9^TH CIRCUIT MODEL INSTRUCTIONS 2000
(Includes Additions and Revisions Through 2007)
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        9.1       Alien--Bringing Into United States (8 USC 1324(a)(1)(A)(i))
        9.1A     Alien—Bringing Into United States (For Commercial Advantage or Private Financial Gain)(8 USC 1324(a)(2)(B)(ii))
        9.1B     Alien—Bringing Into United States (Without Immediate Presentationat Designated Port of Entry)(8 USC 1324(a)(2)(B)(iii))
        9.2       Alien--Illegal Transportation (8 USC 1324(a)(1)(A)(ii))
        9.3       Alien--Concealment (8 USC 1324(a)(1)(A)(iii))
        9.4       Alien--Encouraging Illegal Entry (8 USC 1324(a)(1)(A)(iv))
        9.5       Alien—Deported Alien Who Reenters U.S., or Is Found In U.S. Without Consent To Reapply For Admission (8 USC 1326(a))
        9.5A    Alien--Reentry Of Deported Alien--Attempt (8 USC 1326(a))
        9.5B     Alien—Deported Alien Found in United States (8 USC 1326(a))
        9.6       Alien--Reentry Of Deported Alien After Conviction For A Felony Or An Aggravated Felony (8 USC 1326(b)(1) And (2))
        9.7       Securities Fraud (15 USC 78j(b))
        9.8       Trafficking In Archaeological Resources (16 USC 470ee(b)(2) And (d))
        9.9       Lacey Act-Import Or Export Of Illegally Taken Fish, Wildlife Or Plants (16 USC 3372 And 3373(d)(1)(A))
        9.10     Lacey Act--Commercial Activity In Illegally Taken Fish, Wildlife Or Plants (16 USC 3372 And 3373(d)(1)(B))
        9.11     Lacey Act--With Due Care Defendant Should Have Known That Fish, Wildlife Or Plants Were Illegally Taken (16 USC 3372 And 3373(d)(2))
        9.12     Lacey Act--False Labeling Of Fish, Wildlife Or Plants (16 USC 3372(d) And 3373(d)(3))
        9.13     Controlled Substance--Possession With Intent To Distribute (21 USC 841(a)(1))
        9.13A   Determining Amount of Controlled Substance
        9.14     Controlled Substance--Attempted Possession With Intent To Distribute (21 USC 841(a)(1) And 846)
        9.15     Controlled Substance--Distribution (21 USC 841(a)(1))
        9.16     Controlled Substance--Attempted Distribution (21 USC 841(a)(1) And 846)
        9.17     Controlled Substance--Distribution To Person Under 21 Years (21 USC 841(a)(1) And 859)
        9.18     Controlled Substance--Attempted Distribution To Person Under 21 Years (21 USC 841(a)(1), 846 And 859)
        9.19     Controlled Substance--Distribution In Or Near School (21 USC 841(a)(1) And 860)
        9.20     Controlled Substance--Attempted Distribution In Or Near School (21 USC 841(a)(1), 846 And 860)
        9.21     Controlled Substance--Employment Of Minor To Violate Drug Law (21 USC 841(a)(1) And 861(a)(1))
        9.22     Controlled Substance--Attempted Employment Of Minor To Violate Drug Laws (21 USC 841(a)(1), 846 And 861(a)(1))
        9.23     Controlled Substance--Listed Chemical, Possession With Intent To Manufacture (21 USC 841(d)(1))
        9.24     Controlled Substance--Listed Chemical, Possession Or Distribution (21 USC 841(d)(2))
        9.25     Illegal Use of Communication Facility (21 USC 843(b))
        9.26     Controlled Substance--Continuing Criminal Enterprise (21 USC 848)
        9.27     Controlled Substance--Unlawful Importation (21 USC 952 and 960)
        9.28     Controlled Substance--Manufacturing Or Distributing For Purposes Of Importation (21 USC 959 And 960(a)(3))
        9.29     Controlled Substance--Distribution Aboard Aircraft (21 USC 959(b) And 960(a)(3))
        9.30     Controlled Substance--Actual Amount Charged Need Not Be Proved

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

See 8 USC 1325(a); United States v. Nguyen, 73 F.3d 887, 894 (9th Cir.1995) ("The jury should have been instructed that it must find that the defendant knew that the individuals were aliens and that he off-loaded them at other than a port of entry, intending to violate the law."). See also United States v. Barajas–Montiel, 185 F.3d 947, 953 (9th Cir. 1999) (following Nguyen and holding that criminal intent is required for conviction of the felony offenses of 8 USC 1324(a)(2)(B)).

In the event that a defendant is charged with attempt to violate 8 USC 1324(a)(1)(A)(i), the above instruction should be modified as needed. See Instruction 5.3 (Attempt).

If the defendant raises the defense that he or she is a "national," the court may wish to define the term national as "a person who, though not a citizen of the United States, owes permanent allegiance to the United States." 8 USC 1101(a)(22)(B).

Section 1182 of Title 8 of the United States Code lists aliens who are excluded from the United States. An alien who falls within one of the excluded categories is not lawfully entitled to enter or reside in the United States. See United States v. Bunker, 532 F.2d 1262 (9th Cir.1976). Where there is evidence that the alien falls within one of the excluded classes, the last clause of the instruction should be so worded as to require the jury to make a finding that the person is within that class.

This instruction may need to be tailored to fit the specific crime charged under Section 1324(a)(1). See, e.g., Instructions 9.2 (Alien–Illegal Transportation), 9.3 (Alien–Concealment) and 9.4 (Alien–Encouraging Illegal Entry).

Approved 1/2007 (For 2000 version see below).

The defendant is charged in [Count _______ of] the indictment with bringing an alien into the United States in violation of Section 1324(a)(1)(A)(i) of Title 8 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant brought a person who was an alien into the United States at a place other than a designated port of entry or at a place other than as designated by a United States immigration official;

Second, the defendant knew that the person was an alien; and

Third, the defendant acted with the intent to violate the United States immigration laws by assisting that person to enter the United States at a time or place other than as designated by a United States immigration official or to otherwise elude United States immigration officials.

An alien is a person who is not [a natural-born or naturalized citizen] [a national] of the United States.

See 8 USC 1325(a); United States v. Nguyen, 73 F.3d 887, 894 (9th Cir.1995) ("The jury should have been instructed that it must find that the defendant knew that the individuals were aliens and that he off-loaded them at other than a port of entry, intending to violate the law."). See also United States v. Barajas–Montiel, 185 F.3d 947, 953 (9th Cir. 1999) (following Nguyen and holding that criminal intent is required for conviction of the felony offenses of 8 USC 1324(a)(2)(B)).

If the defendant raises the defense that he or she is a national, the court may wish to define the term national as "a person who, though not a citizen of the United States, owes permanent allegiance to the United States." 8 USC 1101(a)(22)(B).

Section 1182 lists aliens who are excluded from the United States. An alien who falls within one of the excluded categories is not lawfully entitled to enter or reside in the United States. United States v. Bunker, 532 F.2d 1262 (9th Cir.1976). Where there is evidence that the alien falls within one of the excluded classes, the last clause of the instruction should be so worded as to require the jury to make a finding that the person is within that class.

This instruction may need to be tailored to fit the specific crime charged under Section 1324(a)(1). See, e.g., Instructions 9.2 (Alien–Illegal Transportation), 9.3 (Alien–Concealment) and 9.4 (Alien–Encouraging Illegal Entry).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

9.1A Alien—Bringing Into United States (For Commercial Advantage or Private Financial Gain)
(8 USC 1324(a)(2)(B)(ii))

The defendant is charged in [Count _______ of] the indictment with bringing an alien into the United States for the purpose of [commercial advantage] [private financial gain] in violation of Section 1324(a)(2)(B)(ii) of Title 8 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant brought a person who was an alien into the United States for the purpose of [commercial advantage] [private financial gain];

[Or, if the defendant is charged as a principal, and not as an aider and abettor]

First, the defendant brought a person who was an alien into the United States for the purpose of the defendant’s [commercial advantage] [private financial gain];

Second, the defendant [knew] [was in reckless disregard of the fact] that the person was an alien who had not received prior official authorization to come to, enter or reside in the United States;

Third, the defendant acted with the intent to violate the United States immigration laws.

An alien is a person who is not [a natural-born or naturalized citizen] [a national] of the United States.

The term "private financial gain" means any economic benefit.

In United States. v. Munoz, 412 F.3d 1043, 1046-48 (9th Cir. 2005), the Ninth Circuit clarified that when a defendant is charged as a principal, and not an aider or abettor, the government must prove, as an element of the offense, that the defendant intended to derive a financial gain from the transaction. The second alternative paragraph of the first element of the instruction, therefore, is to be utilized in cases where the defendant is prosecuted as a principal, but not necessarily as an aider and abettor.

See also the Comment to Instruction 9.1B concerning the "come to ... the United States" language of 8 USC 1324(a)(2).

In the event that a defendant is charged with attempt to violate 8 USC 1324(a)(1)(A)(ii), the above instruction should be modified as needed. See Instruction 5.3 (Attempt)

.In United States. v. Angwin, 271 F.3d 786, 804-05 (9th Cir. 2001), the court rejected defendant’s contention that he could not be guilty of bringing aliens to the United States when his only role was to transport the aliens from just inside the United States to Los Angeles. The court reasoned a rational jury would conclude defendant’s conduct of meeting the aliens within minutes of their arrival in the United States "... was essential to the success of the entire operation."

Approved 1/2007

9^TH CIRCUIT MODEL INSTRUCTIONS 200

9.1B Alien—Bringing Into United States (Without Immediate Presentation at Designated Port of Entry)
(8 USC 1324(a)(2)(B)(iii))

The defendant is charged in [Count _______ of] the indictment with bringing an alien into the United States without immediate presentation of the alien to an appropriate immigration officer at a designated port of entry in violation of Section 1324(a)(2)(B)(iii) of Title 8 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant brought a person who was an alien into the United States and upon arrival did not immediately bring and present the alien to an appropriate immigration official at a designated port of entry;

Second, the defendant [knew] [was in reckless disregard of the fact] that the person was an alien who had not received prior official authorization to come to, enter, or reside in the United States; and

Third, the defendant acted with the intent to violate the United States immigration laws.

An alien is a person who is not [a natural-born or naturalized citizen] [a national] of the United States.

In United States. v. Munoz, 412 F.3d 1043, 1048-49 (9th Cir.2005), the court clarified the "come to ... the United States" language of 8 USC 1324(a)(2) by "hold[ing] that an alien ‘comes to’ the United States when the alien crosses the border into the United States regardless of whether he or she is under official restraint."

In the event that a defendant is charged with attempt to violate 8 USC 1324(a)(1)(A)(iii), the above instruction should be modified as needed. See Instruction 5.3 (Attempt).

Approved 1/2007

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

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2000 Version

The defendant is charged in [Count _______ of] the indictment with illegal transportation of an alien in violation of Section 1324(a)(1)(A)(ii) of Title 8 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, [alien] was an alien;

Second, [alien] was not lawfully in the United States;

Third, the defendant [knew] [was in reckless disregard of the fact] that [alien] was not lawfully in the United States; and

Fourth, the defendant knowingly transported or moved, or attempted to transport or move [alien] in order to help [him] [her] remain in the United States illegally.

An alien is a person who is not a natural-born or naturalized citizen [or national] of the United States. An alien is not lawfully in this country if [the person was not duly admitted by an Immigration Officer] [the person [e.g., entered the United States for the purpose of performing labor]].

See Comment following Instruction 9.1 (Alien–Bringing into United States).

"Reckless disregard" is not defined in Title 8, United States Code, and the case law has not defined the phrase as used in this context. Cf. Model Penal Code, § 2.02 (recklessly defined).

Pending further statutory or case law guidance, the trial judge must decide whether to define "reckless disregard" as deliberate ignorance, as traditional recklessness, or not to define it at all.

The legislative history of 8 USC 1324 refers to "willful blindness," which raises the question of whether the "reckless disregard" in the statute is intended to mean deliberate ignorance. 1986 U.S. Code Cong. and Admin. News, p. 5649, 5669–70, House Report No. 99–682(I). For a definition of deliberate ignorance, see Instruction 5.7 (Deliberate Ignorance).

If the defendant raises the defense that he or she is a national, the court may wish to define the term national as: "[A] person who, though not a citizen of the United States, owes permanent allegiance to the United States." 8 USC 1101(a)(22)(B).

See United States v. Barajas–Montiel, 185 F.3d 947, 953 (9th Cir. 1999) (following Nguyen and holding that criminal intent is required for conviction of the felony offenses of 8 USC 1324(a)(2)(B)).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with concealment of an alien in violation of Section 1324(a)(1)(A)(iii) of Title 8 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, [alien] was an alien;

Second, [alien] was not lawfully in the United States;

Third, the defendant [knew] [was in reckless disregard of the fact] that [alien] was not lawfully in the United States; and

Fourth, the defendant concealed [alien] for the purpose of avoiding [alien]'s detection by immigration authorities.

An alien is a person who is not [a natural-born or naturalized citizen] [national] of the United States. An alien is not lawfully in this country if [the person was not duly admitted by an Immigration Officer] [the person [e.g., entered the United States for the purpose of performing labor]].

See Comments following Instructions 9.1 (Alien–Bringing into United States) and 9.2 (Alien–Illegal Transportation).

9TH CIRCUIT MODEL INSTRUCTIONS 2000

9.4 Alien–Encouraging Illegal Entry(8 USC 1324(a)(1)(A)(iv))

The defendant is charged in [Count _______ of] the indictment with encouraging illegal entry by an alien in violation of Section 1324(a)(1)(A)(iv) of Title 8 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:First, [alien] was an alien;

Second, the defendant encouraged or induced [alien] to enter the United States in violation of law; and

Third, the defendant [knew] [was in reckless disregard of the fact] that [alien]'s entry into the United States would be in violation of the law.

An alien is a person who is not a [natural-born or naturalized citizen] [national] of the United States. An alien enters into the United States in violation of law if not duly admitted by an Immigration Officer.

Comment

See Comments following Instructions 9.1 (Alien–Bringing into United States) and 9.2 (Alien–Illegal Transportation).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The jury should be instructed that in order for a deported alien to be found guilty of illegal re-entry into the United States, the entry must be voluntary and knowing. See United States v. Salazar-Gonzalez, 458 F.3d 851, 856-58 (9th Cir. 2006) (clarifying "an area of confusion in our § 1326 jurisprudence"). Although Salazar-Gonzalez dealt with a prosecution for a deported alien "found in" the United States, the decision clearly applies to a case where the charge is illegal re-entry into the United States by a deported alien. See Instruction 9.5B (Alien–Deported Alien Found in United States).

"Section 1326 sets forth three separate offenses for a deported alien: to ‘enter,’ to ‘attempt to enter,’ and to be ‘found in’ the United States without permission." United States v. Parga-Rosas, 238 F.3d 1209, 1213 (9th Cir. 2001) (indictment charging "found in" United States, without reference to unlawful entry, was adequate on facts presented to charge violation of section 1326 for being found in the United States).

If the defendant raises the defense that he or she is a national, the court may wish to define the term "national" as: "[A] person who, though not a citizen of the United States, owes permanent allegiance to the United States." 8 USC 1101(a)(22)(B).

This instruction was revised subsequent to the opinion in United States v. Cervantes-Flores, 421 F.3d 825 (9th Cir. 2005) (per curiam). It should be noted that although 8 USC 1326(a) provides that the statute is violated by an alien who "enters, attempts to enter, or is at any time found in, the United States, unless . . . prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented" to the alien’s reapplying for admission, it is common for the charging indictment in such prosecutions to refer to the lack of consent by the Secretary of the Department of Homeland Security.

"Because the lawfulness of the prior deportation is not an element of the offense under § 1326, [defendant is] not entitled to have the issue determined by a jury." United States v. Alvarado–Delgado, 98 F.3d 492, 493 (9th Cir.1996) (en banc) (overruling United States v. Ibarra, 3 F.3d 1333, 1334 (9th Cir. 1993), cert. denied, 510 U.S. 1205 (1994)), cert. denied, 519 U.S. 1155 (1997). See also United States v. Lara–Aceves, 183 F.3d 1007, 1010 (9th Cir. 1999); United States v. Medina, 236 F.3d 1028 (9th Cir. 2001) ("With regard to the element of prior deportation, the government merely needs to prove that a deportation proceeding actually occurred with the end result of [the defendant] being deported," holding that a deportation order or warrant is sufficient to establish deportation and rejecting defendant’s claim that the government was required to produce a tape recording or transcript as proof of prior deportation).

Although the crime of reentry of deported alien is a general intent crime, the crime of attempted reentry of deported alien requires proof of specific intent. United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1190 (9th Cir. 2000) (en banc).

An alien has not reentered the United States for purposes of the crime of reentry of deported alien "until he or she is physically present in the country and free from official restraint." Gracidas-Ulibarry, 231 F.3d at 1191 n.3 (citing United States v. Pacheco-Medina, 212 F.3d 1162, 1166 (9th Cir. 2000)). The reasoning of Gracidas-Ulibarry and Pacheco-Medina applies to prosecutions for being an alien found in the United States after deportation in violation of 8 USC 1326(a). See United States v. Ruiz-Lopez, 234 F.3d 445, 448 (9th Cir. 2000) (proof that border patrol encountered the defendant at the port of entry does not constitute adequate proof that the defendant was found in the United States free from official restraint). See also United States v. Vela-Robles, 397 F.3d 786, 789 (9th Cir. 2005) (official restraint defense is not available where person triggers a seismic sensor, causing agents’ response and capture).

In an appropriate case, the court might consider instructing the jury on the defense of constant official restraint as follows:

THEORY OF DEFENSE

In this case when deciding whether the defendant is guilty or not guilty of the crime of being a deported alien found in the United States, the government must prove beyond a reasonable doubt that the defendant was not under constant official restraint when [he] [she] entered the United States. If the defendant was under constant official restraint, [he] [she] cannot be found guilty of being found in the United States.

"Under constant official restraint" means the defendant was under constant, continuous observation by a United States officer, or under constant, continuous camera surveillance, from the moment [he] [she] first crossed the border and entered the territory of the United States up until the time of [his] [her] apprehension. If the individual was first observed after [he] [she] had physically crossed the border of the United States, then [he] [she] is not under constant official restraint.

Approved 1/2007 (For 2006 version see below).

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2006 Version

"Section 1326 sets forth three separate offenses for a deported alien: to ‘enter,’ to ‘attempt to enter,’ and to be ‘found in’ the United States without permission." United States v. Parga-Rosas, 238 F.3d 1209, 1213 (9th Cir. 2001) (indictment charging "found in" United States, without reference to unlawful entry, was adequate on facts presented to charge violation of section 1326 for being found in the United States).

If the defendant raises the defense that he or she is a national, the court may wish to define the term national as: "[A] person who, though not a citizen of the United States, owes permanent allegiance to the United States." 8 USC 1101(a)(22)(B).

This instruction was revised subsequent to the opinion in United States v. Cervantes-Flores, 421 F.3d 825 (9th Cir. 2005) (per curiam). It should be noted that although 8 USC 1326(a) provides that the statute is violated by an alien who "enters, attempts to enter, or is at any time found in, the United States, unless . . . prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented" to the alien’s reapplying for admission, it is common for the charging indictment in such prosecutions to refer to the lack of consent by the Secretary of the Department of Homeland Security.

"Because the lawfulness of the prior deportation is not an element of the offense under § 1326, [defendant is] not entitled to have the issue determined by a jury." United States v. Alvarado–Delgado, 98 F.3d 492, 493 (9th Cir.1996) (en banc) (overruling United States v. Ibarra, 3 F.3d 1333, 1334 (9th Cir. 1993), cert. denied, 510 U.S. 1205 (1994)), cert. denied, 519 U.S. 1155 (1997). See also United States v. Lara–Aceves, 183 F.3d 1007, 1010 (9th Cir. 1999); United States v. Medina, 236 F.3d 1028 (9th Cir. 2001) ("With regard to the element of prior deportation, the government merely needs to prove that a deportation proceeding actually occurred with the end result of [the defendant] being deported," holding that a deportation order or warrant is sufficient to establish deportation and rejecting defendant’s claim that the government was required to produce a tape recording or transcript as proof of prior deportation).

Although the crime of reentry of deported alien is a general intent crime, the crime of attempted reentry of deported alien requires proof of specific intent. United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1190 (9th Cir. 2000) (en banc).

An alien has not reentered the United States for purposes of the crime of reentry of deported alien "until he or she is physically present in the country and free from official restraint." Gracidas-Ulibarry, 231 F.3d at 1191 n.3 (citing United States v. Pacheco-Medina, 212 F.3d 1162, 1166 (9th Cir. 2000)). The reasoning of Gracidas-Ulibarry and Pacheco-Medina applies to prosecutions for being an alien found in the United States after deportation in violation of 8 USC 1326(a). See United States v. Ruiz-Lopez, 234 F.3d 445, 448 (9th Cir. 2000) (proof that border patrol encountered the defendant at the port of entry does not constitute adequate proof that the defendant was found in the United States free from official restraint). See also United States v. Vela-Robles, 397 F.3d 786, 789 (9th Cir. 2005) (official restraint defense is not available where person triggers a seismic sensor, causing agents’ response and capture).

In an appropriate case, the court might consider instructing the jury on the defense of constant official restraint as follows:

THEORY OF DEFENSE

In this case when deciding whether the defendant is guilty or not guilty of the crime of being a deported alien found in the United States, the government must prove beyond a reasonable doubt that the defendant was not under constant official restraint when [he] [she] entered the United States. If the defendant was under constant official restraint, [he] [she] cannot be found guilty of being found in the United States.

"Under constant official restraint" means the defendant was under constant, continuous observation by a United States officer, or under constant, continuous camera surveillance, from the moment [he] [she] first crossed the border and entered the territory of the United States up until the time of [his] [her] apprehension. If the individual was first observed after [he] [she] had physically crossed the border of the United States, then [he] [she] is not under constant official restraint.

Approved 4/2006 (for 2002 version see below).

The defendant is charged in [Count _______ of] the indictment with reentry of deported alien in violation of Section 1326(a) of Title 8 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant is an alien;

Second, the defendant was deported from the United States; and

Third, the defendant reentered the United States without the consent of the Immigration and Naturalization Service.

An alien is a person who is not a natural-born or naturalized citizen [or a national] of the United States.

Although the crime of reentry of deported alien is a general intent crime, the crime of attempted reentry of deported alien requires proof of specific intent. United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1190 (9th Cir. 2000) (en banc).

An alien has not reentered the United States for purposes of the crime of reentry of deported alien "until he or she is physically present in the country and free from official restraint." Gracidas-Ulibarry, 231 F.3d at 1191 n.3 (citing United States v. Pacheco-Medina, 212 F.3d 1162, 1166 (9th Cir. 2000)).

Rev.12/2000

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count___of] the indictment with attempted reentry of deported alien in violation of Section 1326(a) of Title 8 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant had the conscious desire to reenter the United States without consent;

Second, the defendant committed an overt act that was a substantial step towards reentering without consent;

Third, the defendant was not a citizen of the United States;

Fourth, the defendant had previously been lawfully denied admission, excluded, deported or removed from the United States; and

Fifth, the United States Attorney General had not consented to the defendant's attempted reentry.

Comment

The elements of the crime of illegal reentry are set forth in United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1196 (9th Cir. 2000) (en banc) (Defendant claimed he was asleep when he entered the United States.).

The crime of attempted illegal reentry is a specific intent offense. Gracidas-Ulibarry, 231 F.3d at 1190.

An alien has not reentered the United States for purposes of the crime of illegal reentry after deportation "until he or she is physically present in the country and free from official restraint." Gracidas-Ulibarry, 231 F.3d at 1191 n.3 (citing United States v. Pacheco-Medina, 212 F.3d 1162, 1166 (9th Cir. 2000).

12/2000

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

9.5B Alien—Deported Alien Found in United States 
(8 USC 1326(a))

The defendant is charged in [Count ___ of] the indictment with being an alien who, after deportation, was found in the United States in violation of Section 1326(a) of Title 8 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant was deported from the United States;

Second, after deportation, the defendant voluntarily entered the United States;

Third, [when the defendant entered [he] [she] knew [he] [she] was entering the United States] [after the defendant entered the United States [he] [she] knew that [he] [she] was in the United States and knowingly remained];

Fourth, the defendant was found in the United States without having obtained the consent of the Attorney General or the Secretary of the Department of Homeland Security to reapply for admission into the United States; and

Fifth, the defendant was an alien at the time of the defendant’s entry into the United States.

An alien is a person who is not a natural-born or naturalized citizen [or a national] of the United States.

See Comment to Instruction 9.5 (Alien—Deported Alien Who Reenters United States Without Consent to Reapply for Admission).

In United States. v. Salazar-Gonzalez, 458 F.3d 851, 856 (9th Cir. 2006), the court clarified "an area of confusion in our § 1326 jurisprudence" by holding "that for a defendant to be convicted of a Section 1326 "found in" offense, the government must prove beyond a reasonable doubt that he entered voluntarily and had knowledge he was committing the underlying act that made his conduct illegal – entering or remaining in the United States.

If the defendant raises the defense that he or she is a national, the court may wish to define the term "national" as: "[A] person who, though not a citizen of the United States, owes permanent allegiance to the United States." 8 USC 1101(a)(22)(B).

Approved 1/2007 

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The Committee recommends that when a defendant is allegedly a deported alien who has illegally reentered the United States after having been convicted of a felony and/or aggravated felony, the jury should be instructed on the crime of alien-reentry of deported alien, Instruction 9.5 (Alien–Reentry of Deported Alien), and no reference should be made to the existence of a felony or aggravated felony conviction.

This change is mandated by Almendarez-Torres v. United States, 523 U.S. 224 (1998) and United States v. Alviso, 152 F.3d 1195 (9th Cir. 1998).

In Almendarez-Torres, 523 U.S. at 244, the Supreme Court held that in a prosecution for illegal re-entry after deportation in violation of 8 USC 1326(a), the existence of a prior aggravated felony conviction need not be alleged in the indictment because the conviction constitutes a sentencing enhancement pursuant to 8 USC 1326(b)(2).

Thereafter, in Alviso, 152 F.3d at 1199, the Ninth Circuit held that in a prosecution for illegal reentry after deportation following a felony conviction, in light of Almendarez-Torres, "a prior felony conviction is not an element of the offense described in 8 USC 1326(a)" and should therefore not be presented to the jury as proof thereof. The Ninth Circuit stated that although Almendarez-Torres involved a prior aggravated felony conviction, the same reasoning would apply to a non-aggravated felony conviction.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with securities fraud in violation of Section 78j(b) of Title 15 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant [used a device or scheme to defraud someone] [made an untrue statement of a material fact] [failed to disclose a material fact which resulted in making the defendant's statements misleading];

Second, the defendant's [acts were] [failure to disclose was] in connection with the purchase or sale of [e.g., bond, notes, stock];

Third, the defendant used the mail or the telephone in connection with [these acts] [this failure to disclose]; and

Fourth, the defendant acted for the purpose of defrauding buyers or sellers of securities.

To defraud someone means to make a statement or representation which is untrue and known to the defendant to be untrue [or knowingly to fail to state something which is necessary to make other statements true] and which relates to something important to the purchase or sale.

It is not necessary that the untrue statement itself passed through the mail or over the telephone so long as the mail or telephone was used as a part of the purchase or sale transaction.

It is also not necessary that the defendant made a profit or that anyone actually suffered a loss.

Depending on the facts in evidence, it may be appropriate to amend this instruction with language requiring specific jury unanimity (e.g., "with all of you agreeing on a particular untrue statement of material fact"). See Instruction 7.9 (Specific Issue Unanimity).

The Ninth Circuit has held reckless disregard for truth or falsity to be sufficient to sustain a conviction of securities fraud. See United States v. Farris, 614 F.2d 634, 638 (9th Cir. 1980).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

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2000 Version

The defendant is charged in [Count _______ of] the indictment with trafficking in archaeological resources in violation of Section 470ee(b)(2) and (d) of Title 16 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant knowingly [[sold] [purchased] [exchanged] [transported] [received] [offered to sell] [offered to purchase] [offered to exchange]] [[archaeological resource]] that was of archaeological interest and at least 100 years of age; and

Second, the [archaeological resource] had been removed from [e.g., the Tonto National Forest] without a permit from the [e.g., Chief of the United States Forest Service].

The government is not required to prove that the defendant knew that the [archaeological resource] had been removed from public lands.

Knowledge that the archaeological resource was on government land is not an element of the offense. Cf. United States v. Howey, 427 F.2d 1017 (9th Cir.1970) (holding that a defendant’s knowledge of government ownership of property is not an element of the offense of theft of government property under 18 USC 641).

If the value of the resource is disputed, the jury should be instructed to make a finding of whether the value was more than $500.

For a definition of "archaeological resource," see 16 USC 470bb(1).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with violating sections 3372 and 3373 of Title 16 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant knowingly [[imported] [exported]] [[fish] [wildlife] [plants]]; and

Second, the defendant knew that the [[imported] [exported]] [[fish] [wildlife] [plants]] had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under [United States law] [United States regulations] [United States treaties] [tribal law].

A person acts knowingly if he or she is aware of the conduct and does not act through ignorance, mistake or accident. You may consider evidence of the defendant's words, acts, or omissions, along with all the other evidence, in deciding whether the defendant acted knowingly.

"Second, the defendant knew that the [fish] [wildlife] had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under [state law] [state regulations] [foreign law]."

C) When violation of 16 USC 3372(a)(2)(B) (Plants taken in violation of State law) is alleged, insert in lieu of the second element:

"Second, the defendant knew that the plants had been [taken] [possessed] [transported] [sold] in violation of state [law] [regulations]."

D) When violation of 16 USC 3372(a)(3)(A) (Fish or Wildlife in Special U.S. Jurisdictions) is alleged, insert in lieu of the second element:

"Second, the defendant possessed [fish] [wildlife] within the Special Maritime and Territorial Jurisdiction of the United States;"

and add a third element:

"Third, the defendant knew the [fish] [wildlife] had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under [state law] [state regulations] [foreign law] [tribal law]."

E) When violation of 16 USC 3372(a)(3)(A) (Plants in Special U.S. Jurisdictions) is alleged, insert in lieu of the second element:

"Second, the defendant possessed plants within the Special Maritime and Territorial Jurisdiction of the United States;"

and add a third element:

"Third, the defendant knew the plants had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under state [law] [regulations]."

Modified 2/2003 (for 2002 version see below).

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2002 Version

"Second, the defendant knew that the [fish] [wildlife] had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under [state law] [state regulations] [foreign law]."

C) When violation of 16 USC 3372(a)(2)(B) (Plants taken in violation of State law) is alleged, insert in lieu of the second element:

"Second, the defendant knew that the plants had been [taken] [possessed] [transported] [sold] in violation of state [law] [regulations]."

D) When violation of 16 USC 3372(a)(3)(A) (Fish or Wildlife in Special U.S. Jurisdictions) is alleged, insert in lieu of the second element:

"Second, the defendant possessed [fish] [wildlife] within the Special Maritime and Territorial Jurisdiction of the United States;"

and add a third element:

"Third, the defendant knew the [fish] [wildlife] had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under [state law] [state regulations] [foreign law] [tribal law]."

"Second, the defendant possessed plants within the Special Maritime and Territorial Jurisdiction of the United States;"

and add a third element:

"Third, the defendant knew the plants had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under state [law] [regulations]."

Modified 3/2002 (for 2000 version see below).

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2000 Version

The defendant is charged in [Count _______ of] the indictment with violating sections 3372 and 3373 of Title 16 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant knowingly [[imported] [exported]] [[fish] [wildlife] [plants]]; and

Second, the defendant knew that the [[imported] [exported]] [[fish] [wildlife] [plants]] had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under [United States law] [United States regulations] [United States treaties] [tribal law].

An act is done knowingly if the defendant is aware of the act and does not act through ignorance, mistake or accident. You may consider evidence of the defendant's words, acts, or omissions, along with all the other evidence, in deciding whether the defendant acted knowingly.

See 16 USC 3372(a)(1) & 3373 (d)(1)(A).

Necessary Adjustments of Instruction for Various Predicate Offenses Charged Under 16 USC 3372.

This instruction is a model for any case involving a violation of 16 USC 3373 (d)(1)(A). Under that section of the Lacey Act, criminal liability is premised on a finding of a violation of one of five subsections of 16 USC 3372. Accordingly, adjustments must be made to this instruction depending on the charged offense under section 3372.

A) When violation of 16 USC 3372(a)(1) (U.S. Laws, Treaties) is alleged, use this instruction without change.

B) When violation of 16 USC 3372(a)(2)(A) (Fish or Wildlife taken in violation of State or Foreign Laws) is alleged, in lieu of the second element insert:

"Second, the defendant knew that the [fish] [wildlife] had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under [state law] [state regulations] [foreign law]."

C) When violation of 16 USC 3372(a)(2)(B) (Plants taken in violation of State law) is alleged, insert in lieu of the second element:

"Second, the defendant knew that the plants had been [taken] [possessed] [transported] [sold] in violation of state [law] [regulations]."

D) When violation of 16 USC 3372(a)(3)(A) (Fish or Wildlife in Special U.S. Jurisdictions) is alleged, insert in lieu of the second element:

"Second, the defendant possessed [fish] [wildlife] within the Special Maritime and Territorial Jurisdiction of the United States;"

and add a third element:

"Third, the defendant knew the [fish] [wildlife] had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under [state law] [state regulations] [foreign law] [tribal law]."

E) When violation of 16 USC 3372(a)(3)(A) (Plants in Special U.S. Jurisdictions) is alleged, insert in lieu of the second element:

"Second, the defendant possessed plants within the Special Maritime and Territorial Jurisdiction of the United States;"

and add a third element:

"Third, the defendant knew the plants had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under state [law] [regulations]."

---

A judge using this Lacey Act instruction should use care to articulate the correct scienter requirements under that Act. See United States v. Stein, 37 F.3d 1407, 1410 (9th Cir.1994) (use of a general scienter instruction which conflicted with specific scienter required by the law was reversible error), cert. denied, 513 U.S. 1181 (1995).

A distinction exists between "knowingly" importing or exporting fish, wildlife or plants and "knowing" these were taken in violation of underlying relevant law. The meaning of "knowingly" in this instruction contemplates volitional conduct as explained in the last paragraph to the instruction. That a defendant volitionally acts "knowing" of the illegal nature of the fish, wildlife or plants involved should be self-apparent. The meaning of this is addressed in the legislative history of the Lacey Act. See Lacey Act Amendments of 1981, S. Rep. No. 97–123, 97th Cong., 1st Sess. 10–12 (1981); 1981 U.S.C.C.A.N. 1758–59 ("Upon proof of his knowledge of the illegal nature of the taker's conduct, that is, that the wildlife had been taken in violation of foreign law, and proof of importation, the importer will be subject to the felony penalty scheme.... ").

16 USC 3373(d)(2) (lack of due care that fish, wildlife or plants were illegally taken), which is covered by Instruction 9.11, constitutes a lesser included offense of a violation of 16 USC 3373(d)(1)(A) covered by this instruction. See United States v. Parker, 991 F.2d 1493, 1496 (9th Cir.1993); United States v. Hansen–Sturm, 44 F.3d 793, 794-95 (9th Cir.1995).

Where a violation of 16 USC 3372(a)(3) is involved, consult 18 USC 7 for a definition of special maritime and territorial jurisdiction of the United States.

Where a violation of 16 USC 3372(a)(2) is involved, consult 18 USC 10 for a definition of interstate commerce or foreign commerce.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with violating sections 3372 and 3373 of Title 16 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant knew that the [fish] [wildlife] [plants] had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under [United States law] [United States regulations] [United States treaties] [tribal law];

Second, the market value of the [fish] [wildlife] [plants] actually [taken] [possessed] [transported] [sold] exceeded $350; and

Third, the defendant [[imported] [exported] [transported] [sold] [received] [acquired] [purchased]] [[fish] [wildlife] [plants]] by knowingly engaging in conduct that involved [its sale or purchase] [the offer to sell or purchase it] [the intent to sell or purchase it].

A person acts knowingly if he or she is aware of the conduct and does not act through ignorance, mistake or accident. You may consider evidence of the defendant's words, acts, or omissions, along with all the other evidence, in deciding whether the defendant acted knowingly.

"First, the defendant knew that the [fish] [wildlife] had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under [state law] [state regulations] [foreign law];

"Third, the defendant [imported] [exported] [transported] [sold] [received] [acquired] [purchased] in interstate or foreign commerce the [fish] [wildlife] by knowingly engaging in conduct that involved [their sale or purchase] [the offer to sell or purchase them] [the intent to sell or purchase them]."

C) When violation of 3372(a)(2)(B) (Plants taken in violation of State Law) is alleged, insert in lieu of the first and third elements:

"First, the defendant knew that the plants had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under [state law] [state regulations];

"Third, the defendant [imported] [exported] [transported] [sold] [received] [acquired] [purchased] the plants in interstate or foreign commerce by knowingly engaging in conduct that involved the [sale or purchase] [offer of sale or purchase of] [intent to sell or purchase] the plants."

D) When violation of 3372(a)(3)(A) (Fish or Wildlife in Special U.S. Jurisdiction) is alleged, substitute the following elements:

"First, the defendant knew that the [fish] [wildlife] had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under [state law] [state regulations] [foreign law] [tribal law];

"Second, the market value of the [fish] [wildlife] actually [taken] [possessed] [transported] [sold] exceeded $350;

"Third, the defendant, while within the special maritime and territorial jurisdiction of the United States, possessed [fish] [wildlife], knowing that it had been [taken] [possessed] [transported] [sold] in violation of [state law] [state regulations] [foreign law] [tribal law]; and

"Fourth, in possessing the [fish] [wildlife] within the special maritime and territorial jurisdiction of the United States, the defendant knowingly engaged in conduct that involved [its sale or purchase] [the offer to sell or purchase it] [the intent to sell or purchase it]."

"First, the defendant knew that the plants had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under [state law] [state regulations];
"Second, the market value of the plants actually [taken] [possessed] [transported] [sold] exceeded $350;

"Third, the defendant, while within the special maritime and territorial jurisdiction of the United States, possessed plants, knowing that they had been [taken] [possessed] [transported] [sold] in violation of [state law] [state regulations]; and

"Fourth, in possessing the plants within the special maritime and territorial jurisdiction of the United States, the defendant knowingly engaged in conduct that involved [their sale or purchase] [the offer to sell or purchase them] [the intent to sell or purchase them]."

Modified 2/2003 (for 2002 version see below).

"First, the defendant knew that the [fish] [wildlife] had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under [state law] [state regulations] [foreign law];

"Third, the defendant [imported] [exported] [transported] [sold] [received] [acquired] [purchased] in interstate or foreign commerce the [fish] [wildlife] by knowingly engaging in conduct that involved [their sale or purchase] [the offer to sell or purchase them] [the intent to sell or purchase them]."

C) When violation of 3372(a)(2)(B) (Plants taken in violation of State Law) is alleged, insert in lieu of the first and third elements:

"First, the defendant knew that the plants had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under [state law] [state regulations];

"Third, the defendant [imported] [exported] [transported] [sold] [received] [acquired] [purchased] the plants in interstate or foreign commerce by knowingly engaging in conduct that involved the [sale or purchase] [offer of sale or purchase of] [intent to sell or purchase] the plants."

D) When violation of 3372(a)(3)(A) (Fish or Wildlife in Special U.S. Jurisdiction) is alleged, substitute the following elements:

"First, the defendant knew that the [fish] [wildlife] had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under [state law] [state regulations] [foreign law] [tribal law];

"Second, the market value of the [fish] [wildlife] actually [taken] [possessed] [transported] [sold] exceeded $350;

"Third, the defendant, while within the special maritime and territorial jurisdiction of the United States, possessed [fish] [wildlife], knowing that it had been [taken] [possessed] [transported] [sold] in violation of [state law] [state regulations] [foreign law] [tribal law]; and

"Fourth, in possessing the [fish] [wildlife] within the special maritime and territorial jurisdiction of the United States, the defendant knowingly engaged in conduct that involved [its sale or purchase] [the offer to sell or purchase it] [the intent to sell or purchase it]."

E) When violation of 16 USC 3372(a)(2)(B) (Plants in Special Maritime Jurisdiction) is involved, substitute the following elements:

"First, the defendant knew that the plants had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under [state law] [state regulations];
"Second, the market value of the plants actually [taken] [possessed] [transported] [sold] exceeded $350;

"Third, the defendant, while within the special maritime and territorial jurisdiction of the United States, possessed plants, knowing that they had been [taken] [possessed] [transported] [sold] in violation of [state law] [state regulations]; and

"Fourth, in possessing the plants within the special maritime and territorial jurisdiction of the United States, the defendant knowingly engaged in conduct that involved [their sale or purchase] [the offer to sell or purchase them] [the intent to sell or purchase them]."

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2000 Version

The defendant is charged in [Count _______ of] the indictment with violating sections 3372 and 3373 of Title 16 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant knew that the [fish] [wildlife] [plants] had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under [United States law] [United States regulations] [United States treaties] [tribal law];

Second, the market value of the [fish] [wildlife] [plants] actually [taken] [possessed] [transported] [sold] exceeded $350; and

Third, the defendant [[imported] [exported] [transported] [sold] [received] [acquired] [purchased]] [[fish] [wildlife] [plants]] by knowingly engaging in conduct that involved [its sale or purchase] [the offer to sell or purchase it] [the intent to sell or purchase it].

An act is done knowingly if the defendant is aware of the act and does not act through ignorance, mistake or accident. You may consider evidence of the defendant's words, acts, or omissions, along with all the other evidence, in deciding whether the defendant acted knowingly.

See 16 USC 3372(a)(1) & 3373 (d)(1)(B).

Necessary Adjustments of Instruction for Various Predicate Offenses Under 16 USC 3372.

This instruction is a model for any case involving a violation of 16 USC 3373 (d)(1)(B). Under that section of the Lacey Act, criminal liability is premised on a finding of a violation of one of five subsections of 16 USC 3372. Accordingly, adjustments must be made to this instruction depending on the charged offense under section 3372.

A) When violation of 16 USC 3372(a)(1) (U.S. Laws, Treaties) is alleged, use this instruction without change.

B) When violation of 3372(a)(2)(A) (Fish or Wildlife taken in violation of State or Foreign

Law) is alleged, in lieu of the first and third elements insert:

"First, the defendant knew that the [fish] [wildlife] had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under [state law] [state regulations] [foreign law];

"Third, the defendant [imported] [exported] [transported] [sold] [received] [acquired] [purchased] in interstate or foreign commerce the [fish] [wildlife] by knowingly engaging in conduct that involved [their sale or purchase] [the offer to sell or purchase them] [the intent to sell or purchase them]."

C) When violation of 3372(a)(2)(B) (Plants taken in violation of State Law) is alleged, insert in lieu of the first and third elements:

"First, the defendant knew that the plants had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under [state law] [state regulations];

"Third, the defendant [imported] [exported] [transported] [sold] [received] [acquired] [purchased] the plants in interstate or foreign commerce by knowingly engaging in conduct that involved the [sale or purchase] [offer of sale or purchase of] [intent to sell or purchase] the plants."

D) When violation of 3372(a)(3)(A) (Fish or Wildlife in Special U.S. Jurisdiction) is alleged, substitute the following elements:

"First, the defendant knew that the [fish] [wildlife] had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under [state law] [state regulations] [foreign law] [tribal law];

"Second, the market value of the [fish] [wildlife] actually [taken] [possessed] [transported] [sold] exceeded $350;

"Third, the defendant, while within the special maritime and territorial jurisdiction of the United States, possessed [fish] [wildlife], knowing that it had been [taken] [possessed] [transported] [sold] in violation of [state law] [state regulations] [foreign law] [tribal law]; and

"Fourth, in possessing the [fish] [wildlife] within the special maritime and territorial jurisdiction of the United States, the defendant knowingly engaged in conduct that involved [its sale or purchase] [the offer to sell or purchase it] [the intent to sell or purchase it]."

E) When violation of 16 U.S.C. 3372(a)(2)(B) (Plants in Special Maritime Jurisdiction) is involved, substitute the following elements:

"First, the defendant knew that the plants had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under [state law] [state regulations];

"Second, the market value of the plants actually [taken] [possessed] [transported] [sold] exceeded $350;

"Third, the defendant, while within the special maritime and territorial jurisdiction of the United States, possessed plants, knowing that they had been [taken] [possessed] [transported] [sold] in violation of [state law] [state regulations]; and

"Fourth, in possessing the plants within the special maritime and territorial jurisdiction of the United States, the defendant knowingly engaged in conduct that involved [their sale or purchase] [the offer to sell or purchase them] [the intent to sell or purchase them]."

---

See Comment following Instruction 9.27 (Lacey Act–Import or Export of Illegally Taken Fish, Wildlife or Plants) concerning scienter requirements of 16 USC 3373(d)(1).

Normally a specific definition of market value will not be necessary. However, if special circumstances arise where such a definition would be appropriate under the facts of the case, the judge might consult United States v. Stenberg, 803 F.2d 422, 432–33 (9th Cir.1986) (willing seller and buyer is appropriate definition of market value; where case involves purchases made by government agents it is advisable to instruct jury that price paid by government agent is not conclusive evidence of market value) and United States v. Atkinson, 966 F.2d 1270, 1273 (9th Cir.1992) (proper method for valuing game under 16 USC 3372(c) on guided hunt is value of offer to provide services).

For a definition of special maritime and territorial jurisdiction of the United States, see 18 USC 7.

For a definition of interstate commerce or foreign commerce in cases involving violation of 16 USC 3372(a)(2), see 18 USC 10.

See United States v. Senchenko, 133 F.3d 1153, 1156 (9th Cir. 1998) (permissible to infer commercial intent on facts presented).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count ___ of] the indictment with violating sections 3372 and 3373 of Title 16 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant knowingly [[imported] [exported] [transported] [sold] [received] [acquired] [purchased]] [[fish] [wildlife] [plants]]; and

Second, the defendant in the exercise of due care should have known that the [fish] [wildlife] [plants] had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under [United States Law] [United States regulations] [United States treaties] [tribal law].

An act is done knowingly if the defendant is aware of the act and does not act through ignorance, mistake or accident. You may consider evidence of the defendant's words, acts, or omissions, along with all the other evidence, in deciding whether the defendant acted knowingly.

Due care means that degree of care which a reasonably prudent person would exercise under the same or similar circumstances.

See 16 USC 3372(a)(1) & 3373(d)(2) (misdemeanor violation).

This instruction pertains to a misdemeanor provision of the Lacey Act, which has been held to be a lesser included offense of the felony provisions of the Lacey Act. United States v. Hansen–Sturm, 44 F.3d 793, 794 (9th Cir.1995).

Necessary Adjustments of Instruction for Various Predicate Offenses Charged Under 16 USC 3372.

This instruction is a model for any case involving a violation of 16 USC 3373(d)(2). Under that section of the Lacey Act, criminal liability is premised on a finding of a violation of one of five subsections of 16 USC 3372. Accordingly, adjustments must be made to this instruction depending on the charged offense under section 3372.

A) When violation of 16 USC 3372(a)(1) (U.S. Laws, Treaties) is alleged, use this instruction without change.

B) When violation of 3372(a)(2)(A) (Fish or Wildlife taken in violation of State or Foreign Law) is alleged, substitute the following elements:

"First, the defendant knowingly [[imported] [exported] [transported] [sold] [received] [acquired] [purchased]] [[fish] [wildlife]] in interstate or foreign commerce; and

"Second, the defendant in the exercise of due care should have known that the [fish] [wildlife] had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under [state law] [state regulations] [foreign law]."

C) When violation of 3372(a)(2)(B) (Plants taken in violation of State law) is alleged, substitute the following elements:

"First, the defendant knowingly [imported] [exported] [transported] [sold] [received] [acquired] [purchased] plants in interstate or foreign commerce; and

"Second, the defendant in the exercise of due care should have known that the plants had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under state [law] [regulations]."

D) When violation of 3372(a)(3)(A) (Fish or Wildlife in Special U.S. Jurisdiction) is alleged, substitute the following elements:

"First, while within the special maritime and territorial jurisdiction of the United States, the defendant knowingly possessed [fish] [wildlife] which had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under [state law] [state regulations] [foreign law] [tribal law]; and

"Second, in the exercise of due care the defendant should have known that the [fish] [wildlife] had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under [state Law] [state regulations] [foreign law] [tribal law]."

E) When violation of 3372(a)(3)(B) (Plants in Special U.S. Jurisdiction) is alleged, substitute the following elements:

"First, while within the special maritime and territorial jurisdiction of the United States, the defendant knowingly possessed plants which had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under state [law] [regulations]; and

"Second, in the exercise of due care the defendant should have known that the plants had been [taken] [possessed] [transported] [sold] in violation of or in a manner unlawful under state [law] [regulations]."

---

In addition to proof of a volitional act, the Lacey Act also requires proof that the defendant volitionally acted when "in the exercise of due care" the defendant "should know" that the fish, wildlife or plants were taken in violation of the underlying relevant law. This due care requirement appears to be the traditional standard of due care.

As the legislative history of this section explains: "It is important to remember that a person can exercise due care without knowing for certain whether, for example, a particular importation is legal. Due care simply requires that a person facing a particular set of circumstances undertakes certain steps which a reasonable man would take to do his best to insure that he is not violating the law." Lacey Act Amendments of 1981, S. Rep. No. 97–123, 97th Cong., 1st Sess. 10–12 (1981); 1981 U.S.C.C.A.N. 1758–59.

The legislative committee elaborated on the application of the due care standard:

[D]ue care means that degree of care which a reasonably prudent person would exercise under the same or similar circumstances. As a result, it is applied differently to different categories of persons with varying degrees of knowledge and responsibility. For example, zoo curator's [sic], as professionals, are expected to apply their knowledge to each purchase of wildlife. If they know that a reptile is Australian and that Australia does not allow export of that reptile without special permits, they would fail to exercise due care unless they checked for those permits. On the other hand, the airline company which shipped the reptile might not have the expertise to know that Australia does not normally allow that particular reptile to be exported. However, if an airline is notified of the problem and still transships the reptile, then it would probably fail to pass the due care test.

Id.

For a definition of special maritime and territorial jurisdiction of the United States, see 18 USC 7.

For a definition of interstate commerce or foreign commerce, in cases involving violation of 16 USC 3372(a)(2), see 18 USC 10.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count ___ of] the indictment with violating Sections 3372 and 3373 of Title 16 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant knowingly [made] [submitted] a false [[record concerning] [account concerning] [label for] [identification of]] [[fish] [wildlife] [plants]]; [and]

Second, the [[fish] [wildlife] [plants]] [[had been] [were intended to be]] [[imported] [exported] [transported] [sold] [purchased] [received] from a foreign country] [transported in interstate or foreign commerce] [; and]

[Third, the defendant's [making of] [submission of] a false [[record concerning] [account concerning] [label for] [identification of]] [[fish] [wildlife] [plants]] involved the [sale or purchase of] [offer of sale or purchase of] [commission of an act with intent to sell or purchase] the [fish] [wildlife] [plants] with a market value greater than $350].

An act is done knowingly if the defendant is aware of the act and does not act through ignorance, mistake or accident. You may consider evidence of the defendant's words, acts, or omissions, along with all the other evidence, in deciding whether the defendant acted knowingly.

Necessary Adjustments of Instruction for Various Predicate Offenses Charged Under 16 USC 3372.

This instruction is a model for any case involving a violation of 16 USC 3373(d)(3). Under that section of the Lacey Act, criminal liability is premised on a finding of a violation of 16 USC 3372(d) (False Labeling).

The third element should be added only if the defendant is accused of violating 16 USC 3373(d)(3)(A)(ii). If the jury finds the government proved only the first and second elements, the defendant may be found guilty of 16 USC 3373(d)(3)(A)(i) (felony importation of fish, wildlife or plants) or of 16 USC 3373(d)(3)(B) (misdemeanor false labeling).

The scienter required for conviction under 16 USC 3373(d)(3) requires the defendant "knowingly" violate 16 USC 3372(d) prohibiting making or submitting a false label.

See Comment following Instruction 9.10 (Lacey Act–Commercial Activity In Illegally Taken Fish, Wildlife or Plants) concerning need for instruction concerning a definition of "market value."

For definition of interstate commerce or foreign commerce, see 18 USC 10.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

In the aftermath of Apprendi v. New Jersey, 530 U.S. 446 (2000), the Ninth Circuit has held that where the amount of drugs "increases the prescribed statutory maximum penalty to which a criminal defendant is exposed," the amount of drugs must be decided by a jury beyond a reasonable doubt. United States v. Nordby, 225 F.3d. 1053 (9th Cir. 2000) ("[O]ur existing precedent to the contrary is overruled to the extent it is inconsistent with Apprendi.") (citations omitted). See also United States v. Garcia-Guizar, 227 F.3d 1125 (9th Cir. 2000) cert. denied, 532 U.S. 984 (2001). As a result, if applicable, the court should obtain a jury determination of the amount of drugs involved. See also United States v. Booker,125 S. Ct. 738 (2005); United States v. Ameline,409 F.3d 1073 (9th Cir.2005) (en banc).

Possession of a controlled substance with intent to distribute requires the jury to find that the defendant (1) knowingly possessed drugs and (2) possessed them with the intent to deliver them to another person. See, e.g., United States v. Orduno-Aguilera, 183 F.3d 1138, 1140 (9th Cir. 1999); United States v. Seley, 957 F.2d 717, 721 (9th Cir. 1992). See also, United States v. Magallon-Jimenez, 219 F.3d 1109, 1112 (9th Cir. 2000).

The definition of possession with intent to deliver was expressly approved in United States v. Morales-Cartagena, 987 F.2d 849, 852 (1st Cir. 1993).

The use of "controlled substance" in jury instructions should be avoided. Instead, the specific controlled substance involved in the case should be referred to. See also Instruction 5.7 (Deliberate Ignorance) and comment thereto.

Several of the penalty sections for a violation of 21 USC Sections 841(a)(1), 846, 859, 860 and/or 861(a)(1) increase the sentence "if death or serious bodily injury results from the use of such [controlled] substance[s]." 21 USC 841(b)(1)(A)-(C). The Ninth Circuit has ruled that this enhancement does not require the government to prove that the death was a foreseeable result of the distribution of the controlled substance. United States v. Houston, 406 F.3d 1121, 1124-25 (9th Cir. 2005) ("Cause-in-fact is required by the ‘results’ language, but proximate cause, at least insofar as it requires that the death have been foreseeable, is not a required element.").

When it is necessary to determine an amount of controlled substance, use this Instruction with Instruction 9.13A (Determining Amount of Controlled Substance), together with a verdict form similar to the example provided in the Comment to Instruction 9.13A.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

9.13A Determining Amount of Controlled Substance

If you find the defendant guilty of the charge in [Count___ of] the indictment, you are then to determine the net weight of [controlled substance]. Your decision as to the net weight must be unanimous and must be beyond a reasonable doubt.

The term "net weight" means the weight of the [controlled substance] without any packaging material.

The government does not have to prove that the defendant knew the exact quantity of [controlled substance].

When it is necessary to determine an amount of controlled substance, use this Instruction with Instruction 9.13 (Controlled Substance–Possession with Intent to Distribute). The following verdict form might be considered in such a circumstance, using the item for the substance in question:

1. We, the Jury, find the defendant [name] NOT GUILTY or GUILTY (circle one) as charged in [Count ___ of] the indictment.

[Note: If you find the defendant not guilty as charged, you need not consider paragraph 2 below. If you find the defendant guilty as charged, proceed to paragraph 2 below.]

2. We, the Jury, having found the defendant guilty of the offense charged in [Count ___ of] the indictment, further find that [he] [she] [[distributed] [possessed with intent to distribute] [conspired to possess with intent to distribute]] [controlled substance] in the amount shown (place an X in the appropriate box):

[(a) Marijuana–

(i) Weighing 1000 kilograms or more [ ] 
(ii) Weighing at least 100 kilograms but less than 1000 kilograms [ ] 
(iii) Weighing less than 100 kilograms [ ]

[(b) Cocaine–

(i) Weighing 5 kilograms or more [ ] 
(ii) Weighing at least 500 grams but less than 5 kilograms [ ] 
(iii) Weighing less than 500 grams [ ]

[(c) Cocaine base ("crack" cocaine)–

(i) Weighing 50 grams or more [ ]
(ii) Weighing at least 5 grams but less than 50 grams [ ]
(iii) Weighing less than 5 grams [ ]

[(d) A mixture and/or substance with a detectible amount of Methamphetamine–

(i) Weighing 500 grams or more [ ]
(ii) Weighing at least 50 grams but less than 500 grams [ ]
(iii) Weighing less than 50 grams [ ]

[(e) Pure Methamphetamine–

(i) Weighing 50 grams or more [ ]
(ii) Weighing at least 5 grams but less than 50 grams [ ]
(iii) Weighing less than 5 grams [ ]

DATED:

____________________

_____________________ 
PRESIDING JUROR

Approved 1/2007;  modified 5/2007

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with attempted possession of [controlled substance] with intent to distribute in violation of Sections 841(a)(1) and 846 of Title 21 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant intended to possess [controlled substance] with the intent to deliver it to another person; and

Second, the defendant did something that was a substantial step toward committing the crime, with all of you agreeing as to what constituted the substantial step.

Mere preparation is not a substantial step toward the commission of the crime of possession of [controlled substance] with the intent to distribute.

To "possess with intent to distribute" means to possess with intent to deliver or transfer possession of a controlled substance to another person, with or without any financial interest in the transaction.

See Comment following Instruction 9.13 (Controlled Substance–Possession with Intent to Distribute).

See Instruction 7.9 (Specific Issue Unanimity).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with distribution of [controlled substance] in violation of Section 841(a)(1) of Title 21 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant knowingly delivered [controlled substance]; and

Second, the defendant knew that it was [controlled substance] or some other prohibited drug.

See Comment following Instruction 9.13 (Controlled Substance–Possession with Intent to Distribute).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with attempted distribution of [controlled substance] in violation of Sections 841(a)(1) and 846 of Title 21 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant intended to deliver [controlled substance] to another person;

Second, the defendant knew that it was [controlled substance] or some other prohibited drug; and

Third, the defendant did something that was a substantial step toward committing the crime, with all of you agreeing as to what constituted the substantial step.

Mere preparation is not a substantial step toward the commission of the crime of distribution of [controlled substance].

See Comment following Instruction 9.13 (Controlled Substance–Possession with Intent to Distribute).

See Instruction 7.9 (Specific Issue Unanimity).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with distribution of [controlled substance] to a person under the age of 21 years in violation of Section 841(a)(1) and 859 of Title 21 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant knowingly delivered [controlled substance] to [underage person];

Second, the defendant knew that it was [controlled substance] or some other prohibited drug;

Third, the defendant was at least eighteen years of age; and

Fourth, [underage person] was under twenty-one years of age.

See Comment following Instruction 9.13 (Controlled Substance–Possession with Intent to Distribute).

Knowledge by the defendant that the person to whom the controlled substance is distributed is under twenty-one years of age is not an essential element. United States v. Valencia–Roldan, 893 F.2d 1080, 1083 (9th Cir.) (adopting United States v. Pruitt, 763 F.2d 1256, 1261 (11th Cir.1985), cert. denied, 474 U.S. 1084 (1986)), cert. denied, 495 U.S. 935 (1990).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with attempted distribution of [e.g., heroin] to a person under the age of twenty-one years in violation of Sections 841(a)(1), 846 and 859 of Title 21 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant intended to deliver [controlled substance] to [underage person];

Second, the defendant knew that it was [controlled substance] or some other prohibited drug;

Third, the defendant was at least eighteen years of age;

Fourth, [underage person] was under the age of twenty-one years; and

Fifth, the defendant did something that was a substantial step toward committing the crime, with all of you agreeing as to what constituted the substantial step.

Mere preparation is not a substantial step toward the commission of the crime of distribution of [controlled substance] to a person under the age of twenty-one years.

See Comment following Instructions 9.13 (Controlled Substance–Possession with Intent to Distribute) and 9.17 (Controlled Substance–Distribution to Person Under 21 Years).

See Instruction 7.9 (Specific Issue Unanimity).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with distributing [e.g., heroin] in, on or within 1,000 feet of the [schoolyard] [campus] of a [school] [college] [university] in violation of Sections 841(a)(1) and 860 of Title 21 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant knowingly delivered [controlled substance] to another person;

Second, the defendant knew that it was [controlled substance] or some other prohibited drug; and

Third, the delivery took place in, on or within 1,000 feet of the [schoolyard] [campus] of [school].

See Comment following Instruction 9.13 (Controlled Substance–Possession with Intent to Distribute).

The defendant's specific knowledge of the proximity of a school is not an element of the offense. United States v. Pitts, 908 F.2d 458, 461 (9th Cir. 1990) (adopting reasoning of United States v. Falu, 776 F.2d 46, 49 (2d Cir.1985)). Distance is measured by a straight line. United States v. Ofarril, 779 F.2d 791, 792 (2d Cir.1985), cert. denied, 475 U.S. 1029 (1986).

Section 860 applies not only to schools, but also to playgrounds and public housing facilities, as well as (within a 100 foot radius) youth centers, public swimming pools and video arcades. The instruction should be revised as necessary to match the facts of the case.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with attempted distribution of [e.g., heroin] within 1,000 feet of the [schoolyard] [campus] of a [school] [college] [university] in violation of Sections 841(a)(1), 846 and 860 of Title 21 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant intended to deliver [controlled substance] to another person in, on, or within 1,000 feet of the [schoolyard] [campus] of [school];

Second, the defendant knew that it was [controlled substance] or some other prohibited drug; and

Third, the defendant did something that was a substantial step toward committing the crime, with all of you agreeing as to what constituted the substantial step.

Mere preparation is not a substantial step toward the commission of the crime of distribution of [controlled substance] in or near a school.

See Comment following Instructions 9.13 (Controlled Substance–Possession with Intent to Distribute) and 9.19 (Controlled Substance–Distribution In or Near a School).

See Instruction 7.9 (Specific Issue Unanimity).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with [hiring] [using] a minor to [e.g., distribute] in violation of Sections 841(a)(1) and 861(a)(1) of Title 21 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant knowingly [hired] [used] [persuaded] [coerced] [minor] [e.g., to distribute];

Second, the defendant knew that it was [controlled substance] or some other prohibited drug;

Third, the defendant was at least eighteen years of age; and

Fourth, [minor] was under the age of eighteen years.

See Comment following Instruction 9.13 (Controlled Substance–Possession with Intent to Distribute).

The defendant's knowledge of the age of the minor is not an essential element of the offense. United States v. Valencia–Roldan, 893 F.2d 1080, 1083 (9th Cir.), cert. denied, 495 U.S. 935 (1990).

This instruction can be modified for use in cases arising under Sections 861(a)(2) and (3).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with attempted employment of a minor to [e.g., distribute heroin] in violation of Sections 841(a)(1), 846 and 861(a)(1) of Title 21 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant intended to [hire] [use] [persuade] [coerce] [minor] [e.g., to deliver heroin];

Second, the defendant knew that it was [controlled substance] or some other prohibited drug;

Third, the defendant was at least eighteen years of age;

Fourth, [minor] was under the age of eighteen years; and

Fifth, the defendant did something that was a substantial step toward committing the crime, with all of you agreeing as to what constituted the substantial step.

Mere preparation is not a substantial step toward the commission of the crime of [hiring] [using] a minor to violate the drug laws.

See Comment following Instructions 9.13 (Controlled Substance–Possession with Intent to Distribute) and 9.21 (Controlled Substance–Employment of a Minor to Violate Drug Law).

See Instruction 7.9 (Specific Issue Unanimity).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

(21 USC 841(c)(1))

The defendant is charged in [Count _______ of] the indictment with possession of a listed chemical with intent to manufacture [controlled substance] in violation of Section 841(c)(1) of Title 21 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant knowingly possessed [listed chemical];

Second, [listed chemical] is a listed chemical; and

Third, the defendant possessed it with the intent to manufacture [controlled substance].

It does not matter whether the defendant knew that [listed chemical] was a listed chemical. It is sufficient that the defendant knew that it was to be used to manufacture [controlled substance] or some other prohibited drug.

See Comment following Instruction 9.13 (Controlled Substance–Possession with Intent to Distribute).

(21 USC 841(d)(1))

The defendant is charged in [Count _______ of] the indictment with possession of a listed chemical with intent to manufacture [controlled substance] in violation of Section 841(d)(1) of Title 21 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant knowingly possessed [listed chemical];

Second, [listed chemical] is a listed chemical; and

Third, the defendant possessed it with the intent to manufacture [controlled substance].

It does not matter whether the defendant knew that [listed chemical] was a listed chemical. It is sufficient that the defendant knew that it was to be used to manufacture [controlled substance] or some other prohibited drug.

See Comment following Instruction 9.13 (Controlled Substance–Possession with Intent to Distribute).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

See Comment following Instruction 9.13 (Controlled Substance–Possession with Intent to Distribute).

(21 USC 841(d)(2))

The defendant is charged in [Count _______ of] the indictment with [possession] [and] [distribution] of a listed chemical, knowing or having reasonable cause to believe it would be used to manufacture [controlled substance] in violation of Section 841(d)(2) of Title 21 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant knowingly [possessed] [distributed] [listed chemical];

Second, [listed chemical] is a listed chemical; and

Third, the defendant [possessed] [distributed] it knowing, or having reasonable cause to believe, that it would be used to manufacture [controlled substance].

It does not matter whether defendant knew that [listed chemical] was a listed chemical. It is sufficient that the defendant knew or had reasonable cause to believe that it would be used to manufacture [controlled substance] or some other prohibited drug.

See Comment following Instruction 9.13 (Controlled Substance–Possession with Intent to Distribute).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with illegal use of a communication facility in violation of Section 843(b) of Title 21 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove beyond a reasonable doubt that the defendant knowingly or intentionally used a [a telephone] [the mail] [a radio] [a telegraph] to help bring about [e.g., the conspiracy to distribute cocaine charged in Count I of the indictment].

For a definition of "knowingly," see Instruction 5.6 (Knowingly–Defined).

See also United States v. Whitmore, 24 F.3d 32, 34 (9th Cir. 1994) (former instruction 9.04E erroneous due to failure to include intent component).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

(21 USC 848)

Comment

    Under the statute, to engage in a continuing criminal enterprise requires, in part, that a person violate one of the federal narcotics laws and that the violation be "a part of a continuing series of violations." A "series" consists of three or more federal narcotic law violations. United States v. Baker, 10 F.3d 1374, 1406 (9th Cir. 1993), cert. denied, 513 U.S. 934 (1994). For a series of violations to be "continuing," they must span a definite period of time. United States v. Bergdoll, 412 F. Supp. 1308, 1317 (D. Del.1976); United States v. Collier, 358 F. Supp. 1351, 1355 (E.D. Mich.1973). The jury must be unanimous as to the specific violations making up the "continuing series of violations." Richardson v. United States, 526 U.S. 813 (1999); U.S. v. Montalvo, 331 F.3d 1052, 1054-56 (9^th Cir. 2003). See also Instruction 7.9 (Specific Issue Unanimity).

    In most cases the "continuing series of violations" will consist of substantive counts alleged in the indictment. However, courts have allowed proof of violations which were not the bases for separate substantive counts. See United States v. Sterling, 742 F.2d 521, 526 (9th Cir. 1984), cert. denied, 471 U.S. 1099 (1985).

    The defendant need not act "in concert with five or more other persons" at the same time, nor must the defendant have known all of them. United States v. Jerome, 942 F.2d 1328, 1330 (9th Cir. 1991).

    "Organizer, supervisor, or other position of management" and "substantial income" are within the common understanding of jurors and do not require definition. United States v. Apodaca, 843 F.2d 421, 425-26 (9th Cir.), cert. denied, 488 U.S. 932 (1988).

The defendant is charged in [Count _______ of] the indictment with a continuing criminal enterprise in violation of Section 848 of Title 21 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant committed the offense[s] of [e.g., distributing cocaine] [as charged in Count[s] _______ of the indictment];

Second, the offense[s] [was] [were] part of a series of three or more offenses committed by the defendant over a definite period of time;

Third, the defendant committed the offenses together with five or more other persons;

Fourth, the defendant acted as an organizer, supervisor or manager of the five or more other persons; and

Fifth, the defendant obtained substantial income or resources from the violations.

The government does not have to prove that all five or more of the other persons operated together at the same time, or that the defendant knew all of them.

"Income and resources" means receipts of money or property.

Under the statute, to engage in a continuing criminal enterprise requires, in part, that a person violate one of the federal narcotics laws and that the violation be "a part of a continuing series of violations." A "series" consists of three or more federal narcotic law violations. United States v. Baker, 10 F.3d 1374, 1406 (9th Cir. 1993), cert. denied, 513 U.S. 934 (1994). For a series of violations to be "continuing," they must span a definite period of time. United States v. Bergdoll, 412 F. Supp. 1308, 1317 (D. Del.1976); United States v. Collier, 358 F. Supp. 1351, 1355 (E.D. Mich.1973). The jury must be unanimous as to the specific violations making up the "continuing series of violations." Richardson v. United States,(1999). See also Instruction 7.9 (Specific Issue Unanimity).

In most cases the "continuing series of violations" will consist of substantive counts alleged in the indictment. However, courts have allowed proof of violations which were not the bases for separate substantive counts. See United States v. Sterling, 742 F.2d 521, 526 (9th Cir. 1984), cert. denied, 471 U.S. 1099 (1985).

The defendant need not act "in concert with five or more other persons" at the same time, nor must the defendant have known all of them. United States v. Jerome, 942 F.2d 1328, 1330 (9th Cir. 1991).

"Organizer, supervisor, or other position of management" and "substantial income" are within the common understanding of jurors and do not require definition. United States v. Apodaca, 843 F.2d 421, 425-26 (9th Cir.), cert. denied, 488 U.S. 932 (1988).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

In the aftermath of Apprendi v. New Jersey, __ U.S. __, 120 S.Ct. 2348 (2000), the Ninth Circuit has held that where the amount of drugs "increases the prescribed statutory maximum penalty to which a criminal defendant is exposed," the amount of drugs must be decided by a jury beyond a reasonable doubt. United States v. Nordby, 225 F.3d. 1053 (9th Cir. 2000) ("[O]ur existing precedent to the contrary is overruled to the extent it is inconsistent with Apprendi.") (citations omitted). See also United States v. Garcia-Guizar, 227 F.3d 1125 (9th Cir. 2000). As a result, if applicable, the court should obtain a jury determination of the amount of drugs involved.

See Comment following Instruction 9.13 (Controlled Substance–Possession with Intent to Distribute).

Rev.10/2000

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The defendant is charged in [Count _______ of] the indictment with distributing [controlled substance] aboard an aircraft in violation of Sections 959(b) and 960(a)(3) of Title 21 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant distributed [controlled substance] to another person while aboard an aircraft;

Second, the defendant knew it was [controlled substance] or some other prohibited drug; and

Third, [the defendant was a United States citizen] [the aircraft was owned by a United States citizen] [the aircraft was registered in the United States].

The statute covers manufacture and possession with intent to distribute as well. 21 USC 959(b)(1) and (2). The instruction should be tailored to fit the crime charged.

FORECITE National™ Materials Related To This Instruction:

88.3.1.1 [Drugs, Controlled Substances: Quantity Enhancement As Element Of Proof For Jury]

The government is not required to prove that the amount or quantity of [controlled substance] was as charged in the indictment. It need only prove beyond reasonable doubt that there was a measurable or detectable amount of [controlled substance].

Previously, the quantity of controlled substance involved in a case was not an element of the offense. See United States v. Butler, 74 F.3d 916, 923 (9th Cir.) ("Quantity is not an element of possession with intent to distribute."), cert. denied, 519 U.S. 967 (1996). See also United States v. Sotelo-Rivera, 931 F.2d 1317 (9th Cir. 1991), cert. denied, 502 U.S. 1100 (1992). "[W]e can find no statutory requirement or policy reason for distinguishing between 'measurable' amount and 'detectable' amount.... The real purpose of either term is to be able to determine that it is a controlled substance that was distributed." United States v. McGeshick, 41 F.3d 419, 421 (9th Cir.1994). However, in a possession case where there was conflicting evidence of the quantity, it was appropriate to submit the issue to the jury. See id.

In the aftermath of Apprendi v. New Jersey, __ U.S.__, 120 S.Ct. 2348 (2000), the Ninth Circuit has held that where the amount of drugs "increases the prescribed statutory maximum penalty to which a criminal defendant is exposed," the amount of drugs must be decided by a jury beyond a reasonable doubt. United States v. Nordby, 225 F.3d. 1053 (9th Cir. 2000) ("[O]ur existing precedent to the contrary is overruled to the extent it is inconsistent with Apprendi.") (citations omitted). See also United States v. Garcia-Guizar, 227 F.3d 1125 (9th Cir. 2000). As a result, if applicable, the court should obtain a jury determination of the amount of drugs involved.

Rev.10/2000