innocence was not the law]. See also United States v. Clark, 701 F.2d 68, 70 (8th Cir. 1983).

"A trial judge may refuse an instruction if its language gives undue emphasis to defendant's version of the facts rather than being (a statement of appropriate principles of [the] law for the jury to apply to the facts," (United States v. Nevitt, 563 F.2d 406, 409 (9th Cir. 1977)) or if it would tend to influence the jury towards accepting the defendant's version of the facts. United States v. Hall, 552 F.2d 273, 275 (9th Cir. 1977).

What is required before the theory of the case rule comes into play is a more involved theory involving 'law' or fact, or both, that is not so obvious to any jury.

585 F.2d at 328.

For 2000 version see below

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2000 Version

9.05 THEORY OF DEFENSE

[No model instruction provided] 1

Committee Comments

See generally West "Criminal Law" Key # 770(2), 770(3), 772(6), 805(1), 811(1), 829(1), 1038.3.

See also Introductory Comment, Section 9.00, supra.

A criminal defendant is entitled to have the jury instructed on a defense theory if a timely submission is made of an instruction that correctly states the law and is supported by the evidence. United States v. Mercer, 853 F.2d 630, 633 (8th Cir.), cert. denied, 488 U.S. 996 (1988); United States v. Jerde, 841 F.2d 818, 820 (8th Cir. 1988); United States v. Montgomery, 819 F.2d 847, 851 (8th Cir. 1987); United States v. Johnson, 767 F.2d 1259, 1267 (8th Cir. 1985); United States v. Lisko, 747 F.2d 1234, 1237-38 (8th Cir. 1984); United States v. Brake, 596 F.2d 337, 339 (8th Cir. 1979); United States v. Brown, 540 F.2d 364, 380 (8th Cir. 1976).

It has been held reversible error not to give a properly requested instruction, which is supported by the evidence, contains a correct statement of law and is not otherwise covered in the instructions. United States v. Manning, 618 F.2d 45, 47-48 (8th Cir. 1980) [failure to instruct that mere presence or proximity to an unregistered weapon is an insufficient basis for conviction]; United States v. Prieskorn, 658 F.2d 631, 636 (8th Cir. 1981) [failure to instruct that the relationship between buyer and seller of drugs does not alone establish a conspiracy, but note Judge Henley's dissent, p.637]; United States v. Vole, 435 F.2d 774, 776-77 (7th Cir. 1970) [failure to give a requested instruction that defendant was framed].

It is equally axiomatic, however, that a defendant is not entitled to a particularly worded instruction setting out his position where the instructions given by the trial judge correctly cover the substance of the requested instruction. United States v. Brake, 596 F.2d at 339; United States v. Lisko, 747 F.2d at 1237-38. See also United States v. Mercer, 853 F.2d at 633, holding that defendant's proposed instruction (which had been required by the Fifth Circuit in United States v. Lewis, 592 F.2d 1282, 1285 (5th Cir. 1979)) was cumulative and hence failure to give it was not error. Even if the tendered instruction is proper and in form suitable for use by the court, the court retains discretion in framing the instruction. United States v. Brown, 540 F.2d at 380-81.

Moreover, instructions that do not meet all of the above criteria may be properly refused. Thus instructions that do not contain a proper statement of the law are properly refused. United States v. Johnson, 767 F.2d 1259, 1266-69 (8th Cir. 1985) [proposed instruction did not properly state the law as to when property can "lose" its "stolen" character]; United States v. Montgomery, 819 F.2d 847, 851-52 (8th Cir. 1987) [proposed instruction did not properly cover the elements of constructive possession]. United States v. McQuarry, 726 F.2d 401, 402 (8th Cir. 1984) [proposed instruction that failure to flee was evidence of innocence was not the law]. See also United States v. Clark, 701 F.2d 68, 70 (8th Cir. 1983).

The trial court can properly refuse an instruction which merely rephrases the jury's obligation to find all of the essential elements beyond a reasonable doubt. United States v. Rabbitt, 583 F.2d 1014, 1024 (8th Cir. 1978), cert. denied, 439 U.S. 1116 (1979); United States v. Shigemura, 682 F.2d 699, 703-05 (8th Cir. 1982), cert. denied, 459 U.S. 1111 (1983).

Instructions not based on the evidence can be properly refused. United States v. Montgomery, 819 F.2d at 851-52 [no evidence at trial that witness made the statements on which proffered instruction was based]; United States v. Peltier, 585 F.2d 314, 328-29 (8th Cir. 1978), cert. denied, 440 U.S. 945 (1979) [no evidence at trial that government induced witnesses to testify falsely]. There must be some evidence to support the defense, even if it is "weak, inconsistent or dubious." United States v. Casperson, 773 F.2d 216, 223 n.12 (8th Cir. 1985). However a defense need not be submitted to a jury unless it can be said that a reasonable person "might conclude" the evidence supports defendant's position. United States v. Kabat, 797 F.2d 580, 590-91 (8th Cir. 1986), cert. denied, 481 U.S. 1030 (1987).

It is further essential that the instructions be in a form suitable for use by the court. United States v. Nance, 502 F.2d 615, 619 (8th Cir. 1974), cert. denied, 420 U.S. 926 (1975). There must be an appropriate statement of law for the jury to apply to the facts. Instructions which depart from this have been uniformly rejected. Thus instructions which are merely argumentative may be properly refused. United States v. Meyer, 808 F.2d 1304, 1307 (8th Cir. 1987); United States v. Finestone, 816 F.2d 583, 590 (11th Cir.), cert. denied, 484 U.S. 948 (1987); United States v. Bolts, 558 F.2d 316, 323 (5th Cir.), cert. denied, 434 U.S. 930 (1977).

Instructions which are long and verbose and contain detailed descriptions of the purported evidence and inferences drawn therefrom by defense counsel have been properly refused. United States v. Lisko, 747 F.2d at 1237-38; United States v. Nance, 502 F.2d at 619-22. A narrative recitation of defendant's version of the facts is likewise unacceptable:

"A trial judge may refuse an instruction if its language gives undue emphasis to defendant's version of the facts rather than being (a statement of appropriate principles of [the] law for the jury to apply to the facts," (United States v. Nevitt, 563 F.2d 406, 409 (9th Cir. 1977)) or if it would tend to influence the jury towards accepting the defendant's version of the facts. United States v. Hall, 552 F.2d 273, 275 (9th Cir. 1977).

It has also been held that certain obvious concepts cannot be elevated to a "theory of defense." United States v. Peltier, 585 F.2d at 328 [if government induced witnesses to testify falsely, this is affirmative evidence of weakness of government's case--rejected]; Laughlin v. United States, 474 F.2d 444, 455 (D.C. Cir. 1972), cert. denied, 412 U.S. 941 (1973) [if the jury believes defense testimony denying guilt, it should acquit--rejected]. Peltier quoted Laughlin as follows:

What is required before the theory of the case rule comes into play is a more involved theory involving 'law' or fact, or both, that is not so obvious to any jury.

585 F.2d at 328.

Notes on Use

8TH CIRCUIT MODEL INSTRUCTIONS 2009

9.06 INTOXICATION; DRUG USE

FORECITE National™ Materials Related To This Instruction:

256.6 Intoxication, Voluntary

One of the issues in this case is whether the defendant was [intoxicated] [taking drugs] at the time the acts charged in the indictment were committed.

Being under the influence of [alcohol] [a drug], [even one taken for medical purposes,] provides a legal excuse for the commission of a crime only if the effect of the [alcohol] [drug] makes it impossible for the defendant to have (insert mental state required by statute.) Evidence that the defendant acted while under the influence of [alcohol] [drug or drugs] may be considered by you, together with all the other evidence, in determining whether or not [he] [she] did in fact have (insert mental state required by statute.)

Committee Comments

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 19.05 (5th ed. 2000); Seventh Circuit Federal Jury Instructions: Criminal § 6.09 (1999); Ninth Cir. Crim. Jury Instr. 6.8 (formerly 6.06 (1997)). See generally West Key # "Criminal Law" 53, 55, 57, 332, 355, 474, 570(1-3), 739(5), 774, 782(14), 814(10), 815(5), 822(9), 823(7).

See also Committee Comments, Instructions 9.00, 9.05, supra; United States v. Fay, 668 F.2d 375, 377 (8th Cir. 1981).

"Intoxication" is a theory of defense which may be submitted to the jury upon a proper request if there is a foundation in the evidence and if the crime charged is one which has traditionally fallen in the "specific intent" category. United States v. Fay (reversible error not to give instruction).

Voluntary intoxication might serve to negate the required mental element in a crime involving what has historically been termed "specific intent." This is the view the Eighth Circuit has taken for many years. See, e.g., United States v. Fay (assault with a deadly weapon under 18 USC 1153 and 113(c) is a specific intent offense, as to which voluntary intoxication can be a defense; assault resulting in serious bodily harm, under 18 USC 153 and 113(b), is not); United States v. Hanson, 618 F.2d 1261 (8th Cir. 1980) (assault on a federal officer in violation of 18 USC 111 is a "general intent" offense and voluntary intoxication is no defense); United States v. Bald Eagle, 849 F.2d 361 (8th Cir. 1988) (voluntary manslaughter is a crime of general intent); United States v. Johnston, 543 F.2d 55 (8th Cir. 1976) (bank robbery, under 18 USC 2113(a), is a "general intent" offense, and intoxication is irrelevant). United States v. Lavallie, 666 F.2d 1217 (8th Cir. 1981) (rape is a general intent offense and intoxication is not a defense).

The definition and use of the terms "specific" and "general" intent in jury instructions has been abandoned in this manual, however these concepts must be addressed by the court to determine if an intoxication instruction would be applicable. It would be necessary to examine the case law under a particular statute to determine whether the crime has been held to be one involving a "specific intent."

(For 2008 version see below).

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

2008 Version

One of the issues in this case is whether the defendant was [intoxicated] [taking drugs] at the time the acts charged in the indictment were committed.

Being under the influence of [alcohol] [a drug], [even one taken for medical purposes,] provides a legal excuse for the commission of a crime only if the effect of the [alcohol] [drug] makes it impossible for the defendant to have (insert mental state required by statute.) Evidence that the defendant acted while under the influence of [alcohol] [drug or drugs] may be considered by you, together with all the other evidence, in determining whether or not [he] [she] did in fact have (insert mental state required by statute.)

Committee Comments

See also Committee Comments, Instructions 9.00, 9.05, supra; United States v. Fay, 668 F.2d 375, 377 (8th Cir. 1981).

Voluntary intoxication might serve to negate the required mental element in a crime involving what has historically been termed "specific intent." This is the view the Eighth Circuit has taken for many years. See, e.g., United States v. Fay [assault with a deadly weapon under 18 USC§ 1153 and 113(c) is a specific intent offense, as to which voluntary intoxication can be a defense; assault resulting in serious bodily harm, under 18 USC§ 153 and 113(b), is not]; United States v. Hanson, 618 F.2d 1261 (8th Cir. 1980) [assault on a federal officer in violation of 18 USC 111 is a "general intent" offense and voluntary intoxication is no defense]; United States v. Bald Eagle, 849 F.2d 361 (8th Cir. 1988) [voluntary manslaughter is a crime of general intent]; United States v. Johnston, 543 F.2d 55 (8th Cir. 1976) [bank robbery, under 18 USC 2113(a), is a "general intent" offense, and intoxication is irrelevant]. United States v. Lavallie, 666 F.2d 1217 (8th Cir. 1981) [rape is a general intent offense and intoxication is not a defense].

(For 2006 version see below)

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

2006 Version

One of the issues in this case is whether the defendant was [intoxicated] [taking drugs] at the time the acts charged in the indictment were committed.

Being under the influence of [alcohol] [a drug], [even one taken for medical purposes,] provides a legal excuse for the commission of a crime only if the effect of the [alcohol] [drug] makes it impossible for the defendant to have (insert mental state required by statute.) Evidence that the defendant acted while under the influence of [alcohol] [drug or drugs] may be considered by you, together with all the other evidence, in determining whether or not [he] [she] did in fact have (insert mental state required by statute.)

Committee Comments

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 19.05 (5th ed. 2000); Seventh Circuit Federal Jury Instructions: Criminal § 6.09 (1999); Ninth Cir. Crim. Jury Instr. 6.8 (1997). See generally West Key # "Criminal Law" 53, 55, 57, 332, 355, 474, 570(1-3), 739(5), 774, 782(14), 814(10), 815(5), 822(9), 823(7).

See also Committee Comments, Instructions 9.00, 9.05, supra; United States v. Fay, 668 F.2d 375, 377 (8th Cir. 1981).

Voluntary intoxication might serve to negate the required mental element in a crime involving what has historically been termed "specific intent." This is the view the Eighth Circuit has taken for many years. See, e.g., United States v. Fay [assault with a deadly weapon under 18 USC 1153 and 113(c) is a specific intent offense, as to which voluntary intoxication can be a defense; assault resulting in serious bodily harm, under 18 USC 153 and 113(b), is not]; United States v. Hanson, 618 F.2d 1261 (8th Cir. 1980) [assault on a federal officer in violation of 18 USC 111 is a "general intent" offense and voluntary intoxication is no defense]; United States v. Bald Eagle, 849 F.2d 361 (8th Cir. 1988) [voluntary manslaughter is a crime of general intent]; United States v. Johnston, 543 F.2d 55 (8th Cir. 1976) [bank robbery, under 18 USC 2113(a), is a "general intent" offense, and intoxication is irrelevant]. United States v. Lavallie, 666 F.2d 1217 (8th Cir. 1981) [rape is a general intent offense and intoxication is not a defense].

For 2000 version see below

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

2000 Version

9.06 INTOXICATION; DRUG USE

One of the issues in this case is whether the defendant was [intoxicated] [taking drugs] at the time the acts charged in the indictment were committed.

Being under the influence of [alcohol] [a drug], [even one taken for medical purposes,] provides a legal excuse for the commission of a crime only if the effect of the [alcohol] [drug] makes it impossible for the defendant to have (insert mental state required by statute.) Evidence that defendant acted while under the influence of [alcohol] [drug or drugs] may be considered by you, together with all the other evidence, in determining whether or not [he] [she] did in fact have (insert mental state required by statute.)

Committee Comments

See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 19.05 (4th ed. 1992); Seventh Circuit Federal Jury Instructions: Criminal § 6.09 (1999); Ninth Cir. Crim. Jury Instr. 6.06 (1997). See generally West Key # "Criminal Law" 53, 55, 57, 332, 355, 474, 570(1-3), 739(5), 774, 782(14), 814(10), 815(5), 822(9), 823(7).

See also Committee Comments, Instructions 9.00, 9.05, supra; United States v. Fay, 668 F.2d 375, 377 (8th Cir. 1981).

Voluntary intoxication might serve to negate the required mental element in a crime involving what has historically been termed "specific intent." This is the view the Eighth Circuit has taken for many years. See, e.g., United States v. Fay [assault with a deadly weapon under 18 USC§ 1153 and 113(c) is a specific intent offense, as to which voluntary intoxication can be a defense; assault resulting in serious bodily harm, under 18 USC§ 153 and 113(b), is not]; United States v. Hanson, 618 F.2d 1261 (8th Cir.), cert. denied, 449 U.S. 854 (1980) [assault on a federal officer in violation of 18 USC 111 is a "general intent" offense and voluntary intoxication is no defense]; United States v. Beautiful Bald Eagle, 849 F.2d 361 (8th Cir. 1988) [voluntary manslaughter is a crime of general intent]; United States v. Johnston, 543 F.2d 55 (8th Cir. 1976) [bank robbery, under 18 USC 2113(a), is a "general intent" offense, and intoxication is irrelevant]. United States v. Lavallie, 666 F.2d 1217 (8th Cir. 1981) [rape is a general intent offense and intoxication is not a defense].

8TH CIRCUIT MODEL INSTRUCTIONS 2009

9.07 ALIBI

FORECITE National™ Materials Related To This Instruction:

251.2 Alibi

One of the issues in this case is whether the defendant was present at the time and place of the alleged crime. If, after considering all the evidence, you have a reasonable doubt that the defendant was present, then you must find [him] [her] not guilty.

Committee Comments

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 19.07 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions. § 53 (1988); Seventh Circuit Federal Jury Instructions: Criminal § 6.03 (1999); Ninth Cir. Crim. Jury Instr. 6.1 (1997). See generally West Key # "Criminal Law" 333, 358, 572, 629, 739(2), 772(6), 775(1-6), 778(8), 782(15), 814(11).

See also Committee Comments, Instruction 9.05, supra; Committee Notes, Seventh Circuit Instruction 4.03.

"Alibi" is a theory of defense which may be submitted to the jury upon a proper request if there is a foundation in the evidence, and when the defendant's presence at the scene of the crime is necessary for conviction. United States v. Webster, 769 F.2d 487, 490 (8th Cir. 1985).

Where the defendant's presence at the scene is not necessary, as for example in conspiracy or aiding and abetting cases, this instruction should not be given. United States v. Anderson, 654 F.2d 1264, 1270-71 (8th Cir. 1981). Likewise this instruction should not be given where there is no foundation in the evidence or if it has not been requested.

(For 2008 version see below).

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

2008 Version

One of the issues in this case is whether the defendant was present at the time and place of the alleged crime. If, after considering all the evidence, you have a reasonable doubt that the defendant was present, then you must find [him] [her] not guilty.

Committee Comments

See also Committee Comments, Instruction 9.05, supra; Committee Notes, Seventh Circuit Instruction 4.03.

(For 2006 version see below)

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

2006 Version

One of the issues in this case is whether the defendant was present at the time and place of the alleged crime. If, after considering all the evidence, you have a reasonable doubt that the defendant was present, then you must find [him] [her] not guilty.

Committee Comments

See also Committee Comments, Instruction 9.05, supra; Committee Notes, Seventh Circuit Instruction 4.03.

For 2000 version see below

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

2000 Version

9.07 ALIBI

One of the issues in this case is whether defendant was present at the time and place of the alleged crime. If, after considering all the evidence, you have a reasonable doubt that defendant was present, then you must find [him] [her] not guilty.

Committee Comments

See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 19.07 (4th ed. 1992); Federal Judicial Center, Pattern Criminal Jury Instructions. § 53 (1988); Seventh Circuit Federal Jury Instructions: Criminal § 6.03 (1999); Ninth Cir. Crim. Jury Instr. 6.1 (1997). See generally West Key # "Criminal Law" 333, 358, 572, 629, 739(2), 772(6), 775(1-6), 778(8), 782(15), 814(11).

See also Committee Comments, Instruction 9.05, supra; Committee Notes, Seventh Circuit Instruction 4.03.

Where defendant's presence at the scene is not necessary, as for example in conspiracy or aiding and abetting cases, this instruction should not be given. United States v. Anderson, 654 F.2d 1264, 1270-71 (8th Cir.), cert. denied, 454 U.S. 1127 (1981). Likewise this instruction should not be given where there is no foundation in the evidence or if it has not been requested.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

9.08 GOOD FAITH
(Income Tax and Fraud Cases)

FORECITE National™ Materials Related To This Instruction:

252.10.2 Good Faith

One of the issues in this case is whether the defendant acted in good faith. Good faith is a complete defense to the charge of (insert charge) if it is inconsistent with (insert mental state required by statute, e.g., intent to defraud or willfully)¹ which is an element of the charge.

[(Insert further instruction defining good faith in terms of the particular statute and requisite mental state, incorporating the specific factors on which the defendant relies, if appropriate.)]²

Evidence that the defendant acted in good faith may be considered by you, together with all the other evidence, in determining whether or not [he] [she] acted (insert mental state required by statute, e.g., with intent to defraud or willfully).

Notes on Use

1. See Committee Comments, Instructions 7.01, 7.02, supra, and appropriate elements instruction from Section 6, supra. "Mental state" as used in this instruction refers to the intent required by the statute.

2. See United States v. Ammons, 464 F.2d 414, 417 (8th Cir. 1972). Some examples of further definitions are as follows:

a. Willfulness - preparing a false return:

If a person in good faith believes that an income tax return as prepared by [him] [her], truthfully reports the taxable income and allowable deductions of the taxpayer under the internal revenue laws, that person cannot be guilty of willfully preparing or presenting, or causing to be prepared or presented, a false or fraudulent return.

See United States v. Kouba, 822 F.2d 768, 771 (8th Cir. 1987).

b. Willfulness - failure to file a return:

If a person in good faith believes that he is not required to file an income tax return, then that person cannot be guilty of willfully failing to file a return.

See United States v. Jerde, 841 F.2d 818, 822 (8th Cir. 1988). This may be followed with a further explanation:

In this connection, it is for you to decide whether the defendant acted in good faith -- that is, whether he sincerely misunderstood the requirements of the law -- or whether the defendant knew that he was required to file a return and did not do so. Mere disagreement with the law in and of itself does not constitute good faith misunderstanding of the requirements of the law, because it is the duty of all persons to obey the law whether or not they agree with it. Also, a person's belief that the tax laws violate his constitutional rights does not constitute a good faith misunderstanding of the requirements of the law. Furthermore, a person's disagreement with the Government's monetary system and policies does not constitute a good faith misunderstanding of the requirements of the law.

See United States v. Miller, 634 F.2d 1134, 1135 (8th Cir. 1980).

c. Intent to defraud:

One who expresses an opinion honestly held by him, or a belief honestly entertained by him, is not chargeable with fraudulent intent even though his opinion is erroneous or his belief is mistaken; and, similarly, evidence which establishes only that a person made a mistake in judgment or an error in management, or was careless, does not establish fraudulent intent.

On the other hand, an honest belief on the part of the defendant that a particular business venture was sound and would ultimately succeed would not, in and of itself, constitute "good faith" as used in these instructions if, in carrying out that venture, the defendant knowingly made false or fraudulent representations to others with the specific intent to deceive them.

See Eleventh Circuit Pattern Jury Instructions: Criminal (Special) § 16 (1997); 2A and B Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 40.16, 67.25 (5th ed. 2000). See also United States v. Ammons, 464 F.2d 414, 417 (8th Cir. 1972); United States v. Casperson, 773 F.2d 216, 222-24 (8th Cir. 1985).

d. Reliance on advise of counsel:

Advice of counsel is not a defense to the crime. It is only a circumstance that may be considered in determining whether the defendant acted in good faith and lacked (insert mental state required by statute, e.g., intent to defraud or willfulness).

The defendant would not be acting (insert mental state required by statute, e.g., with intent to defraud or willfully) if, before taking any action with regard to the alleged offense, [he] [she] consulted in good faith an attorney whom [he] [she] considered competent, [and for the purpose of securing advice on the lawfulness of [his] [her] possible future conduct] made a full and accurate report to that attorney of all material facts of which [he] [she] had the means of knowledge, and then acted strictly in accordance with the advice given to [him] [her] by that attorney.

Whether the defendant acted in good faith for the purpose of seeking advice concerning questions about which [he] [she] was in doubt, and whether [he] [she] made a full and complete report to that attorney, and whether [he] [she] acted strictly in accordance with the advice [he] [she] received, are all questions for you to determine.

Advice of counsel does not under all circumstances confer complete immunity on a defendant. No one can intentionally and knowingly violate the law and excuse [himself] [herself] from the consequences by claiming that [he] [she] followed advice of counsel.

See United States v. Poludniak, 657 F.2d 948, 958-59 (8th Cir. 1981). Eleventh Circuit Pattern Jury Instructions: Criminal (Special) § 17 (1997).

To be entitled to the advice of counsel theory of defense, the defendant must have disclosed all relevant facts. United States v. Hecht, 705 F.2d 976 (8th Cir. 1983).

Committee Comments

See Eleventh Circuit Pattern Jury Instructions: Criminal (Special) § 17 (formerly 16 (1997)) and 18; United States v. Ammons, 464 F.2d 414, 417 (8th Cir. 1972); United States v. Kouba, 822 F.2d 768, 771 (8th Cir. 1987).

See also Introductory Comment, Section 9, and Committee Comments, Instruction 9.05, supra.

The same principles apply to the giving of a good faith instruction as apply to theory of defense instructions in general. United States v. Brake, 596 F.2d 337, 339 (8th Cir. 1979), holding:

There is no question that a defendant in a criminal case is entitled to have the jury know what he contends, and that ordinarily he is entitled to a "theory of defense" or a "position" instruction if he makes a timely request for such an instruction, if the request is supported by evidence, and if it sets out a correct declaration of law. United States v. Hill, 589 F.2d 1344 (8th Cir. 1979); United States v. Rabbitt, 583 F.2d 1014 (8th Cir. 1978); United States v. Nance, 502 F.2d 615 (8th Cir. 1974).

However, a defendant is not entitled to a particularly worded instruction setting out his position where the instructions actually given by the trial judge adequately and correctly cover the substance of the requested instruction. United States v. Brown, 540 F.2d 364, 380 (8th Cir. 1976). And, of course, the instructions of the trial court must be considered as a whole.

See also United States v. Cegelka, 853 F.2d 627, 628-29 (8th Cir. 1988); United States v. Jerde, 841 F.2d 818, 823 (8th Cir. 1988); United States v. Casperson, 773 F.2d 216, 223 (8th Cir. 1985).

Since a good faith instruction is essentially a converse of the intent to defraud instruction, adequate instructions on intent to defraud have been held sufficient to present the issue to the jury, especially where no good faith instruction was requested. See, e.g., United States v. Scherer, 653 F.2d 334, 338 (8th Cir. 1981). But see United States v. Goss, 650 F.2d 1336, 1344-45 (5th Cir. 1981) (reversible error to refuse a requested good faith instruction in mail fraud case; instruction requiring specific intent insufficient to direct jury's attention to good faith defense).

The general good faith instruction for mail fraud cases approved in this circuit is found in United States v. Ammons, 464 F.2d at 417 and reads as follows:

Fraudulent intent is not presumed or assumed; it is personal and not imputed. One is chargeable with his own personal intent, not the intent of some other person. Bad faith is an essential element of fraudulent intent. Good faith constitutes a complete defense to one charged with an offense of which fraudulent intent is an essential element. One who acts with honest intention is not chargeable with fraudulent intent. Evidence which establishes only that a person made a mistake in judgement or an error in management, or was careless, does not establish fraudulent intent. In order to establish fraudulent intent on the part of a person, it must be established that such person knowingly and intentionally attempted to deceive another. One who knowingly and intentionally deceives another is chargeable with fraudulent intent notwithstanding the manner and form in which the deception was attempted.

See also Casperson, 773 F.2d at 223, holding: "The Ammons instruction they proffered has previously been approved by this court and is an acceptable statement of the applicable law." Casperson went on to hold that the failure to give any good faith instruction was reversible error.

A good faith instruction must make it clear to the jury that good faith would be an absolute defense to the crime. United States v. Nance, 502 F.2d 615, 620 (8th Cir. 1974). Both Ammons and Nance suggest but do not require that a good faith instruction incorporate the specific factors on which the appellant relied to show he acted in good faith. 464 F.2d at 417; 502 F.2d at 620. An example of such an instruction was approved in United States v. Kimmel, 777 F.2d 290, 292-93 n.l (5th Cir. 1985). However, Ammons makes clear that "[t]he jury need not be instructed on every inference that it might draw bearing on the issue of good faith." 464 F.2d at 417. Nance found a proposed instruction which was long and verbose and contained a detailed description of the purported evidence and inferences drawn therefrom by defense counsel did not meet a standard of adequacy. 502 F.2d at 619. A good faith instruction is not required where it is not supported by the evidence. United States v. Sherer, 653 F.2d at 337 (the defendant doctor claimed to have actually treated patient, not that bills were the result of mistake or inadvertence).

Good faith instructions in tax cases which have been found proper include United States v. Kouba, 822 F.2d at 771 and United States v. Jerde, 841 F.2d at 822. In both of those cases the court also defined "good faith" for the jury using or paraphrasing the definition from Black's Law Dictionary 623 (5th ed. 1979). Kouba, 822 F.2d at 771; Jerde, 841 F.2d at 822. See also 2B Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 67.25 (5th ed. 2000). The jury may also be instructed as to what is not included in a good faith defense. United States v. Miller, 634 F.2d 1134 (8th Cir. 1980). For an example of a good faith defense based on reliance on the Fifth Amendment in a tax case, see United States v. Reed, 670 F.2d 622, 624 (5th Cir. 1982).

It should be noted that "good faith" is only a defense where the defendant's mental state is one of the elements of the offense.

(For 2008 version see below).

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

2008 Version

One of the issues in this case is whether the defendant acted in good faith. Good faith is a complete defense to the charge of (insert charge) if it is inconsistent with (insert mental state required by statute, e.g., intent to defraud or willfully)¹ which is an element of the charge.

[(Insert further instruction defining good faith in terms of the particular statute and requisite mental state, incorporating the specific factors on which the defendant relies, if appropriate.)]²

Evidence that the defendant acted in good faith may be considered by you, together with all the other evidence, in determining whether or not [he] [she] acted (insert mental state required by statute, e.g., with intent to defraud or willfully).

Notes on Use

2. See United States v. Ammons, 464 F.2d 414, 417 (8th Cir. 1972). Some examples of further definitions are as follows:

a. Willfulness - preparing a false return:

If a person in good faith believes that an income tax return as prepared by [him] [her], truthfully reports the taxable income and allowable deductions of the taxpayer under the internal revenue laws, that person cannot be guilty of willfully preparing or presenting, or causing to be prepared or presented, a false or fraudulent return.

See United States v. Kouba, 822 F.2d 768, 771 (8th Cir. 1987).

b. Willfulness - failure to file a return:

If a person in good faith believes that he is not required to file an income tax return, then that person cannot be guilty of willfully failing to file a return.

See United States v. Jerde, 841 F.2d 818, 822 (8th Cir. 1988). This may be followed with a further explanation:

In this connection, it is for you to decide whether the defendant acted in good faith -- that is, whether he sincerely misunderstood the requirements of the law -- or whether the defendant knew that he was required to file a return and did not do so. Mere disagreement with the law in and of itself does not constitute good faith misunderstanding of the requirements of the law, because it is the duty of all persons to obey the law whether or not they agree with it. Also, a person's belief that the tax laws violate his constitutional rights does not constitute a good faith misunderstanding of the requirements of the law. Furthermore, a person's disagreement with the Government's monetary system and policies does not constitute a good faith misunderstanding of the requirements of the law.

See United States v. Miller, 634 F.2d 1134, 1135 (8th Cir. 1980).

c. Intent to defraud:

One who expresses an opinion honestly held by him, or a belief honestly entertained by him, is not chargeable with fraudulent intent even though his opinion is erroneous or his belief is mistaken; and, similarly, evidence which establishes only that a person made a mistake in judgment or an error in management, or was careless, does not establish fraudulent intent.

On the other hand, an honest belief on the part of the defendant that a particular business venture was sound and would ultimately succeed would not, in and of itself, constitute "good faith" as used in these instructions if, in carrying out that venture, the defendant knowingly made false or fraudulent representations to others with the specific intent to deceive them.

See Eleventh Circuit Pattern Jury Instructions: Criminal (Special) § 17 (formerly 16 (1997)); 2A and B Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 40.16, 67.25 (5th ed. 2000). See also United States v. Ammons, 464 F.2d 414, 417 (8th Cir. 1972); United States v. Casperson, 773 F.2d 216, 222-24 (8th Cir. 1985).

d. Reliance on advise of counsel:

Advice of counsel is not a defense to the crime. It is only a circumstance that may be considered in determining whether the defendant acted in good faith and lacked (insert mental state required by statute, e.g., intent to defraud or willfulness).

The defendant would not be acting (insert mental state required by statute, e.g., with intent to defraud or willfully) if, before taking any action with regard to the alleged offense, [he] [she] consulted in good faith an attorney whom [he] [she] considered competent, [and for the purpose of securing advice on the lawfulness of [his] [her] possible future conduct] made a full and accurate report to that attorney of all material facts of which [he] [she] had the means of knowledge, and then acted strictly in accordance with the advice given to [him] [her] by that attorney.

Whether the defendant acted in good faith for the purpose of seeking advice concerning questions about which [he] [she] was in doubt, and whether [he] [she] made a full and complete report to that attorney, and whether [he] [she] acted strictly in accordance with the advice [he] [she] received, are all questions for you to determine.

Advice of counsel does not under all circumstances confer complete immunity on a defendant. No one can intentionally and knowingly violate the law and excuse [himself] [herself] from the consequences by claiming that [he] [she] followed advice of counsel.

See United States v. Poludniak, 657 F.2d 948, 958-59 (8th Cir. 1981). Eleventh Circuit Pattern Jury Instructions: Criminal (Special) § 17 (1997).

To be entitled to the advice of counsel theory of defense, the defendant must have disclosed all relevant facts. United States v. Hecht, 705 F.2d 976 (8th Cir. 1983).

Committee Comments

See Eleventh Circuit Pattern Jury Instructions: Criminal (Special) § 17 (formerly 16 (1997)) and 18 ; United States v. Ammons, 464 F.2d 414, 417 (8th Cir. 1972); United States v. Kouba, 822 F.2d 768, 771 (8th Cir. 1987).

See also Introductory Comment, Section 9, and Committee Comments, Instruction 9.05, supra.

The same principles apply to the giving of a good faith instruction as apply to theory of defense instructions in general. United States v. Brake, 596 F.2d 337, 339 (8th Cir. 1979), holding:

There is no question that a defendant in a criminal case is entitled to have the jury know what he contends, and that ordinarily he is entitled to a "theory of defense" or a "position" instruction if he makes a timely request for such an instruction, if the request is supported by evidence, and if it sets out a correct declaration of law. United States v. Hill, 589 F.2d 1344 (8th Cir. 1979); United States v. Rabbitt, 583 F.2d 1014 (8th Cir. 1978); United States v. Nance, 502 F.2d 615 (8th Cir. 1974).

However, a defendant is not entitled to a particularly worded instruction setting out his position where the instructions actually given by the trial judge adequately and correctly cover the substance of the requested instruction. United States v. Brown, 540 F.2d 364, 380 (8th Cir. 1976). And, of course, the instructions of the trial court must be considered as a whole.

Since a good faith instruction is essentially a converse of the intent to defraud instruction, adequate instructions on intent to defraud have been held sufficient to present the issue to the jury, especially where no good faith instruction was requested. See, e.g., United States v. Scherer, 653 F.2d 334, 338 (8th Cir. 1981). But see United States v. Goss, 650 F.2d 1336, 1344-45 (5th Cir. 1981) [reversible error to refuse a requested good faith instruction in mail fraud case; instruction requiring specific intent insufficient to direct jury's attention to good faith defense.]

The general good faith instruction for mail fraud cases approved in this circuit is found in United States v. Ammons, 464 F.2d at 417 and reads as follows:

Fraudulent intent is not presumed or assumed; it is personal and not imputed. One is chargeable with his own personal intent, not the intent of some other person. Bad faith is an essential element of fraudulent intent. Good faith constitutes a complete defense to one charged with an offense of which fraudulent intent is an essential element. One who acts with honest intention is not chargeable with fraudulent intent. Evidence which establishes only that a person made a mistake in judgement or an error in management, or was careless, does not establish fraudulent intent. In order to establish fraudulent intent on the part of a person, it must be established that such person knowingly and intentionally attempted to deceive another. One who knowingly and intentionally deceives another is chargeable with fraudulent intent notwithstanding the manner and form in which the deception was attempted.

A good faith instruction must make it clear to the jury that good faith would be an absolute defense to the crime. United States v. Nance, 502 F.2d 615, 620 (8th Cir. 1974). Both Ammons and Nance suggest but do not require that a good faith instruction incorporate the specific factors on which the appellant relied to show he acted in good faith. 464 F.2d at 417; 502 F.2d at 620. An example of such an instruction was approved in United States v. Kimmel, 777 F.2d 290, 292-93 n.l (5th Cir. 1985). However, Ammons makes clear that "[t]he jury need not be instructed on every inference that it might draw bearing on the issue of good faith." 464 F.2d at 417. Nance found a proposed instruction which was long and verbose and contained a detailed description of the purported evidence and inferences drawn therefrom by defense counsel did not meet a standard of adequacy. 502 F.2d at 619. A good faith instruction is not required where it is not supported by the evidence. United States v. Sherer, 653 F.2d at 337, [the defendant doctor claimed to have actually treated patient, not that bills were the result of mistake or inadvertence].

It should be noted that "good faith" is only a defense where the defendant's mental state is one of the elements of the offense.

(For 2006 version see below)

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

2006 Version

One of the issues in this case is whether the defendant acted in good faith. Good faith is a complete defense to the charge of (insert charge) if it is inconsistent with (insert mental state required by statute, e.g., intent to defraud or willfully)1 which is an element of the charge.

[(Insert further instruction defining good faith in terms of the particular statute and requisite mental state, incorporating the specific factors on which the defendant relies, if appropriate.)]2

Evidence that the defendant acted in good faith may be considered by you, together with all the other evidence, in determining whether or not [he] [she] acted (insert mental state required by statute, e.g., with intent to defraud or willfully).

Notes on Use

2. See United States v. Ammons, 464 F.2d 414, 417 (8th Cir. 1972). Some examples of further definitions are as follows:

a. Willfulness - preparing a false return:

If a person in good faith believes that an income tax return as prepared by [him] [her], truthfully reports the taxable income and allowable deductions of the taxpayer under the internal revenue laws, that person cannot be guilty of willfully preparing or presenting, or causing to be prepared or presented, a false or fraudulent return.

See United States v. Kouba, 822 F.2d 768, 771 (8th Cir. 1987).

b. Willfulness - failure to file a return:

If a person in good faith believes that he is not required to file an income tax return, then that person cannot be guilty of willfully failing to file a return.

See United States v. Jerde, 841 F.2d 818, 822 (8th Cir. 1988). This may be followed with a further explanation:

In this connection, it is for you to decide whether the defendant acted in good faith -- that is, whether he sincerely misunderstood the requirements of the law -- or whether the defendant knew that he was required to file a return and did not do so. Mere disagreement with the law in and of itself does not constitute good faith misunderstanding of the requirements of the law, because it is the duty of all persons to obey the law whether or not they agree with it. Also, a person's belief that the tax laws violate his constitutional rights does not constitute a good faith misunderstanding of the requirements of the law. Furthermore, a person's disagreement with the Government's monetary system and policies does not constitute a good faith misunderstanding of the requirements of the law.

See United States v. Miller, 634 F.2d 1134, 1135 (8th Cir. 1980).

c. Intent to defraud:

One who expresses an opinion honestly held by him, or a belief honestly entertained by him, is not chargeable with fraudulent intent even though his opinion is erroneous or his belief is mistaken; and, similarly, evidence which establishes only that a person made a mistake in judgment or an error in management, or was careless, does not establish fraudulent intent.

On the other hand, an honest belief on the part of the defendant that a particular business venture was sound and would ultimately succeed would not, in and of itself, constitute "good faith" as used in these instructions if, in carrying out that venture, the defendant knowingly made false or fraudulent representations to others with the specific intent to deceive them.

d. Reliance on advise of counsel:

Advice of counsel is not a defense to the crime. It is only a circumstance that may be considered in determining whether the defendant acted in good faith and lacked (insert mental state required by statute, e.g., intent to defraud or willfulness).

The defendant would not be acting (insert mental state required by statute, e.g., with intent to defraud or willfully) if, before taking any action with regard to the alleged offense, [he] [she] consulted in good faith an attorney whom [he] [she] considered competent, [and for the purpose of securing advice on the lawfulness of [his] [her] possible future conduct] made a full and accurate report to that attorney of all material facts of which [he] [she] had the means of knowledge, and then acted strictly in accordance with the advice given to [him] [her] by that attorney.

Whether the defendant acted in good faith for the purpose of seeking advice concerning questions about which [he] [she] was in doubt, and whether [he] [she] made a full and complete report to that attorney, and whether [he] [she] acted strictly in accordance with the advice [he] [she] received, are all questions for you to determine.

Advice of counsel does not under all circumstances confer complete immunity on a defendant. No one can intentionally and knowingly violate the law and excuse [himself] [herself] from the consequences by claiming that [he] [she] followed advice of counsel.

See United States v. Poludniak, 657 F.2d 948, 958-59 (8th Cir. 1981). Eleventh Circuit Pattern Jury Instructions: Criminal (Special) § 17 (1997).

To be entitled to the advice of counsel theory of defense, the defendant must have disclosed all relevant facts. United States v. Hecht, 705 F.2d 976 (8th Cir. 1983).

Committee Comments

See Eleventh Circuit Pattern Jury Instructions: Criminal (Special) § 16, 17 (1997); United States v. Ammons, 464 F.2d 414, 417 (8th Cir. 1972); United States v. Kouba, 822 F.2d 768, 771 (8th Cir. 1987).

See also Introductory Comment, Section 9, and Committee Comments, Instruction 9.05, supra.

The same principles apply to the giving of a good faith instruction as apply to theory of defense instructions in general. United States v. Brake, 596 F.2d 337, 339 (8th Cir. 1979), holding:

There is no question that a defendant in a criminal case is entitled to have the jury know what he contends, and that ordinarily he is entitled to a "theory of defense" or a "position" instruction if he makes a timely request for such an instruction, if the request is supported by evidence, and if it sets out a correct declaration of law. United States v. Hill, 589 F.2d 1344 (8th Cir. 1979); United States v. Rabbitt, 583 F.2d 1014 (8th Cir. 1978); United States v. Nance, 502 F.2d 615 (8th Cir. 1974).

However, a defendant is not entitled to a particularly worded instruction setting out his position where the instructions actually given by the trial judge adequately and correctly cover the substance of the requested instruction. United States v. Brown, 540 F.2d 364, 380 (8th Cir. 1976). And, of course, the instructions of the trial court must be considered as a whole.

Since a good faith instruction is essentially a converse of the intent to defraud instruction, adequate instructions on intent to defraud have been held sufficient to present the issue to the jury, especially where no good faith instruction was requested. See, e.g., United States v. Scherer, 653 F.2d 334, 338 (8th Cir. 1981). But see United States v. Goss, 650 F.2d 1336, 1344-45 (5th Cir. 1981) [reversible error to refuse a requested good faith instruction in mail fraud case; instruction requiring specific intent insufficient to direct jury's attention to good faith defense.]

The general good faith instruction for mail fraud cases approved in this circuit is found in United States v. Ammons, 464 F.2d at 417 and reads as follows:

Fraudulent intent is not presumed or assumed; it is personal and not imputed. One is chargeable with his own personal intent, not the intent of some other person. Bad faith is an essential element of fraudulent intent. Good faith constitutes a complete defense to one charged with an offense of which fraudulent intent is an essential element. One who acts with honest intention is not chargeable with fraudulent intent. Evidence which establishes only that a person made a mistake in judgement or an error in management, or was careless, does not establish fraudulent intent. In order to establish fraudulent intent on the part of a person, it must be established that such person knowingly and intentionally attempted to deceive another. One who knowingly and intentionally deceives another is chargeable with fraudulent intent notwithstanding the manner and form in which the deception was attempted.

A good faith instruction must make it clear to the jury that good faith would be an absolute defense to the crime. United States v. Nance, 502 F.2d 615, 620 (8th Cir. 1974). Both Ammons and Nance suggest but do not require that a good faith instruction incorporate the specific factors on which the appellant relied to show he acted in good faith. 464 F.2d at 417; 502 F.2d at 620. An example of such an instruction was approved in United States v. Kimmel, 777 F.2d 290, 292-93 n.l (5th Cir. 1985). However, Ammons makes clear that "[t]he jury need not be instructed on every inference that it might draw bearing on the issue of good faith." 464 F.2d at 417. Nance found a proposed instruction which was long and verbose and contained a detailed description of the purported evidence and inferences drawn therefrom by defense counsel did not meet a standard of adequacy. 502 F.2d at 619. A good faith instruction is not required where it is not supported by the evidence. United States v. Sherer, 653 F.2d at 337, [the defendant doctor claimed to have actually treated patient, not that bills were the result of mistake or inadvertence].

It should be noted that "good faith" is only a defense where the defendant's mental state is one of the elements of the offense.

For 2000 version see below

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

2000 Version

9.08 GOOD FAITH (Income Tax and Fraud Cases)

One of the issues in this case is whether defendant acted in good faith. Good faith is a complete defense to the charge of (insert charge) if it is inconsistent with (insert mental state required by statute, e.g., intent to defraud or willfully)1 which is an essential element of the charge.

[(Insert further instruction defining good faith in terms of the particular statute and requisite mental state, incorporating the specific factors on which defendant relies, if appropriate.)]2

Evidence that defendant acted in good faith may be considered by you, together with all the other evidence, in determining whether or not [he] [she] acted (insert mental state required by statute, e.g., with intent to defraud or willfully).

Committee Comments

See Eleventh Circuit Pattern Jury Instructions: Criminal (Special) § 16, 17 (1997); United States v. Ammons, 464 F.2d 414, 417 (8th Cir.), cert. denied, 409 U.S. 988 (1972); United States v. Kouba, 822 F.2d 768, 771 (8th Cir. 1987); 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal §§ 40.16, 56.26 (4th ed. 1990).

See also Introductory Comment, Section 9, and Committee Comments, Instruction 9.05, supra.

The same principles apply to the giving of a good faith instruction as apply to theory of defense instructions in general. United States v. Brake, 596 F.2d 337, 339 (8th Cir. 1979), holding:

There is no question that a defendant in a criminal case is entitled to have the jury know what he contends, and that ordinarily he is entitled to a "theory of defense" or a "position" instruction if he makes a timely request for such an instruction, if the request is supported by evidence, and if it sets out a correct declaration of law. United States v. Hill, 589 F.2d 1344 (8th Cir. 1979); United States v. Rabbitt, 583 F.2d 1014 (8th Cir. 1978); United States v. Nance, 502 F.2d 615 (8th Cir. 1974), cert. denied, 420 U.S. 926.

However, a defendant is not entitled to a particularly worded instruction setting out his position where the instructions actually given by the trial judge adequately and correctly cover the substance of the requested instruction. United States v. Brown, 540 F.2d 364, 380 (8th Cir. 1976). And, of course, the instructions of the trial court must be considered as a whole.

See also United States v. Cegelka, 853 F.2d 627, 628-29 (8th Cir. 1988); United States v. Jerde, 841 F.2d 818, 823 (8th Cir. 1988); United States v. Casperson, 773 F.2d 216, 223 (8th Cir. 1985).

Since a good faith instruction is essentially a converse of the intent to defraud instruction, adequate instructions on intent to defraud have been held sufficient to present the issue to the jury, especially where no good faith instruction was requested. See, e.g., United States v. Scherer, 653 F.2d 334, 338 (8th Cir.), cert. denied, 454 U.S. 1034 (1981). But see United States v. Goss, 650 F.2d 1336, 1344-45 (5th Cir. 1981) [reversible error to refuse a requested good faith instruction in mail fraud case; instruction requiring specific intent insufficient to direct jury's attention to good faith defense.]

The general good faith instruction for mail fraud cases approved in this circuit is found in United States v. Ammons, 464 F.2d at 417 and reads as follows:

Fraudulent intent is not presumed or assumed; it is personal and not imputed. One is chargeable with his own personal intent, not the intent of some other person. Bad faith is an essential element of fraudulent intent. Good faith constitutes a complete defense to one charged with an offense of which fraudulent intent is an essential element. One who acts with honest intention is not chargeable with fraudulent intent. Evidence which establishes only that a person made a mistake in judgement or an error in management, or was careless, does not establish fraudulent intent. In order to establish fraudulent intent on the part of a person, it must be established that such person knowingly and intentionally attempted to deceive another. One who knowingly and intentionally deceives another is chargeable with fraudulent intent notwithstanding the manner and form in which the deception was attempted.

See also Casperson, 773 F.2d at 223, holding: "The Ammons instruction they proffered has previously been approved by this court and is an acceptable statement of the applicable law." Casperson went on to hold that the failure to give any good faith instruction was reversible error.

A good faith instruction must make it clear to the jury that good faith would be an absolute defense to the crime. United States v. Nance, 502 F.2d 615, 620 (8th Cir. 1974), cert. denied, 420 U.S. 926 (1975). Both Ammons and Nance suggest but do not require that a good faith instruction incorporate the specific factors on which the appellant relied to show he acted in good faith. 464 F.2d at 417; 502 F.2d at 620. An example of such an instruction was approved in United States v. Kimmel, 777 F.2d 290, 292-93 n.l (5th Cir. 1985). However, Ammons makes clear that "[t]he jury need not be instructed on every inference that it might draw bearing on the issue of good faith." 464 F.2d at 417. Nance found a proposed instruction which was long and verbose and contained a detailed description of the purported evidence and inferences drawn therefrom by defense counsel did not meet a standard of adequacy. 502 F.2d at 619. A good faith instruction is not required where it is not supported by the evidence. United States v. Sherer, 653 F.2d at 337, [defendant doctor claimed to have actually treated patient, not that bills were the result of mistake or inadvertence.]

Good faith instructions in tax cases which have been found proper include United States v. Kouba, 822 F.2d at 771 and United States v. Jerde, 841 F.2d at 822. In both of those cases the court also defined "good faith" for the jury using or paraphrasing the definition from Black's Law Dictionary 623 (5th ed. 1979). Kouba, 822 F.2d at 771; Jerde, 841 F.2d at 822. See also 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 56.26 (4th ed. 1990). The jury may also be instructed as to what is not included in a good faith defense. United States v. Miller, 634 F.2d 1134 (8th Cir. 1980), cert. denied, 451 U.S. 942 (1981). For an example of a good faith defense based on reliance on the Fifth Amendment in a tax case, see United States v. Reed, 670 F.2d 622, 624 (5th Cir.), cert. denied, 457 U.S. 1125 (1982).

It should be noted that "good faith" is only a defense where defendant's mental state is one of the essential elements of the offense.

Notes on Use

1. See Committee Comments, Instructions 7.01, 702, supra, and appropriate essential elements instruction from Section 6, infra. "Mental state" as used in this instruction refers to the intent required by the statute.

2. See United States v. Ammons, 464 F.2d 414, 417 (8th Cir.), cert. denied, 409 U.S. 988 (1972). Some examples of further definitions are as follows:

a. Willfulness - preparing a false return:

If a person in good faith believes that an income tax return as prepared by [him] [her], truthfully reports the taxable income and allowable deductions of the taxpayer under the internal revenue laws, that person cannot be guilty of willfully preparing or presenting, or causing to be prepared or presented, a false or fraudulent return.

See United States v. Kouba, 822 F.2d 768, 771 (8th Cir. 1987).

b. Willfulness - failure to file a return:

If a person in good faith believes that he is not required to file an income tax return, then that person cannot be guilty of willfully failing to file a return.

See United States v. Jerde, 841 F.2d 818, 822 (8th Cir. 1988). This may be followed with a further explanation:

In this connection, it is for you to decide whether the defendant acted in good faith -- that is, whether he sincerely misunderstood the requirements of the law -- or whether the defendant knew that he was required to file a return and did not do so. Mere disagreement with the law in and of itself does not constitute good faith misunderstanding of the requirements of the law, because it is the duty of all persons to obey the law whether or not they agree with it. Also, a person's belief that the tax laws violate his constitutional rights does not constitute a good faith misunderstanding of the requirements of the law. Furthermore, a person's disagreement with the Government's monetary system and policies does not constitute a good faith misunderstanding of the requirements of the law.

See United States v. Miller, 634 F.2d 1134, 1135 (8th Cir. 1980), cert. denied, 451 U.S. 942 (1981).

c. Intent to defraud:

One who expresses an opinion honestly held by him, or a belief honestly entertained by him, is not chargeable with fraudulent intent even though his opinion is erroneous or his belief is mistaken; and, similarly, evidence which establishes only that a person made a mistake in judgment or an error in management, or was careless, does not establish fraudulent intent.

On the other hand, an honest belief on the part of the Defendant that a particular business venture was sound and would ultimately succeed would not, in and of itself, constitute "good faith" as used in these instructions if, in carrying out that venture, the Defendant knowingly made false or fraudulent representations to others with the specific intent to deceive them.

See Eleventh Circuit Pattern Jury Instructions: Criminal (Special) § 16 (1997); 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 47.13 (4th ed. 1990). See also United States v. Ammons, 464 F.2d 414, 417 (8th Cir.), cert. denied, 409 U.S. 988 (1972); United States v. Casperson, 773 F.2d 216, 222-24 (8th Cir. 1985).

d. Reliance on advise of counsel:

Advice of counsel is not a defense to the crime. It is only a circumstance that may be considered in determining whether the defendant acted in good faith and lacked (insert mental state required by statute, e.g., intent to defraud or willfulness).

Defendant would not be acting (insert mental state required by statute, e.g., with intent to defraud or willfully) if, before taking any action with regard to the alleged offense, [he] [she] consulted in good faith an attorney whom [he] [she] considered competent, [and for the purpose of securing advice on the lawfulness of [his] [her] possible future conduct] made a full and accurate report to that attorney of all material facts of which [he] [she] had the means of knowledge, and then acted strictly in accordance with the advice given to [him] [her] by that attorney.

Whether the Defendant acted in good faith for the purpose of seeking advice concerning questions about which [he] [she] was in doubt, and whether [he] [she] made a full and complete report to that attorney, and whether [he] [she] acted strictly in accordance with the advice [he] [she] received, are all questions for you to determine.

Advice of counsel does not under all circumstances confer complete immunity on a defendant. No one can intentionally and knowingly violate the law and excuse [himself] [herself] from the consequences by claiming that [he] [she] followed advice of counsel.

See United States v. Poludniak, 657 F.2d 948, 958-59 (8th Cir. 1981), cert. denied, 455 U.S. 940 (1982). Eleventh Circuit Pattern Jury Instructions: Criminal (Special) § 17 (1997). See also 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 56.26 (4th ed. 1990).

To be entitled to the advice of counsel theory of defense, the defendant must have disclosed all relevant facts. United States v. Hecht, 705 F.2d 976 (8th Cir. 1983).